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England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Thurrock Council v M & Ors (Withdrawal of Care Proceedings)  EWFC 22 (10 March 2021)
Cite as:  EWFC 22
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Strand, London, WC2A 2LL
B e f o r e :
| THURROCK COUNCIL
|- and -
(the Third and Fourth Respondents
by their children's guardian,)
Alexa Storey-Rea (instructed by Wollens) for the First Respondent
Andrew Bailey (instructed by BTMK) for the Second Respondent
Tim Parker (instructed by Gary Jacobs Solrs) for the Children's Guardian
Hearing dates: 28 January 2021
Crown Copyright ©
Mr Justice Newton :
i) P was a previously healthy 11 month old, who was found unconscious and unresponsive with no clear identifiable cause. History of events from her mother alludes to possible suffocation as a cause. However, results of investigations performed so far, do not support this.
ii) At present, in the absence of a clear explanation given by the parents, together with the constellation of findings thus far, in a previously well, mobile child, the possibility of non- accidental injury cannot be excluded.
iii) Further investigations are in progress to explore this further.
Professor Jacques consultant neuropathologist
Dr McPartland consultant paediatric ophthalmic pathologist
Dr Cartlidge consultant paediatrician
Mr Jayamohan consultant paediatric neurosurgeon
Dr Keenan consultant paediatric haematologist
Dr Saggar consultant in clinical genetics
Professor Luthert, ophthalmic pathologist
i) The experts had not reached any clear conclusion as to the cause of death of P. Prof. Luthert said that inflicted trauma had to be a consideration, as it clearly had been for the clinicians at Great Ormond Street.
ii) In particular there was continuing lack of clarity as to whether there was any bleeding or sign of trauma in the vertex.
iii) There were queries as to whether the retinal haemorrhages, which are not very marked and not seen until 38 hours after P was admitted to hospital, and which could have developed after coming into hospital as a result of hypoxic injury or might have been caused by a combination of hypoxic injury and DIC (disseminated intravascular coagulation).
iv) Prof Luthert raised whether the retinal haemorrhages might have occurred when P's head got trapped between mattress and skirting board and she was struggling and/or pressure being generated.
v) All experts appeared to agree that the retinal haemorrhages might well become the key issue.
vi) There appeared to be a consensus that a consultant ophthalmologist should be instructed in the proceedings and that it was necessary to wait for further views to be expressed until the neuropathology report of Prof. Jacques was received.
"There is evidence of hypoxic/ischaemic damage to the brain and spinal cord. This indicates that there has been a significant interruption of the oxygen (hypoxic) and blood (ischaemic) supply. This is demonstrated by the presence of red neurons and a vascular pattern of axonal injury.
I have specifically considered the possibility of traumatic brain injury. While hypoxia/ischaemia may be one of the consequences of brain trauma, it is not specific, and I have not found specific evidence in the brain to indicate trauma. There are features (notably the cerebral haemorrhage and the axonal injury in the cervical spinal cord) where I have considered the possibility of trauma, but in my opinion, these are more likely to be the complications of hypoxia/ischaemia, based on their morphological pattern."
"In fatal cases of non-accidental/abusive head trauma, the typical constellation of features includes intracranial subdural haemorrhage and encephalopathy, with retinal haemorrhages present in a proportion of cases. While it is true that bilateral, extensive, multi-layered retinal haemorrhages extending to the peripheral retina are considered quite specific for abusive head trauma, in P's case, intracranial subdural haemorrhage was not seen at autopsy examination or on neuropathological examination, and I found no significant optic nerve sheath haemorrhage. Professor Jacques did not find specific evidence in the brain to indicate trauma, and in his opinion, the cerebral haemorrhage and axonal injury in the cervical spinal cord are more likely to be complications of hypoxia/ischaemia. Therefore, the overall features in this case are not in keeping with severe head trauma.
Although I await Dr Cary's full autopsy report, from the history given, from information provided this appears to be a case of a complex positional asphyxia, with P prone, with head below the body, under the radiator and between the mattress and the wall .
. this is a highly unusual case of bilateral, extensive, multi-layered retinal haemorrhages extending to the peripheral retina, with accompanying brain swelling and hypoxic-ischaemia, but without other features of abusive head trauma such as intracranial subdural haemorrhage or optic nerve sheath haemorrhage. It may be that a number of contributory factors acted together in this case to cause unusually extensive retinal bleeding, where each alone would not typically be considered a plausible sole cause."
i) There was no evidence of underlying disease
ii) The circumstances of the case raise the likelihood of suffocating and wedging.
iii) There was no evidence of any injury as a result of restraint, and the skeletal survey was negative for any injury.
"As you are aware, I am unable to complete my final report due to outstanding results. However, to assist the Court I am able to state the following having considered the external and internal postmortem findings, the neuropathology, the ophthalmic pathology and the interim opinion of Dr Cartlidge.
1 Essentially, I agree with opinions of Dr Cartlidge concerning the circumstances leading up to death.
2 There were no external or internal marks of injury and a skeletal survey was negative for fractures.
3 The principal finding in the brain was one of hypoxia-ischaemia.
4 The main findings in the eyes were retinal haemorrhages. Importantly there was no evidence of optic nerve sheath haemorrhage commonly seen in cases of head injury.
5 At this stage the main finding is one of asphyxia, the cause of which is not apparent from the postmortem findings alone.
6 This is the sort of case where any final conclusions are heavily dependent on the circumstantial evidence.
7 In this case there is potential evidence of positional asphyxia with an element of wedging, as well as suffocation from bedding. In relation to these possibilities I accept the careful reasoning of Dr McPartland in relation to the origin of the retinal haemorrhages.
8 Toxicological results are still outstanding so I cannot absolutely exclude some toxicological contribution.
9 The final exclusion of head injury will await the examination of the neck by Professor Mangham as there can be subtle changes that imply an element of flexion / extension of the kind seen in shaking injury. However even on the basis of the information available shaking seems unlikely in the absence of both thin-film subdural haemorrhages and optic nerve sheath haemorrhages."
The Legal Principles
"19.As identified by Hedley J in the Redbridge case, applications to withdraw care proceedings will fall into two categories. In the first, the local authority will be unable to satisfy the threshold criteria for making a care or supervision order under s.31(2) of the Act. In such cases, the application must succeed. But for cases to fall into this first category, the inability to satisfy the criteria must, in the words of Cobb J in Re J, A, M and X (Children), be "obvious"."
20.In the second category, there will be cases where on the evidence it is possible for the local authority to satisfy the threshold criteria. In those circumstances, an application to withdraw the proceedings must be determined by considering (1) whether withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned, and (2) the overriding objective under the Family Procedure Rules. The relevant factors will include those identified by McFarlane J in A County Council v DP which, having regard to the paramountcy of the child's welfare and the overriding objective in the FPR, can be restated in these terms:
(a) the necessity of the investigation and the relevance of the potential result to the future care plans for the child;
(b) the obligation to deal with cases justly;
(c) whether the hearing would be proportionate to the nature, importance and complexity of the issues;
(d) the prospects of a fair trial of the issues and the impact of any fact-finding process on other parties;
(e) the time the investigation would take and the likely cost to public funds."
i) The investigation would be necessary to establish whether P's cause of death was inflicted. If proved, the outcome would have a profound effect upon interim and final care -planning;
ii) A fact-finding hearing would provide a just process by which to deal with the case;
iii) Given the severity of the issues at large the fact-finding hearing would be proportionate to the nature, importance and complexity of the issues.
iv) The trial would be a fair process; the events are recent, a high level of expert opinion has been collected and the interested parties all have representation. Despite this the impact upon the family would be considerable. The parents would no doubt find the process of a fact-finding hearing extremely stressful and distressing, their distress being obvious at every stage of the court process.
v) The fact-finding hearing is already listed. Given the large measure of agreement between experts and the absence of intervenors, the current time-estimate is likely to be capable of reduction. The cost nevertheless of the fact-finding hearing will be high, albeit proportionate given the severity of the issues to be determined and their impact upon S and R.