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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A & B (Children), Re  EWHC B22 (Fam) (29 January 2013)
Cite as:  EWHC B22 (Fam)
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OF THE FAMILY DIVISION
42-49 High Holborn
B e f o r e :
(Sitting as a Deputy High Court Judge)
|LONDON BOROUGH OF LAMBETH|
|CHILD A & CHILD B|
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
MS SCRIVEN QC & MISS SPRATLING appeared on behalf of the MOTHER
MS DELAHUNTY QC & MS RHONE-ADRIEN appeared on behalf of S M
MISS HOWES appeared on behalf of S D
MISS BALL QC & MISS WARNER appeared on behalf of GUARDIAN/CHILDREN
MISS STAMFORD appeared on behalf of C F
Crown Copyright ©
SIR MARK HEDLEY:
'There are few types of case which arouse greater anxiety and controversy than those in which it is alleged that a baby has died as a result of being shaken. It is of note that when the Attorney General undertook a review of 297 cases over a 10-year period, following the case of Cannings, 97 were cases of what was known as 'Shaken Baby Syndrome'.
The controversy to which such cases give rise should come as no surprise. A young baby dies whilst under the sole care of a parent or child minder. That child can give no clue to clinicians as to what has happened. Experts, prosecuting authorities and juries must reconstruct, as best they can, what has happened. There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the Prosecution is able, by advancing an array of experts, to identify a non-accidental injury, and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted.
In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.'
'I have been impressed over the years by the willingness of the best paediatricians, and those who practise in the specialities of paediatric medicine, to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants.
Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using controlled samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown etiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn, and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.'
'Dr Bold completed her medical and consulted with the named CP doctor, Dr Jolobe, who saw Child B and then had a further telephone conversation with Dr Barnwell. All agreed that the location of the mark and the time it was said to have happened supported the story given by the parents. It seemed that the parents' presentation was what raised suspicion the most.'
'The concern that Child B's injury to the left side of her face was non-accidental, purposefully inflicted were not substantiated. The medical view, which so far has not yet been received in writing, is that the location of the injury is in line with the story of how the injury happened, and the suggestion that the mark was not previously noticed by health professionals who saw Child B earlier that morning is consistent with the medical knowledge of how long such marks/bruises take to surface.
My view, and the view that the professionals who know the family, the health visitor, the family support worker, the children's guardian, is that Child B is likely to have suffered an accident and the parents' anxiety about how this might be perceived led them not to volunteer this information with the professional network in place to monitor the children's welfare and safeguard them from any further significant harm.'
'If a legal rule requires a fact to be proved, a fact in issue, a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of child Aero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.'