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England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> R (Fact finding), Re  EWFC B97 (29 May 2015)
Cite as:  EWFC B97
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MR. P. COUTTS (Solicitor, Legal Services Department) appeared on behalf of the Applicant.
MISS R. LITTLEWOOD (instructed by Burke Niazi Solicitors) appeared on behalf of the 1st Respondent.
MR. M. BAILEY (instructed by Irvine Thanvi Natas Solicitors) appeared on behalf of the 2nd Respondent.
MISS E. LeCOINTE (instructed by Hopkin Murray Beskine Solicitors) appeared on behalf of the Intervener.
MISS B. PRICE (Solicitor, TV Edwards LLP) appeared on behalf of the Guardian.
Crown Copyright ©
JUDGE LAURA HARRIS:
The admission to hospital
"It is an elementary proposition that findings of fact must be based on evidence including inferences that can be properly drawn from the evidence and not on suspicion or speculation."
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."
"There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."
"(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."
"In my judgment a conclusion of unknown aetiology 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."
The medical evidence
The CT scan of the head of 1st October 2014
(1) chronic subdural haematomas at least two to three weeks old; or
(2) traumatic effusions being a mixture of blood and other fluids in which case they would be impossible to date.
The MRI scan of 1st October 2014
The chest x-ray of 1st October 2014 and the skeletal survey of 9th October 2014
The skull fractures
The liver lacerations
The brain injuries
The subdural collections
The dating of the injuries
The brain injuries
The liver injuries
(1) chronic subdural haemorrhages of at least two to three weeks old at the time of the scan; or
(2) collections of blood mixed with other fluids called traumatic effusions which are not possible to date from the scan appearances as they are not just composed of blood.
The brain injuries
The subdural collections
(1) Mr. Jayamohan saw a small amount of right-sided subdural bleeding on the 16th July MRI scan. Dr. Stoodley could not see any evidence of a subdural collection on the right side and thought that what was seen was as a result of movement artefacts which had degraded some of the scans. The relevance of this factor is whether what was seen in July could have led to the development of the large bilateral subdural haematomas seen on 1st October scans.
(2) Mr. Jayamohan considered the evidence of the head circumference coupled with the soft and non-raised anterior fontanelle was suggestive of chronic raised intracranial pressure where skull sutures widened over time to accommodate the increasing size of the brain. He noted that Great Ormond Street who were asked to advise did not advise draining of the subdural haematomas even though they were very large because of the lack of neurological dysfunction. He said the child was also described as alert and focusing. He relied also on the size of the collections. All these factors suggested to him subdural haematomas which were chronic and were weeks if not months old.
As I indicated earlier Dr. Stoodley stated that whilst sutural widening is often used as an indication of chronic injury, large acute traumatic effusions can lead to sutural widening within days. He said the anterior fontanelle was described as soft and bulging. Mr. Jayamohan thought that if this was the case, i.e. an acute injury, the pressure would build on the fontanelle and make it hard, and there would be pressure on the brain leading to neuro-dysfunction which was not seen here.
(3) Dr. Stoodley found soft tissue scalp swelling associated with the bilateral fractures with the left-sided swelling being more extensive. As I have said, this would suggest an event which occurred within seven to ten days prior to the date of the CT scan of October, i.e. between 22nd and 25th September at the earliest. Mr. Jayamohan did not address the timing of the skull fractures in his report. In particular his report makes no reference to whether there was soft tissue swelling present or not. In the experts' meeting he deferred to Dr. Offiah on the timing of the skull fracture. When he viewed the images again he agreed that there was soft tissue swelling but said that this could be due to the insertion of a cannula into the scalp veins on both sides.
If the swelling was seen as extensive this would be reflective of the fact that the baby's scalp would cover a relatively small area. Dr. Stoodley said that even if a cannula was inserted this would not cause the extensive soft tissue injury seen. He would not expect soft tissue swelling of this sort to be caused by any complication of attempting to introduce intravenous fluids via the scalp. He suggested that one would be more likely to get a bump. Oddly the images of 1st October, which Mr. Jayamohan showed us when he gave evidence recently, clearly do show cannulas on either side of the head but Dr. Stoodley does not appear to have noted them.
(4) Mr. Jayamohan, and indeed the other experts, consider that the bilateral skull fractures were either the result of two impacts or a crushing injury. Dr. Stoodley referred to unpublished biomechanical work suggesting that there are circumstances where a single impact can lead to bilateral skull fractures. Mr. Jayamohan suggested that it was not appropriate to rely on unpublished, non-peer reviewed research. Dr. Stoodley also said that he could not think of a way in which a crush injury could have led to the contusional changes in the brain and this was more likely to be caused by impact head trauma.
(5) Whether the subdural fluid could cross from one cerebral hemisphere to the other was not agreed. Mr. Jayamohan said normally it is not possible for the fluid to cross from one side to the other but here the brain was pushed back by the size of the collections which opened up the potential for connection across the two hemispheres. This is relevant to the issue of whether the later similar sized subdural collections in fact developed from the earlier left-sided one or the earlier left-sided one and the very small right-sided one. Dr. Stoodley said that if subdural fluid could flow freely he would expect to see it in the posterior fossa and the spinal canal and one does not. Even if the left-sided collection persisted and grew he said it could not explain the right-sided collection subsequently seen.
Finally, Mr. Jayamohan did not disagree with Dr. Stoodley's timing for the brain injuries of at least two weeks old.
(1) Dr. Stoodley's area of expertise is in the interpretation of images of the brain and he has a particular interest in the brains of children. He explained in his evidence that whilst professional colleagues such as paediatric neurosurgeons would routinely look at scans they would rely upon the neuroradiologist for the ultimate overall imaging investigation in the form of a written report. As he said, his neurosurgeon colleagues say, "We don't do subtle". Mr. Jayamohan said that this was an unusual collection of findings which would not be seen very commonly in his clinical practice.
(2) In my view Dr. Stoodley carried out a far more detailed interpretation of the scans.
(3) His opinion that there were two injuries is consistent with the description of a frontal impact causing the contusional changes to the brain and an impact on the back of the head causing the skull fractures.
(4) I did not find Mr. Jayamohan's evidence, both written and oral, to be as clear and lucid as the evidence of Dr. Stoodley.
(5) In my view Mr. Jayamohan's evidence evolved over time. He initially appeared to be viewing the head/brain injuries as separate although he explained that this was the way he reported for criminal proceedings. His preferred position about one event causing all the head and brain injuries really only emerged, in my view, in the experts' meeting, and had solidified by the time he gave evidence in April. In his May evidence he doubted whether the subdural collections seen on the July scan could be regarded as unexplained as Dr. Stoodley has said. However, I note he had previously referred to them himself as having a "natural" explanation.
He then suggested that the skull fractures and the subdural collections could have originated before the July scan when he had previously said that there was no clinical evidence of the skull fracture at the time of the July scan. He also raised at the end of his evidence for the very first time the possibility of an unexplained condition. I have already expressed my view about the extreme oddity of the result which would follow if one takes his opinion to its logical conclusion. This child would have had the misfortune of being assaulted both in hospital and after discharge.
(6) Dr. Stoodley's interpretation, although it has its own oddities, is more consistent with the other pieces of the jigsaw. It is not a matter of fitting medical evidence to the more favoured sequence of events as Dr. Jayamohan warned against, rather that one piece of the jigsaw coheres better with all the others to produce a coherent and consistent whole.
(7) I have thought long and hard about whether this is a case where I would be unable to find an explanation for the skull and brain injuries. In the end I reached the conclusion that I could make findings as to causation for the following reasons:
(a) There are other injuries which on clear and incontrovertible evidence I have found to be deliberately inflicted.
(b) There is no evidence in the literature that the chromosomal deletion, or from the evidence of Dr. Stoodley, that prematurity predisposed the child to these sorts of injuries. The condition relates more to developmental delay.
(c) Dr. Michie indicated as being highly relevant that no one else in the family with this chromosomal deletion has a predisposition to these sorts of injuries.
(d) A herself has not shown any predisposition to easy bleeding over the brain, fractures or brain injury since these injuries.
(e) Mr. Jayamohan mentioned an unexplained cause relating to A's condition, in my view almost as an afterthought right at the end of his second occasion of giving oral evidence.
The family support workers
The family evidence
The police interview
The father's written evidence
The maternal grandmother
The police interview
The evidence about AS
The medical evidence
My findings concerning the adults
The living arrangements
The family situation in the home after 5th September
(1) There was no evidence that he ever caused any injuries when he was aggressive with his siblings or with children at school.
(2) There was no incident described by any of the adults in the home which could have been an incident whereby the child had suffered such injuries at his hands.
(3) The father changed his account of 28th September and suggested for the first time in oral evidence explicitly that AS could have caused the injuries. The child's reaction to such an assault causing the rib and liver damage would have been such that all the adults in the home, including the father in the next room, would have realised there had been an extremely serious assault. None of them describe such an event. The only other alternative is that all three are colluding to protect AS and no one, in particular the father, suggested that and I reject it as wholly unlikely.
(4) There were always two or three adults presents in the home when AS was there. In my judgment it is inconceivable that something could have happened to cause injuries of this severity without someone realising that something serious had happened, even if they did not observe it.
(5) The evidence is to the effect that AS was kept away from A and did not go into her room and I accept that.
(6) AS's school has expressed doubts that AS, who is of small build, would have had the physical strength to cause the injuries in any event.
(7) Angelique Charrier, the outreach worker, said that hurting other children had not happened for some time and she felt AS was compliant. She saw him being very gentle with I and her concerns were mainly around him throwing things when he got frustrated.
Failure to protect