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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWHC 26 (Fam)
||Case No: CA15C0087
IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HAYDEN
|| CUMBRIA COUNTY COUNCIL
||- and -
||- and -
||LM AND KR
(child, acting by their Children's Guardian)
Mr. Rowlands (instructed by Cumbria County Council ) for the Applicant
Ms. Heaton QC and Mrs Scully (instructed by Atkinson Ritson) for the 1st Respondent
Mr. Verdan QC and Miss Henley (instructed by Bendles Solicitors) for the 2nd Respondent
Mr. Kennedy (instructed by H.F.T Gough) for the 3rd Respondent
Hearing dates: 30th Nov, 1st, 2nd, 3rd,4th December 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Hayden :
- I am concerned here with two children, LM who is now 20 months of age and KR, who is 5 weeks old. Their parents are KW ('the mother') and GM ('the father'). The Local Authority became involved with this family as a result of injuries sustained by LM on the 21st January 2015. At 10.16 am on the 21st January a telephone call was made by the father to the emergency services. A paramedic arrived at the home in under 10 minutes. The account given by the mother was that LM had been sitting on the floor propped up by cushions when she fell backwards on to a carpeted surface. The father was upstairs in bed having worked a nightshift. This account has been maintained by the mother throughout these proceedings and during the course of a criminal investigation. In her evidence the mother told me, with very visible distress, that such was the force of LM's contact with the floor that the noise of the impact made her feel physically sick.
- LM was presented to the A & E Department at Cumberland Infirmary at 11.55am. The history recorded was that following hitting the back of her head (the occiput) LM cried and approximately two minutes later became floppy and then rigid. That episode lasted around five minutes and then LM vomited. On examination LM was found to be improving in colour, coordination and limb movements were normal. There were no bony injuries and no boggy swelling. The recorded Glasgow Coma Score was 15, i.e. fully conscious.
- LM had two episodes of vomiting but she remained alert and active. She fed on the children's ward, eating cottage pie and milky yoghurt. In view of the vomiting she was kept in over night. The general impression was of a child who had sustained a minor head injury.
- On the 22nd January a CT scan was undertaken which revealed a right sided intermediate density subdural haematoma (SDH) observed in the fronto-parietal region. Later, Mr Peter Richards, Consultant Paediatric Neurosurgeon at the John Radcliffe Hospital, Oxford was to undertake a review of the neurological evidence in order to assist the Court with an expert opinion. In his report of the 6th May 2015 he reviewed the CT scan and observed:
"1.12. Brain windowed views designed to show the intracranial contents show an anatomically normally formed brain with normal basal subarachnoid spaces containing cerebrospinal fluid, ventricles and surface subarachnoid spaces which appear slightly prominent for age. Over the surface of both cerebral hemispheres, but more so over the right than the left, there is fluid of intermediate density between brain (grey) and cerebrospinal fluid (black). There are a couple of areas particularly over the right cerebral hemisphere and the left parafalcine region where there is high signal likely to represent fresh subdural blood."
- Following discussion with the neurosurgical team LM was examined by an ophthalmologist, on the 24th January. The examination revealed bilateral retinal haemorrhages. In the light of these concerns LM was transferred to the Royal Victoria Infirmary in Newcastle for a MRI scan. With a child of this age that is a difficult undertaking and although LM had been sedated the scan failed. She was transferred back to Cumberland on the 27th January. Thereafter she remained clinically alert with no neurological signs and was well enough to be discharged the following day i.e. 28th January 2015. The plan was for LM to undergo a further MRI scan under general anaesthetic.
- The MRI scan was finally performed on the 2nd February 2015. It revealed 'a subacute right sided cerebral convexity subdural haematoma with further subdural haematoma present around the left occipital lobe and left cerebellum returning high T1 signal, unlikely to represent acute haemorrhage'.
- This combination of SDH, bilateral retinal haemorrhages and the history of LM's floppiness, rigidity and vomiting gave rise to concern that LM may have suffered a non accidental head injury. In the absence of any scalp injury the concern focused on whether she had been shaken by a frustrated carer.
- One further important feature of concern was LM's head circumference. An anti natal scan (34 weeks) revealed the head circumference to be around the 97th centile. There is no record of a measurement taken at the time of delivery but a reading recorded by the health visitor only a short time after the birth revealed a circumference fractionally above 99.6th centile. On the 19th May 2014 LM was seen by the GP for routine assessment. No abnormality was found apart from an increased head circumference, now significantly above 99.6th centile. The GP notes state 'happy baby but note head circumference now off chart. Repeat 10d paeds if accurate, mum reports dad has a big head'. On the 27th May LM had routine immunisations. The records reveal 'head circumference increased further to 42.3cm, from 42cm (19th May 2014), continues in line over 95th centile, ref paeds, may just be constitutional'. This picture was very much the same at the time of the second series of routine immunisations in June and July 2014. LM's overall presentation, especially eyes, fontanelle, and sutures caused no concern and, as both parents head measurements were above the 99.6 centile this was considered to be a familial characteristic.
- The question of LM's pattern of head growth has been investigated during the course of these proceedings by Professor John Wyatt. Professor Wyatt was a Consultant Neonatalogist at University College London Hospitals between 1988-2011. He continues to research the mechanisms, prevention, consequences and treatment of brain injury in newborn babies. He considered LM's pattern of head growth unusual and found the CT and MRI imaging to be consistent with the presence of a benign macrocephaly. In particular Professor Wyatt noted that the appearances on the scans were consistent with chronic enlargement of the subarachnoid spaces which was also consistent with the large head circumference. The term used for what has been observed is: Benign Enlargement of the Subarachnoid Spaces (BESS).
- The significance of this condition, sometimes referred to as 'external hydrocephalus', has been highlighted in research drawn to the Court's attention by Professor Wyatt (Zahl S. Benign external hydrocephalus: a review, with emphasis on management. Neurosurgical Review 2011, 34:417-432). The authors of the research state:
"Several studies have shown an increased risk of subdural hematomas in children with external hydrocephalus after minimal or no known head trauma."
- Professor Wyatt has reviewed the ten references Zahl et al provided, to support the above assertion and, on the basis of that research, concludes that there is significant published evidence to confirm that subdural haemorrhage may occur in infants with chronic enlargement of the subarachnoid spaces following relatively trivial head injury, including the kind of low impact head trauma that might occur within the ambit of normal handling. The hypothesis appears to be that stretching of the bridging veins in the subdural space, consequent upon the enlargement of the subarachnoid spaces, may predispose an infant to developing SDH. Accordingly, Professor Wyatt concludes:
"In my opinion, since there is clear evidence that [LM] had chronic enlargement of the subarachnoid spaces from the time of birth, it is certainly possible that the subdural haemorrhages seen on CT and MRI scans may have occurred as a result of minor or trivial head injury during normal infant handling. "
- Very properly Professor Wyatt highlights that the timing and causation of the retinal haemorrhages is outwith his area of expertise and he defers to the ophthalmologists. He does nonetheless signal that the published evidence suggests that retinal haemorrhages are unusual in this context, highlighting only one published case report in which retinal haemorrhages were described following a minor episode of head trauma in an infant with BESS. (Piatt JH, a pitfall in the diagnosis of child abuse: external hydrocephalus, subdural hematoma, and retinal haemorrhages. Neurosurg Focus 1999: 7 (4): Article 4 1999).
- Professor Wyatt considered the medical evidence to be 'inconclusive' and evaluated 'a significant possibility that SDH occurred here as a result of minor or trivial trauma'. Of course, this is in the context of his having emphasised the importance of expert ophthalmological evidence.
- At a consolidated fact finding and welfare hearing, I heard evidence from Dr W. D. Newman, Consultant Paediatric Ophthalmologist. Dr Newman did not consider retinal haemorrhages, in this context, could be explained by a minor fall and took the view that it was more likely consistent with a shaking type injury. He considered that the retinal haemorrhages documented were not related to birth, seizures, vomiting, isolated raised intracranial pressure, cardiopulmonary resuscitation, minor trauma or immunisations. He emphasised however, that retinal haemorrhages should not be viewed in isolation but in conjunction with all the clinical findings. Succinctly capturing what is, in my judgement, the essence of good practice in these cases Dr. Newman stated:
"There is no specific pattern that indicates that a child has suffered a shaking injury or shaking with impact injury, and the diagnosis is one of exclusion, requiring analysis of the complete clinical scenario and all the evidence."
- Asked by Ms. Heaton QC, on behalf of the mother, whether a pre-disposition or vulnerability to SDH as a consequence of BESS would be consistent with the presentation of the bilateral retinal haemorrhages, Dr. Newman observed that they were not particularly related to the optic disc which is where he would have expected to find them if they were consequent on a benign enlargement of the subarachnoid space causing raised intracranial pressure. Professor David Taylor, professor emeritus in Paediatric Ophthalmology at University College London, also considered the site of the retinal haemorrhages to be unlikely if associated with BESS. Professor Taylor identified BESS as outside his expertise but, as I have noted, was able to observe (on the basis of the published research) that it is not normally associated with retinal haemorrhages in any event.
- Professor Taylor makes a number of observations which need to be stated:
"It is possible that LM's retinal haemorrhages were caused by a shaking injury with or, more likely without, an additional impact injury.
Even such mild retinal haemorrhages as those seen in LM may be caused by a non-accidental injury as the RHs themselves are not pathognomonic and mild RHs cannot be differentiate accidental or pathological cause from a non-accidental cause. Severe RHs can have fewer causes when there is no history of trauma and no pathological cause found. Very severe RHs demand an explanation of why they are not non-accidental or inflicted
Tangential forces may be set up not only by a deliberate shaking injury but also, less likely, as a part of accidental trauma when a to-and-fro head motion is induced. One would not normally expect short falls, rolling backwards or other minor head trauma with retinal haemorrhages but they are not out of the bounds of possibility. Being very few in number, all small and all posterior in the eye, must mean that the sort of event that LM suffered could be caused by a cause just above the threshold for retinal haemorrhages to occur, whether pathological, accidental or non-accidental."
- To my mind, this is a clear and objective report, balanced in its reasoning and cogent in its analysis. By way of completeness I would identify two further paragraphs with which I am satisfied Dr. Newman agrees:
"No RHs are pathognomonic (exclusively characteristic of) of any cause. Accidental trauma could have caused LM's RHs but the trauma would have had to be quite severe even to cause such mild RHs. Severe as in significant moving car accidents or falls down step onto a firm surface.
Thus, retinal haemorrhages can occur from both accidental and non-accidental (inflicted) injuries. An important difference between the two is in the severity of the RHs. Mild RHs can occur in both accidental and non-accidental injuries and there is nothing to distinguish them by examination of the eyes. Severe RHs are common in shaking injuries and unusual in accidental injuries, unless the accidental injury is one involving a large amount of force. The more severe the RHs, the more likely it is that the cause is non-accidental and caused by shaking."
- Finally, I turn to the report of Mr. Peter Richards. This report and Mr Richards' responses to the various questions asked by the lawyers has been the focus of much discussion by counsel during the course of this hearing. I think it important to record that I have not found it easy consistently to follow Mr Richards' analysis, or to identify the logical nexus between his analysis and the apparent conclusions in the report. Mr Richards is one of the most highly regarded paediatric neurosurgeons in the country and, in addition, provides great assistance to the Courts, as an expert witness. This he has done with distinction over many years. During this period some of the received shibboleths of NAHI have fallen away as Mr Richards is astute to identify. He emphasises that this is an area of medicine in which there are significant 'unknowns' which must always be factored in to any conclusion. It is necessary for me to set out extracts of his report in greater detail than I might ordinarily do, in order to do justice both to his efforts and properly to establish my findings.
- In his report dated 6th May 2015 Mr Richards observes:
"It is the findings of the subdural haemorrhage and retinal haemorrhage that has raised the question of whether LM has suffered a non-accidental inflicted injury. This is because the event as described, a low level fall backwards, is not thought to cause fresh subdural haemorrhaging and retinal haemorrhaging. However, it has to be appreciated that many children who have such low level falls never have neurological imaging and never have specialist ophthalmological examination. The majority are either not taken to hospital because they are clinically well, or seen in hospital and discharged without imaging. Without positive imaging they do not have formal ophthalmological examination. LM came close to being in this category and had she vomited less, such that she was not admitted to hospital, the features that were identified would never have been found.
2.7 The question therefore has to be considered as to whether the described low level fall caused these features and, in fact, in the general population who do not get imaged these features occur more often than the medical profession appreciates, or whether the history as given was wrong and she had, in fact, suffered a much more forceful injury which her carers either did not appreciate she had suffered or have deliberately chosen not to inform medical staff about…"
- The identified question as to whether there are undetected subdural and retinal haemorrhages in a general infant population who are not scanned is, of course, entirely unanswerable. How can we know? Nonetheless as the medical profession has often reminded me, absence of evidence is not to be equated with evidence of absence. An 'unknown' is precisely that, neither more nor less. Again however, as the medical profession has also impressed upon me in the past, if low level falls in infants were associated with SDH, retinal haemorrhages and/or transient cerebral irritation or encephalothopy then such might be seen clinically, they are not. This is the primary basis, as I understand it, upon which the medical profession considers it unlikely that low level falls cause fresh subdural and retinal haemorrhaging. Moreover, as Mr Richards identifies, the scanning of children following relatively minor trauma supports the opposite view, i.e. that such is unlikely to cause retinal or subdural bleeding. Mr Richards develops his analysis thus:
"On the basis of the appearances of the subdural haemorrhage, the acute traumatic effusion and, although I would defer to an ophthalmologist, the retinal haemorrhages, I do not from a neurosurgical perspective think it is possible to determine which is the correct answer. Infants cannot be experimented on in laboratories to determine what forces are required to cause subdural haemorrhaging, acute traumatic effusion and retinal haemorrhaging. Studies where infants are routinely scanned even if there is no clinical indication to do so have not been carried out. It is therefore possible that acute subdural haemorrhage and retinal haemorrhaging following very minor trauma is more common than we think. Nobody knows. On the basis of those children who are scanned following relatively minor trauma it is thought unlikely to cause fresh subdural bleeding, acute traumatic effusion and retinal haemorrhages. However, we do not know this with scientific certainty.
2.8 There has been some publications from Japan where children who are alleged to have fallen backwards from Japanese floor-based changing mats have suffered significant head injury with severe brain disturbance, seizures, subdural haemorrhages and retinal haemorrhages being identified (Aoki 1984). Many outside of Japan consider these publications as indicative of a cultural resistance to accepting the concept of non-accidental inflicted injury and that the cases described as occurring as a result of low level falls were, in fact, missed cases of non-accidental injury. However, the Japanese authors maintain their position that the significant injuries were caused by low level falls. Similar publications have not been generated outside of Japan."
- It is my understanding that the Aoki (1984) research is regarded by mainstream medical practitioners as deficient in its technique, methodology and professional objectivity. I can think of no case in the last 20 years (in the UK) where this research has been relied on. Mr Richards articulates the central criticism made of the research as a cultural resistance, in Japan, to the very concept of non accidental injury. He does not, however, directly associate himself with those criticisms. Indeed he asserts that the Japanese authors maintain their position. I am surprised that this paragraph has been included within the report neither can I understand what it is intended to establish by scientific reasoning.
- Whilst there is undoubtedly a place to stimulate dialectical argument on these challenging issues, it is not in an expert report, in proceedings where the welfare of children is the paramount consideration. Whilst the Court must review the differential diagnostic process in order to reach its own conclusion i.e. 'diagnosis by exclusion' based on 'the complete clinical scenario and all the evidence' (see Dr. Newman, para 14 above) and though it is important to recognise the inevitable 'unknowns' in professional understanding, these important points are weakened, not reinforced, by elliptical references to controversial research. In addition, there is a danger that social work professionals and others might misinterpret the information in such a way as to grant it greater significance than it can support. Ms. Heaton QC, on behalf of the mother, distances herself from this paragraph entirely and places no reliance on it. She is right to do so.
- Finally Mr. Richards, following on from the above paragraph, turns to his own conclusions. Again, they require to be set out in full:
"2.9 There have been some publications drawing attention to a possible association between easier subdural bleeding and retinal haemorrhaging in the presence of benign enlargement of the subarachnoid spaces. Whilst, again, there has been no scientific verification of this concept, there are a number of publications linking the development of intracranial haemorrhage and retinal haemorrhage with low level of traumatic events in the presence of benign enlargement of the subarachnoid spaces. LM had benign enlargement of the subarachnoid space identified on MRI scanning and this is likely to have accounted for her large head, which was not growing at an abnormal rate. This, therefore, may be a vulnerability such that she suffered intracranial haemorrhage from a low level fall where intracranial haemorrhage would not normally be expected."
"2.12 In summary, therefore, whilst I cannot exclude the possibility that LM's presentation to hospital on 21st January 2015 was because she had suffered an inflicted head injury, I consider that the history as given is plausible for causing a very minor, transient disturbance of brain function, very small amounts of fresh subdural blood and acute traumatic effusion, especially in the presence of the benign enlargement of the subarachnoid space. I would defer to an ophthalmologist as to the retinal haemorrhages."
- Though I have read these passages a number of times I have not been able to discern how Mr Richards was able to make a logical connection between recognising the importance of that which is unknown medically to concluding that the mother's account was 'plausible'. Neither am I clear what he intended to convey by his use of the word 'plausible', which I interpret as covering a range of meaning from 'seeming reasonable' to 'probable'. 'Plausible' is not a word I encounter very often, in the context of an expert report. It is an expression that tends to cloak meaning rather than serving to reveal it and is probably better avoided.
- The whole tenor of his last paragraph creates the impression that Mr Richards considered the low level backwards fall to be the most likely explanation… 'especially in the presence of the benign enlargement of the subarachnoid spaces'. In my judgement, this oblique language is the inevitable consequence of seeking to advance a probable cause that is 'without scientific validation', to use Mr Richards' own phrase. I can see how it can remain a legitimate possibility on the basis of the reasoning advanced, but I cannot see how it becomes the most likely explanation and I am clear that was the impression Mr Richards was seeking to give.
- Pursuant to my case management directions, the experts were invited to see if they could agree on any core issues. A document dated 31st October 2015 prepared by Mr Michael Kennedy, counsel on behalf of the children, has been filed within these proceedings. The exercise was worthwhile. I do not intend to burden this judgment further by setting it out in full but I do highlight a number of significant passages agreed by all the experts:
i) The disturbance of brain function can properly be described as an "encephalopathic event";
ii) The disturbance of brain function or "encephalopathic event" was transient and short lived;
iii) Encephalopathy is recognised as one of the vital signs of non-accidental head injury;
iv) The particular disturbance of brain function suffered by the child was compatible with a recent mild head injury. There was not evidence of acute encephalopathy;
v) The nature and degree of the child's symptoms render them of less weight/significance as a marker for non-accidental head injury than would otherwise be the case;
vi) The findings in relation to the child's brain could point to a non accidental head injury but could also point to the reported fall as being the cause of her symptoms. The medical evidence is inconclusive in this regard.
- It is clear that the experts have listened carefully to each others views and been prepared, where appropriate, to moderate their opinions. If Mr. Richards will forgive me for saying so, his acquiescence to the six points above seems to me to be more consistent with the body of the analysis of his own report. It is entirely right that experts should stimulate full professional enquiry but that does not bestow the right to indulge in professional debate on controversial issues where that is at the expense of their own reasoned risk assessment. It is this 'professional diagnosis' that the Court and the parties require. As has been repeatedly stated the Court process is not concerned with resolving wider controversial medical dispute or providing a forum for the ventilation of competing theories. (See, e.g.: A Local Authority (1) K (2) N (3) N (By his children's guardian MK)  EWHC 1156 (Fam);  2 FLR 1165). I consider that in his wish strongly to emphasise the importance of factoring in 'unknown causes' in the diagnostic process, Mr Richards permitted his reasoning to stray into the tendentious rather than confining it to the professionally objective. I emphasise that I do not for a moment cast any doubt on Mr Richards intellectual or forensic integrity, which in these Courts is well established. It is perhaps convenient though to restate the Practice direction on the duties of an expert and the content of the experts report: PD 25B, para 9.1. I would emphasise the following:
The expert's report shall be addressed to the court and prepared and filed in accordance with the court's timetable and must –
(f) in expressing an opinion to the court –
(ii) describe the expert's own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;
(iii) indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;
(iv) indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;
(g) where there is a range of opinion on any question to be answered by the expert –
(i) summarise the range of opinion;
(ii) identify and explain, within the range of opinions, any 'unknown cause', whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;
(iii) give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court;
- Following discussion amongst the Bar it was possible to agree upon the scope and range of the medical evidence. For convenience this was reduced to writing in the following terms:
"All counsel agree that the Court should approach any findings it may make in this case by having regard to the broad canvass of the evidence i.e. the medical evidence; the lay evidence; the social work assessments etc.
In this exercise the Court is entitled to conclude that the medical evidence from each of the disciplines involved may, both individually or collectively, support either of the findings contended for by the parties ( i.e. accident or non accidental head injury)."
- In the light of this agreement none of the remaining expert evidence required to be challenged. The medical evidence, it was agreed, was not merely neutral but had the potential to be supportive of a finding that the injuries to LM were either non accidental, accidental or of unknown origin. Following the evidence of Dr. Newman I heard from the social worker, the parents and the childrens' Guardian.
- I should like to begin my assessment of the parents by identifying a number of important and un contentious facts:
i) This couple is highly committed to both children. Both are loved and very much wanted;
ii) The quality of the parents interaction with their children has consistently been observed to be warm and positive;
iii) None of the various professionals involved with the family has made any criticism of the parents willingness to engage and cooperate;
iv) Neither parent has attracted the attention of the social services in the past, prior to January 2015;
v) Both parents have a strong sense of family identity and both are self disciplined, hardworking individuals.
The Parent's Evidence
- The father and mother are both 30 years of age. They began their relationship in December 2012. It progressed relatively quickly and, on the mother's initial account, moved to cohabitation in March 2013. The father puts it a bit later than this in May of that year. For the mother it was her first 'live in' relationship. She became pregnant quite quickly and on 22nd March 2014 LM was born. The mother, unusually these days, lives in a community where her extended family also live within a few hundred yards. Her parents live across the road; she has other family members whose homes can be seen from her own. Health visitors visiting the mother in the weeks after LM's birth noted that she reported 'having good family support'. The health visitors had no concerns at all. They regarded mother as 'very competent in handling her baby well and appropriately'.
- It is also clear that the mother was assiduous in ensuring that LM attended at the clinic for her checkups and immunisations. Following LM's birth in April 2014 the mother took maternity leave until she felt ready to return to work in January 2015. The father works long and anti social hours. He told me that in addition to his shifts he was always prepared to make himself available for overtime work. I have seen photographs of this couple's large and well furnished home. I have noticed from the photographs taken by the police in January 2015 that the home was well kept, tidy, organised and cared for. This couple plainly took pride in their home. It is also obvious that LM was surrounded by toys and objects designed to stimulate her. I had a strong sense from the photographs and from both the written and oral evidence of the parents that LM was the centre of this household.
- The couple agreed, when they moved in together, that the father would bring his own father to live with them from the outset. The paternal grandfather (PGF) is 78 years of age. He suffers from COPD which very much restricts his mobility and quality of life. He is largely room bound, though he did accompany the family on shopping trips on Saturdays.
- Having a strong sense of family herself I felt that the mother harboured no resentment at PGF's presence in the home and respected her partner's commitment to his father. The father was also an accredited carer for PGF. This was a responsibility which he took seriously. At the end of his working shift he would always, for example, take time to 'have a brew' with his dad and to chat with him.
- Both parents have insisted that LM was a delightful baby, 'a joy' and 'a blessing' who completed their own relationship. The parents told me that from around early November 2014 LM became unwell. Though the medical records, which have been thoroughly scrutinised, reveal no illness outside the normal childhood range of infections, it is clear that both parents appear to have become very anxious and were speculating as to whether LM might have some compromise of her immune system. She did not. From this period and in consequence of her chest and throat complaints both parents noted that LM had become 'twiney', which is their word for her being generally more fractious.
- Though both parents present as rather phlegmatic individuals, it is difficult not to see their day to day routine as hard and demanding. Father worked a permanent nightshift pattern. Returning home at about 4am. At weekends he would power through the day without much sleep. He would also care for his father. During the week he would go to bed quickly, on his return home, in order that he could have some 'bonding time', to use his phrase, with his daughter in the late afternoons before he returned to work.
- The mother accordingly has carried the burden and I know she would wish me to say the privilege of being LM's primary carer. Even when she returned to work in January, she had full responsibility for LM during the nights. The evidence is that father never cared for LM at nights. The obvious reason for this of course is that he was working. It is to my mind self evident that this must have placed an exhausting responsibility on the mother, particularly when she returned to work herself in January at a time when LM's health was giving cause for concern. When she was interviewed by the police on the 10th June and 3rd July 2015, the mother was unprepared to acknowledge any stress, fatigue, frustration or indeed difficulties of any kind. With the one exception of her concern for LM's general health from early November 2014 to January 2015 the mother presents a perfect life lived under cloudless skies.
- As the advocates probed, through cross examination, into this family's life at the relevant periods, it became clear that there were a number of significant stress factors within the home. What is most concerning is the mother's refusal or inability to recognise them. These kinds of issues are usually addressed in social work assessments. It is both unfortunate and regrettable that this did not occur here. It strikes me that these essentially social work issues are better explored in the relative calm of an assessment room, speaking to familiar social workers, rather than by cross examination in a witness box in the High Court. That said both parents were able to engage with the questions in a forthright and articulate manner. They did not appear to be overwhelmed by the experience of giving evidence, though the mother was at times, understandably, greatly distressed. I make allowance for the fact that people may not give of their best in such circumstances and may find themselves saying things that they would not do otherwise. I also bear in mind that parents in this situation maybe less than candid or indeed tell lies for complex reasons. I have in mind the directions given to juries in such circumstances, pursuant to the guidance in R v Lucas  QB 720 and R v Goodway  4 All ER 894. I also caution myself as to the need for care when evaluating what weight it would be reasonable to afford to the fact of a parent's deceit or lack of candour, in my overall analysis of the case. (Re Y (A Child)  EWCA Civ 1337; Re A (A Child); sub nom Darlington Borough Council v M, F, GM & GF  EWFC 11).
- During the course of the police investigation a number of phone records were retrieved from the parent's mobile phones. They communicate primarily through text messages. Some of the language is blunt and occasionally bawdy. LM is sometimes referred to as 'a little shit' as well as other apparently derogatory terms. I do not draw adverse inferences from any of the language used. I do not consider it has any forensic relevance, it is simply the lexicon of this family and many others. In particular I do not consider it casts any light on the nature of the mother's relationship with her daughter. On this point I look at the substance of what is being communicated not the language.
- Although the mother is surrounded by extended family members living, as I have said, in very close proximity, it is clear that she very rarely avails herself of their support. Due to the father's work commitments, the demands of child care and the mother's own work commitments when she returned to work in January, this couple were existing as 'ships in the night'. As is clear from the text records and indeed on the parents own stated cases, when mother got out of bed, dad would get into it on his return from work. The mother was very concerned to ensure that LM had returned to her own bed before the father got home. The text messages repeatedly focused on this and I find there was an anxiety on the part of the mother that the home should be comfortable and quiet for the father's return. I do not infer that the mother was afraid of incurring father's wrath or displeasure, rather I see this as a facet of her determination to be a successful mother and partner. As the Guardian said in her evidence, the mother sets herself very high standards and wishes to be seen to be coping. Like the Guardian I got the sense that the mother wanted to be able to show people that she was managing well and independently.
- During the course of his evidence the father was asked what time he and the mother were able to spend going out together for a drink or for a meal on their own. The father told me that they never did this, nor did he appear to think this was in any way odd or unusual. The extent of the couples outings seem to have been limited to shopping and on such occasions LM was with them and often PGF too. This was a relatively fledgling relationship in which, inevitably the parties were still getting to know each other. The structure of the daily routine, as I have set out, did not afford them much time together either. I do not doubt that the adults were happy and that LM was a very wanted baby, but the strains placed on the mother are obvious. The opportunities for the mother to share her concerns with her partner, were inevitably limited.
- Listening to the parents it became clear that father was a natural and instinctive carer. I was told, by mother, that when LM did not sleep at night, which I find was frequently the case, she could be placated a little by being permitted to sleep on her father's pillow. The mother plainly considered that LM responded better to her father as far as sleeping routines were concerned and both parents agreed LM was 'Daddy's girl'. By the time the father used that term, he having given evidence after the mother, I had already formed that impression for myself. The mother told me that she felt LM was often deliberately playing up for her at bedtime. On the night of 15th January the mother sent the following text messages. They are innocuous in themselves but significant in the context of the wider picture:
i) 'ur daughter is in our bed coz she seems 2 think its time 2 get up xx' (4.38am);
ii) 'shes bloody dancing n talking away 2 herself xx' (4.41am);
iii) 'murder comes 2 mind haha cheesey grins im getting wen I tel her its bedtime xx' (4.45am).
- The following night (16th January) the mother sent the father this text messages:
i) 'she has screamed the house down once again but I will b getting up wen u cum 2 bed so I will move her over' (5.31am);
ii) 'she knows wot she's doing she was full of smiles wen were walking out of her room xx' (5.33am).
- It is clear that the mother had little sleep on these occasions and that in December and January, at least, this had become a pattern. On the 9th January the mother had been concerned about LM's health and had spent the night texting the father with her concerns. Eventually the father became so concerned that he encouraged the mother to phone 'Cuedoc' (an emergency service) and LM was taken for examination. As it transpired, though she had a temperature, there was nothing of concern to the doctor who examined her. The father had left work early and had clearly become agitated. With the benefit of hindsight this episode is probably explained as the understandable response of anxious parents with their first baby. There are other instances of it in the papers. On another occasion the mother thought she had found blood in LM's nappy but on investigation there was nothing untoward. The mother had been anxious too about LM's thirst, the smell of her urine and what she regarded as 'concerningly' pungent faeces which she describes in her statement in alarming terms:
"I can only liken to the distinctive smell that I had experienced before when caring for elderly people just prior to death when their organs were failing."
I find that the mother was highly anxious about LM's health
- Dr Maaz Farooq observed the child on the 9th January to be alert, well looking and playful. Her fever had settled, her physical examination was generally normal. She had tonsillitis which he considered was the most likely source of her high temperature.
- As January progressed it is clear that LM remained generally out of sorts and fractious. By way of example, on the 12th January the mother texted the father suggesting that she would take LM back to the doctors the following day. Shortly before midnight the mother referred to LM as not settling and to her 'twining for over an hour'. Characteristically, she told the father that she had put LM on his side of the bed. It was plainly a very cold January night, the mother told me in evidence that LM's room was particularly hard to keep warm. It is a theme that runs through the text messages. On the 15th January LM was awake in the early hours (as I have earlier described). On the 18th January LM was difficult to manage even in her father's care. He texted 'she is driven me fuckn bonkers!!xx'. He had earlier referred to her 'bad temper' and the fact that she 'won't behave'. On the 18th January the father talks of LM's own tiredness. He gave her Calpol because she 'just wouldn't behave'.
- On the 19th January, shortly before 8 o'clock in the evening, the mother talked about LM going 'fuckn nuts' when she had no banana left. On the 20th January the mother texted 'she will not settle wen I put her 2 bed..' At 21.20 hours the mother texted 'I'm off 2 kip just hope I can sleep 2nite'. Three hours later those hopes appeared to have been forlorn, the text this time read 'she is in our bed she won't stop crying'. Father responds 'not agen'. The mother responded: 'she won't keep her covers on so she's freezing'. She added 'she's on ur pillow happy as larry now'. I sense that the mother felt that the father always softened when he felt LM was missing him. At shortly after 11.30pm the mother described LM as 'flat out' and stated that her plan was to move LM back to her own room as soon as possible. At 23.39 she sent this text 'I'm 2 tired 2 cope with the screaming, but it is very cold'. At 4.42 the mother texted the father to say 'she still there now!'… 'on ur pillow wide awake'… 'shes gonna twine or day a bet'.
- That last prediction was prescient. On the 21st January LM was sick during the evening and appears to have been fractious for most of the day. I remind myself that the mother had insisted in her earlier police interview and in her initial statements within these proceedings, that LM 'slept long hours' and had 'been no bother at all'. Despite what I find to be compelling and cogent evidence to the contrary, revealed by the text messages, the mother maintained that position in her most recent statement and endeavoured, with increasingly unconvincing effort, to stand by this account in her evidence. Moreover, in her statement, 18th November 2015, the mother made the following observation in relation to the support of her extended family:
"we were both aware that they were there to help if they were needed, but it was not necessary"
- In her statement, 13th April 2015, the mother observes:
"[LM] has regularly banged her head on furniture, radiators, windows or any other solid objects she could find. We first noticed her doing this as soon as she could sit up and support her own weight. As far as the head banging is concerned she will do this both to the front and the back of her head and she is now picking things up and banging herself with them. In the hospital we noticed that she was banging her head on the metal cot bars. We asked for a padded bumper to protect her but didn't get one so we organised padding ourselves. For the last couple of months she has been putting her hand up to the right side of her head by her ear. We did wonder if she had an ear infection and took her to the GP, but there was no evidence of this…"
- I am not entirely sure what the mother is trying to suggest here and I do not find this description easy to reconcile with the more gentle picture of LM the mother gives elsewhere. I also note that in her statement dated, 2nd July 2015, the maternal grandmother (MGM) says 'LM can have a very bad temper and often launches herself backwards in rage' she adds 'I have witnessed LM doing this myself'.
- The mother told me in the witness box that the next day LM was, as predicted, tired and 'twiney'. The father had gone to bed and LM was sitting on a rug in the front room. She said that she had been surrounded by cushions but she had shuffled herself away from them. Apparently in temper she flung herself backwards on a carpeted wooden floor. In her evidence the mother emphasised that the noise of the contact was so distressing to her as to make her feel physically sick. She had obviously told MGM a similar account because that is reflected in MGM's statement. Ms Heaton emphasises the importance of the consistency of the mother's account as an indicator of reliability. Broadly, she is right to do so, but I note that this detail is absent from the mother's statement of the 13th April which is the key description of the events of 21st January within these proceedings. There her account is: 'she screamed initially but was relatively easily calmed and waved at herself in the mirror'. Also, in evidence the mother added that LM emitted what she described as 'a piercing cry, like a pain, I knew she had hurt herself'. The mother described the cry as 'high pitched'. These details were also not in her statement. It was the father who telephoned the ambulance, (the mother concurrently telephoned the GP) and the father who travelled in the ambulance. The mother told me that these arrangements were made for practical reasons. I suspect, now having heard all the evidence, that these two parents instinctively, perhaps even unspokenly assumed that 'Daddy's girl' would want her daddy with her in the ambulance.
- With the exception of Mr Kennedy who has drawn my attention to Re L and M  EWHC 1569 (Fam) none of the advocates has made any submissions as to the applicable law. No doubt that is because the framework of the law relating to fact finding hearings is settled and frequently rehearsed. However, whilst the framework of the law maybe clear the application of it, particularly in the context of serious injuries to infants, can sometimes be challenging. In this case I consider that it is helpful to remind myself of the core principles.
- The starting point is that a party who asserts a fact must prove it, thus the burden remains on the Local Authority throughout. The 'standard of proof' refers to the level of probability required to prove a fact. In family cases, this is the civil standard of proof i.e. 'the simple balance of probabilities': Re B (Children)  UKHL 35. Four passages from the speeches in that case seem to me to be particularly apposite here:
"2. 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 0 and 1. 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 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."
(per Lord Hoffman)
"32. In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.
69. ...There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial "offence" may have been another example (see Bater v Bater  P 35). But care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.
70. My Lords, for that reason 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."
(per Baroness Hale)
- I have also found the succinct guidance of Jackson J in Re BR (Proof of Facts)  EWFC 41 to be helpful. The following passages require highlighting:
"(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same."
"(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. "
"(4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:"
"Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low."
I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities."
- The crucial importance of the Judge's evaluation of the reliability of the lay evidence is also emphasised in Re BR (supra), reinforcing the approach taken here in the agreed document set out para 28 above. Thus:
" Para 8. Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility. "
- Distilling a great deal of case law, as well as judicial experience, into a few accessible sentences, Jackson J summarises the approach to the application of the 'differential diagnostic' in the context of a forensic fact finding exercise:
" Para 9. When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings. "
- Finally, the importance to both the legal and medical professions of having the humility to recognise that answers will not always be available and some cases will remain unexplained is also highlighted:
"Para 10. Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case."
Summary of Conclusions
- Having considered the legal framework and surveyed the broad landscape of the evidence I turn now to my findings. I record that the Guardian has thought it appropriate not to advance any submissions on the findings sought by the Local Authority. This is a wide spread practice which I would, for my part, strongly deprecate, in most cases. The importance of strong, intellectually rigorous representation on behalf of the child's lawyer and his Guardian, has been emphasised regularly see: GW and PW v Oldham MBC  EWCA Civ 1247; Re U (A Child)  2 FLR 444; Islington LBC v Al-Alas and Rway  2 FLR 1239. These principles apply just as vigorously, in my judgement, to the fact finding process. A position of neutrality motivated solely by desire to appear independent and objective in the eyes of the parents loses sight of the primary professional obligation to the child. I am aware that others take a different view.
- It is the evidence of the parents themselves that has caused me most concern. On the face if it they are a strong and mutually supportive couple but their working arrangements have afforded them little time together and sparse opportunity to discuss important matters. I do not have any sense of the mother discussing with her partner her obvious difficulties in establishing clear sleeping routines for LM. I have not heard any evidence that the father ever discussed the fact that the mother might need a break to get a good night sleep, though I am entirely satisfied that he must or at least ought to have appreciated her level of exhaustion. Though this family was closely surrounded by a strong and willing network of support, the mother plainly considered (and stated as much) that she did not need to avail herself of it.
- The Guardian considered that the mother set herself extremely high standards and that it was important to her self esteem to be seen to be coping independently. By January 2015 both parents were working different shift patterns, LM was unwell and the mother had become highly over anxious about her daughter's health. The father too had become anxious, considering that LM might even have some disorder of the immune system. She did not. She had, as the doctors have emphasised, no more than ordinary childhood illnesses. I suspect the father was dragged into the wake of the mother's own over anxious perceptions.
- By 21st January the mother was plainly exhausted. It is idle to pretend otherwise. The evidence from the transcribed text messages tells its own voluble truth. The mother and father have both resisted this obvious fact. I do not believe that the mother is necessarily, telling lies or deliberately creating a false impression. I think that she may well not have appreciated just how tired she had become throughout long disturbed nights with a fractious child and working during the day in a demanding and caring role.
- Also significant was the mother's belief that LM was deliberately playing up for her at night. The mother appeared to struggle with the fact that when she retrieved LM from her bed crying and apparently unhappy she would very quickly be 'dancing around' as the mother put it and wreathed in 'smiles' when taken to the parents bed. This was an oppositional dynamic that the mother, even in the witness box at this hearing, seemed to struggle to understand and to know how to address. In addition to all this, LM's bedroom was obviously very cold that January. I formed a clear impression that committed though this loving mother was to the welfare of her child she nonetheless struggled to understand her daughter's needs and her general development.
- The mother/daughter relationship had become stressful and the mother's desire to succeed as a parent inhibited her reliance on the cohesive family support that appears to be available to her. During the course of the mother's evidence I sensed that she was very determined to please her partner. It struck me that in this role too she set herself very high standards. However troubled her night might have been she was determined LM would have returned to her own bed by the time the father got home. This she appears to have achieved regularly albeit only when both she and the child were exhausted. This was undoubtedly the case on the 21st January.
- This analysis of the mother's circumstances reveals a situation which is paradigmatic to shaking injuries i.e. mounting exhaustion and frustration in an isolated carer. The identified stress factors neither individually nor cumulatively establish a finding of non accidental injury. Their significance is that they form a context within which the medical evidence has to be evaluated.
- No one particular discipline of medicine provides a 'conclusive' explanation in this case. This too is a common situation where infant head injuries are concerned. Retinal haemorrhages are not pathognomonic of non accidental injury; fewer or milder retinal haemorrhages cannot differentiate between accidental or pathological / non accidental cause. What remains clear is that short falls caused by rolling backwards are not associated with retinal haemorrhaging, there is no independent scientific validation of such a link. The presence of BESS has plainly caused all the experts to think very carefully about the diagnostic significance of fresh subdural blood and acute traumatic effusion. Whilst the experts have confirmed that the medical evidence can support any of three conclusions: accidental injury; non accidental head injury or unknown causation, that does not mean that each is ultimately of equal weight. Strong and compelling evidence from a parent, where found to be reliable and accurate may reinforce an otherwise contentious medical explanation. Similarly, an account given by a carer, judged to be unreliable and inaccurate, set against a backdrop of identified risk factors, may reinforce medical opinion supportive of a finding of non accidental head injury. In this case the only explanation which most logically and comprehensively unites the totality of the medical and lay evidence is a non accidental inflicted shaking injury, most likely caused by a momentary loss of control on the part of a frustrated carer.
- During the course of cross examination Mr Rowlands asked the mother whether she was afraid to tell the truth because she feared the father would leave her. I was dubious as to the value of such a question but, without hesitating, the mother responded 'I think he would have understood after I had told him the full story'. I fully accept that the mother was responding to a hypothetical question and I have not attributed any forensic significance to it in my findings. It may be that this can be explored in future assessment. I highlight it because it signals to me that having been living together for many months now without the responsibility of being primary carers for their children, this couple may have got to know each other better and learned to communicate their feelings to each other more effectively. If this is so and it is for others to assess, that may well alter the matrix of risk when considering whether they might resume the care of their children in the future.
- There is no dispute but that in the event of the court finding this to be a non accidental injury the mother was the perpetrator, given that she was alone with LM at the time of her collapse. I find accordingly.
- I have been at pains to emphasise the potential that this couple appear to offer to their children. I declined to endorse a care plan which contemplated a final order placing the children in the care of the maternal grandparents under the aegis of a Special Guardianship Order. The Guardian also withdrew her support for such an arrangement during the course of the evidence. I consider that both these children are entitled to a full exploration of the potential for them to live with their parents. To date that inquiry has been unsatisfactory. A detailed, rigorous, creative and fully comprehensive assessment is required. It must be carefully thought through and meticulously planned. In my assessment it should seek to involve the wider family with whom this judgment should be shared. I consider that the use of family group conferencing would be particularly appropriate here as the Guardian suggested.
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