MRS. JUSTICE KING:
- The application before the court is made by the A
local
for a care order under
S.31
of the Children Act 1989 in relation to
S,
who was born on 17th March 2006 and who has just turned three.
- The children'
s
parents are N (the mother) who is twenty-five years of age having been born on 31st January 1984 and F (the father) who is thirty-two years of age having been born on 31st October 1976.
- The proceedings arise out of the death of a
second
child of the
family,
Z. Z was born on 27th July 2007. He collapsed at home on 29th October 2007 when he was thirteen weeks old. He died on 1st November.
- Background
The
family
originate from Pakistan. The father has lived in England
since
1999 and is a British national. He
speaks
fluent conversational English, although he has had the assistance of an interpreter throughout these proceedings.
- The mother
speaks
Puthwari, which is not a written language.
She
also
speaks
and reads Urdu. Her English is extremely limited and
she
has been wholly dependent upon the assistance of an interpreter.
- This has been a case which not only has been lengthy, but during which the Court has heard a considerable amount of medical and technical evidence. I am grateful to the hard work, diligence and dedication of the interpreters.
- The mother and father'
s
marriage was arranged by their respective
families.
It took place in Pakistan in 2003. They are distant cousins. The mother described having known the father'
s
family
since
she
was a
small
child. Following the marriage, the mother and father lived for a period of about
six
months together in Pakistan in a property owned by the father'
s
family.
At that time, the father'
s
mother was also living in the house in Pakistan.
Shortly
after the marriage an application was made for a
visa
for the wife. This application was turned down because the father was, at that
stage,
unemployed. The father thereafter returned to the UK in January 2004, which necessitated leaving the mother in Pakistan. The mother finally came to this country in March 2005 when her entry clearance difficulties had been resolved.
- During the year they were apart, both the mother and father told me that they
spoke
regularly on the telephone. The father had previously bought a property in the UK which he had hoped that he and his wife would make their home. Unfortunately, he was unable to fund the mortgage and, as he put it, "handed back the keys". As a result, when the wife came to live in this country, rather than living in her own home with her husband, they lived together with his parents and two brothers in a two-bedroom property.
- During the time they were living in the home of the father'
s
parents, the father'
s
own father began to
suffer
from memory-loss. This tragically led to a
speedy
and distressing deterioration in his health,
soon
necessitating twenty-four hour care.
- The father has a particularly close relationship with his father and, even after the young couple had a home of their own, the father would return each day to feed and assist in his care.
- When asked how his wife had
settled,
the father emphasised that their culture is for the wife to move into the husband'
s
family
home. He told me
she
spoke
the
same
language as the rest of the
family
and, indeed, they were distant relatives. His father and his wife'
s
father had been good friends and
so,
therefore, the mothers knew each other as well. He described relationships within the
family
as "quite friendly".
- In March 2006,
S
was born. A few months later, in May 2006, the father, mother and
S
moved to live with the father'
s
sister
and four other
family
members. They had moved out, the father told me, as there was not enough
space
and it was difficult with his father being ill. His
sister,
however, had an empty room which they were able to occupy. When asked about his wife'
s
relationships with his
sisters
he described them as being, "Okay, not over-friendly, no tensions".
Significantly,
he
said,
his
sisters
were happy to have
S
in the house.
- In July 2006, the father
started
to work as a bus driver. In October 2006 the parents moved to their own one bedroom flat, a privately rented property.
- After they moved, the father told me that his father remained his responsibility and he went over daily (depending on which
shift
he was working) in order to feed and care for him. His wife went with him a number of times a week. At one
stage,
the father had to reduce his working pattern to four days each week in order to be more available to assist with his father. He explained in evidence that he
still
worked his full hours, but over less days. One can only admire the devotion to his father. The father described how it could take as much as half an hour to feed him one
spoonful
of food. In addition to that, he was responsible for changing his father'
s
nappy and bathing him because his father was more comfortable with him than anyone else. One cannot ignore the pressure this must have put not only on the father, but also on the mother
setting
up home in a foreign country with one tiny child and pregnant with her
second
baby.
- Z was born by normal delivery in July 2007. No concerns were raised about the parents or either child by the health
services,
and the
family
were not known to
Social
Services.
Upon the mother'
s
return home the mother, father and two children lived in the one-bedroom flat at M Road. The father
slept
with
S
in a double bed and the mother with baby Z in a
single
bed.
S
was
sixteen
months old when Z was born.
- The father worked
shifts
and assisted in the care of his father. The mother
stayed
at home looking after the babies.
- The father'
s
devotion to the mother cannot be questioned. He described in evidence how they were not just husband and wife, but also good friends and he hopes to keep it that way. He fought back the tears when he
spoke
of his love for her, and how
she
told him everything and confided in him if
she
felt
sad,
anxious or unhappy.
- No matter how attentive the father may have been, and wished to have been, this young mother was on any
view
isolated.
She
spoke,
and
speaks,
virtually
no English even to the extent that
she
felt unable to call the emergency
services
for help when Z was in extremis. The father
said
that he encouraged her to be independent and, as he described it, "to fit into this environment". He
said
he gave her money, but they
shopped
together. The problem was the language barrier. His
sisters
visited
the mother when
she
was alone, but not much as they were busy with their own children. The mother had relatives in the UK, but
she
tended to
speak
to them on the telephone. The only example he could think of when
she
left the house alone was if he was on a break and
she
occasionally came to meet him in the town centre. On occasion
she
after Z was born
she
would also go to his mother'
s
house.
- In addition to the isolation, both physical and occasioned by her inability to
speak
English, the mother and father both had the anxiety and responsibility of the father having to go daily to his parents' home to help care for his father. This inevitably meant that the mother would
spend
long periods of time alone in their
small
flat with two babies.
29th October 2007
- On the morning of 29th October 2007, the father left home for work at approximately 7.10am. On arriving at work, he was told that he was not required until later that day and returned home at about 8.50am.
- The father told me he
spent
the remainder of the morning at home. Between getting home at about half past eleven he played with the children, he then went to bed and
slept
between 11.30 and 1.30pm - together with Z. He returned to work at about 2.15pm; his account is that Z was awake at that
stage,
although the mother
said
that he was asleep. The father came home at about 7.15pm for his break, had
some
supper
and returned to work at 7.45. Z was asleep.
- The father'
s
evidence, which I accept, was that during the course of that day Z was in good health. There has been
some
suggestion
that a day or two prior to 29th October, Z may have had a
snuffle
or a
slight
temperature. Neither parent has, however, referred to that in evidence. It is clear that both regarded him as a well baby on 29th October.
- Both babies, the father
said,
were normal. He described Z looking at him with a
smile
and following him with his eyes in a way that he described as "extra than normal". It is common ground that this was the first occasion that the father had worked this late
shift
since
Z'
s
birth.
- According to the mobile telephone records, at 8.43pm the mother
spoke
to the father whilst he was at work driving his bus. As a result of that telephone call, a minute later at 8.44pm, the father rang his brother B. As a result of that telephone call, B in turn dialled 999 at 8.45. He told the ambulance control centre that his nephew was having difficulty breathing. He was conscious and breathing, but was breathing heavily and that an ambulance was required.
- Meanwhile, at 8.45, the mother herself called F'
s
parents home where
she
spoke
initially to her mother-in-law and then her
sister-in-law,
R.
Shortly
after that phone call one of the father'
s
other brothers, I, having been told that Z was unwell by his
sister,
immediately drove round to M Road. I arrived
virtually
simultaneously
with the first ambulance crew, who it is reported arrived at 8.52pm. Meanwhile, B also headed for the house where he arrived to find I, the ambulance having just left. In a
short
time the father arrived and was told that he needed to go immediately to the hospital.
- On the evening of 29th October, a paramedic called Mr B was on duty. He was in the role of what is called "Fast Response". As a result, Mr B was first on the
scene.
He was met by the mother crying hysterically with
S
next to her, also crying hysterically.
- Upon examining Z, Mr. B could not feel any pulse, there was no
sign
of breathing and Z had pink frothy
sputum
running out of both nostrils and at the back of his throat. Mr. B
started
CPR at the house. He
said
in oral evidence that he was getting a chest rise which was a good indicator that air was getting in. He used
suction
to remove the pink froth once he had Z in the ambulance. He
said
there was no difficulty in clearing the froth
so
there were no obstructions to the airway that he could
see
either then, or when he was using the bag and mask. His feeling was that the
suction
had
successfully
cleared the
sputum.
He described the pink froth in the throat as being minimal and that it did not look like milk.
- The ambulance arrived at the Accident & Emergency Department at 9.10pm, where CPR was continued. Eventually, at 9.16pm, a heartbeat and pulse were obtained. At approximately 3am that night (30th October 2007) Z was transferred to Addenbrooke'
s
Hospital, Cambridge. At approximately 10pm that evening Z had another cardiac arrest (although, on this occasion, he was
swiftly
resuscitated). Z'
s
condition continued to deteriorate and he died at 5.20pm on 1st November 2007.
The Law
- I have to determine the facts of the case against the backdrop of the current law. The
Local
Authority
brings the case and the burden of proving the facts rests upon them. The
standard
of proof is the balance of probabilities. I have in mind when considering these
serious
allegations, the judgments handed down by the House of Lords as recently as 11th June 2008 in Re B [2008] (Children) UKHL 35. At para.70, Baroness Hale put it this way:
"I would go further and announce loud and clear that the
standard
of proof in finding the facts necessary to establish the threshold under
section
31(2) or the welfare considerations in
section
1 of the 1989 Act is the
simple
balance of probabilities, neither more nor less. Neither the
seriousness
of the allegation nor the
seriousness
of the consequences
should
make any difference to the
standard
of proof to be applied in determining the facts. The inherent probabilities are
simply
something
to be taken into account, where relevant, in deciding where the truth lies."
This is a case where the allegation is that Z died as a result of a
shake
or a
shaking/impact
injury. The classic features of
such
a non-accidental injury, it is
said
were present, namely encephalopathy,
subdural
haemorrhage and retinal haemorrhage. This combination of injuries is known as "the triad".
- I adopt, with respect, the descriptions given by the Court of Appeal, Criminal Division, in its judgment on 21st July 2005 in R
v.
Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980 paras.63-65:
"As already
stated
when the three elements of the triad coincide for
some
years conventional medical opinion has been that this is diagnostic of NAHI. Typically the brain is found to be encephalopathic; bleeding is found in the
subdural
space
between the dura and the arachnoid
subdural
haemorrhages; and there are retinal haemorrhages. There may also be other pathological
signs
such
as
subarachnoid
bleeding and injuries at the cranio-cervical junction. Further, there may be injuries to nerve tissue (axonal injuries) and external
signs
of broken bones, bruising and other obvious injuries
such
as extradural oedema (bruising). Determining these findings requires medical experts from a number of different disciplines interpreting often
very
small
signs
within the complex
structures
of an infant'
s
brain and
surrounding
tissue.
The mechanism for these injuries is
said
to be the
shaking
of the infant, with or without impact on a
solid
surface,
which moves the brain within the
skull
damaging the brain and
shearing
the bridging
veins
between the dura and the arachnoid. The
shaking
may also cause retinal haemorrhages. In the
sense
that the explanation for the triad is
said
to be caused by
shaking
and/or impact it also is a unified hypothesis, albeit that each element is
said
to be caused individually by trauma.
The triad of injuries becomes central to a diagnosis of NAHI when there are no other
signs
or
symptoms
of trauma
such
as bruises or fractures."
- The Court of Appeal, Criminal Division, then went on to consider the
so-called
unified hypothesis which arose out of a paper written by Dr. Geddes, known as "Geddes III". At paras.66-69, the Court of Appeal
said:
"Dr. Geddes and her colleagues, following research into almost fifty paediatric cases without head injury, proposed that the
same
triad of injuries could be caused by
severe
hypoxia (lack of oxygen in the tissues) which in turn led to brain
swelling.
The hypothesis was that brain
swelling
combined with raised intracranial pressure (ICP) could cause both
subdural
haemorrhages and retinal haemorrhages. Thus, it was argued that any incidents of apnoea (cessation of breathing) could
set
in motion a cascade of events which could cause the
same
injuries as
seen
in the triad. It will be appreciated that there are many events which could accidentally cause an episode of apnoea.
- In Geddes III the unified hypothesis was
summarised
as follows:
'Our observations in the present
series
indicate that, in the immature brain, hypoxia both alone and in combination with infection is
sufficient
to activate the pathophysiological cascade which culminates in altered
vascular
permeability and extravasation of blood within and under the dura. In the presence of brain
swelling
and raised intracranial pressure,
vascular
fragility and bleeding would be exacerbated by additional haemodynamic forces
such
as
venous
hypertension, and the effects of both
sustained
systemic
arterial hypertension and episodic
surges
in blood pressure.' Thus, it was
suggested
that all the injuries constituting the triad could be attributed to a cause other than NAHI. We understand that this paper has been much cited in both criminal and civil trials
since
its publication. The criticism of Geddes III is that it is not hypoxia and/or brain
swelling
which causes
subdural
haemorrhages and retinal haemorrhages, but trauma. As an example of why the hypothesis is not correct Dr. Jaspan, giving evidence in the appeal of Rock, demonstrated that CT
scans
taken of Heidi'
s
brain
showed
that there was little or no brain
swelling
at a time when
subdural
haemorrhages and retinal haemorrhages were
shown
to be present. As a result of critical papers published in the medical journals, as we have already
stated,
Dr. Geddes when cross-examined frankly admitted that the unified hypothesis could no longer credibly be put forward. In cross-examination
she
accepted that
she
could no longer
support
the hypothesis that brain
swelling
was the cause of
subdural
haemorrhages and retinal haemorrhages.
She
did, however,
state
that
she
believed that raised intracranial pressure (ICP) might prove to be an independent cause of both lesions. When asked by Mr. Horwell if
she
had published a paper on this hypothesis
she
said
that
she
had not and that her research was
still
incomplete. It was clear from
subsequent
questions in cross-examination that this work was
still
in its early
stages
and that many questions remain, as yet, unresolved. In my judgment, it follows that the unified hypothesis can no longer be regarded as a credible or alternative cause of the triad of injuries. This conclusion, however, is not determinative of the four appeals before us. There are many other medical issues involved in cases of alleged NAHI. Further, there remains a body of medical opinion which does not accept that the triad is an infallible tool for diagnosis. This body of opinion, whilst recognising that the triad is consistent with NAHI, cautions against its use as a certain diagnosis in the absence of other evidence. These four appeals raise different medical issues and do not necessarily fail because the unified hypothesis has not been
validated.
But it does mean that the triad, itself a hypothesis, has not been undermined in the way envisaged by the
authors
of Geddes III"
- In this present case not only are there a considerable number of experts, but I am asked
specifically
to make
serious
adverse findings in relation to two of those experts, Dr. Cohen and Dr.
Squier.
In Re LU &. LB [2004] 2 FLR 263, the Court of Appeal provided guidelines following the earlier case of R
v.
Cannings. At para.23, Butler-
Sloss
P. gave the following guidelines:
i) The cause of an injury or an episode that cannot be explained
scientifically
remains equivocal.
ii) Recurrence is not in itself probative.
iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at
stake,
or the expert who has developed a
scientific
prejudice.
v)
The judge in care proceedings must never forget that today'
s
medical certainty may be discarded by the next generation of experts or that
scientific
research will throw light into corners that are at present dark.
- The approach of the court to expert opinion must, it is
submitted
by Miss Cover on behalf of the children'
s
guardian, include the need to evaluate the witnesses and the
soundness
of each of their opinions. The mere expression,
she
submits,
of a belief by a witness, however eminent, does not
suffice.
The court'
s
evaluation of the witnesses, Miss Cover
submitted
as Ryder J.
said
in A County Council
v.
XY& Z [2005] 2 FLR 129:
"...involves an examination of the reasons given for his opinions and... the extent to which they are
supported
by the evidence."
- The judge must also examine:
"...the internal consistency and logic of his evidence; his precision and accuracy of thought... the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence... whether or not a witness is biased or lacks independence."
- In relation to the task facing the court, I have been reminded of the observations made in a number of cases where there is disputed medical evidence. It is not necessary to rehearse all the learning in relation to expert evidence for the purposes of this judgment,
save
perhaps to refer to two judgments. When considering the case of W
v.
Oldham MBC [2006] 1 FLR 543 in his judgment in Webster
v.
Norfolk County Council [
2009]
EWCA Civ 59;
2009]
1 FLR 1378 , Lord Justice Wall
stated
that:
"In a child case involving complex and
serious
injuries, the expert evidence has to be carefully analysed, fitted into the factual matrix and measured against assessments of witness credibility. To achieve justice for parents and for children, medical evidence given in court is tested fully by the advocates and
family
judges
subject
to rigorous analysis."
- Ward L. J. considered the balance as between the Judge and experts in Re B (Care: Expert Witnesses) [1996] 1 FLR 670 (c)-(e):
"The court invariably needs and invariably depends upon the help it receives from experts in this field. The expert advises, but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances
shown
to the court which throw doubt on the expert evidence, then if that is all with which the court is left, the court must accept it."
- Ms. Delahunty QC, on behalf of the mother, draws the attention of the court to a recent observation of Wilson L.J. in Re W (Children) [
2009]
EWCA Civ 59 where he
said:
"The moral which I draw from this case and will never forget is that a hypothesis in relation to the causation of a child'
s
injuries must not be dismissed only because
such
causation would be highly unusual and that, where his history contains a demonstrably rare feature, the possible nexus between that feature and his injuries must be the
subject
of
specialist
appraisal at an early
stage."
The Key Issue
- At about 8.30pm on 29th October 2007, Z
suffered
a
sudden
collapse which proved to be fatal. The central factual issue in the case is the question of what it was that led to that collapse. This has been referred to during the course of the hearing as the "primary event".
- The
Local
Authority's
case is that there was a
single
primary event which provides a full explanation for every relevant observation. It all they
submit,
fits with a traumatic infliction of a
shake
or a
shaking/impact
event which led to Z exhibiting the classic triad of injuries. These injuries were, the
Local
Authority
say,
inflicted by the mother when
she
was alone in the flat.
- The
Local
Authority
seeks
no findings against the father. They do not
suggest
either that he was present or that he was responsible for those injuries either directly or indirectly by having failed to protect Z from his mother.
- The mother'
s
case is that
she
did not
shake
Z. A number of possible alternatives are advanced by the experts on her behalf, namely that there was a primary event occasioned by heart arrhythmia, a choking event or, hypothetically,
some
sort
of
SIDS
event (
Sudden
Infant Death
Syndrome).
Those representing the mother do not
submit
that hypoxia is itself a trigger event, but it is
suggested
that the existence of what is agreed to have been an old
subdural
haemorrhage in Z'
s
brain created a
vulnerable
and ready area for a re-bleed which was triggered by a non-traumatic trigger with a cascade of consequences, including hypoxia, which exacerbated Z'
s
decline and clouded the pathology findings.
- The
suggested
non-traumatic triggers were a choke, transient heart arrhythmia or failed auto-resuscitation. The cascade of consequences being:
i) Oxygen deprivation for excess of twenty minutes;
ii) CPR for 24 minutes;
iii) Hypoxia;
iv) Coagulation impairment;
v)
Reperfusion;
vi)
Re-bleed;
vii)
Ischemia;
viii)
The heart collapsing first as opposed to the liver and kidneys;
ix) The
second
cardiac arrest with additional CPR;
x) Death;
xi) Ischemic changes following death.
- All of the experts accept that a non-accidental head injury is one of the possible causes of Z'
s
death and must be considered.
- The court has heard extensive evidence in relation to the contentious issue of Non-Accidental Head Injuries (NAHI). Oral evidence has been heard from a number of experts in a range of
specialities.
- At all times during the course of the trial I have borne in mind that the parents do not have to prove anything. It is for the
Local
Authority
to prove on the balance of possibilities that Z died of a non-accidental head injury and not for the parents to prove
some
other accidental mechanism leading to his death.
The Experts
Cardiologist
- Dr. Janice Till was asked to assist the police in their investigations. Dr. Till is based at the Royal Brompton Hospital.
She
is a consultant there and runs a centre for the
study
of rhythm disturbances in children. Her particular interest is in
sudden
cardiac death in children.
She
sees
between eighty and ninety children each year each of whom is at risk of, or
suffers
from, cardiac rhythm disturbances of one
sort
or another.
Pathologists:
- Dr. Nathaniel Cary is a Home Office pathologist. He initially
specialised
as a forensic pathologist at Papworth Hospital in Cambridge and is now a full-time consultant forensic pathologist. He carried out the forensic post-mortem examination on Z on behalf of the coroner.
- Dr. Al-
Sarraj
is consultant neuropathologist at Kings Hospital in London. He was invited to examine the brain of Z following the post-mortem examination carried out by Dr. Cary.
- Dr. Marta Cohen is a consultant paediatric histopathologist at
Sheffield
Children'
s
Hospital. Dr. Cohen has an interest in forensic pathology, but it is not her
speciality.
She
frequently participates in post-mortem examinations acting as a paediatric pathologist together with a forensic pathologist.
She
hopes ultimately to practice as a forensic pathologist in her own right. Dr. Cohen has dealt with peri-natal work
since
2003 when
she
came to work in the UK.
She
has done 100-105 peri-natal post-mortems of which 10-15% were
suspicious.
Her experience is, therefore,
significantly
less than that of the other experts. Dr. Cohen describes herself as an expert on
Sudden
Infant Death
Syndrome
(
SIDS).
- Dr. Waney
Squier
is a consultant neuropathologist at the Oxford Radcliffe Hospital, and an honorary clinical lecturer in the University of Oxford. Dr.
Squier
has written extensively on the triad.
Ophthalmologists:
- Dr. Richard Bonshek is the consultant ophthalmic pathologist at the Manchester Children'
s
University Hospital Trust and a member of the NHS National
Specialist
Ophthalmic Pathologist
Services.
Dr. Bonshek is a member of the Ophthalmology Child Abuse Working Party at the Royal College of Ophthalmologists which published its findings in the Journal Eye in 1999 and again in 2004. Dr. Bonshek'
s
involvement in the case arose initially when he was requested to examine Z'
s
eyes following Dr. Cary'
s
post-mortem.
- Professor Phillip Luthert is the Professor of Pathology at the UCL Institute of Ophthalmology. He was formerly a neuropathologist at the Institute of Psychiatry. Professor Luthert'
s
area of particular interest is
specifically
om relation to the retina. He has published over a hundred peer reviewed papers and he was a member of the 2004 Working Party. Professor Luthert was instructed on behalf of the parents. Professor Luthert looked at the photographs of the eyes taken under Dr. Bonshek'
s
direction, and at the
slides
and
sections
Dr. Bonshek had prepared.
- Mr. Ian Chris Lloyd (known as Chris Lloyd) is the consultant ophthalmic
surgeon
and paediatric ophthalmologist at the Manchester Royal Eye Hospital. Mr. Lloyd'
s
area of
special
area of interest is the eye in
suspected
non-accidental injury. He was also a member of the Working Party in both 1999 and 2004. He has examined over a hundred infants
suspected
of
suffering
non-accidental injuries. Mr. Lloyd was instructed by the children'
s
guardian. Mr. Lloyd also looked at the photographs of the eyes taken under Dr. Bonshek'
s
direction and at the
slides
and
sections
he had prepared.
Paediatrician:
- Dr. Mark Peters is a consultant in paediatric intensive care at the Great Ormond
Street
Hospital for Children in London. Dr. Peters is the research lead for the critical care group within the department of Anaesthesia Intensive Care and Respiratory Medicine in the Institute of Child Health. Dr. Peters' clinical workload consists entirely of the care of critically ill children within Great Ormond
Street
and across the North Thames region. Dr. Peters is involved in the care and treatment of more than 2,000 episodes of critical illness in children each year.
Paediatric Neurosurgeon
- Mr. Peter Richards is a consultant paediatric neurosurgeon based at the Oxford Radcliffe Hospital NHS Trust. Mr. Richards practices predominantly in paediatric neurosurgery and he regularly assists the courts in cases
such
as Z'
s.
Mr. Richards was originally instructed to provide a report on the events
surrounding
the death of Z from a paediatric neurosurgical perspective for the police.
- Drs. Cary, Al-
Sarraj,
Bonshek, Peters, Richards, Professor Luthert and Mr. Lloyd all regard non-accidental head injury as the most likely cause of all Z'
s
injuries and consider it improbable, or highly improbable, that the other
suggested
causes could have caused the triad and Z'
s
death.
- Dr.
Squier
and Dr. Cohen regard non-accidental head injury as possible, but unlikely, in the absence of any other bony or
soft-tissue
injury, or other
specific
post-mortem evidence of trauma. Dr.
Squier
agreed that the triad
seen
in Z was also
seen
in cases of frank, inflicted trauma and in accidental trauma. Dr.
Squier
and Dr. Cohen consider the most likely cause of the primary event to be either a choking incident or a heart arrhythmia combined with the effects of prolonged CPR followed by resuscitation.
- It is not
suggested
that Z
sustained
any accidental trauma has been described and no other cause of death has been
suggested,
save
to the extent that Dr.
Squier
and Dr. Cohen advance the hypothesis of
SIDS.
- Drs. Cary, Al-
Sarraj,
Bonshek, Peters, Richards, Professor Luthert and Mr. Lloyd each hold what might be called the mainstream
view
of non-accidental head injuries as encapsulated in the judgments of the Court of Appeal in R
v.
Harris. None accept that hypoxia in the absence of trauma is a cause of
subdural
haemorrhages and retinal haemorrhages of the type
seen
in Z. Dr. Al-
Sarraj
summed
up the approach which I find each of this group of experts regard as the proper approach in considering a case where the triad is present:- Dr. Al-
Sarraj
told the court that:
"
Such
a diagnosis is a correlation of different features and though it is tempting to take each part
separately,
you have to take them collectively for a proper diagnosis/conclusion."
- It was by the application of this correlation that Dr. Al-
Sarraj
concluded that the
subdural
haemorrhage found in Z'
s
brain at post-mortem was there as a consequence of an episode of trauma
shortly
before death. For example, he
said
that:
"Although you cannot
see
the difference between a re-bleed and trauma, we are looking the
subdural
haemorrhage down the microscope. If you take everything together, particularly the eyes and the history, you can conclude that, even if the
subdural
haemorrhage was a re-bleed, then it related to trauma/movement of the brain within the
skull."
And
"This diagnosis is affected by other findings, for example retinal haemorrhages in this case not only exist, but are of a distribution more likely to have been caused by trauma. Then, put all those matters together and the findings take a different interpretation, one that is more likely to be of trauma."
And
"It is
very
important to remember that this is not a one-discipline diagnosis. You cannot rely on just what you
see
in the brain. It is
suggestive
and, with the other findings, it becomes a probability."
- Each of the doctors I have enumerated are of the
view
that other injuries,
such
as grip marks, bruises or fractures, either
seen
externally or at post-mortem, (called during the course of the case as "external injuries"), are neither inevitable nor necessary in order to conclude that trauma is the cause of the triad in a child. Having
said
that, the presence or absence of
such
external injuries is evidence to be taken into account. Dr. Cary
spoke
of it as looking at each element and working them each individually before putting them all together. A number of the witnesses referred to the process as part of a jigsaw.
- Dr.
Squier
and Dr. Cohen have a
very
different approach in two important areas:
i)
a) Dr. Cohen does not regard trauma as a proper diagnosis where the triad is present, but there are no external injuries
such
as bruises or fractures and /or a witness to the alleged
shaking
event.
b) Dr.
Squier
regards trauma as
very
important.
She
is of the opinion that the triad, in the absence of evidence of trauma, is
simply
"no evidence of
shaken
baby
syndrome".
The triad of injuries may be due to many other factors that are not trauma.
She
does not accept that the triad is necessarily a
strong
indicator of
shaken
baby
syndrome.
In the opinion of Dr.
Squirer,
shaking
alone may cause the triad, but the level of
violence
required is
such
that many people would be incapable of it and it would break the child'
s
neck.
She
said,
in terms, that
she
would never advise the court that trauma was the probable cause absent external injury, either
seen
physically with the naked eye or found at post-mortem.
ii) Both Dr. Cohen and Dr.
Squier
subscribe
to the Geddes III hypothesis in one form or another. Put at its
simplest,
each are of the
view
that hypoxia in children can lead to
subdural
haemorrhages and retinal haemorrhages in the absence of trauma.
Z'
s
presentation prior to death and the post-mortem findings
- Upon his admission to the Luton & Dunstable Hospital, Z was cared for by Dr. Houston the paediatrician on call that night. During examination Z continued to make intermittent
sustained
gasping responses. Z was
subsequently
transferred to Addenbrookes in the early hours of 30th October where he was cared for by Dr. Ross-Russell a Paediatric Intensive Care Unit Consultant. Dr. Ross-Russell that night, and at all times prior to Z'
s
death, thought that Z was
suffering
from a primary cardiac event - that is to
say
some
form of heart disease. Dr. Ross-Russell, at the request of those representing the parents, had been given no updating material before giving his evidence. His oral evidence was confined to his observations and analysis in his role as the treating paediatrician at Addenbrookes.
- Dr. Ross-Russell gave evidence that
severe
heart dysfunction will lead to rapid pulmonary oedema. Fluid accumulates in the lungs and the child becomes
short
of breath and begins to gasp. Dr. Ross-Russell was careful to emphasise that pulmonary oedema, of itself, is neutral as to providing assistance into the primary cause of collapse. The history given to him was that of choking,
vomiting
noises followed by apnoea and cardiac arrest. Z'
s
clotting abnormalities were he
said
mild - they were not abnormal in the context of the intensive care unit and of prolonged arrest - although they were
slightly
abnormal for a well child. The bedside ultrasound
showed
a poorly functioning heart. Dr. Ross-Russell was reinforced in his
view
that this was a primary cardiac disorder as the heart was more
severely
affected than the other organs, for example the kidney or liver. Advice on the ECGs of Z'
s
heart function was
sought
from Great Ormond
Street.
- At the time that Dr. Ross-Russell was treating Z, there was no apparent
sign
of brain injury or
swelling,
the anterior fontanelle was
soft.
These features, he
said,
though not definitive, make it
very
unlikely that Z was
suffering
from
severe
intracranial pressure. One of the key elements of Dr. Ross-Russell'
s
differential diagnosis was the comparative
sparing
of the liver, kidney and bone marrow. The amount of myocardial injury was he
said
very
unusual. His working diagnosis therefore was that either myocarditis, a
virus
or a rhythm disturbance was the cause of Z'
s
illness. Non-accidental head injury was considered, particularly after Ms. Allen, the consultant paediatric ophthalmologist, reported widespread bilateral retinal haemorrhages.
- Dr. Ross-Russell was unaware of the presence of
subdural
haemorrhages until he was in the witness box giving evidence. He told the court that had he known of them it would have impacted upon his differential diagnosis. Dr. Russell
said:
"In the presence of
subdural
haemorrhages, if it was going to be
said
the primary event was a cardiac event there would have to be an explanation for the
subdural
haemorrhages."
- He
said
that he would
still
feel the
systemic
features were
very
unusual. His primary impression had been of the cardiac problem, but he could not think of any cardiac problem which led to
subdural
haemorrhages. Dr. Ross-Russell concluded by
saying
that:
"
Subdural
haemorrhages were associated with non-accidental head injuries and
seen
in any child of this age would make you concerned as to the possibility of a non-accidental head injury."
- He felt, therefore, that one was looking at the possibility of a
shaking
impact injury which had led to a cardiac arrest. That being
so,
the features that he was
seeing
were
still
unusual because of the predominance of cardiac
symptoms
over renal and liver changes.
- I bear in mind the importance of that,
somewhat
unusual, presentation as described by Dr. Ross-Russell.
- Z'
s
eyes were examined twice while he was
still
alive. Initially, they were looked at by Dr. Brian Houston, the consultant caring for Z at the Luton & Dunstable Hospital. Dr. Houston examined Z at approximately 22.45 on the evening of his admission, 29th October 2008. He examined the eyes with a direct ophthalmoscope without the pupils having been dilated. His note
says:
"Limited
view,
but there appears to be two haemorrhages in the left fundus close to the disc (pupils only about 3mm dilated)."
- In oral evidence he confirmed that he only had a limited
view
and that he could not
see
the whole of the retinal background.
- Dr. Louise Allen, the Consultant Paediatric Ophthalmologist at Addenbrookes Hospital in Cambridge, was asked to examine Z
some
time before at 3.30 on 31st October 2008.
She
said
that
she
would, as a matter of routine, be called to
see
any infant who had been admitted with any type of apnoea. Z was heavily
sedated
at the time of her examination. His pupils were dilated by drops to allow a clear
view
and the examination was carried out by using an indirect ophthalmoscope (a more
sophisticated
ophthalmoscope than that used by Dr. Houston- it is worn on the head, has light magnification and a 3D
view).
Dr. Allen, unlike Dr. Houston, therefore had a good
view
of the whole of the retina.
- Dr. Allen recorded her observations in a contemporaneous note, and expanded and refined it in oral evidence. That note reads:
"He has extensive bilateral multi-layer haemorrhages. These are most numerous in the posterior pole of each retina.
In excess of 10 deep retinal haemorrhages.
In excess of 50
superficial
haemorrhages.
In excess of 5
subhyaloid
haemorrhages - each eye pre-retina between the
vitreous
and the retina.
In the absence of metabolic or clotting, these findings are consistent with raised
venous
pressure caused by CPR or with
shaking
injury."
- In evidence, Dr. Allen explained that
she
said
"caused by" CPR as at that time there was no clinical reason to
suspect
shaken
baby
syndrome.
There were no CT
scans
and no external injuries.
- When asked about Dr. Houston'
s
examination in A&E,
she
said
that not much weight could be put on that examination, as to carry out
such
an examination in circumstances of resuscitation was difficult.
She
added that Dr. Houston was not an ophthalmologist and as the pupils were only 3mm dilated, he would have had a
very
limited
view.
She
concluded by
saying
that Dr. Houston did
very
well to
see
the haemorrhages at all.
Suggestions
by the parents that Dr. Houston
saw
the whole picture of what were only
very
limited retinal haemorrhages and, that Dr. Allen'
s
examination revealed
subsequent
evolution of that haemorrhaging must be considered in the light of the contemporaneous note of Dr. Houston that he had a limited
view,
and the observations of Dr. Allen that I have just reported of Dr. Allen.
- Dr. Allen
said
that once
she
became aware of the presence of
subdural
haemorrhages (after having written her note),
she
went back to the literature on CPR. Her reading of that literature is that
subdural
haemorrhages can be found following CPR, but that it is
very
rare especially in hospital
settings
and if found they are usually at the posterior pole. There is no evidence,
she
said,
of anterior haemorrhages following CPR. Dr. Allen explained that where there has been trauma there is additional traction on the jelly in the eye, which is at the anterior of the eye and that traction
seems
to cause anterior haemorrhages.
She
described it as "
shaking
jelly tugging on the retina".
She
took the
view
that there was a remote possibility that the haemorrhages
she
observed had been caused by CPR.
- Dr. Allen regarded the possibility of retinal haemorrhages having been caused by hypoxia as "extremely unlikely". Unlike the pathologists, Dr. Allen
sees
live babies with
severe
hypoxia.
She
said
that, although a few may have mild retinal haemorrhages where they have birth haemorrhages, it is no more than that, even where there has been
severe
hypoxia.
- Dr. Allen'
s
opinion is that the likely cause of the retinal haemorrhages
she
saw
in Z'
s
eyes was a non-accidental injury
such
as a
shaking
injury. Hypoxia,
she
said,
as a cause was extremely unlikely and CPR a remote possibility.
- On 6th November 2008 Dr. Flora Jessop, consultant paediatric pathologist at Addenbrookes Hospital, commenced a post-mortem on Z. During the course of that post-mortem
she
observed the presence of a
subdural
haemorrhage. The presence of that haemorrhage meant that
she
was no longer able to rule out non-accidental injury.
She
therefore followed a well established protocol. Dr. Jessop
stopped
the post-mortem and Dr. Nathaniel Cary, forensic Home Office pathologist, resumed the post-mortem on 8th November 2008.
- Dr. Cary found that Z had been a normal, healthy child and, in particular, there were no abnormalities of the heart. On examination of the brain, he
saw
blotchy
subdural
haemorrhages
superiorly
in relation to both cerebral hemispheres. There was also an area of haemorrhage in relation to the cerebellum, which may have been either
subdural
or possibly
sub-arachnoid.
- Dr. Cary
sought
the
specialised
opinion of Dr. Al-
Sarraj
as to the neuropathology arising out of the post-mortem examination and of Dr. Richard Bonshek in relation to the ophthalmic pathology.
- Dr. Al-
Sarraj
examined a number of
sections
of the dura and also
some
free haematoma which he had found outside the dura. His examination of the dura
showed
evidence of a
subdural
haemorrhage
several
weeks old and more recent bleeding within the old haematoma in the
sections
of the dura from the midline, dorso-lateral
side
of the dura on the left
side
and lateral
side
of the dura as a large
subdural
bleed. This raised the possibility that the more recent
subdural
haemorrhage he observed could be from re-bleeding from an pre-existing
subdural
haemorrhage.
- Dr. Al-
Sarraj
also examined the
spinal
cord. The axon is a nerve fibre which connects other nerve cells. They are generally in bundles. Protein comes down the fibres. One of the proteins is ßAPP i.e. Beta-Amyloid Precursor Protein. If the axon is damaged for any reason, normal transmission will be interrupted and beads or
swelling
may be found along it.
Such
observations can be used as an indicator of damage, if deposition is
seen
in the
spinal
nerve roots it raises the possibility of traumatic root damage.
- The identification of
such
damage does not in itself tell a neuropathologist whether the cause of the damage is due to ischemia or trauma. Multiple deposits were
seen
in the anterior horn cells (this is grey matter with nerve cells within the
spinal
cord itself) that is complimentary to a finding of ischemia. To Dr. Al-
Sarraj
of particular
significance,
however, is the ßAPP
stain
deposition
seen
in the
spinal
nerve roots which are found outside the actual
spinal
column.
- At the top of the
spinal
cord, at the cervical
segment,
Dr. Al-
Sarraj
found a heavy deposition. At the thoracic
segment
there was a focal deposit in a few
posterior
spinal
root nerves and in the lumbar region
very
occasional
small
deposits in one or two posterior
spinal
roots.
- Due to the fact that these depositions in the
spinal
nerve roots are mainly in the posterior aspect and focal, rather than throughout the
spinal
cord, this raised the possibility to Dr. Al-
Sarraj
of the possibility of traumatic axonal damage. Although ischemia (which was
seen
throughout the
spinal
cord), could not be completely excluded as the cause of an axonal injury, it was, he
said,
also possible that it was the consequence of the movement of the
spinal
cord and
stretching
of the nerve roots in
shaking.
In other words, a hyper-flexion, hyper-extension injury.
- ßAPP examination in the cranial nerve roots of the brain was carried out. This is done routinely. Although there is no peer reviewed literature as yet published, this is an area of research in which Dr. Al-
Sarraj's
department is engaged. Damage in that location would tend to favour ischemia and in Z'
s
case there was no evidence of axonal damage in the cranial nerve roots. When the cranial nerves are not involved and only
local
and posterior
spinal
nerves, whilst you cannot totally exclude ischemia as the cause, it is more likely, Dr. Al-
Sarraj
said,
to be due to trauma.
- Dr. Al-
Sarraj
concluded his report of 8th February 2008 by
saying
that the
pathological findings of the brain are "complex, and may well be difficult to interpret". He
sets
out the arguments for and against
shaking
as a causation. He
said
that the findings have to be carefully considered with the other autopsy findings, the eye examination, clinical presentation and radiological features before any final conclusion is reached.
- Dr. Al-
Sarraj
was of the opinion that
shaking
as the cause of Z'
s
injuries had been initially
supported
by the findings of
SDH
and the damage to the
spinal
nerve roots particularly the damage to the posterior nerve roots in the cervical
snfd
thorasic
segments.
Shaking
as
sthe
cause of the primary event was now
strengthened
when put together with the evidence of Dr. Bonshek of
virtual
haemorrhages which had been observed early in the admission of the child which meant that they were not
secondary
to other causes.
- When cross-examined, Dr. Al-
Sarraj
accepted that one relevant factor was the extent of the ischemia. He
said,
"I am always
very
careful and it is absolutely wrong to come a conclusion too
soon".
He
said
that when he had done his first report:
"I had a brain in front of me with a
small
story.
It would have been irresponsible not to allow for other possibilities. I did not have the eye pathology, only the clinical. If you want to judge my opinion, judge my final report".
- Dr. Al-
Sorraj
emphasised that his final diagnosis was affected by other findings, for example the retinal haemorrhages. He
said,
"It was of a distribution more likely to have been caused by a trauma". Therefore, his findings take on a different interpretation, namely trauma.
- Dr. Bonshek
set
out in his report his
specific
pathological findings:
"The eyes
showed
widespread bleeding in, and associated with, the retina and the optic nerve
sheath.
In particular there were widespread retinal haemorrhages in the eyes, more
so
in the left than the right. The haemorrhages involved, primarily, nerve fibre layer, ganglion cell layer haemorrhage, especially posteriorly. There were a number of microscopic foci and intra-retinal haemorrhages involving the layers extending up to the periphery of the retinas in both eyes. Posteriorly there were
so-called
pre-retinal haemorrhage, especially in the left eye and there was
vitreous
detachment with
sub-hyaloid
haemorrhage present. In the left eye a
small
amount of blood was present in the anterior chamber. The haemorrhage was most extensive in the
subdural
location, although there was bleeding in the
sheath
and bleeding in the orbital tissues adjacent to the optic nerve. The retinal tissues and the tissue of the optic nerve heads
showed
secondary
oedema."
- Dr. Bonshek in his report indicated that the bleeding associated with the retina and the optic nerve
sheath
were of a distribution and type which is consistent with a traumatic origin, in particular due to a non-accidental injury or
shaking
impact. He
said,
however that other causes
should
be considered.
- Dr. Bonshek, accordingly, provided the police with a list of in excess of thirty causes of retinal and associated haemorrhages ranging from the relatively common to the rare to the
vanishingly
rare.
- At an ophthalmic expert'
s
meeting held prior to the trial, Dr. Bonshek added to his list an additional couple of potential causes. Each one of the possible causes appearing on Dr. Bonshek'
s
lengthy list has been painstakingly considered. The work involved in order to exclude each possible cause no matter how remote has led to a delay in the hearing of this case. It is, however, an indicator of the rigour to which Dr. Bonshek has approached his consideration of Z'
s
death and the open mind with which, it
seems
clear to me, he comes to each and every case upon which he is invited to report.
Conclusions as to pathological findings
- Having received the reports of Dr. Al-
Sarrarj
and Dr. Bonshek, Dr. Cary filed a further report dated 19th May 2008. He identified:
(1) Old
subdural
haemorrhage of
some
week'
s
duration with
superimposed
areas of patchy more recent
subdural
haemorrhage, together with widespread ischemic changes.
(2) Widespread fresh retinal haemorrhages involving all layers and occasionally extending anterior and under the retina, including ophthalmic nerve
sheath
haemorrhage.
(3) No evidence of resolving grip marks or
skeletal
injuries to the body.
- Dr. Cary concluded that the most likely explanation for the cardio-pulmonary arrest which ultimately led to the death of Z was that of inflicted injury of the
shaking/impact
type. He did not regard the absence of grip marks or
skeletal
injuries as affecting the likelihood of that diagnosis. For the purposes of his report to the Coroner'
s
office, Dr. Cary'
s
stated
cause of death to be head injury. This was
subject
to Dr. Bonshek'
s
list of theoretical causes for retinal haemorrhage having been excluded by the other experts.
- Dr. Cary'
s
opinion as to the cause of Z'
s
death is not accepted by the parents and other possible causes were explored at the trial on their behalf.
- Given that all the experts are agreed that
some
primary event caused a
sudden
and catastrophic encephalopathy, it is necessary to examine the likely alternatives.
Cardiac Arrest
- Given that the early
view
of Addenbrookes Hospital was that the primary cause of Z'
s
collapse was related to his heart, the police asked Dr. Janice Till to assist them in their investigations.
She
concentrated on rhythm abnormalities given that, at post-mortem, Z'
s
heart had been found to be normally formed and there was no evidence of cardiomyopathy.
- Dr. Till is an expert in Ion-Channelopathy, a group of rare diseases that affect the electrical functioning of the heart without affecting its
structure.
This means they can only be detected in life and not at post-mortem. A fault in the heart in these conditions can be
seen
only by looking at ECGs and is usually identified by looking at what is known as the "QT intervals". QT interval is a measure taken from the ECG waves - from the Q wave to the end of the T wave, each corresponding to an electrical
systole
- that is to
say
the time at which the
ventricular
contraction occurs.
- In relation to Z, the only relevant Ion-Channelopathy is known as "
Short
QT
syndrome".
This is an extremely rare condition which has only been recognised within the last decade. Approximately one in a thousand individuals present with a
sudden
cardiac arrest. Of those, approximately 4% will
suffer
from an Ion-Channelopathy. Of these about 10% is made up of
Short
QT and another
similar
syndrome.
The extreme rarity of the
syndrome
is best illustrated by the fact that Dr. Till, despite
specialising
in Ion-Channelopathies, has never
seen
a case of
Short
QT in a child and only once in an adult. The ambulance ECG did
show
a
short
QT reading, but it is however important, Dr. Till
said,
when assessing the length of the QT interval, to have a normal heart rate (
sinus
rhythm) as the QT intervals lengthen and
shorten
according to heart rate.
- A mathematical formula called Bazett'
s
Formula is designed to
smooth
out the differences of the
very
low heart rate, but the formula does not hold good at the extremes of the
very
high and the
very
low, both of which Z was
subject
to from time to time during the course of this illness. Even without the effective use of Bozell'
s
formula.Dr. Till feels that whilst in the ambulance the heart rate was
slow
and the QT
short.
W hen the heart rate returned to normal there were
short
QT intervals, but only just outside normal and post-resuscitation they were "even more normal and not
so
short".
- Dr. Till described how the reliable interpretation of these ECG'
s
was extremely difficult and made more difficult by a number of confounding features:
(1) Hypoxia can affect the readings by
shortening
QT intervals.
(2) Acidosis can affect it.
(3) Autonomic tone i.e.
very
sick
children have
shortening
of QT intervals.
(4) High potassium levels, as present here, would also
shorten
the QT intervals.
(5) The presence of a considerable amount of adrenaline, which comes as a consequence of being extremely ill, which itself
shorten
the QT intervals.
(6) Administrations of drugs, particularly, in this case, Amioderone, could lengthen the QT intervals.
- Dr. Till
said
she
was "
very
hesitant to diagnose
short
QT from these ECGs".
She
concluded: "you cannot rule out
short
QT, but it is
very
unlikely to be the case". Dr. Till was also asked about retinal haemorrhages.
She
said:
"The evidence is that there is no recognised association. There is a
very
small
chance that it is
Short
QT
syndrome.
I was extremely
sceptical
anyway on the cardiac evidence and you cannot explain retinal haemorrhage in connection with
Short
QT,
so
that makes me even more doubtful...I cannot rule it out, it is
very
rare and with the other findings at post-mortem, which I cannot explain with it, it would make me doubt
very
much the presence of this condition."
- Balancing together the totality of Dr. Till'
s
testimony as an expert of these extraordinarily rare Ion Channelopathy
syndromes
complied with their lack of association with retinal haemorrhages, I conclude that the primary event leading to Z'
s
collapse was not precipitated by a heart arrhythmia abnormality.
Choking/Primary Respiratory event
- The court has had the benefit of hearing expert opinion from a total of nine experts on the issue as to whether or not the primary event was a choking/primary respiratory event or, alternatively, whether the primary event was precipitated by
some
form of head trauma.
- Only the mother was present when Z collapsed. Her accounts of that evening given both then and more recently, together with the evidence the father can give, are of considerable importance in helping both the experts and the court in coming to a
view
as to the nature of the primary event and whether it was, indeed, a choking or respiratory event. Before moving on to consider the medical evidence in relation to a choking/respiratory event, it is necessary therefore to consider the accounts given by the parents.
The accounts given by the parents
- By common consent, Z was a normal healthy baby at 7.45pm on 29th October 2007. Just over an hour later he was in extremis.
- The father told the court that the mother had told him when
she
rang to get help that
S
had cried when he was having his nappy changed. The father
said
that he had thought that that was because
S
had had to
stop
playing when it was time to change him and that his crying he had woken Z up. This account was the
same
as the one he gave to the police on 9th November 2007.
- Whilst the mother, father and B were at the hospital they were
spoken
to by, amongst other people, two police officers: W and M. PC M records in his Criminal Justice Act
statement
that the mother had told him:
"The baby was given a feed of powdered milk at about 1700hrs and placed in a bouncer in the living room where he
slept.
At about 2030hrs the father came home on a break and checked on the baby who was okay. The baby then
started
to choke whilst asleep in the bouncer. The mother, who does not
speak
any English, had to call her husband to telephone for an ambulance."
- PC M then
says
he
spoke
to Dr. Houston, the Paediatric Consultant, who told him the baby had been choking which had caused a cardiac arrest. Dr. Houston disagrees with the accuracy of this note.
- The evidence of these two police officers, each of whom gave oral evidence, was little
short
of
shambolic.
Neither officer was able to give a consistent, or even coherent, account about who
spoke
to whom, when and about what. Mr W
said
that the relevant conversation took place in English between him and the father alone, however he
seemed
incapable of differentiating between the father and his brother. Mr. M
said
the
same
conversation was led by himself in the presence of Mr. W. Added to this each officer put together their Criminal Justice Act
statements
in reliance on the police log. This log was created by means of an oral report given to a
Sergeant
F who called the information in to an operator who then passed the information along to CID who entered it into the log. There is no paper trail of any of it and it is all by word of mouth. This is an example of the
sort
of "Chinese whispers", that is wholly unacceptable in the early evidence gathering phase in a case of a
serious
injury to a baby which may have been caused by a parent.
- The word "choking" has
somehow
found its way into the log and became the police
version
of events. That is not to
say
that the word "choking" was not used,
simply
that it is quite impossible to know one way or the other. Not
surprisingly,
neither parent claims it to be an accurate record of anything that was
said
by either of them.
- In fairness to PC M, I
should
say
that it was Mr. W, in particular, who presented as a
very
unsatisfactory witness and I understand that, whilst he was a probationary police constable at the time, he is no longer a police officer, but a community
support
officer. I place no weight on either the oral or written evidence of these two officers.
- The mother gave an account of Z'
s
collapse to Dr. Houston at the Luton & Dunstable Hospital on the evening of his admission. The father acted as an interpreter.
She
said,
as is recorded in the medical records,
"Was well until now.
He may have had a temperature 2/7 ago Calpol.
Today had been okay.
Was in cot – mother in the room.
Heard him making a noise as if to
vomit,
but nothing came out.
Started
to have difficulty breathing
sounds
like gasping reflexes.
Mother called dad – working nightshift - to
say
there'
s
a problem, he called brother to call ambulance.
Mother
said
he gasped for 5-6 minutes.
Changed colour and pale.
Then
stopped
breathing."
- This is the account upon which the mother now relies,
save
that
she
told me in oral evidence that he was in a baby bouncer not a cot and that he did not gasp for 5 or 6 minutes, but rather the whole incident lasted 5 or 6 minutes from beginning to end.
- Regardless of whether this is essentially a true account, in that the mother did not by any act on her part cause or contribute towards the collapse of Z, it on any
view
omits crucial information. The clear impression given by the mother was that Z went from being a
sleeping,
well baby to ceasing to breathe all in a matter of moments and that the first thing to happen to alert the mother that all was not well was her hearing him making a noise as if he were trying to
vomit.
Nothing could be further from the truth.
- The mother was interviewed by the police on 8th November and again the following day.
She
made Children Act
statements
on 21st November 2008 and, again, in February
2009.
She
gave the court an account from the witness box.
- The mother'
s
first account to the police was that Z woke up and was crying. He would not
stop
crying even when
she
picked him up.
She
rubbed his back, but he
still
cried.
She
said:
"While he was crying he took deep breaths [and
she
made the
sound
effect] like that. I phoned my husband".
- When questioned again the next day, the mother described Z as, "crying
very
badly".
She
spoke
of putting him on her
shoulder
and massaging his back, but he continued to cry "badly, then he was having
some
trouble breathing".
She
said
that while he was crying he "badly attempted to have
some
breath in himself".
Significantly
she
was asked if he was
still
crying at that
stage
and
she
replied, "Yes, he was".
- In the mother'
s
first
statement,
she
expanded in this account. Having
said
that Z woke up and
started
to cry,
she
said
she
checked his nappy. He
stopped
crying for a little while and then
started
again. Mother
said
that
she
thought he was hungry
so
she
made a portion of milk powder. When it was made
she
tried to give it to him, but he would not take it and forced the milk back out of his mouth.
She
said
that he cried loudly and would not
stop
crying,
so
she
walked around the room to try and make him
stop
crying. He was
still
crying when his breathing changed and he began to take deep breaths, "He was
still
trying to cry. He was in difficulties. He could not breath properly and was taking awkward deep breaths...I rang my husband".
- In the mother'
s
final
statement,
provided
shortly
before the
start
of this trial,
she
prefaced her account of the events of evening of 29th October 2007 by
saying:
"I have made a lot of
statements
to a
variety
of people relating to Z'
s
collapse on 29th October ... I don't think it would help to go through each one in this
statement,
but I know my account of Z collapsing at home is not accepted
so
it is important that I am clear about what I
say
happened and what I reported as happening."
- Having
set
out as the backdrop to her
statement
her clear understanding of the importance of the history
she
was to give in her
statement
of what happened that evening, the mother
said:
"I am clear that Z
seemed
generally okay during the day and things went wrong from when he woke up after his nap at 8.15/8.30pm. He had his last feed at 6.30pm and he had gone to
sleep
in his baby bouncer in the front room with no problems after being winded... Z cried when he awoke, but that was not unusual. However, it was not normal for him to continue crying, as he then did, after being picked up and comforted. His cries got more persistent. I tried the usual things to
sooth
him. I winded him over my
shoulder.
I walked around the room with him. I tried to give him milk, but he resisted by moving his mouth from the teat and pushing it out of his mouth. He would not
stop
crying – not little ones, but big ones with tears in his eyes. He made noises as if he was trying to
vomit
or bring
something
up, but nothing did. He was crying and was clearly having difficulty in breathing. His colour changed, it became paler."
- This was quite different from the history given to Dr. Houston. Far from the first thing to alert the mother to any problems being a noise "as if Z was trying to
vomit"
and, therefore, of him going from being asleep and a
seemingly
settled
baby to collapsing all within moments, this was, a child who woke up and cried inconsolably, despite his mother adopting all the well known ploys used by any mother to pacify him.
She
changed him,
she
put him over her
shoulder
and walked around with him,
she
rubbed his back and tried to feed him.
- In each account,
she
describes him continuing to cry after he has had difficulty in breathing. The initiation of those breathing difficulties were called "an attempt to
vomit"
as put to Dr. Houston or
simply
"breathing difficulties" as in her other accounts between then and her February
statement.
- In all his accounts, without exception, the father, for his part, is clear that he heard not just
S,
but Z crying when the mother telephoned him at work.
- What the mother did not do in any account is describe how Z woke up. I am
satisfied
that, had the father not told the court of the account
she
had given him about
S
waking the baby,
she
would not have told anyone. This is
very
important evidence when trying to have an understanding about what went on in that house on that evening; without it the picture is of a three month old baby "being
settled",
with it the picture is two children, one of nineteen months and one of three months, both crying,
S
having
started
when his nappy was changed and Z joining in when he was
startled
awake by the cries of his big brother.
- When this was put to the mother, in oral evidence,
she
sought
to play the
scene
down in a wholly unconvincing way.
She
described changing
S's
nappy and
said
that
she
had "touched his thigh" and that he must have thought he was being "tickled"
so
he
screamed,
but it was "a happy
scream".
He carried on,
she
said,
screaming,
but it was a "happy
scream".
She
accepted that that was what had woken Z and that
she
had told father on the telephone. But
she
said,
again, it was a "happy
scream"
that had woken Z up.
- It was put to the mother by the guardian, that the timescales must have been
significantly
longer than the 5-6 minutes
she
had previously
suggested,
given that
she
had changed, and tried to feed, Z, as well as to
sooth
and comfort him. When asked in this context whether
she
had made up the bottle for Z
she
said
unconvincingly, and contrary to her
statement,
that
she
had already had it made up and it was
sitting
on the
side
to give him as
she
knew he would wake up. Initially
she
said,
with unbelievable precision, that
she
had made up the milk at 8.05.
She
then altered this to
sometime
after 8 o'clock.
- When the mother'
s
evidence was tested,
she
said
the noise Z made was like
sucking
in and had not lasted as long as on the CD. (A noise all have listened to and was a matter of
seconds).
Z,
she
said,
neither coughed nor choked.
- After Z had forced the teat of the bottle out, the mother
said
he had carried on crying. After that he tried to
vomit
and nothing came out,
She
said
in her oral evidence, "After that he did not cry". When he had breathing difficulties
she
said
in the witness box he
stopped
crying.
She
was adamant that after Z had attempted to
vomit,
he did not cry again. This was contrary to all her earlier accounts when
she
said
that he had cried after he had attempted to
vomit.
The mother then
said
that
she
could not remember whether Z had been crying when
she
spoke
to her husband, but that
S
had only
started
to cry when he
saw
her crying.
She
denies that both children were crying at the
same
time.
- When the mother and the father gave their oral evidence to the court, the itemised telephone bills for their respective mobile phones were not available.
Shortly
after closing
submissions,
the relevant
statements
became available to the court and, accordingly, the mother and father were each recalled briefly in order to answer further questions about the telephone calls as between themselves and third parties on the evening of 29th October 2008.
- During his initial oral evidence, the father has been asked about the mother'
s
telephone calls to him. He had also described those calls to the police when he was interviewed and in his two
statements;
the most recent being in March
2009,
a matter of days before the trial began. In each account, and again in oral evidence, he described hearing both
S
and Z crying at the other end of the phone when the mother rang.
- Although pressed on a number of occasions by Mr. Geekie QC on behalf of the
Local
Authority,
the father insisted that he
spoke
to the mother only once, although there had been, he
said,
two missed phone calls when he was driving his bus and unable to take her call.
- The mother, in her
statement
filed immediately prior to the hearing,
spoke
of ringing her husband until
she
could get through to him. The mother repeated this account in oral evidence.
She
too insisted
she
spoke
to her husband only once only although before that had tried to ring him two or three times. Neither the account of the mother nor the account of the father tie in with the telephone records:
(i) The clear impression given by the father was that immediately upon telephoning his brother, he had contacted his control centre to arrange to leave and go home to his wife and children.
(ii) Both were insistent that they had only
spoken
to each other once.
(iii) Neither
spoke
of any telephone calls after the father had
spoken
to his brother and the mother had
spoken
to her mother-in-law.
- When asked about the itemised bill, the father
said
that, after
speaking
to his brother at 8.44pm, he had immediately driven off before
stopping
at the next bus
stop,
which was
some
distance away. At that
stage,
he
said
all the passengers alighted. At 8.54pm he listened to his
voicemails
and at 8.57pm
spoke
to his control centre to ask if he could go home as his child was ill –
some
fourteen minutes after
speaking
to his wife.
- Not only does this not fit in with the impression given by his earlier evidence, but it completely ignores the fact that, between the father ringing his brother at 8.45pm and him listening to his answer
service
at 8.54pm, he had had a total of ten telephone calls from the mother. The husband
says
that he cannot actually recollect
speaking
to his wife on any of these calls, neither can he recollect whether there was one or more than one, or even any,
voicemails
from her on his answerphone. What we do know is that missed calls do not
show
up on the invoices and that his answer
service
took only nineteen
seconds
to relay his messages to him.
- The father denies that he
spoke
to the mother when he had parked the bus . this, despite the fact that
she
rang him less than a minute after he
spoke
to his brother and again
some
two minutes later. The father finally rang the depot at 8.54, the ambulance having arrived at the
family
home at 8.52 and the mother having called him, undoubtedly completely hysterical by this time, twice at 8.53. The husband
says
the only time he
spoke
to her after the initial telephone call was when he rang her at 8.57pm, a telephone call about which the court would have been wholly unaware had it not been for the late production of the telephone bills.
- Ms. Delahunty, in her
submissions,
urged caution upon the court when attempting to interpret the
significance
of these telephone calls. The point is well made. I accept that any mother in this mother'
s
situation
would
struggle
to remember the precise number and duration of the telephone calls made. I also accept that it is easy forget who rang whom particularly as this couple (in common with many other couples) have a missed call ring
system
and arrangement between them. What I cannot accept, however, is that either the mother or the father would have forgotten a
series
of increasingly frantic telephone calls made by the mother to the father after her initial cry for help. It may well be that
some
of the
very
short
calls did, indeed, go to
voicemail.
I do not accept that they all did. Not least because this father I am
satisfied,
is a kind and compassionate man who loves his wife. They were in the habit of
speaking
to each other
very
frequently on the telephone. There is a record of a telephone call lasting twenty-eight
seconds
immediately after the father had called his brother to get help. I
simply
do not accept that, having made the call to his brother on his wife'
s
behalf, this father would not have rung her back or picked up her telephone call to him in order to reassure that help was on the way. Even had he done
such
an inconsiderate thing, or the message had gone through to
voicemail,
it is, in my judgment, inconceivable that when he got call after call (from his account, going through to
voicemail)
he would have waited for
so
many calls before telling her that an ambulance was on the way.
- I find that neither the mother nor the father is being frank about the telephone calls. Had the
statements
not been obtained after
submissions
were over, the court would have been left with the impression of
virtually
no telephone traffic between the husband and wife, and of the husband making arrangements to come home as
soon
as his wife got through to him.
- Both of the father'
s
brothers gave evidence about the events of that evening. They were both evasive and reluctant to assist the court in any way. The father, when he gave his evidence, frankly and appropriately accepted this,
saying
that he could not understand why they behaved in
such
a way in the witness box as the questions they were being asked were
very
straightforward.
At the time the father gave his oral evidence, I was prepared to conclude that the brothers' evasiveness was
simply
reluctance to
say
anything in the alien court environment which might impact upon their brother. In the light of the new evidence, I believe these brothers may well have known more than they were willing to tell.
- Prior to the mother and the father giving their additional evidence about the telephone calls, I was of the
view
that the husband was essentially a
straightforward
and honest witness who genuinely, whatever his
suspicions
may now be, did not know at the time what had happened on 29th October 2008. I have inevitably had to re-
visit
that
view,
in the light of the misleading evidence I find he has given about his telephone calls with his wife at or about the time of Z'
s
collapse. The court is inevitably left with a
suspicion
that the father is doing all he can to protect his wife, even to the extent of actively misleading the court.
- I found the mother'
s
oral evidence unsatisfactory in a number of ways.
S,
like any other toddler of his age, can be a handful. The mother described him as being
stubborn,
sometimes
lying on the floor kicking and moving his head from
side
to
side
if he did not get his own way. The father was quite matter-of-fact in his evidence that
S
would
start
to cry if he was taken away from his toys to have his nappy changed.
- Only the mother will ever know what happened on the evening of 29th October 2008, I do not accept that
S
screamed
a "happy
scream".
I accept that the father is right when he
says
that the mother had told him that
S
was crying because he was having his nappy changed and in doing
so
woke Z. It follows, therefore, that I do not accept that only Z was crying or that his collapse came out of the blue.
- I find on the balance of probabilities that
S
was crying and cross and woke Z, and that the mother could not pacify the two children. I do not accept that
she
had already made up a feed and it was
sitting
out of the fridge in preparation for Z waking up. I believe
she
told the truth in her
statement
when
she
describes trying to
settle
Z, making up a bottle, changing his nappy, rubbing his back, but that
she
was unable to console him and that he was crying loudly in a way that
she
had not heard before. It follows therefore that I do not accept that the whole incident from Z waking up to his collapse took only five minutes or
so.
- I am
satisfied
that this mother had two crying babies who
she
was completely unable to console and it was in that context and in that
situation,
that Z collapsed.
Choking
- In order to conclude that the primary event leading to Z'
s
collapse was caused by choking, it would be necessary for the court to be
satisfied
on the balance of probabilities that:
(1) Z, in fact, choked;
(2) The choking was capable of causing each element of the triad, as identified at post-mortem.
- The mother'
s
various
accounts are
set
out earlier in this judgment. The mother does not claim a choking event.
She
describes a failed attempt to
vomit
and her baby gasping.
- Dr. Mark Peters gave evidence that all the mother'
s
accounts were consistent with efforts on the baby'
s
part to breathe combined with loud crying. Dr. Peters and Dr. Ross-Russell gave clear, unequivocal, evidence to the court that, if Z was crying loudly, then his respiration was good. A choking event would not be consistent with that account as there would be no air flowing to pass over the
vocal
cords if he was choking. Dr. Peters
said
that if Z was choking he would be flailing around, making no noise at all and would turn blue and then white. In fact Z continued to make occasional gasping noises even after he was admitted to hospital. Dr. Peters added that the abnormal deep and
struggling
breathing described by the mother can be
seen
after both a head injury and heart failure.
- Dr. Peters rejected the hypothesis that Z could have inhaled a quantity of
vomit
or milk
so
as to cause his airways to be obstructed. He told the court that a large
volume
of fluid would be required to cause
such
an obstruction as it would need to obstruct a
significant
area of lung tissue. When Z was intubated in hospital, there was no
sign
of fluid obstructing his airways. Pink frothy
sputum,
such
was
seen
by the paramedics when they attended at the house, may develop for a number of medical reasons. Dr. Peters explained that there is a close association between neurogenic pulmonary oedema ("NPO"), of which the pink frothy
sputum
was evidence, and
sudden
catastrophic brain injury. Whilst not conclusive, Dr. Peters was of the
view
that the pink frothy
sputem
seen
by the paramedic was consistent with
shaking
rather than choking and, indeed he observed its
very
colour indicated that it was not milk.
- Dr. Peters explained that if a child is only fed on milk there is no question of an obstruction caused by food, for example a
sweet
or a peanut. What is necessary therefore, is
sufficient
obstruction in order to affect the gas exchange and none of the descriptions given by the mother fit.
- On the basis of the clinical history and Z'
s
presentation, each of the clinicians considered the hypothesis of primary respiratory event/choking as unlikely or highly unlikely. Dr. Peters regarded it as physically impossible for Zaid to continue crying if he was
suffering
or had
suffered
a fatal choking event.
- Dr. Cohen, whose evidence I
shall
refer in due course, placed
significance
on the mother'
s
description of choking. Dr. Cohen referred to a paper called "
Sudden
Infant Death
Syndrome:
Can Gastro-Oesophageal Reflux cause
Sudden
Infant Death?" by Bradley and Thach. Dr. Cohen
suggested
that, where a baby is choking and has a gasping reflex which opens the airways, if there are any
stomach
contents in the larynx, the baby can gasp and tries to breathe and goes into apnoea and dies.
She
refers to a further paper called "
Sudden
Infant Death whilst awake" by Henry Krous and others. Dr. Cohen
said
she
thought the
SIDS
could have caused Z'
s
collapse.
She
said
that most
SIDS
cases are not resuscitated, but here he
survived.
Dr. Cohen
said
that
she
believed that if
SIDS
children were in fact resuscitated we would
see
subdural
and retinal haemorrhages.
- In
support
of Dr. Cohen'
s
hypothesis that Z had an inadequate response to apnoea, Dr. Cohen (wrongly)
said
that Dr. Till had referred to Z having an abnormal heart. Dr. Cohen
said
she
plans to investigate
SIDS
in connection with Long QT
syndrome
. Dr. Cohen expressed the
view
that there was evidence of choking by
virtue
of the mother'
s
description.
Vomiting
was not necessary.
- Dr. Cohen, contrary to the evidence of Dr. Peters, was of the opinion that a
small
amount of liquid would be
sufficient
for Z to choke "Just a few mls"
she
said.
She
said,
"Maybe" choking is a possibility, but Dr. Cohen
said
the most important thing is "hypoxia and that is the triggering event that leads to bleeding". When asked whether or not the
view
of the paediatrician as to whether or not the child had in fact choked, was the
view
of the most assistance, Dr. Cohen
said
that
she
regarded herself as an expert in
SIDS
and one theory is that choking may cause
SIDS
and therefore
she
felt able to comment.
She
was most reluctant to defer to Dr. Peters.
She
said
"Choking is a theoretical possibility".
She
accepted that her
view
was controversial.
She
concluded by
saying
that
she
did not think there was any research to the effect that choking is not related to
SIDS.
- The court was left with theory on theory. Maybe Z choked and if he choked there is a theoretical possibility that it could have been a
SIDS-type
collapse. With respect to Dr. Cohen, her evidence was a
stream
of academic
speculation
and theorising rather than the rigorous forensic analysis necessary on the facts of this or indeed in any case.
Conclusions as to choking
- The clinical evidence is clear and unambiguous.
(1) The mother gave no description of the baby choking. The word may have been used, but does not tally with her description of the
sound
effects or her description of Z'
s
presentation.
(2) If Z was crying after he had choked/attempted to
vomit,
then he had not choked and the gasping/attempt to
vomit
could not be a precipitating event which led to his collapse. Dr. Peters felt the gasping noises
sounded
like the classic gasping noises made by a dying child.
- Dr. Cohen and Dr.
Squier
put forward
various
theories to account for the "choke". In particular,
some
sort
of awake
SIDs
(without any consideration of the fact that the child was crying lustily immediately prior to the event) and compromised auto-resuscitation resulting in the child choking (even though he had not been fed for
several
hours and had
successfully
spat
out the milk his mother had tried to give him before carrying on crying).
- I am
satisfied
that the mother understood perfectly the evidence given by Dr. Peters about choking and the
significance
of when Z did or did not cry. He gave
straightforward
evidence, expressed in common language without the use of any technical terms. As already mentioned, they had the benefit of a first class interpreter throughout the trial. Dr. Peters
said
that if Z had cried after the attempt to
vomit,
then he had not choked. I am equally
satisfied
that it was as a consequence of the evidence of Dr. Peters that the mother changed her evidence in the witness box,
saying
there for the first time that Z did not cry after he had attempted to
vomit.
The mother could not, however, get around the fact that not only in her
very
recent
statements
and interviews had
she
said
otherwise, but her husband maintained his earlier evidence that both boys were crying when
she
rang him.
- I accept the
submission
of the
Local
Authority
that there is no evidence of a choking event in this case.
- The court has therefore ruled out either a cardiac event or choking/
SIDS
as being the precipitating factor leading to Z'
s
collapse. In my judgment the compelling evidence points to the only probable explanation for the presence of the triad being found in Z'
s
case is that of head trauma This conclusion means that on one
view
it becomes unnecessary to examine the mass of medical issues raised in
support
of Ms. Delahunty'
s
cascade theory. Given the polarisation of the experts' opinion, and the detail in which a number of these issues have been explored, I am of the
view
that it is important to consider a number of the aspects of this controversial topic in
so
much as it is
suggested
that they may provide alternative causes for Z'
s
subdural
haemorrhages and retinal haemorrhages.
Retinal haemorrhages
- Dr.
Squier,
in
seeking
to
support
her theory of hypoxia following choking as a cause of
subdural
haemorrhage and retinal haemorrhages,
said
in her report:
"In the presence of chronic
subdural
membrane,
small
vessels
are damaged by hypoxia and they may bleed, particularly following resuscitation which leads to reperfusion injury. I assume that the
vessels
of the retina, being
similar
to the
vessels
in the brain,
should
be
subject
to
similar
damage by hypoxia and would bleed on reperfusion".
- I have had the benefit of hearing evidence from three of the country'
s
most eminent eye experts. (Four if one counts Ms. Louise Allen of Addenbrookes in Cambridge who is an expert in her own right, but gave evidence in this case as an examining
specialist
as opposed to a forensic expert.)
- Dr. Peters explained that the hypothesis of hypoxia leading to
subdural
and retinal haemorrhages is based on pathological
studies
and not on clinical
studies.
He is unaware of any clinician who
supports
the hypothesis. An important piece of research that Great Ormond
Street
Hospital has been conducting is what Dr. Peters describes as "an audit of CPR". About 77 children in intensive care who were being nursed
sedated
and could therefore be examined fully and easily were examined by ophthalmologists using retinal cameras following the administration of drops to ensure full dilation of the pupils. The ophthalmologists deliberately conducted their examinations blind, without the benefit of any history, in order to avoid any observational bias. (Although the photographs taken would obviously exclude it in any event). It goes without
saying,
that these children would be
susceptible
to reperfusion injury.
- The point of entry for the GOSH audit has been:
(i) The children are all over
six
weeks of age,
so
as to avoid birth retinal haemorrhages;
(ii) infections;
(iii) respiratory failure;
(iv) clotting that was consequential upon collapse;
(
v)
trauma;
(
vi)
CPR – which represented eight cases.
- Dr. Peters told the court:
"What has been
seen
overall is
very
occasional and unilateral haemorrhages with a pattern of bilateral haemorrhages in multi-levels only being
seen
within the cohort which represents unequivocal trauma.
So
far as CPR is concerned there has been one observation of retinal haemorrhages after CPR, but that was a
single
isolated unilateral haemorrhage.
Similarly
cases of hypoxia, following respiratory failure, following infection has only exhibited isolated unilateral retinal haemorrhages."
- The GOSH audit has been
submitted
for peer review. Dr. Peters told the court that it will be presented or published later this year (
2009).
It is planned, however, that the
study
will continue until a total of 300 cases have been examined.
- This evidence is relevant to a number of issues in the cascade theory, namely reperfusion, coagulation and retinal haemorrhages. Dr. Cohen, for her part, was not of the opinion that CPR could account for the retinal haemorrhages
seen.
All her cases,
she
said,
have prolonged CPR and they do not have florid retinal haemorrhages.
- On 6th March
2009,
Dr. Bonshek, Mr. Lloyd and Professor Luthert had a lengthy telephone conference in which they addressed a number questions which had been previously agreed between the parties. A complete transcript of that meeting (as well as the
subsequent
meeting of the pathologists) is available and the
substance
of it has been reduced to a
schedule.
This is referred to as a "
Schedule
of areas of Agreement and Disagreement", in fact
so
far as the Opthalmologists are concerned it
should
more properly be called "
Schedule
of Agreement" as there are no areas of
significant
dispute between the experts either as between themselves or with the
views
as expressed by Dr. Allen.
- The combined opinion of the Ophthalmic experts can be
summarised
as follows:
(1) Dr. Bonshek
set
out in his report his
specific
pathological findings. Mr. Lloyd and Professor Luthert agreed with his description. The only
slight
difference was as between Professor Luthert and Dr. Bonshek was as to what Professor Luthert called "calibration", Dr. Bonshek described the retinal haemorrhages in the left eye as moderate and the right eye as mild to moderate. The left eye he
said,
was considerably more
severe
than the right eye; in the moderate/
severe
range. Professor Luthert for his part referred to the left eye as moderate and the right eye as mild. He
said
that his categorisation may be influenced by the fact that he tends only to deal with
very
serious
cases. He readily accepted that Dr. Bonshek was in the better position to comment having
seen
the actual eyes microscopically, as opposed to photographs with all their inherent disadvantages. It
seems
to me that the
shades
of description matter not. What is
significant
is the type, position, depth and distribution, namely that the retinal haemorrhages were bilateral through all layers both posterior and anterior and that there was haemorrhaging at the optic nerve
sheath.
(2) There may well have been
some
progression in the bleeding in the eyes between Dr. Houston'
s
examination in A&E and Dr. Bonshek'
s
after death. This, however, does not detract from the fact that it is more likely that there were already extensive retinal haemorrhages when Z was first
seen
by Dr. Houston. In respect of their aetiology, it is immaterial whether they evolved or not.
(3) Dr. Houston'
s
observations, or the full extent of them at that point in time, are highly unlikely to have been as a result of CPR or reperfusion.
(4) Whilst the time frame for retinal haemorrhages is 1-8 days prior to Ms. Allen'
s
examination on 31st October, it was likely to be nearer the one day end.
(5) There is a
very
strong
association between retinal haemorrhage and optic nerve
sheath
haemorrhage and cases of trauma. Resuscitation following cardio-respiratory arrest and cerebral oedema is a possible cause, but not a probable cause.
Such
retinal haemorrhages are usually extremely mild, even if there has been prolonged and unskilled CPR. In particular, Mr. Lloyd
said
that the majority of retinal haemorrhages in infants of this age are due to birth, and are
very
minor and clear quickly.
(6) Choking/aspiration of milk is outside of probable cause. A
simple
choking aspiration would not cause optical manifestations of any kind. None of the experts are aware of any instances where an episode of choking or aspiration has led to collapse where the classic triad have been evidenced.
(7) Raised intracranial pressure can cause retinal haemorrhages and optic nerve
sheath
haemorrhaging. The experts' meeting did not favour it as a likely cause of retinal haemorrhage in Z'
s
case.
- All the expert evidence in relation to retinal haemorrhages is that trauma is the probable cause of the retinal haemorrhages and the optic nerve
sheath
damage
seen
in Z'
s
eyes.
- Each of the three ophthalmic experts gave careful and measured evidence. Time and again the importance of testing out each
strand
of the triad was
stressed
by them, as was the importance of keeping an open mind. At no time did the court feel that any of these experts were paying lip-
service
to being open minded whilst in reality the mere presence of retinal haemorrhage was diagnostic of trauma.
- The limitations of the literature on this
subject,
were acknowledged but at the
same
time each expert was anxious to
stress
that their respective
view
was that the literature, insofar as it goes,
supports
the
view
they each individually hold as does their clinical experience. For example, Professor Luthert
said
in the experts' meeting:
"I think it is generally agreed that from the overall body of published literature (
subject
to
selection
bias) is that trauma outside of the birth related haemorrhage period is the most commonly
seen
cause of extensive retinal haemorrhages and combined optic nerve haemorrhages...In my experience, in most instances where there is retinal haemorrhages, I
see
optic nerve haemorrhage
so
I think the two are closely linked together in this
syndrome
with
swollen
brain,
subdural
haemorrhage within the intracranial cavity and retinal haemorrhages."
- The Working Party guidance, to which each of these experts contributed, reviewed all the current literature. They are of the
view
that the guidance
still
holds good, even though it is
some
years old, and it ties in with their clinical experience. Amongst other things, the guidance
says:
(i) CPR alone is
very
unlikely to cause retinal haemorrhages, even if carried out by unskilled individuals.
(ii) Acute hypoxia, resulting from transient apnoea, has not been
shown
to result in the
SBS
picture (in particular
subdural
haemorrhage and retinal haemorrhage.)
The Old
Subdural
Haemorrhage
- A
significant
amount of time during the course of the trial was
spent
in the consideration of the old
subdural
haemorrhage which each of the experts agreed was present. They agreed also that:
(i) the old
subdural
was at least a number of weeks old;
(ii) there was fresh blood at the location of the old
subdural
haemorrhage;
(iii) it is possible that the fresh blood was a consequence of a re-bleed at the
site
of the old
subdural
haemorrhage (although this is not the favoured explanation of all the experts).
- It is important, in considering the old
subdural
haemorrhage to bear in mind that even if re-bleed provided a complete explanation for the new blood, it could not provide an explanation for the
sudden
catastrophic collapse of Z
so
as to provide an explanation for the "primary event". A re-bleed causes collapse through the build up of pressure on the brain due to the
space
occupying nature of the bleed.
Such
a bleed would lead to deterioration in condition prior to the collapse and
show
as a large
space
occupying
subdural,
not the thin film of blood that was
seen
in Z.
- Dr. Peters
said,
"
Such
irreversible loss of consciousness was not as a result of the bleeding itself, but of the injury which also led to the bleeding". In as much as one could tell from Dr.
Squier's
evidence which
seemed
to move around from hypothesis to hypothesis, her favoured causation for the fresh
subdural
haemorrhage found in Z'
s
brain was that it resulted from hypoxia having caused a re-bleed in the old
sub-dural
haemorrhage rather than extensive CPR or reperfusion having caused the alleged re-bleed..
She
said:
"The history is the most important information from which to form a diagnosis and mother'
s
description of Z trying to
vomit
was a
very
reasonable description of what could happen in a choke. Baby becomes hypoxic,
starts
to bleed, becomes coagulopathic and the bleeding gets worse."
- All the pathologists agree that the old
subdural
haemorrhage could date back to birth. It is accepted by each of them, that there is a possibility that this creates a
vulnerability
which would lead to a lesser amount of force being required in order to cause a rebleed than that which would be required to cause a fresh
subdural
haemorrhage.
- In evidence, Dr. Cary
said:
"If it was
suggested
that only minimal trauma was necessary for there to be a fresh bleed, the evidence in the eyes would be against minimal trauma". In his experience, the nature and extent of the retinal haemorrhage were typical of the trauma
seen
with fresh
subdural
haemorrhage. The assessment of force
should,
in his
view,
be related to the eye damage and not the
subdural
haemorrhages. Dr. Al-
Sarraj
is of the
same
opinion. He
said
that whether or not it was a completely new
subdural
haemorrhage or a re-bleed does not take the matter much further. If it is the result of a re-bleed, it is related to an episode of trauma or movement of the brain within the
skull.
It was the
second
episode, he
said,
which led to Z'
s
collapse.
Reperfusion injury
- Reperfusion injury was
suggested
by Dr.
Squier
as one of a number of possible causes of Z'
s
retinal haemorrhages (as well as his
subdural
haemorrhage) although, as already noted, it does not
seem
to be her preferred causation. Reperfusion occurs after a relatively long period of cardio-respiratory arrest. The
surge
in pressure against the damaged cells, once circulation is re-established, can render those cells more likely to bleed. The ophthalmic experts do not accept this to be a cause of the retinal haemorrhages, although, as explained by Professor Luthert in his report, it is one of a number of factors which could have caused
some
evolution of the retinal bleeding between the primary event and death. In relation to the aetiology of the retinal haemorrhages, it was immaterial Dr. Luthert
said
whether they had or had not evolved. In the
same
way that re-bleeding gives the court no assistance as to the cause of the primary event, neither does reperfusion which, after all, is one of the consequences of resuscitation, not a cause for a child requiring resuscitation in the first place.
Spinal
Nerve Root Damage
- Dr. Al-
Sarraj
observed nerve root damage predominately to the posterior nerve roots he regarded this as an indication in favour of trauma. Whilst he was cautious about the interpretation of this finding, which although in the presence of ischemia can be difficult to interpret, he regarded the presence of nerve root damage in this case as an indicator in favour of trauma. Dr.
Squier
accepted that nerve root damage may occur in trauma. Indeed,
she
said
in evidence, that
some
years ago
she
would have regarded
such
damage as having been an extremely
strong
indicator of trauma.
- Dr.
Squier,
distributed
some
photographs by email to the experts after the beginning of the trial. They purported to
show
cases in which
she
had been in
volved
which had resulted in her changing her
view.
She
said
that they demonstrated by photographic evidence examples of nerve root damage in the absence of trauma. Dr. Al-
Sarraj
was
somewhat
scathing
at the production of
such
photographs accompanied, as they were, with nothing more than the briefest case history. He
said:
"To examine the brain and
spinal
cord is
very
complex and you have to look at all areas and correlate
very
carefully.
So
an out of focus photograph of an area I cannot properly identify is wholly unacceptable. I would need to
see
the brain, the cord and the cranial nerves."
- Dr. Cary also expressed his disquiet at Dr.
Squier's
photographs being taken into account without the cases having been thoroughly considered.
- I do not regard Dr.
Squier's
photographs as helpful, produced in the way they were, without the neccessary information being made available to allow a proper and detailed forensic analysis of the cases to which
she
referred.
- Dr. Al-
Sarraj
was clear that this is an area which is expert understanding developing and, given the presence of
significant
ischemia in Z'
s
case, I draw no conclusions one way or another as to the relevance of the presence of the axonal damage.
External injuries
- Both Dr. Cohen and Dr.
Squier
regard as highly
significant
the absence of any external injuries,
such
as grip marks, In the experts' meeting, Dr.
Squier
said
that, in the absence of any evidence of trauma
such
as fractures and bruises and where there were no eyewitnesses but there was evidence of hypoxia,
she
would conclude that a hypoxic event would have been the cause of the
subdural
bleeding. The
subdural
bleeding itself
she
said
was most likely a consequence of Ion-Channelopathy or choking.
- Dr. Cary responded in that meeting by
saying
that, from a forensic pathological point of
view,
in cases in which the triad is
seen,
the examining doctor does not by any means always
see
bruises or
skeletal
injuries.
Significantly,
he
said:
"However, the pathology of the triad is identical in cases where you do
see
grip-like bruising and the cases in which you don't".
- In her oral evidence, Dr. Cohen, when pressed,
said
that
she
"requires" external trauma
such
as grip marks before
she
is
satisfied
that the presence of the triad is an indicator of trauma. Dr. Cohen noted that only the mother was present when Z collapsed and that there was no witness to any trauma.
She
said
in elaboration "there is evidence of heart failure when we look at the ECG". When challenged about her assertion that there was evidence of a heart abnormality, Dr. Cohen retreated by
saying
that there may be a "possibility" of there being a "problem" to the heart.
She
said,
finally, that
she
had to leave it to Dr. Till, as
she
was not a cardiologist. Unfortunately, that fact had not prevented her from either misreading or failing to read the notes
showing
that Z had a normal heart This failure as was clear from her oral evidence, resulted in her belief that Z had a
specific
heart defect upon which
she
then relied to
support
her theory.
- Dr.
Squier,
for her part, has a
similar
reluctance to put forward trauma as a likely cause for a primary event in the absence of external injuries (by which
she
means bruises, grip marks and fractures, whether
visible
externally or only
visible
at post-mortem). Dr.
Squier
went further than Dr. Cohen,
suggesting
that the nature of the force that would be required for a
shaking
injury would result in the child having a broken neck. In the event that the child had been
subject
to a
so-called
shake/impact
injury,
she
would,
she
said,
expect to
see
bruises and marks.
She
does not accept any theory that
suggests
that
such
children are often thrown down onto
soft
surfaces
such
as a bed or a
sofa
–with the consequence that there are no external injuries.
The Expert evidence
- The cascade effect put forward by Ms. Delahunty has as a key element, hypoxia as a potential cause of the
subdural
haemorrhages (if they were not caused entirely by re-bleed) and of the retinal haemorrhages. It is necessary, when considering this aspect of the matter, to consider the approach of both Dr. Cohen and Dr.
Squier
towards this difficult and controversial area of medicine.
- Dr. Cohen believes that hypoxia alone can cause
subdural
haemorrhages (Geddes III). This is rejected by Drs. Peters, Cary, Al-
Sarraj,
and Mr. Richards. Dr.
Squier,
in the experts meeting of the pathologists held on 13th March
2009,
said
that it is difficult to establish a causative link between hypoxia and bleeding from the dura. The association between the two is
she
says
"well documented and
very
significant"
That opinion led her to conclude that the bleeding in Z'
s
case was the result of an hypoxic, ischemic injury.
- All the experts accept that this case is unusual in that the period of time in which Z was in cardiac arrest and, therefore, to which he was
subject
to CPR was unusually lengthy. As already discussed, the heart
seemed
to be affected first rather than Z'
s
other organs. This does not mean, however,
said
Dr. Bonshek, that the presentation overall is atypical of
shaken
baby
syndrome.
I have to bear in mind the words of Lord Justice Wall when considering these unusual features of Z'
s
presentation.
- All the experts are in agreement that the literature relating to each element of the triad has its limitations both as to its extent, and, as more than one expert pointed out, the intrinsic impossibility of experimenting on babies.
- The trial bundle contained more than fifty research papers relating to
various
aspects of the medical issues raised during the course of this trial. The experts agree that often the evidence base upon which the papers rely is poor and in certain areas there are only a
small
number of
studies.
Time and again, when giving evidence, experts
spoke
of their own experience. It
seems
to me that the experience of these eminent clinical experts, acquired by them day after day in practice, is highly relevant, particularly where there is a paucity of top quality research to assist the count.
- In considering the evidence of Dr. Cohen and Dr.
Squier,
I have in my mind the guidance of Butler-
Sloss
P. in Re LU
v.
Re B (
set
out above), and in particular:
(i) That the court must be on guard against the dogmatic expert... who has developed a
scientific
prejudice and:
(ii) A judge in care proceedings must never forget that today'
s
medical certainty may be discarded by the next generation of experts.
- The latter is of importance in the present case where it is accepted by all that there is much to learn and much which is not yet understood about
so-called
shaken
baby
syndrome
and the triad. Dr. Cohen and Dr.
Squier
each agree with Geddes III. Dr. Cohen and Dr.
Squier
each believe that in the absence of additional external injuries,
such
as grip marks or fractures, there is no reliable evidence of
shaken
baby
syndrome.
Dr.
Squier
does not accept the triad to be a
strong
indicator of
shaken
baby
syndrome.
- These
views
are, undoubtedly, controversial. They go against the mainstream of current thinking and the analysis of the Court of Appeal in R
v.
Harris. Dr. Al-
Sarraj
told the court that his
views
are in line with mainstream opinion. Mainstream opinion in all the other
specialities
is the
same
as his, that is to
say
that hypoxia cannot cause
subdural
haemorrhages. Al-
Sarraj
told the court that there are 40-44 neuropathologists in the country of whom a maximum of 10 or 12 are forensic neuropathologists. To his knowledge, the only neuropathologist in the UK believing that hypoxia can cause
subdural
haemorrhages is Dr. Waney
Squier.
In addition, he
said
there are two or three other people who
share
her opinion who are working in different, but related,
specialities,
of whom Dr. Cohen and Dr.
Scheimberg
(Dr. Cohen'
s
co-
author)
are presumably two. Dr. Al-
Sarraj
said:
"They come in all the defence cases,
so
you do not realise that they are in
such
a minority."
- I found Dr. Al-
Sarraj
to be a
very
impressive witness. He was fair, measured and rigorous in his analysis. He is an exemplar of the process. He analysed the information available to him within his own
speciality.
He then put it together with the
views
of the experts in the other relevant
specialities
before reaching a conclusion. I did not think, contrary to what was put to him in cross examination, that he was
seeking
to back away from his observations in his first report where he had
said
that the "findings are difficult and hard to interpret". It was
simply
that, only as he received the input the additional expertise of Dr. Cary and Dr. Bonshek, was he able to put the picture together to reach his concluded
view,
a
view
shared
not only by Drs. Cary, Bonshek and Al-
Sarraj,
but also Dr. Peters and Mr. Richards.
Dr. Cohen and Dr.
Squier
- Dr. Cohen and Dr.
Squier
support
Geddes III, even though Dr. Geddes herself in Harris withdrew from her own unified hypothesis. Dr. Cohen and Dr.
Squier
maintain their position that in the absence of external injuries trauma cannot be established despite the Court of Appeal'
s
conclusion that:
"The triad of injuries becomes central to a diagnosis of non-accidental injury where there are no other
signs
or
symptoms
of trauma,
such
as bruises or fractures."
- In considering the evidence of Dr. Cohen and Dr
Squier,
I remind myself that four years have passed
since
Dr. Geddes accepted that her unified hypothesis could no longer credibly be put forward. Dr. Cohen and Dr.
Squier
regard themselves as having built on her work. I remind myself also that the next generation of experts and
scientific
research may, as Butler-
Sloss
P.
said:
"Throw light into corners that were then dark and that the hypothesis of Dr. Geddes may yet be proven to be in all, or in part, correct."
- I have to consider whether or not these experts have "developed a
scientific
prejudice" or whether they are in the
vanguard
of research and learning.
- In the context of the evidence given by Drs. Cohen and
SquierI
have to consider whether their respective beliefs in:
(i) Geddes III
(ii) That trauma may only be regarded as likely causation where there is a triad plus additional external injury (or alternatively a witness) has led to their conviction in respect of
SBS
overwhelming their forensic analysis of the case.
- Having read the careful
submissions
of the
Local
Authority
and the children'
s
guardian, it
seems
to me there are three areas which the court
should
consider in relation to each of Drs. Cohen and
Squier
in order to determine that issue namely:
(i) Their use of research material;
(ii) Their willingness to defer to the experts in another field and as part of that their acceptance of the importance of confining their respective opinion to their own expertise and;
(iii) The importance in any forensic examination of factual accuracy and in this case, in particular:
(a) head circumference;
(b) matter in the airways and;
(c) evidence of heart failure at post mortem.
Use of research – Dr. Cohen
- In Dr. Cary'
s
opinion there is no clinical evidence, from a clinical point of
view,
that hypoxia causes
subdural
haemorrhage. He has extensive pathological experience of resuscitated children with
severe
hypoxia and has
seen
no evidence in any case that he has ever dealt with that a hypoxic injury causes
subdural
haematomas.
- In 2007, a paper was published called "Lack of evidence for a causal relationship between hypoxic-ischemic encephalopathy and
subdural
haemorrhage in foetal life, infancy, and early childhood". Roger Byard, a forensic pathologist from Australia, was the lead
author
of
six
authors,
all of whom are forensic pathologists, from five different countries from around the world. The cohort was 82 foetuses, infants and toddlers with proven hypoxic ischemic encephalopathy and no trauma (but including four cases of aspiration of food/gastric contents). In no case was there microscopic evidence of
subdural
haemorrhages. The
study
concluded that no
support
could be given to the hypothesis that hypoxic ischemic encephalopathy in the young, in the absence of trauma, causes
subdural
haemorrhages.
- In their conclusions, the
authors
expressed the
view
that their results accorded with the judgment in the Court of Appeal in Harris that: "The unified hypothesis can no longer be regarded as a credible alternative cause of the triad of injuries".
- Dr. Cohen together with one of the co-
authors
of Geddes III, Dr. Irene
Scheimberg,
published a paper in
2009
called "Evidence of occurrence of intradural and
subdural
haemorrhage in the perinatal and neonatal period in the context of hypoxic ischemic encephalopathy. An observational
study
from two referral institutions in the United Kingdom". The examination included 25 foetuses and 30 neonates who lived for between one hour and nineteen days. The
stated
finding of the paper was that
subdural
haemorrhage on the convexities of the cerebral hemispheres is not an unusual finding in the
setting
of intrauterine, perinatal or neonatal deaths.
- Dr. Cary had read and considered the Byard research and Dr. Cohen'
s
recent papers. He was critical of both papers in
so
far as he was of the opinion that foetuses
should
not have been included in either cohort, Despite that criticism, he confirmed that the important factor was that the Byard paper
showed
no evidence in any of the 82 children included of a causal connection between hypoxia and
subdural
haemorrhage.
- Dr. Cohen'
s
recent paper looks at different circumstances and a different age group. Dr Cary
says
this article
simply
shows
that it is not uncommon to get "a bit of intradural and
subdurals
at birth". This is not either new or
surprising
as asymptomatic birth
subdurals
are
seen,
he told the court, in approximately 46% of all live births.
- Dr. Cary
says
that hypoxia in the brain is "incredibly common" in these circumstances. It does not prove causation. In any event, he
says,
the cohort examined were foetuses, fresh
still-births
or neonatal deaths. It is necessary therefore to take into account that there has been recent labour and the effect of that on the brain of hypoxia and or the circulation, and therefore the potential for a rise of
venous
pressure. It is deeply disappointing, Dr. Cary
said,
that there is a press campaign, in which Dr.
Scheimberg
has given interviews, (although not Dr. Cohen), that
suggests
that the Cohen /
Sceimburg
article gives
valuable
insight into
shaken
baby
syndrome.
Dr. Carey is adamant that it is of no assistance whatsoever.
- Dr. Al-
Sarraj
agreed with Dr. Cary'
s
conclusions. He
said
that hypoxia alone cannot cause a
solid
subdural
haemorrhage
seen
with the naked eye, as in this case. He bases his
views
on a number of matters:
(i) Personal clinical experience:
Dr. Al-
Sarraj
has carried out research into this area
specifically
and presented his findings to the British Neuropathology
Society
meeting in 2002. He took a group with hypoxic and ischemia injury only and a group with definite trauma. In twenty cases of hypoxic ischemic encephalopathy, not one
single
subdural
haemorrhage was found. In a group of presumed
shaking,
the pathology was
such
that trauma was
seen
i.e. damage to the brain itself and damage to the
spinal
cord. (As yet this work as not been published and therefore has not been
subject
to peer review);
(ii) Byard'
s
paper:
Dr. Al-
Sarraj
felt that Byard was
valuable,
as it covered many centres. He too emphasised the fact that in eighty-two cases of hypoxic ischemic encephalopathy there was not one
subdural
haemorrhage. The importance of this paper, he
said,
was that all the contributors were forensic pathologists
so
they had medical and legal experience. It was in his
view
a
very
credible paper from a number of forensic departments. He commented that it was not clear what proportion of foetuses were used, but commented that Dr. Cohen had complained in her article that an insufficient number of foetuses made up the cohort in the Byard paper
(iii) Discussions with fellow experts:
"We talk", he
said,
"to paediatric pathologists and the neuro-radiologists and in real life we
simply
just do not
see
subdural
haemorrhages in hypoxic ischemic injuries".
- Dr. Al-
Sarraj
was critical of Dr. Cohen'
s
conclusion that the analysis of the data in her paper was, "confirmatory of Geddes III". Dr. Al-
Sarraj
looked at the data relating to the newborn babies, (as opposed to the foetuses). He referred to the fact that there were ten cases which had pathology other than a hypoxic ischemic injury. In effect he regarded the research as "lightweight", referring
specifically
to the fact that:
(1) There was no Beta APP
stain
taken in order to
see
if there was any axonal damage;
(2) there was no examination of the
spinal
cord;
(3) there was no examination of the eyes and;
(4) there was no information as to the gestation of the newborn or their weight.
- He understood that the paper had been peer reviewed, but felt that the paper was being used to
support
a hypothesis far beyond its findings.
- Dr. Al-
Sarraj
concluded by
saying
that even if the cases examined were "¾ per cent pure", there was no information as to whether or not there were retinal haemorrhages present, no information as to how many cases in total were reviewed and the inferences drawn go wholly against his clinical experience. He concluded his remarks by
saying
that the paper creates many issues and he anticipated
seeing
many people writing against it. Al-
Sarraj
was unequivocal in his
view,
that he did not regard the paper as credible if it purported to
say
that hypoxic injury leads to
subdural
haemorrhages.
- Dr. Cohen explained that, as per her paper,
she
frequently
sees
subdural
haemorrhages in young babies with no
suspicious
circumstances.
She
and Dr.
Scheimberg
believe the
subdural
haemorrhages are caused by hypoxia. Put as best I can it would
seem
that the theory is that the dura is highly
vascular
and the hypoxia ruptures a transmembrane protein called Claudin – 5 causing bleeding. I feel unclear as to whether I have accurately recorded this hypothesis. It was touched on in Dr Cohen'
s
report but
she
elaborated on it in other experts or of the court.
her oral evidence in a way which was highly technical and difficult to follow. As it was not anticipated that this hypothesis would be a key part of the evidence of Dr Cohen it had not been dealt with by any of the other experts in any detail. It does not in my judgment impact upon the overall analysis of the
- Dr. Bonshek
says
that Dr Cohen'
s
paper is
very
similar
to Geddes III.
Similar
he
said
to Dr. Geddes' paper in terms of
speculation
made about materials not examined. In
saying
this he refers to an observation in Dr. Cohen'
s
paper that the findings indicate that hypoxia may also play a role in the aetiology of retinal haemorrhages.
- Dr. Cohen accepts that the Byard paper comes to a different conclusion from her.
She
notes that all the
authors
are forensic pathologists, whereas
she
and her co-
author
are paediatric pathologists.
She
does not believe that
authors
of the Byard paper have the "practice to
sustain
what they
say".
Dr. Cohen does not, however, explain why, if her hypothesis is correct, none of the clinicians (clinicians, in the position of Dr. Peters), the forensic pathologists or the neurosurgeons, are
seeing
subdural
haemorrhages in cases of pure hypoxia.
- Dr. Cohen
said
that her paper is "confirmatory" of Geddes III and is,
she
says,
"more
scientific".
Dr. Geddes,
she
said,
had
said
that
subdural
haemorrhages can be caused by hypoxia, but what Dr. Cohen'
s
paper
says
is that hypoxia can cause intradural haemorrhages and resulting in a thin film of haemorrhage.
Such
is Dr. Cohen'
s
confidence that
she
says
it is not merely a theory, rather,
she
said
"we have developed a close association that hypoxia leads to intradural haemorrhages leading to
subdural
haemorrhages".
- I have grave concerns about Dr. Cohen'
s
paper being used in any way to
support
a proposition that
suggests
that it has been
scientifically
established that
subdural
haemorrhages are caused as a result of hypoxia (direct as in Geddes or indirect by intradural haemorrhages, as
suggested
by Dr. Cohen).
- It has long been established that a
significant
number of babies (46% is the agreed figure for the purposes of this hearing) are born with
small
subdural
haemorrhages. These haemorrhages are largely asymptomatic and resolve on their own. What limited research there is
suggests
that they are largely gone by the time the baby is a month old, but they can linger on for as long as three months. It is for that reason that despite the
view
of
some
of the experts that this related to an earlier episode of trauma, it would have been wrong of this court to discount the possibility that the old
subdurals
found in Z'
s
brain dated from his birth.
- Dr. Bonshek, Dr. Cary and Dr. Al-
Sarraj
are all of the
view
that all Dr. Cohen'
s
paper does no more than confirm what is already known, namely that a number of tiny babies have
subdural
haemorrhages following the birth process which is, by its
very
nature, traumatic. I regard it as impossible to draw any further conclusions from this paper.
- The cohort of children were foetuses (which the preponderance of medical opinion
suggests
do not provide the court with useful data given the fundamental differences between a child in the uterus and a live child) and babies up to nineteen days old, the later covering the
very
period when one would expect to
see
birth
subdural
haemorrhages.
- It became clear in the course of her evidence that Dr. Cohen and Dr.
Scheimberg
had been
selective
in respect of the inclusion of children in the
study.
In other words, unlike Dr. Peters'
study
at GOSH, not all babies who matched the entry criteria were included in their
study.
This must inevitably undermine the
value
of the
study.
This does not, however, mark the limit of my concern in respect of use being made of this paper in
support
of the proposition that Z'
s
subdural
haemorrhages were caused as a consequence of hypoxia following choking:
(1) It is disingenuous to present the paper as a basis for providing "confirmation" of Geddes III on the basis that thirty children had
subdural
haemorrhages following hypoxia, where (as the Tables in the article reveal) thirteen of those children died at a day old or less.
(2) The results are entirely at odds with the work of Byard. That in itself is not fatal, there is always room for academic disagreement. It has already been noted that Byard included
some
foetuses in his cohort (although it would not
seem
many as that was a cause of complaint by Dr. Cohen). The Byard cohort however represented 82 children, including infants and toddlers, from a number of countries. Every case which fitted the entry criteria was included in the
study.
There were no
significant
underlying diseases which might have confounded the neurological interpretation.
(3) The findings are at odds with the experience of all the clinicians who gave evidence.
(4) It reaches its conclusions without the babies having been examined for retinal haemorrhages.
(5) It not only accepts Geddes III, but builds upon it.
(6) Dr. Cohen accepted in evidence that for the purposes of her
study
the eyes of the foetuses or neonates were not examined.
She
said
there were research papers confirming that hypoxia leads to retinal haemorrhages. That evidence is without exception at odds with the combined
view
of all the ophthalmic expertise.
Use of research – Dr.
Squier
- Dr.
Squier
also relied heavily upon research material in
support
of her contention that babies have choked, become hypoxic and then presented with
subdural
haemorrhages and retinal haemorrhages in the absence of trauma. In Dr.
Squier's
report,
she
said:
"It is my opinion that the presence of the chronic
subdural
haemorrhage is also
very
significant.
It is possible that this caused a
seizure
and collapse, or caused this baby to choke and impaired the baby'
s
normal protective reflexes. There are well described cases in the literature of babies who have choked and presented with
subdural
and retinal haemorrhages (Hilton 2004, Martinez-Lage 2006)."
227. It has to be
said
that, within the decorous confines of maintaining professional courtesy and respect, the proposition put by Dr.
Squier
that these two papers provided evidence that choking can lead to
subdural
haemorrhage and retinal haemorrhage caused considerable professional disquiet amongst her colleagues. Dr. Bonshek
said
that in referring to these two articles, Dr.
Squier
was being "disingenuous". When this was put to Dr.
Squier
she
said
she
was rather upset by
such
a comment and, indeed,
she
looked distressed.
- I have read both articles and it is important, in considering how the court
should
approach the evidence of Dr.
Squiers,
to examine the papers in little detail.
"Circumpapillary retinal ridge in the
shaken
baby
syndrome"
by Camille Hylton and Morton Goldberg.
- The facts of the case were that a five month old girl was admitted to hospital. The father had
shaken
her
vigorously,
allegedly in an attempt to resuscitate her following a choking fit. The father'
s
explanation was not accepted and the child was later placed in foster care.
She
had
subdural
haemorrhages and a circumpapillary retinal ridge was present in the left eye.
- Dr
Squier
said
that
she
"presumed" the child was placed in care because
of the "
shaken
baby
syndrome"
diagnosis. "The clinical history was not
accepted,"
she
said,
"
so
there is a danger of a circular argument here,
shaking
and choking".
She
said:
"I am not given enough evidence to know which was more important. We know
shaking
needs to be extremely
violent
and it is probably beyond the ability of a human,
so
it is unlikely to have been
shaking.
So
we have to work on the basis that it is the choking that was responsible. "When one
steps
back and is logical", Dr.
Squier
went on to
say
"we must assume that the parent was trying to rescue from a choking episode and that that may be the basis of the
subdural
haemorrhages and retinal haemorrhages…… I think it was a wrong decision placing the child in foster care and an unfair decision was probably made, as the result in this case of
sweeping
aside an explanation of choking"
- Dr.
Squier
made this assumption based only on the bald facts outlined
above. It was put to Dr
Squier
that had any third party who read her report but had not had access to the paper itself y would not have known that
shaking
was an essential element of the case. Dr.
Squier,
seemed
oblivious to
significance
of the fact that any reader of her report would have been without that key fact; namely that it was common ground that the child had been
shaken
rather
she
replied "I try to present this evidence that
subdural
haemorrhages results from choking, a
shake
is noted but on any logical analysis that
shake
could not have caused it".
"Benign
shaken
baby
syndrome.
Case report" by Martinez-Lage.
- The facts in the
second
case relied on by Dr.
Squier
were that a three and a half month old baby was admitted to intensive care, having experienced an acute episode of loss of consciousness. The parents
said
that the child had choked when eating. One of the parents applied the Heimlich manoeuvre in an attempt to dislodge the food and in doing
so
they acknowledged
shook
the baby forcefully. The
author
quotes: "We have identified this type of injury as "benign
shaken
baby
syndrome"
to refer to the unintentional mechanism of the injury, rather than the
severity
of the cerebral damage". The
authors
concluded that
some
incidents of,
seemingly,
inflicted head injuries may therefore be the result of accidental events. The
authors
of the case did not consider that there was any question of the choking having caused
subdural
haemorrhages and retinal haemorrhages they were clear it was the
shaking.
The whole purpose of the article was to consider the possibility that
subdural
haemorrhages consequent on
shaken
baby
syndrome
are not always of a non-accidental nature.
- Dr
Squier
said
in evidence that it was her
view
that the
authors
had not
taken the choke "
sufficiently
seriously"
and
she
did not think that the parents would have
shaken
the baby hard enough to cause
subdural
haemorrhages.
- In both of these articles, the fact that the babies had been
shaken
was a key feature - a feature to which Dr.
Squier
made no reference whatsoever in her report for the court. Further, without any additional information,
she
simply
presumed that the child in the first article had been wrongly removed from her parents and in the
second
that the
authors
had not taken the choke
seriously
enough. The common feature of the
shake
was in each case disregarded by Dr.
Squier.
- My concern at the use to which Dr.
Squier
put these articles was heightened when
she
was asked by Mr. Geekie QC on behalf of the
Local
Authority
whether
she
would herself write up Z'
s
case as "well described case of a baby who had choked and presented with
subdural
haemorrhage and retinal haemorrhage". Dr.
Squier
replied that, providing cardiac arrest was excluded as a cause of the collapse,
she
would indeed do
so.
Dr
Squier
confirmed that that this is how
she
would write up Z'
s
death even though
she
was "fully well aware" of the presence of the retinal haemorrhages.
Other research
- Dr. Peters is currently involved in two
substantial
research projects. Each project is being conducted within his department and each is of relevance to the facts of this case; one, concerning CPR, has already been referred to. Neither piece of research has yet been peer reviewed or published, but what the research does is
show
to the court what the largest unit in the country is
seeing
day in, day out from a clinical perspective. It is of even greater
value
as it is presented not just anecdotally but having been
scientifically
analysed with appropriate control
samples
- Dr. Peters has worked in a paediatric intensive care unit for
sixteen
years. The Great Ormond
Street
Hospital collects the most
severe
of those cases from all over the
south
of the United Kingdom. Dr. Peters told me that, "a huge" proportion of these cases exhibit low blood oxygen levels (hypoxia) or reduced blood
supply
(ischaemia). He
said
in evidence that that
very
week he had had three or four
such
cases, where there has been profound hypoxia
and CPR.
- In none of those cases do they
see
subdural
haemorrhages on the CT
scans
and, if the hypoxia was leading to
subdural
haemorrhages, he would expect
to do
so.
He gave an example from the previous night when he had been
on call. During the course of the night he had dealt with two cases, one
was an accidental
strangulation
with a wire where the child had
suffered
cardiac arrest followed by CPR and the
second
concerned a child who had
drowned in the bath, also leading to cardiac arrest and CPR. In each case,
Dr. Peters
said
the children had
suffered
profound hypoxia and neither had
subdural
haemorrhages.
- In this context, Dr. Peters went on to describe the
second
piece of work which
is being carried out at Great Ormond
St.
where one hundred cases of fatal
hypoxia in a newborn have been recorded. The entry criteria is that the
child or infant
should
have died, that there
should
have been hypoxia or
cardiac arrest. The control
samples
are cases of unequivocal trauma. The
research was run between 2001 and 2006; out of the hundred children,
fourteen of the children were less than 6 months of age.
- In all cases the children had their cardiac arrest outside of hospital this is
significant
as this is the most
severe
form of collapse. In none of the 100 cases recorded were
subdural
haemorrhages found in the children. Dr. Peters
said
that each of the children in question had had coroner'
s
post-mortem, which means that the post-mortems were not done at Great Ormond
St,
and to date the coroners have chosen not to disclose the results of those post-mortems. Dr Peters
said
that would be a considerable advantage to have that information to factor into their research. I agree. I hope
very
much that the Coroners concerned will reflect upon their position understanding, as they must, the importance of this research in this difficult area.
- Mr.Richards was asked to consider the possibility of hypoxia being responsible for
subdural
haemorrhages and retinal haemorrhages. Mr. Richards pointed out that he was in court when Dr. Geddes, "in his
very
presence" when giving evidence in the Harris case, accepted that the hypothesis was flawed. No
scientific
evidence, he
said
had been put forward to
support
the hypothesis. Mr. Richards was also referred to Dr. Cohen'
s
recent paper. He
said
that in this article Dr. Cohen has "reheated" the issue of hypoxia leading to
subdural
haemorrhages. Mr Richards'
view
was that there was nothing within the paper to establish that the
subdural
haemorrhages were hypoxic rather than birth haemorrhages. His opinion accordingly remains unchanged.
- When it was put to Dr.Cohen that accepted research
shows
that 46% of neonates have
some
subdural
haemorrhages, but no clinical manifestations, Dr Cohen'
s
response was that MRI
scans
are insufficiently
sensitive
to pick up earlier hypoxia and that all these children could have been
suffering
mild hypoxia. There is no research or data to
support
such
a proposition.
- Mr Richards was giving evidence from a
surgical
point of
view.
He was asked about his clinical practice. He
said
that when children have cardiac arrests and
survive,
but are in a coma, a CT
scan
is routinely done. If, he
said,
a fair proportion of them were
showing
subdural
haemorrhages as a consequence of the hypoxia which they had inevitably
suffered,
the neurosurgeons would as a matter of course be contacted to consider
surgery,
but they were not. Mr Richards
said
that despite the fact that everyone is now "
scanned
at the drop of a hat",
subdural
haemorrhages following hypoxia
still
haven't been identified and in the pathological
studies:
"you
simply
do not
see
it".
- Mr Richards concluded by
saying
that "nothing is impossible". But here, he
said,
all the features "
scream
trauma". Things happen, he
said.
"Odd cases that do not follow the rules", but there is nothing he had
seen
in Z'
s
case to
suggest
his case would be one
such.
- Any Court dealing with these cases on a regular basis will be aware that Dr.
Squier
is a
strong
believer that many cases hitherto regarded as
SBS
have in fact been precipitated by a choke and that there has thereafter been a cascade of events, including hypoxia, which has been responsible for the
subdural
haemorrhages and retinal haemorrhages.
- Dr
Squier's
view
is a legitimate one and an appropriate line of research.
All agree that much remains unknown about
SBS
and the triad. It is essential, however, that Dr.
Squier
and others engaged on
such
research avoid becoming a zealots with the consequence that
scientific
rigour is lost or
sacrificed.
- These Courts rely on the professionalism and rigor of the experts who come before them. That means not only drawing the Court'
s
attention to research that is contrary to their
view,
but that the experts are rigorous in the use they make of research papers. Dr.
Squier's
suggestion
that there were "well documented cases of choking, leading to
subdural
haemorrhages and retinal haemorrhages" by reference to the two articles analysed above is disquieting. It
should
be borne in mind that Dr.
Squier
relied upon these
so
called "well documented cases" in
support
of her hypothesis as to the cause of Z'
s
death; the
subject
of this enquiry.
She
should
have, at the
very
least, drawn the court'
s
attention to the fact that the cases in question were cases where the child had been
shaken
and that in one of them had been regarded as a case of non accidental injury resulting in the child being taken into care as a result of the incident.
- Dr. Bonshek referred to Dr.
Squier's
use of these articles as being "disingenuous". I feel driven, with regret, to agree.
(ii) Deferral to experts and keeping within one'
s
own expertise
- During the course of her evidence, Dr Cohen
said
that
she
felt that choking was a "
strong
possibility" and most likely in part because of the noise demonstrated by the mother on the CD, but also because of the Ion-Channelopathy.
She
concluded by
saying
"We're
speculating.
We don't know".
- Dr. Cohen
said
this despite having
said
earlier in her evidence that
she
is not a cardiologist and
she
ought to defer to Dr. Till who had, after all,
said
the heart itself was healthy and ion channelopathy unlikely. Dr. Cohen however continued down this route
saying
that there is possible evidence of heart failure as at post-mortem there is asymptomatic oedema and pleural fusion which can be
seen
in heart failure and can be a consequence of arrhythmia. Dr. Cohen
said
that
she
thought the only thing that had discouraged Dr. Till from a diagnosis of
Short
QT was the presence of the retinal haemorrhages. At one
stage
of her evidence Dr. Cohen
said
that
she
thought that the
Short
QT led to the cardiac collapse, and there may have been hypoxia as part of the cascade causing the retinal haemorrhages.
- During the experts' meeting Dr. Cohen had
said:
"Dr. Till addressed this issue
very
well and
she
was convinced upon recovery that this QT interval remained
short,
and
she
actually raised this issue. The only thing that obviously discouraged her was the presence of a retinal haemorrhage."
- This is not an accurate reflection of Dr. Till'
s
evidence. Dr. Till was clear when it was put to her, that
she
has at no
stage
been "convinced" that the QT intervals were
short
upon resuscitation.
She
said
very
firmly in oral evidence:
"It (the note of the experts meeting)
says
I was convinced. I am not convinced. There is a
very
small
chance that it is QT
syndrome.
I was extremely
sceptical
anyway on the cardiac evidence and cannot explain retinal haemorrhage in conjunction with the QT."
- To return to Dr. Cohen'
s
oral evidence. When it was put to Dr. Cohen again that Dr. Till did not think
short
QT was a
strong
possibility
she
said,
somewhat
ungraciously:
"I'm leaving it to her, I cannot go against her."
- Cases involving an allegation of
shaking
are, inevitably, and necessarily, multi-disciplinary in their approach. It is therefore crucial that each expert keeps within the bounds of their own expertise and works in a collaborative way with the other experts in order to
see
if a diagnosis/cause can be reached. This means that each expert must defer to the expertise of others more qualified to comment on certain areas
such
deferral must be made not grudgingly or reluctantly, but in ready acknowledgment of the greater expertise and knowledge that the other
specialists
may have in relation to certain aspects of the case.
- Dr.
Squier,
I found to be
very
reluctant to defer to experts and where, in the witness box,
she
was driven to do
so
it was with the utmost reluctance, one was left with the
sense
that
she
said
it for form'
s
sake,
and did not really believe it to be true.
- The most
striking
of a number of examples of this was in relation to the history of Z'
s
presentation given by the mother. Dr.
Squier
said
that it was not necessary to be a clinician to assess the description given by the mother of the
so
called choke.
She
accepted that in terms of actual experience of
such
an event
she
had none.
She
understood the
view
of Dr. Peters that Z had been crying, and that the noises he was described as having made were
such
as one would expect to hear after a traumatic insult. But even then, not only did
she
decline to defer, but
she
did not accept that Dr. Peters was better placed to comment than
she.
Rather,
she
said,
that
she
would defer to any direct observation of the baby, but not to an assessment in the round.
She
said,
in
such
circumstances even an ophthalmologist could express a
view.
"He (Dr Peters) is a paediatrician and if he has more information I accept it, but there is not much a paediatrician can
see
or hear after the event."
- The frustration of her professional colleagues at what was perceived as Dr.
Squier's
persistence in
straying
out of her area of expertise was revealed by Dr. Cary during the course of his oral evidence. Having described the mechanics of choking and
specifically
deferred to Dr. Peters on the issue as to whether or not,
such
a choke had in fact occurred , Dr Cary concluded by
somewhat
caustically commenting that "larynx
spasm
has nothing to do with neuropathology".
- In order to provide an explanation for all the clinical features found in Z'
s
death, both Dr.
Squier
and Dr. Cohen have had to provide an explanation for the retinal haemorrhages. Dr. Cohen appropriately and properly conceded that
she
would not have expected to
see
such
extensive haemorrhages as a result of CPR. Both Dr Cohen and Dr
Squier,
speculated
that, as the eye is part of the central nervous
system,
it must therefore behave in the
same
way as the brain. This hypothesis would allow reperfusion which had been put forward as one possible theory for the cause for the
subdural
haemorrhages, equally to explain the presence of the retinal haemorrhages.
Such
comments made by Drs Cohen and
Squier
are
significantly
out of their respective areas of expertise,. Aside from that to make, (as Dr.
Squier
termed it in her written material),
such
an "assumption" as a means of plugging a gap in their hypothesis, lacked
scientific
rigour and it is a matter of concern to
see
any expert doing
such
a thing.
(iii) Factual accuracy
- These cases are difficult, distressing and complex. I understand that Dr.
Squier
and Dr. Cohen have
strong
views
about
Shaken
Baby
Syndrome
and the triad. They are each to be applauded for their dedication to the cause of research in this controversial area and it is to their individual credit that they are undeterred by being, as they
see
it,
voices
in the wilderness.
- However, it is of the utmost importance that all experts, whether mainstream or not, read all the papers and where they have to rely on raw data that they check its
veracity
and accuracy in the medical notes. A trial is first and foremost, a forensic exercise and fairness to the parties demands, as a basic premise, that the experts will be accurate in their use of the
source
material.
Head Circumference
- When Z was born he had a head circumference on the 25th centile. When his head was measured again on 22nd August 2007 by the health
visitor,
his head circumference had increased to the 75th centile. This meant it had crossed 3 centile lines and consequently it was planned to review his head circumference in the immediate future. This was done on 18th
September
2007. It was again on the 75th centile.
- When Z'
s
head circumference was checked on the afternoon of 30th October 2007, by which time he was in Addenbrookes Hospital, his head circumference was
slightly
above the 91st centile.
- Dr. Peters, for the purposes of these proceedings, took the measurements from the medical records and plotted his own charts. His evidence was that the child was born
small;
(his weight also being below the 25th centile) and that the child and his head had grown in proportion. He
said
in evidence that the centile chart
showed
the
sign
of a healthy child catching up on post-natal growth. There was and nothing wrong with Z.
- Mr. Peter Richards for his report, also took the weights and measurements from the medical records. Mr. Richards did, however unfortunately , make an error and, in the body of his report. He referred to the measurement of 22nd August as being on the 91st centile as opposed to the 75th centile. This was a
simple
misreading error on his part.
- Dr. Cohen
set
out in her oral evidence those features upon which
she
had placed
significance
in reaching her conclusion; they included what
she
referred to as "a large head". Dr. Cohen
said
in evidence-in-chief that Z was a large child at birth.
She
regarded that,
she
told the court, as
significant
as it could be related to the development of a birth
subdural
haemorrhage.
- Dr Cohen went on to
say
Z was always a large child and was over the 90th centile – "that is above average and that is abnormal".
She
said
given that he was a large child, if he had been born quickly, it would not have given the mother'
s
pelvis time to expand and it would have allowed for a birth haemorrhage.
She
went on to comment that Z was a quick delivery.
- During the course of her cross-examination, Dr Cohen went on to
say
that
she
regarded it as important that, at one point, the head circumference was abnormal as it indicated a continual bleed from an old
subdural.
She
expressed the
view
that, once it got over the 91st centile, an asymptomatic
subdural
could have lead to a cardiac arrest, and there then could have been bleeding. Dr. Cohen was asked where
she
got the information on which
she
based her opinion, and
she
said
that
she
had obtained it from the notes and her own
study
of the
sources.
- When the error in Dr. Peter Richards' report was drawn to her attention Dr. Cohen accepted that
she
may have taken her information directly from that report (not that that would have explained her erroneous
view
that Z was a large child at birth). Dr. Cohen, however, went on to
say
that
she
had been
shown
Dr. Peters' new and correct centile chart in the morning, prior to giving evidence.
She
said
that, whilst Mr. Richards may have made an error in the report, on the evidence
she
had been
shown
that morning Z was
still
on the 91st centile and, therefore,
still
abnormal. It was only after
she
was reminded that that reading of the 91st centile upon which
she
was continuing to rely had been taken after he had been in hospital for 24 hours with a
serious
head injury that
she
accepted that Z had been progressing evenly along the 75th centile, and
so
there was "nothing" in the head circumference point.
- When this was explored with Dr. Cohen,
she
said
that
she
did not know whether
she
had received Z'
s
medical records and, therefore, presumably whether or not
she
had read them.
She
accepted that when making an important point about head circumference
she
should
have asked for those records had
she
not already got them. Dr Cohen acknowledged that
she
should
have looked at the
source
material and that had not done
so.
I
should
add that it is
simply
not acceptable that and expert witness giving evidence in any Child Protection case but especially a case where a child has died
should
go into the witness box with no clear idea of what papers
she
has received let alone read.
- It was put to Dr Cohen that
she
had employed the head circumference point to bolster her hypothesis. This
she
denied.
She
said
that it could have been an old birth bleed, or a re-bleed, but
she
now thought the baby may have had a re-bleed.
She
said
she
could not exclude re-bleed as a primary cause, but that
she
thought it was
secondary.
Finally,
she
said,
"we do not know the cause of his collapse". Ultimately, her evidence was confusing and unhelpful.
- In her report, Dr. Waney
Squier
said:
"It appears from the
statement
of Mr. Richards that this baby may have had a pre-existing intracranial bleed because the head circumference was growing abnormally fast in the first few months of life. This must be considered as a factor in considering the cause for collapse and the baby'
s
response to hypoxia."
- Later in the report
she
went on to
say:
"The clinical history of Z'
s's
case [
sic]
indicates that his head circumference was growing faster than expected; it rose from the 25th to the 91st and then returned to the 75th centile by two months of life. This may be an indication that a chronic
subdural
bleeding was present and was a fluid collection of fluctuating
volume
during this time."
- In her analysis of why
she
felt choking to be the likely cause of Z'
s
collapse
she
said
in her report:
"It is my opinion that the presence of the chronic
subdural
haemorrhage is also
very
significant.
It is possible that this caused a
seizure
and collapse which caused this baby to choke and impaired the baby'
s
normal protective reflexes."
- It was in this context that Dr.
Squier
went on to
say:
"There are well described cases in the literature of babies who have choked and presented with
subdural
and retinal haemorrhages."
- Which assertion has been dealt with elsewhere in this judgment.
- Finally, Dr.
Squier
went on to
say:
"In the presence of chronic
subdural
membrane,
small
vessels
are damaged by hypoxia and they may bleed particularly following resuscitation which leads to reperfusion injury. I assume that the
vessels
of the retina, being
similar
to the
vessels
of the brain, would be
subject
to
similar
damage by hypoxia and would also bleed on reperfusion."
- It can be
seen,
therefore, that Dr.
Squier
was building her theory, in part anyway, from the basis that Z had an abnormal head circumference and that this was evidence that he had a chronic, as opposed to old,
subdural
haemorrhage; (a chronic
subdural
haemorrhage being one which did not disperse, but continued to develop leading to an increase in the head
size).
This chronic
subdural
haemorrhage
she
regarded as being
very
significant
as having either caused a
seizure
and collapse, or a choke resulting from the chronic
subdural
haemorrhage having impaired the baby'
s
normal protective reflexes and allowed him to choke even though he was not being fed at the time.
- In oral evidence, Dr.
Squier
reiterated that one of the factors
she
takes into consideration is that there is a fluid collection which has led to
swelling.
She
said,
once again, that
she
regarded it as "
very
significant"
that the head grew abnormally fast.
She
too was also told of Dr. Richards' error.
She,
unlike Dr. Cohen,
suggested
that
she
had in fact looked at the records, but accepted that the evidence of the head circumference is in fact entirely neutral. Even having made that concession, Dr.
Squier
again
said:
"Chronic
subdurals
cause
some
babies to be unwell, clearly irritable and there may be an association between old
subdural
haemorrhages and
vulnerability
to choking. The physical
signs?
no evidence just a reflux that did not work. The
sound
effect I think is consistent."
- In the present case, Mr. Richards made a
simple
error as he read the weight off a centile chart (from the
source
material). Thereafter, Dr. Cohen and Dr.
Squier
failed to check that data, but
simply
took it from Mr. Richard'
s
report. As a consequence, they each regarded the erroneous readings as "highly
significant"
based, as they were, on faulty data. Had Dr. Peters, as part of his preparation, not gone back to the
source
documents and prepared his own fresh centile chart, the error may not have come to light.
Pink frothy
sputum
- The error in relation to Z'
s
head circumference was not the only
serious
factual error made by Dr.
Squier.
In her written material, Dr.
Squier
recorded that the paramedic at the
scene
had noted "pink frothy
sputum
running out of Z'
s
nostrils".
She
also noted that at the hospital, "milk was noticed in the throat and nose".
She
said
in her oral evidence, however, that there was evidence of aspiration as a contributory cause and
so
choking must be a likely explanation. In
support
of this proposition
she
said:
"The child was found with milk and
vomit
in his airways by the ambulance man."
- This was not only wrong, but misleading.
- The paramedic gave evidence that he found a minimal amount of pink frothy
sputum.
He was able however to get a chest rise with bag and mask, indicating that the airways were clear. There was never any
suggestion
that Z had
vomited,
much less that
vomit
was found in his airways. The only weak clinical reference to milk in the airways is much later in time, and cannot relate to Z'
s
collapse.
c) Heart abnormality
- In addition to her error about the head circumference Dr. Cohen, has, as already detailed, made a
serious
error in
stressing
her belief that abnormality of the heart had been found post-mortem.
- I do not doubt the commitment of Dr.
Squier
and Dr. Cohen to the advancement of the understanding of
Shaken
Baby
Syndrome.
As already indicated, I make no criticism and, indeed, it would be wrong to do
so,
of the fact that neither of them hold mainstream
views.
There is a
significant
fundamental difference between academic theories and hypotheses, on the one hand, and the rigorous forensic analysis which is required in care proceedings, on the other. In care proceedings the parents of the children concerned face allegations of the most
serious
type and they are therefore entitled to expect the experts commissioned to report to the court to be meticulous in both their analysis of the data and in their presentation to the court of their expert forensic opinion. In addition uniquely in this division, the Court is concerned with the future protection and
safety
of the children of those parents.
- Dr.
Squier
and Dr. Cohen, I find with regret, have each fallen into that category of expert identified by Butler-
Sloss
P. in Re LU & LB, namely the expert who has developed a
scientific
prejudice. As a consequence, I accept the
submission
of the
Local
Authority
that Dr.
Squier
has permitted her convictions to lead her analysis. The
very
fact that
she
said
that
she
would, in future, be content to report Z'
s
case as a "well described case of choking leading to
subdural
haemorrhage and retinal haemorrhages,
subject
to the exclusion of cardiac defect"
sums
up her approach in one concise example. Another, is the fact that each of the
significant
factual errors made by her
served
to
support
her hypothesis of choking and hypoxia.
Conclusions as to
subdural
haemorrhage and hypoxia.
- The overwhelming preponderance of evidence in this case is to the effect that, as of today, medical opinion is that hypoxia does not lead to
subdural
haemorrhages and retinal haemorrhages of the type found in Z.
- I had the privilege of hearing evidence from a number of eminent clinicians,
in particular Dr. Peters. Each and every clinician is clear in their evidence, that they
simply
do not
see
subdural
haemorrhages following hypoxia where there has been no trauma. Dr. Cary and Dr. Al-
Sarraj,
from a pathological
view,
agree and Dr. Cary reminds the Court that the pathology he
sees,
as a Home Office Pathologist, in cases of trauma is identical regardless of whether there are additional injuries
such
as grip marks.
- Ms Delahunty was meticulous in examining each and every possibility and was
supported
Lord Brennan QC, on behalf of the father.
She
dealt with CPR, reperfusion and coagulopathy, as well as the possible causes of the "primary event". The
Local
Authority's
case was rigorously tested at every
stage
and in every respect.
- Dr. Cary in his evidence was cautious about the approach to a diagnosis. He told the Court:
"You need to be
very
careful. The triad is only diagnostic when it is properly worked up. The finding of
subdural
and retinal haemorrhages and encephalopathy are not diagnostic. When I express my
view
at the experts' meeting, I am making my assumption that, by the time of the meeting, each element has been worked through. I hope what I have done is tested against the
science."
- In the present case, the triad was present. Despite the mass of medical evidence and the
vast
amount of research that has been referred to, I am
satisfied
that, of the three potential precipitating primary events namely cardiac arrhythmia, choking and trauma, neither arrhythmia or choking provide an explanation for Z'
s
encephalopathy. Only trauma provides an explanation for his
sudden
catastrophic collapse. Trauma not only provides a unified picture of all that was found post-mortem, but is also the
view
of the majority of medical opinion. I find on the balance of probabilities that the primary event was the result of trauma.
- Without identifying a likely primary event, Ms. Delahunty'
s
cascade of consequences does not come into play. In any event, as Mr. Geekie QC pointed out, on behalf of the
Local
Authority,
such
a cascade relies upon unlikely event following unlikely event and requires an acceptance by the Court of Geddes III as expanded, refined or analysed by Dr. Cohen and Dr.
Squier.
- When a Court hears weeks of medical evidence it is important that it does not lose
sight
of the fact that this is a case about people. I take into account, in reaching my conclusions, that there is no evidence of harm or neglect of Z or
S
before 29th October. I take into account also that both parents appear to be in a loving
stable
relationship, and that there can be no doubt but that each love their children.
- As previously indicated, I found the mother'
s
oral evidence unsatisfactory.
She
was not, I find, frank with the court about what happened that evening, when, as I am
satisfied
was the case,
she
had both children crying, inconsolably, with the prospect of her husband not returning for many hours.
- I do not intend to attempt to reach any conclusions about what precisely happened in what order that evening. I am
satisfied
that the mother is not telling the truth in the witness box about the
sequence
of events and, in particular, when
she
said
in evidence for the first time that Z had not cried once he had attempted to
vomit.
- The tragedy of
shaking
or
shaking
impact injuries or deaths is that they can be the result of a momentary loss of control.
So
often the consequences are wholly disproportionate to what was a fleeting loss of temper. I am
satisfied
that the mother had
such
a loss of control that evening and, in her frustration and inability to
sooth
Z whilst
S
was having
some
sort
of toddler tantrum,
she
shook,
or
shook
and threw Z down.
- Thus, I conclude that the threshold conditions under
section
31 of the Children Act 1989 are established. Z'
s
collapse was caused by the mother
shaking
him. The father was completely blameless at that time. It is to be hoped that he will reflect on this judgment and the evidence that he gave to the court about the crucial period around Z'
s
collapse and come to understand that, much as he may love his wife, his first priority must now be to his
surviving
child,
S.