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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> R (Fact finding), Re [2015] EWFC B97 (29 May 2015)
Cite as: [2015] EWFC B97

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No. ZC14C00438


First Avenue House
42-49 High Holborn, WC1
29th May 2015

B e f o r e :

(In Private)


- and -
(1) SR
(2) TU
(1) TK Intervener


Transcribed by BEVERLEY F. NUNNERY & CO.
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
5 Chancery Lane, London EC4A 1BL
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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 ©


  1. I have conducted a fact finding hearing to determine the causation and, if I determine all or any of the injuries to A were deliberated inflicted, the identity of the perpetrator of those injuries to A, who was born on 29th March 2014 and is therefore aged 14 months.
  2. A's parents are SR, born on 20th March 1977, aged 38, and TU, born on 16th December 1977 and therefore aged 38. The intervener is the maternal grandmother, TK, who was born on 15th April 1960 and is therefore aged 55. The family originate from Bangladesh. A has two other siblings, she has a half-sibling, MR known as AS who was born on 3rd October 2000 and is therefore aged 14 years and 7 months, and MU known as I who was born on 27th June 2013 and is therefore aged 1 year 11 months.
  3. AS sadly is autistic, he has a cardiac anomaly, severe learning difficulties and is non-verbal. He attends a special school. His father is JH. He never obtained the right to enter the UK. The mother and JH divorced and he remains living in Bangladesh. He has played no part in these proceedings, indeed, his whereabouts are not known.
  4. I heard the case between 13th April and 15th April 2015 when I adjourned the case for further medical evidence in circumstances which I will explain. I resumed the hearing between 18th and 20th May 2015 and adjourned judgment until today 29th May 2015.
  5. The local authority in this case submits that there is enough evidence to identify the father as the perpetrator of all the injuries to A. The local authority further seeks findings that both the mother and the grandmother failed to protect A from harm. The mother, the maternal grandmother and the guardian also submit that the evidence establishes that the father is the perpetrator of the injuries. The guardian further supports the findings sought of failure to protect.
  6. Each of the three adults (mother, father and grandmother) deny that they have ever harmed A, deny that they have witnessed anyone else doing so, and deny failing to protect her.
  7. The father's statement contains references to AS's behaviour which could, on occasions, be difficult to control and aggressive. However, it was only during oral evidence and submissions that his case evolved to the point where he suggested that AS could have been responsible for the injuries.
  8. The representation of the parties during the proceedings was as follows: The London Borough of Islington was represented by Mr. Peter Coutts, solicitor; the mother was represented by Miss Rebecca Littlewood of counsel; the father was represented by Mr. Michael Bailey of counsel; the grandmother was represented by Miss Elpha LeCointe of counsel; and the children were represented by Miss Beth Price, solicitor.
  9. I have read the bundle containing sections A-E and extensive selective extracts from the other bundles as required. I heard oral evidence from the following witnesses in the chronological order in which they gave evidence: Dr. Amaka Offiah, honorary consultant paediatric radiologist; Michelle Julien, the allocated social worker; Ola Awosanya, family support worker; Tracey Taylor, specialist family support practitioner; Agueda Furtado, family support worker; Mr. Jayaratnum Jayamohan, consultant paediatric neurosurgeon; Dr. Colin Michie, consultant paediatrician; the mother and the father. During the father's evidence I interposed the evidence of Dr. Neil Stoodley, consultant neuroradiologist, and Mr. Jayamohan was recalled. The father then concluded his evidence. Finally, I head from the maternal grandmother.
  10. In order for the case to be case managed, and for further directions to be given for a welfare hearing fixed for June of this year, I indicated that at the end of the evidence and submissions I would announce whether I had found the threshold established based on the injuries where, in my view, the medical evidence was unequivocal, i.e. the injuries to A's liver and ribs. I found that the father was responsible for those injuries and that they were most likely inflicted on 28th September 2014, the day A presented to hospital, and that at the very earliest they would have occurred after 6:30 p.m. the previous evening.
  11. I reserved judgment on the other medical issues where there was a conflict of expert evidence, and on the allegation that if the father was the perpetrator of the injuries the mother and grandmother failed to protect A. I also indicated I would give full reasons for the finding I had made in relation to the liver and rib injuries.
  12. The background

  13. The father met the mother in 2009. The grandmother, as I understand it, arranged the marriage which took place on 3rd March 2009. The mother applied for the father to join her in the UK and he arrived in 2011. Their first child, I, was born on 27th June 2013. A was an unplanned child, being born so soon after I's birth on 29th March 2014. She was born prematurely at 26 weeks. A was born with chronic lung disease and gastro-oesophageal reflex which requires her to be fed with a nasogastric tube. She is also offered the bottle to stimulate her oral motor skills and is able to feed from the bottle to some extent. A was born with the same chromosome deletion as her mother and half-brother, AS, that is deletion 3q29. This may cause congenital abnormalities and significant intellectual and physical disability.
  14. There was a referral from the doctor at the hospital where A was detained on the neonatal unit on 13th May 2014 expressing concern that the mother was visiting only for ten minutes and the father was not visiting at all. The parents' visiting improved after this was mentioned.
  15. Sadly the mother herself suffers from learning difficulties and she was unable to learn the necessary skills to feed A either via the nasogastric tube or by bottle. Her mother too struggled to acquire the necessary skills. At that time the documents record that the father was working full-time at McDonalds. In evidence to me he said he was working part-time but that may have come later.
  16. At a discharge meeting on 23rd July 2014 concerns were expressed that the parents were not visiting sufficiently, and coupled with the difficulties in feeding it was felt that no secure attachment to either parent had formed. The father then volunteered to give up work and learn the necessary skills. It was noted even at that stage that the maternal grandmother appeared to be controlling and tended to correct the father. On 13th August 2014 the father was signed off as competent in feeding skills and in providing A with her medication. There was a plan for discharge home with the father to be responsible for administering all feeds and medication.
  17. There was an urgent need for larger accommodation. There were also concerns that AS, as a child with an autistic spectrum disorder, would be unlikely to respond well to the change to a new home and there being a new baby. Work was done with him at school and introductions to his sister took place slowly. AS had his own family support worker supporting the family with behaviour routines and toileting. However, this was put on hold when the family moved to their new home at the end of August 2014.
  18. Again, at this time the grandmother was noticed by social workers to be controlling. She had been living with the family despite having her own home. The social workers requested that she should not move to the family's new home. They wanted the parents to support each other in bringing up the children. There were also concerns about the impact on the parents' tenancy if the grandmother was living there full-time. The social workers' understanding was that the grandmother, despite this concern, did move in with the family and the father has asserted that she was living there full-time. I will deal with the issue of living arrangements in more detail in my judgment but it is plain at the very least that the grandmother was spending considerable time at the premises. However, it is right to record that the grandmother has assisted the parents, and the mother alone initially, since the birth of AS with the care of all three children.
  19. On 5th September 2014 A was discharged home to the family's new home. The father was granted indefinite leave to remain, according to the social worker, on 9th September 2014. For the first two nights at home a community nurse was present overnight from 9 p.m. until the next morning. This was then reduced with family support workers attending four hours a day, two hours on one occasion and two one hour sessions to take place around the feeding times between the hours of 10 a.m. to 6 p.m. This continued for a week until 11th September 2014 when the visiting was reduced. There were also other health professionals visiting regularly. Therefore there was a high degree of observation by professionals.
  20. The social worker, Miss Julien, understood that AS shared a room with the grandmother, that the mother and I were in a second room and that the father and A were in a third bedroom. She got the impression that the grandmother was there all the time and that she slept with AS as he did not sleep well at night. She was advised that AS was never left alone with A. She never saw AS and A interacting and no concerns about AS's behaviour towards his sister were brought to her attention.
  21. It was reported that the father was competent and confident in feeding A. However, the family support workers reported an argument in the home between the father and the maternal grandmother which led, in their view, to some considerable tension within the home. The social worker thus visited on 25th September and spoke to all three adults. The mother expressed concerns that the father had changed since he had been granted leave to remain and had spoken of taking I to Bangladesh. He had also stated that he wanted A to be placed into foster care. The father denied this. The father said, "Michelle, what my life is like now?". She felt he was perhaps tired and she was not unduly concerned. The mother said that the father was shouting at her demanding money. The father downplayed the concerns. The maternal grandmother was saying the same sort of things as the mother.
  22. Miss Julien observed A feeding and had no concerns. She noted that A could not move much at that time. From her perspective the father seemed to be undertaking the care of A, and the professionals wanted the mother to do more as there appeared to be extremely limited interaction between the mother and her daughter. At this meeting the mother and the father both supported the grandmother being present in the home because of the help she was providing.
  23. The admission to hospital

  24. On 28th September 2014 at about 5:30 p.m. A was admitted to the A Hospital. She was reported to have been vomiting and was observed to have blood in her stools, to be pale, to be drawing her legs inwards, and to have rectal bleeding. Her abdomen was tender to touch and she had skin markings which were either Mongolian blue spots or bruises on her right cheek, her left knee and lower leg and ankle.
  25. She was transferred to the B Hospital the next day and there she underwent an emergency laparotomy. The operation revealed that she had excessive blood mixed with peritoneal fluid in her abdominal cavity of 120ml, that there were two lacerations of the liver and one laceration of the vascular tissue. The medical view was that these injuries were deliberately inflicted. The father had no explanation.
  26. On 30th September there was a strategy meeting which led to the decision to remove I from the home and he was placed with his maternal aunt by agreement with the parents. At that point the father informed the social workers that A had fallen off her bed. He could not recall when this happened and thought it was about a week ago. He said he had not reported this earlier out of fear. It was considered that A was not at the developmental stage where she could roll off a bed. The father was arrested for grievous bodily harm on 1st October 2014. As appears to be customary these days no charging decision has yet been made.
  27. A had various scans on 1st October 2014 of both the head and the abdomen. These revealed complex bilateral skull fractures, bilateral fluid collections around the brain, a temporal area of gliosis, grade 4 liver lacerations, healing anterior left rib fractures to the 1st to 6th ribs and to the right 2nd and 6th to 7th ribs. In the case of the 7th rib a possible rib fracture. On the same day an MRI scan revealed numerous shear-type injuries to the brain itself, damage to both temporal lobes of the brain and again the subdural collections seen on the CT scan.
  28. On 2nd October AS was removed from home and placed with his maternal aunt with I. On 9th October AS and I moved to the maternal uncle where they remain. AS had been known to hit out at smaller children and at the outset the father, the mother, the maternal grandmother and AS were considered by the police as possible perpetrators. The grandmother, the mother and the father were interviewed by the police. Following the interviews neither the grandmother, the mother or AS were treated as suspects by the police. The older children were investigated for injuries with negative results. I was seen to have a good attachment to his parents and AS to the mother and maternal grandmother.
  29. On 12th November 2014 A was placed with foster carers where she still remains. Since then she has shown no predisposition to bruising, easy bleeding or fractures.
  30. The father would feed A in her bedroom where all the feeding equipment was kept. It was observed that she spent a lot of time in the bedroom lying in her cot or in the baby bouncer. As I have said, the mother appeared to undertake no care tasks for her and there was little interaction with her. However, the grandmother was involved in A's care.
  31. The law

  32. I have received helpful submissions on the law from Mr. Bailey which I accept. A convenient and helpful summary of the law governing these applications is contained in the judgment of Baker J in the case of JS reported at [2012] EWHC 1370 Fam At para.36 onwards of his judgment he sets out the principles which apply to a fact finding hearing such as this. I will attempt to summarise and paraphrase his very helpful guidance which is an accurate reflection of all the case law.
  33. Firstly, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them. Secondly, the standard of proof is the balance of probabilities. If the local authority proves on the balance of probabilities that the child has sustained non-accidental injuries inflicted by one of his parents the court will treat that fact as established and all future decisions concerning the child's future will be based on that finding. Equally, if the local authority fails to prove that the child was injured by one of her parents the court will disregard the allegation completely. Thirdly, findings of fact must be based on evidence. As Munby LJ (as he then was) observed in Re A, a 2011 decision:
  34. "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."

  35. Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence, and furthermore consider each piece of evidence in the context of all the other evidence. Reference is made to the decision of Dame Elizabeth Butler-Sloss in the case of Re T where she said this:
  36. "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."

  37. Fifthly, as is invariably the case in proceedings involving allegations of non-accidental head injury, there is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in a position to weigh up the expert evidence against the other evidence. Thus, there may be cases if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury where a judge, having considered all the evidence, reaches the conclusion that is at variance with that reached by the medical experts.
  38. The sixth factor is not directly relevant to this case.
  39. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.
  40. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (R. v Lucas [1981] QB 720).
  41. Ninth, as observed by Hedley J in the case of Re R:
  42. "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."

  43. The court must resist the temptation to believe that it is always possible to identify the cause of injury to the child.
  44. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of the non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable where possible for the perpetrator of non-accidental injury to be identified both in the public interest and in the interests of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that parent A rather than parent B caused the injuries, then neither can be excluded from the pool and the judge should not strain to do so.
  45. The question of an unknown cause for the injuries was also considered in the case of London Borough of Islington v Al Alas v Wray [2012] EWHC 865. Theis J also conducted a review of the law and she referred in particular to the case of Re U [2004] and the case of Re L [2011]. At para.13 she referred to the guidance provided by the then President, Dame Elizabeth Butler-Sloss, in the case of Re U and in that case she adopted the following guidance:
  46. "(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."

  47. She also referred at para.10 to the case of Re R, a decision of Hedley J in 2011 which I have referred to in considering the case of JS. The passage she quotes is as follows:
  48. "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."

  49. I apply all those principles of law to this case.
  50. The medical evidence

  51. A spent her first five months of life in a special care baby unit or a neonatal unit. Due to her prematurity a number of scans and x-rays were taken throughout her short life. A scan on day three revealed low grade intraventricular haemorrhages (bleeding into the fluid spaces in the middle of the brain) which is relatively common for a premature baby. An MRI scan was taken on 16th July 2014 because of the presence of the intraventricular haemorrhages. Slightly enlarged ventricles were observed due to shrinkage of the brain, again, as a result of prematurity.
  52. A subdural collection was observed on the left frontal side. According to Mr. Jayamohan there was also a very small collection on the right side, but Dr. Stoodley could observe no such collection. Dr. Stoodley stated that this was unlikely to result from birth related bleeding. Later ultrasounds showed evidence of benign enlargement of the subarachnoid spaces known as BESS. This may predispose to subdural bleeding with a lesser degree of force.
  53. As I have already related, A was presented to hospital on 28th September with a history of pallor, vomiting for a day and prolonged vomiting last week after feeds. She was noted to have bloodstained stools. She was described on admission as alert, focusing, pupils size three and reactive. She was transferred to the R Hospital and at that point she had low haemoglobin, 6.9 as compared to 8.2 on admission.
  54. The laparotomy conducted on 29th September revealed two friable lesions on the anterior surface of the liver, 120ml of blood in the peritoneal cavity and a defect of the mesentery. She had a blood transfusion and further fluid resuscitation. The liver injuries were of grade 4. According to Dr. Michie, A lost over a third of her blood volume. She was shutting down and her condition was so serious that she could have bled to death. There was no visible external sign of injuries. There were some marks on her face and leg and, as I have said, they were considered to be either bruises or Mongolian blue spots. On 29th September it was noted that she remained rousable with a soft anterior fontanelle.
  55. The CT scan of the head of 1st October 2014

  56. This showed bilateral large subdural fluid collections around the brain of uniform dark attenuation. According to Dr. Stoodley these could be either:
  57. (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.
  58. He said there was some brighter subdural fluid posteriorly. The subdural collection was definitely new on the right if Dr. Stoodley is correct that it was not present on the July scan, and at least significantly enlarged if not new on the left. Mr. Jayamohan saw the collections as chronic subdural collections being weeks, if not months, old, and he based this opinion on the clinical presentation of the child. There was an area of loss of brain matter, or gliosis, in particular in the left temporal tip.
  59. There were complex fractures of the left parietal and right parietal bones of the skull with some widening of the sutures. The left was a comminuted fracture, the right showing angulation. According to Dr. Stoodley's interpretation of the scans there was extensive soft tissue swelling on both sides, and although Dr. Offiah omitted to notice this in her first report she subsequently reviewed the scans and agreed with Dr. Stoodley. Dr. Stoodley said that this would suggest fractures of no more than seven to ten days old and Dr. Offiah agreed. Mr. Jayamohan disagreed and said that the swelling could represent attempts at inserting cannulas for IVF on either side of the head.
  60. The MRI scan of 1st October 2014

  61. This showed significant trauma to the brain since the July scan with numerous shear-type injuries within the brain material itself and multiple foci of parenchymal haemorrhage. There was damage to the left anterior temporal lobe and to a lesser extent to the right. As seen on the CT scan there were increased fluid collections on both sides of the brain. There was evidence of fine membrane formation on both sides at the vertex, and Dr. Stoodley's evidence was that the earliest this would be seen would be ten to 14 days from the event. Mr. Jayamohan, as I understand it, did not disagree with that particular opinion. There were also traumatic subarachnoid bleeds with superficial haemosiderosis.
  62. On 2nd October on an ophthalmological review three right-sided pre-retinal haemorrhages and multiple tiny haemorrhages on the left side were seen. There is no finding pursued of deliberately inflicted injuries in relation to those findings as they could have a number of explanations.
  63. The chest x-ray of 1st October 2014 and the skeletal survey of 9th October 2014

  64. These showed fractures of the left 1st to 6th ribs anteriorly and the right 2nd rib anteriorly together with a costochondral fracture at the end of the right 6th rib and a possible costochondral fracture at the end of the right 7th rib.
  65. I will turn to deal with mechanism. I will not deal with each doctor's opinion separately where there is medical consensus but will simply recite the medical consensus. Obviously doctors without a particular expertise in a particular area could not agree or disagree with the doctor who did have the expertise, but in that case the evidence I am reciting is the uncontroverted evidence of that expert.
  66. Mechanism

    The fractures

  67. There was no evidence of any underlying organic or neonatal condition for any of the fractures, nor was there a vitamin D deficiency. Dr. Michie made clear that unless there are signs of rickets in the long bones the vitamin D issue is not relevant to causation of the fractures.
  68. There is no evidence that the chromosome deletion had any relationship with easy bleeding, bone fractures or damage to the liver. Dr. Michie said he would expect such a condition to manifest itself in other members of the family with the same chromosome deletion. In the literature this chromosome deletion is associated with learning and developmental problems.
  69. The skull fractures

  70. In premature babies there is a degree of weakness of the bone. However, there would still need to be some traumatic event to cause the fractures but this would have more traumatic consequences by causing larger fractures. The mechanism was likely to be an impact of the skull on a hard surface. A fall of more than 5½-6 feet would be required. A significant impact on both sides would be required. A single impact would be unlikely to cause complex fractures on both sides unless the fracture lines were continuous.
  71. The experts other than Dr. Stoodley posited either direct blows or a severe crushing injury. Even if the baby could roll, which was unlikely at the time given her stage of development, a fall from the bed would be unlikely to cause both skull fractures, and given the branching nature of the fractures this implies significant force unlikely to be caused by a simple fall. Further, if Dr. Stoodley is right, the timing would not fit the father's assessment that the injuries occurred on 13th or 14th September.
  72. Dr. Stoodley also mentioned in his report new biomechanical research which suggested that bilateral fractures could be the result of a single impact with a force transmitted across the skull. I will come to consider that matter when I consider his evidence in more detail.
  73. The ribs

  74. There was no evidence of bone disease of prematurity or any underlying bone disease. The fractures of the anterior ribs would result from compressive forces from front to back or side to side direction. The fractures of the costochondral ends were likely to be the result of a direct blow and highly likely to have occurred from the same assault which caused the damage to the liver and mesentery. A lot of the liver in fact lies under the ribcage. Such fractures would not be consistent with a fall onto a hard surface like the side of a bath or a fall from the bed. They could be as a result of one blow but Dr. Michie likened the impact to a steering wheel impact in the centre as a result of a serious road traffic accident.
  75. The liver lacerations

  76. There was no organic cause which could account for these injuries. Dr. Michie and Dr. Offiah said that a blunt or penetrating trauma both requiring significant force would be the mechanism. However, it would be unlikely to be penetrating as there was no entry wound and given the extensive nature of the liver damage. Therefore a conclusion of a blunt trauma such as a punch or blow but requiring significant force was reached. The injuries could not be caused by a fall from the bed. A also suffered from a circular 5cm defect in the peritoneal lining of the mesentery of the terminal ileum which, according to Mr. Cleeve, the consultant paediatric surgeon who conducted the laparotomy, would be caused by the same trauma to the abdomen.
  77. The brain injuries

    The subdural collections

  78. As I have said, there is an issue between Mr. Jayamohan and Dr. Stoodley as to whether these could represent a development of the subdural collections seen on the scan of 14th July. Mr. Jayamohan considered whether the subdural collections were those seen in the July scan which had increased in size over time. He said re-bleeding could have occurred and the presence of the scans in July does not exclude other traumatic episodes occurring, for example the child falling off a bed onto a stool.
  79. If there had been a further traumatic event Mr. Jayamohan considered that either a crush injury or direct bilateral impacts on the skull were likely, i.e. two separate blows. Dr. Stoodley did not consider that a crush injury could cause the brain injuries. Mr. Jayamohan considered that it was likely that the event causing the skull fracture caused the brain injuries. However, the view of the experts was that the fall from the bed described could not be responsible for these injuries, and the bleeds into the damaged brain parenchyma were caused by traumatic shearing forces.
  80. The dating of the injuries

    The ribs

  81. The absence of signs of acute or healing rib fractures on the earlier scans suggested that the injuries were sustained between 17th September (and possibly as early as 14th September) and 28th September. This is the evidence of Dr. Offiah. At the experts' meeting Dr. Offiah stated that the window was likely to be smaller between 25th and 28th September and she said she would expect to see healing by day ten, i.e. 25th September.
  82. The skull

  83. Dr. Offiah's original evidence was that the absence of soft tissue swelling on the CT scan of 1st October meant that the injuries were at least ten days old and therefore took place on or before 21st September. As I have said, Dr. Stoodley has confirmed the presence of soft tissue swelling which is now agreed by the other experts, although Mr. Jayamohan queries whether this could be as a result of insertion of cannulas into the scalp veins which can cause swelling. If Dr. Stoodley is right the injuries would have occurred between seven to ten days prior to 28th September and Dr. Offiah accepts that view. It is possible that the time window could be extended to 14 days but Dr. Stoodley considered that the smaller window was the more probable.
  84. The liver

  85. This was an acute injury which occurred 24 to 48 hours before the presentation to hospital. According to Dr. Michie it was highly probable, given the child's clinical presentation and the other findings, that this was caused on the day of presentation, and he noted the presence of low clotting factors and raised liver enzymes.
  86. The brain injuries

  87. In his report Mr. Jayamohan said the brain injury may have been present for a few weeks if not longer and would require a significant traumatic event. The same event, he said in his report, could have caused the brain injury, the subdural collections and the skull fractures but would require an impact or impacts to both sides of the skull. Alternatively there could be a shaking injury and an impact event which could cause the constellation of injuries seen.
  88. The timing of the subdural collections, in his view, dated back many weeks if not months before the October CT scan. This was because of the size of the collections combined with the relative absence of signs of raised intracranial pressure. According to him this meant that the skull had increased in size along the fracture lines to accommodate the subdural collections which takes some time.
  89. At the experts' meeting which took place on 9th April 2015 Mr. Jayamohan said it was likely that the skull fractures, the subdural collections and the temporal lobe injury were caused by the same event, therefore putting it somewhat more strongly than in his report. In his oral evidence he further firmed up on his opinion about this and said that they would have occurred before 5th September, i.e. while the child was in hospital.
  90. Dr. Michie was asked about this evidence in his oral evidence. He said he had significant expertise in premature influence and their follow up, and very commonly these infants would have brain injuries. He said he had never seen a situation where a premature baby has suffered a skull fracture, let alone a complex bilateral skull fracture, in hospital. Babies in neonatal units would have high levels of monitoring and observation every two hours or so. In his view it would simply be impossible for the child to sustain bilateral skull fractures without someone observing. He also made the point that paediatricians would refer extremely few premature babies with head injuries to neurosurgeons.
  91. I had already expressed my concern at the evidence given by Mr. Jayamohan in terms of the likely timing of these injuries, and Dr. Michie's evidence obviously heightened my concern. It was therefore in those circumstances that I considered that a second medical opinion on these injuries was essential, and the instruction of Dr. Stoodley took place. He disagreed with the opinion of Mr. Jayamohan. If the collections were large, acute, traumatic effusions they could lead to sutural widening within days. He considered that the brain injuries and the subarachnoid bleeding were separate events from the skull fracture. He considered the brain injury had occurred at least two weeks before 1st October, and the subdural collections at least ten days to two weeks before 1st October.
  92. The symptoms

  93. A skull fracture would cause distress and acute pain. The pain settles fast compared to limb fractures. The child could settle within an hour although the head would be tender to touch and this would continue for several days.
  94. Rib fractures

  95. There would be pain and distress at the time of the injury which would be likely to continue for several hours. Pain would recur with handling of the area and with breathing.
  96. The liver injuries

  97. These would cause extreme pain. The child would have appeared sleepy and obviously unwell some hours before presentation. Dr. Michie said that the pain in relation to all these injuries would be evident to any carer present at the time or to anyone who tried to feed A or change her. In his view the great majority of carers would have taken an ambulance to bring the child to hospital.
  98. I will now consider the evidence of Mr. Jayamohan and Dr. Stoodley in more detail concerning the differences in their medical opinions.
  99. Mr Jayamohan

  100. In my view the evidence of Mr. Jayamohan evolved over time. He may not have been as clear as he intended to be in his report because he discussed the injuries to the brain and the skull separately and in isolation as he said he would do this in preparing a report for criminal proceedings. In his report he suggested that the subdural collections seen on the July scan could have a natural cause and may be related to birth. The subdural collections seen on the October scans could be re-bleeding into existing bleeds. A fall from a bed onto a stool could be an event causing re-bleeding and they could also be the result of a traumatic event.
  101. The injury to the temporal tip looked like an area of gliosis in the October scans which would suggest that it was a few weeks old if not longer. It was unlikely to be caused by a fall from a bed. He noted that the location of the skull fractures, the brain injury and the subdural haematomas were different and therefore they did not necessarily need to be the result of one event, although logic would suggest that they could be. If there was one event there would need to be an impact to both sides of the skull to cause the skull fractures.
  102. In the experts' meeting he said there was no clinical evidence of a skull fracture at the time of the July scan. In oral evidence in May he said that the July MRI would not show a skull fracture. In his oral evidence in April he said it was likely that the skull fractures, the subdural haematomas and the brain injuries were caused by the same event. Further, in his oral evidence in April he said there was no evidence of fresh bleeding into the subdural collections and they were at least weeks old.
  103. As I have said, he sought to date the skull fractures by reference to the clinical presentation of the child. The child was born with a small head which was a feature of her condition. By the time she presented to hospital she had a large head and he said that this was likely to be caused by large subdural bleeds which developed after the first scan. He said the skull fractures were not new because of the time required for intracranial pressure to cause widening of the fracture edges.
  104. The temporal lobe injuries were not present on the July scan. The brain injury and the skull fractures could have occurred after 5th September 2014 but the subdural collections were likely to have occurred before 5th September 2014. He said the subdural collections were likely to have occurred at or before the time of the skull fractures but not after. He said in his oral evidence that the bilateral nature of the injuries to the skull, brain and the subdural collections make it more likely they were sustained at the same time. He also said that he did not consider that the subdural collections came from the unilateral subdural seen in July.
  105. In his evidence more recently this month he said that if there was blood present on both sides in the July scan this may be the explanation for the bilateral subdural collections. He queried Dr. Stoodley's categorisation of the earlier subdural collections seen on the July scan as unexplained, and he said that they signified some traumatic event which occurred in hospital or an unexplained cause relating to the child's congenital condition. This event may have been responsible for the subdural collections seen on the October scans. I compare this with what he said in his original report which was that the collections seen in July could have had a natural cause.
  106. When I asked him about the other head and brain injuries he said one cannot see a skull fracture on MRI scans and the skull fracture could have occurred by the time of the July scan. However, he had said in the experts' meeting that there was no clinical sign of skull fractures at the time of the July scan. He told me in his recent evidence that there was no evidence of brain injuries on the July scan. He accepted Dr. Stoodley's opinion about the timing of the brain injuries of being at least two weeks. If one followed his theory to its logical conclusion there would have to be two separate injuries to the baby's brain and skull, one caused in hospital and the other one either in hospital or after discharge. There would then be a further separate assault causing the liver/rib injuries. I say that because he accepted, and has always accepted, that there was no evidence of brain injuries at the time of the July MRI scan. So if his theory that the collections dated back to July is followed to its logical conclusion there would have to be two separate events.
  107. Dr. Stoodley

  108. He is a neuroradiologist whose expertise is in the interpretation of images of the brain and the spinal cord, and he has a specific interest in neuroimaging of children. He reported that A has BESS, Benign Enlargement of the Subarachnoid Space, a condition predisposing to subdural bleeding with a lesser degree of force. He said this may be important in relation to the subdural collections seen on the July scan which should be considered as unexplained. He said it was not a major significance in relation to the collections seen on the October scan. These were much larger than the one seen on the July scan, and this, in the presence of other abnormalities, means it was much more likely to relate to head trauma.
  109. He said that if subdural collections occur in association with BESS they tend to be smaller and unifocal, i.e. on one side only. Further, they tend to resolve rather than persist and become larger. He said the bilateral skull fractures associated with soft tissue scalp swelling were likely to have occurred seven to ten days prior to the CT scan of 1st October.
  110. The parenchymal brain injuries and the subarachnoid bleeding were likely to have occurred as a result of significant impact head trauma but as a separate event from the event which caused the skull fractures, and this would have taken place at least two to three weeks prior to the MRI on 1st October. There is no connection of BESS with brain injuries.
  111. He said the bilateral subdural collections were likely to be at least ten days old to two to three weeks at the time of the scans of 1st October. There was evidence of membrane formation on both sides on the MRI scan of 1st October.
  112. He said that he saw a left-sided subdural collection on the MRI scan of July and this was likely to have developed since the ultrasound scan of 13th June. Therefore it was unlikely to be related to birth related subdural bleeding which, in any event, tends to occur over the posterior part of the cerebral hemispheres, and these collections developed over the frontal convexities. He said there was no evidence of injury to the brain itself on this scan, and that accords with Mr. Jayamohan's evidence.
  113. He said the left-sided subdural collection on the July scan should be regarded as unexplained. He said that it must be the result of some trauma of sufficient degree to cause damage to blood vessels. It was not known whether the collection resolved or formed part of the collections seen on the October scan. As I have said, there is no evidence of brain injuries on the July scan, they therefore occurred after 16th July and as a result cannot be birth related.
  114. In the CT scan of 1st October there was dark subdural fluid which could be seen on both sides which could be either:
  115. (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.

  116. In the MRI scan of 1st October he saw fine membrane formation in the subdural collections which would be seen at the earliest around ten to 14 days. There were contusional changes in the left, and to a considerably lesser extent in the right temporal pole. There were new features compared to the previous MRI scan of July. There was an increased left subdural collection, a new right subdural collection, temporal lobe contusions on each side, smaller parenchymal bleeds and subarachnoid haemorrhages. He considered the bilateral skull fractures were between seven to ten days old because of the presence of soft tissue swelling. This would rule out a fall from the bed on the basis of timing as well as an inherent unlikelihood.
  117. The brain injuries

  118. He said the development of haemosiderosis tends to take at least two to three weeks if not longer. The left temporal contusion also showed some atrophy which would not be expected within ten days. This suggested that the fractures occurred at a different time from the brain injuries. The brain injuries and the subarachnoid bleeding were the result of an impact by way of head trauma at least two to three weeks prior to the MRI scan on 1st October, i.e. between 10th and 17th September. If sufficient force was used this could be an impact injury against a soft surface. BESS would not predispose to the development of brain injuries, if anything it would act as a cushion.
  119. The subdural collections

  120. He did not consider that the left-sided subdural collections could flow over to the right as was suggested as a possibility by Mr. Jayamohan because if that had happened one would also expect to see fluid in the posterior fossa near the brainstem but there was none. As I have said, he saw membrane formation and the minimum time one would expect to see it on the MRI scan was ten to 14 days and more often two to three weeks. Therefore he said there were at least two significant impact injuries separated in time. The damage to the temporal lobes would be more likely to be as a result of an impact to the front of the head, perhaps against a soft surface. The soft tissue scalp swelling was mostly on the top and the back of the head suggesting that the impact came from the back. He said there was a possibility if one stretched the time window that this could be one injury but it was unlikely.
  121. Therefore there is no dispute between the experts that all the injuries are likely to have been deliberately inflicted in the absence of an explanation, and that the fall did not provide an explanation for any of the injuries. The only exception to this related to the bilateral subdural collections if one accepted the evidence of Mr. Jayamohan.
  122. I will turn to the medical evidence which is not agreed. The dispute between Mr. Jayamohan and Dr. Stoodley is as to the timing of the brain and skull injuries, and to a lesser extent as to the mechanism.
  123. The differences

    (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.


  124. Both doctors' opinions produced some oddities. I have already commented that Mr. Jayamohan's thesis which he explained in his evidence more recently would mean that the child would be subjected to an assault causing the skull fractures and subdural collections in hospital on a neonatal unit and then a further assault leading to the brain injuries either in hospital or after discharge. There would then be a subsequent assault leading to the acute liver/rib damage.
  125. If I reject Dr. Stoodley's theory based on unpublished biomechanical research that one impact could have caused the bilateral skull fractures I have the oddity of two separate assaults each causing bilateral injuries. Further, the assault causing damage to the brain and the subdural collections would also be very soon after the child was discharged from hospital, the latest date being 17th September where one could assume that a carer would not have suffered the build-up of stress caring for a child in A's condition.
  126. However, the oddities produced by Dr. Stoodley's thesis, in my view, are a lot less odd than the conclusions produced by Mr. Jayamohan's theories. Overall I prefer the evidence of Dr. Stoodley to that of Mr. Jayamohan with the exception of his evidence that the skull fractures could have been caused by a single assault. I do not consider it appropriate to rely on unpublished and non-peer reviewed research. I come to this conclusion for a number of reasons:
  127. (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.

  128. I will turn now to consider the evidence of the non-medical witnesses. I have already addressed the evidence of the social worker in considering the background to the case. I heard evidence from three family support workers.
  129. The family support workers

  130. The first was Ola Awosanya. He said that on his first visit to the home there was a disagreement between father and grandmother. He saw the father on 27th September 2014 at 6 p.m. The father had just fed A ahead of schedule because he said she was hungry. He observed the baby very closely, she was not distressed and seemed to be sleeping calmly and her colour was normal.
  131. The father told him that the presence of the grandmother was essential to provide support to the mother, and this was not what he was expecting to hear given what he had previously seen and been told. The father expressed feeling quite overwhelmed caring for the child and he had said this previously. He told Mr. Awosanya that he wanted to rest and he only had the opportunity to rest whilst A was asleep, therefore Mr. Awosanya curtailed the visit. He observed the father being sensitive to the needs of A and caring for her efficiently. The father said he was looking forward to having a discussion with the social worker the following week about getting more help. The father wanted more practical support from the support workers in particular with feeding rather than them just observing.
  132. Tracey Taylor was the senior family support practitioner. She said that the grandmother's attitude towards the father fluctuated. She would support him one minute and the next minute was expressing fear for both the mother and child. On 25th September when Miss Taylor visited there was a heated atmosphere, there was shouting and arguments and allegations by the grandmother of threats to kill by the father. Miss Taylor said this varied on a daily basis. However, she felt that things were glossed over sometimes.
  133. The family seemed immune to the impact on the baby of this environment. She felt the only child with whom the father had an emotional connection was I. He was very proud of I and referred to him as "my son". She said that whilst the father cared competently for A there was no real warmth there or emotional connection with A. He complained to her too that he felt overwhelmed by being the primary carer. He used to work and he found it very difficult to adjust.
  134. She said that A's movements at this time were limited, she could move her limbs but she could not roll, and she was trying to involve the mother more in A's care. She observed the baby from time to time and had not noticed the baby's head getting any bigger.
  135. Agueda Furtado visited on 24th September when the grandmother said the father was not looking after the baby well and she wanted to speak to her privately. Miss Furtado felt that there was more to it, however there was no interpreter present to take it further. The father told her that he was tired and that the baby may be better off in foster care.
  136. I found all three family support workers to be reliable witnesses and I accept all of their evidence.
  137. The family evidence

    The father

  138. The father has given accounts in his police interview on 1st October, in his witness statement on 5th December, to the guardian in her report of 24th March and in his oral evidence.
  139. The police interview

  140. He described A's fall and put it a week before the hospital admission. He did not report it to professionals because he feared she would be removed. He said he did not even tell the grandmother. He described A on the 28th September as going black and blue, her eyes rolling and struggling to breathe. He said he rubbed/massaged A's tummy vigorously and repeatedly when he noticed her going black and blue. He did not consider that the mother or the grandmother would have inflicted the injuries and he said he did not see AS do anything, and he had not seen him do anything to I or A.
  141. The father's written evidence

  142. The father says he has always had a difficult relationship with the maternal grandmother as she is very controlling and exercises complete control over the mother. This caused difficulties in his relationship with the mother. The father said the maternal grandmother slept in the same room as A nearly all the time and that she would change nappies and bathe A. According to the father she would not let him bathe A. She also gave A regular massages which the father said were administered too roughly. The father said that he undertook much of the care of I as well as the mother. He said that AS can get very frustrated and could attack younger children as well as breaking things.
  143. On Saturday 13th or Sunday 14th September the father said he was trying to feed A with the bottle. He left A on the bed when he went to check on the older children because he heard screaming or shouting from I. When he returned A had fallen from the bed onto the stool near the bed and was lying face down and crying. She cried for ten minutes and then she fed. He did not tell the mother or the grandmother as he was frightened.
  144. The family support worker attended at 6 p.m. and observed him feeding A. The next day he said he told the grandmother who said not to reveal it as the child could be removed from their care. She advised Calpol and massage with Vicks Vaporub. I should say the grandmother denies she was ever told about this alleged fall. He said he did not tell professionals because he was frightened of their reaction. He said he took A to the health centre the following Monday and Tuesday, and later in the week she saw the community nurse and a student when the nasogastric tube was changed.
  145. He said on 26th September the maternal grandmother slept in the room with A and the father carried out the feeds. On the evening of 27th September the mother's brother visited and the maternal grandmother advised him that they were going back to her home where she lived with the brother with him for the night with the mother, AS and I. The father said he was surprised by this as this was the first time the maternal grandmother had slept elsewhere, and why was she taking the others with her? They returned at about 3 o'clock on 28th September. AS was in an aggressive mood, throwing things, punching the wall and banging the door. The maternal grandmother was looking after A in the sitting room and the father took I into another room. The grandmother was shouting and insisting that AS should be taken out as otherwise he would hit someone.
  146. A was crying a lot and vomiting. Her complexion was very pale and the father decided to take her by bus to hospital which took 20 minutes. On the bus A seemed tense and her body was stiff. She was crying and breathing heavily and then she fell asleep. Later he said that he had phoned the hospital on his mobile at 4:39 p.m. and they had told him to bring her in.
  147. He told the guardian that A was mostly in the sitting room rather than in her bedroom and that the grandmother would be with her and rub her back. She would move A in the baby bouncer very fast and shake it, and he would argue with the grandmother about her care of A. He described the grandmother doing most of the care except the feeding. He suggested on 28th September that A was turning blue and white when he returned to the living room around 4:30 p.m., and when he asked what had happened the grandmother said nothing. He told the guardian that he had asked the social worker to remove A from the home because she was not safe as a result of the actions of AS and the care offered by the grandmother. In his oral evidence he said that he took A to the GP after her fall on the next day but this plainly is not correct.
  148. He was extremely dramatic and emotional during his evidence and would, for example, clasp his hands to his chest on frequent occasions. He frequently became distressed and I had to break off the hearing a couple of times. He became particularly distressed, or "hurt" as he put it, when anyone suggested that he may have found caring for his daughter a burden or that he had hurt his daughter. He denied that he had asked the social worker to remove the baby or that he wanted her placed in foster care. He said he never got stressed at all and was attempting to downplay the stresses.
  149. He enlarged on his account in his witness statement of the events of the afternoon of 28th September. He said that whilst in the adjoining room with I he heard the grandmother say about AS, "Can't you not see, he's hitting this one that one". The mother then ran with AS outside. He came in and found A crying and then noticed the change in her colour. He later said under cross-examination that he could not confirm as he had not seen with his own eyes whether AS had beaten and attacked the child.
  150. The mother

  151. The mother gave her account through her police interview of 7th November, her witness statement of 8th December, to the guardian and in her oral evidence. The mother has had a cognitive assessment which assessed her overall cognitive ability as being in the extremely low range with an IQ in range of 56-68. The assessor considered that she was likely to need 24/7 support from an extended family member who would act as a primary carer.
  152. In her police interview she said things went downhill in the relationship with the father after A came home from hospital, and she confirmed the father wanted to give the baby away to social services.
  153. In her witness statement she said that she shared the master bedroom with the father and I, AS and A had their own rooms. The mother said she could no longer trust the father and had separated from him. She said she wanted to learn how to care for A but the father would keep the door shut when administering the feeds to A and would not let anyone come in. The mother says that she did change A's clothes and nappy and play with her, but as I have said the professional observation was of very limited interaction between them.
  154. The mother said the father's presentation changed once he knew he had got leave to remain. He would verbally abuse her and blame her for bringing a disabled child, A, into the world. She said the first she knew of any fall was on 29th September when the father told the social worker. She said she had not seen anything untoward happen to A. She said in the week of 22nd September AS went into A's room and poured shampoo and oil on her clothes, otherwise she had no concerns.
  155. On 22nd September the father told her that he could not cope with being the full-time carer for A and wanted to return to work. He wanted social care to remove A. The mother strongly disagreed and an argument ensued. By the next day when a family meeting took place he had changed his mind. After this meeting the mother said the father became short-tempered and shouted at A once when in the baby bouncer.
  156. On Thursday 25th September the mother said the father was out at the mosque all day. On Fridays the father went to the mosque as was his custom from 11-4 p.m. On Saturday 27th September she left home to go to the maternal grandmother's house. She said they visited every two weeks and they were visiting to see a new baby. They returned at 3 p.m. on 28th September. When they returned she said A appeared very pale and unwell, she was dirty and wet with vomit, her nappy was soiled and she was breathing with difficulty. The father would not respond to her question about what was wrong with her. She changed A and noticed blood coming out of her navel. She told him to call the hospital immediately and take her which he did at 3:30 p.m. She is now separated from the father.
  157. The mother told the guardian that the father had wanted her to have an abortion during the pregnancy and that he did not want a female child. This was consistent with the culture in his region. She expressed concerns to the guardian about how the father would care for A in the family home. He would leave A in the bedroom and would prevent the mother from going in even if the child was crying. She would only see her perhaps three to four times a day for ten minutes. She said the father pretended to social care that he shared a room with A. She told the guardian that she had seen marks or bruises on A under and over her eyes, and the guardian did not think that the mother would make this up. She said that this was during a week when the family support workers did not visit.
  158. In her oral evidence she said that the grandmother never slept at the family home. She said she did not recall an incident whereby AS poured shampoo and oil over A but she did confirm that she had seen bruising. She described not seeing anything concerning when she changed A's nappy on 28th September. When I asked her later about her description in her statement of blood coming out of the child's navel she said she did see this, and when asked why she had not mentioned this before she said it was because she was not asked.
  159. The maternal grandmother

  160. She gave her account through her police interview on 3rd October, in her statement of 2nd February, to the guardian and in her oral evidence.
  161. The police interview

  162. She described a good relationship with the father and denied that there was a recent argument about the father giving up work to care for A. She then accepted that during a heated argument he said that she could keep her stupid daughter and grandson and he would have his son. The father never told her about a fall. She downplayed the tensions in the house. She said A slept in a room with the father and that AS was never left alone with the baby. She spoke of the baby being unwell when she returned to the home on 28th September and it being the father who phoned the hospital. She was unaware how he travelled to the hospital.
  163. In her witness statement she recorded that she has eight children. She said five to six years ago she suffered a stroke which has left her with a weak right arm. She has high blood pressure, asthma and diabetes. This limited her in terms of the caring tasks which she could undertake. She said she lived in Archway with her two sons and their wives. She would visit the mother every day and stay over on two to three nights per week. She said the father was unhappy at the birth of a female child and was resentful at having to give up work. She had never seen AS attack the children. If he got frustrated she and the mother would take him out.
  164. She stayed over on Thursday 25th September and returned home at 6 p.m. on Friday 26th September. She returned to her home again on Saturday from 3 p.m. until 9 p.m. and left again. She said the reason they left was to see her son's new baby.
  165. The mother reported to her that the father had said he wanted the baby to be removed by social care as he wanted to return to work and did not like caring for her. He wanted to take I to Bangladesh. When she returned on the Sunday the father said the baby was ill. They put her down to sleep which she did for an hour. She was cold and her eyes were not focusing. She advised the baby should go to hospital.
  166. She said she did change A's nappies but never bathed her. AS did want to go out that day but was not behaving aggressively. She said the father never told her about the bed incident until she found out on 29th September when he told social care. She said the mother had not told him that AS had poured shampoo and oil over A and she was not aware this had happened.
  167. She told the guardian that the father would feed A in a rush and when he picked her up this was done quickly, and she would have to tell him to be gentle. She said the father slept with A. In her oral evidence she said she would stay over one to two nights a week. She did not recall anything about the shampoo incident. She did not see bruises on A, nor did the mother tell her about them. She did not see anything when the mother changed the nappy on 28th September even though the mother was next to her.
  168. The evidence about AS

  169. As I have indicated, AS has a number of difficulties associated with his condition. I have read two assessments by the disabled children's team dated 21st March 2014 and 10th July. The second followed a referral from the hospital in respect of A. Mr. Bailey asserted that AS was a known risk and understandably drew my attention to a number of comments made in the assessments. The mother accepted that she struggled to set boundaries for AS at home. The reports indicated that AS was quite loving towards I but might pinch him or hit him with something. However, there was no reference to I or A being injured by their brother. Concerns were expressed after A's birth leading to the second assessment about AS's tendency to attack younger children and thus outreach support was offered to the family to manage his behaviour towards his younger siblings.
  170. The information received by the social worker was that AS never went into A's bedroom and was never left alone with her. She did not see anything of concern nor did the family bring any concerns to her attention. She did not see AS interacting with his younger sister nor did Mr. Awosanya. There are a number of references in the reports of the family support worker who was working with AS to the difficulties in his behaviour and Mr. Bailey relies upon those.
  171. My findings

    The medical evidence

  172. I accept, as I have indicated, the evidence of Dr. Offiah as modified, the evidence of Dr. Stoodley save in relation to the issue of a single impact causing the skull fractures, and the evidence of Mr. Jayamohan where it coincides with the evidence of Dr. Stoodley and Dr. Michie. I accept Dr. Michie's evidence. I accept the agreed evidence as to the mechanism and timing of the injuries to the liver and ribs. I accept that the likelihood is that these injuries occurred on the day of admission. I accept the evidence that the mechanism of injury to the skull fractures was two impacts, probably to the back of the head or a crushing injury. I accept Dr. Stoodley's evidence as to the timing of the subdural collections and the brain injury, and that they were likely to be the result of two impact injuries to the front of the head. I accept all the evidence as to the effect of the injuries on the children.
  173. I therefore find that there is no other explanation either organic or by way of accident for any of the injuries caused to A, and that all these injuries were deliberately inflicted.
  174. My findings concerning the adults

    The living arrangements

  175. A great deal of contradictory evidence has been given about the care of A and the living/sleeping arrangements in the family home. The thrust of the grandmother's evidence, in my view, was to distance herself from the care of A, and of the father's evidence to attempt to show on the contrary that she was more involved and that his role was restricted to feeding. The true picture I find is that the father was the primary carer of A and that the grandmother, and to a lesser extent the mother, did some limited caring tasks.
  176. The social worker and the family support workers understood that the grandmother slept with AS, the mother with I and the father with A. The father said in evidence that the grandmother slept with A. I find that this was an attempt to seek to minimise the time that he spent alone with her and I reject that. The mother and the father both said that he slept together with her and I, and I find that this is what happened.
  177. The father was the primary carer for A as he was the only one trained to do the feeding and to administer the medication. The mother has alleged that when he fed A he closed the door and she was not allowed to observe and I accept that.
  178. The father said the grandmother insisted on doing all the bathing and would massage A too vigorously. He also said that he did not change nappies. The grandmother said she never bathed the child. The social worker understood that the father was responsible for bathing and the family support workers' reports mention him changing a nappy. Again, the truth is probably between what the grandmother and the father was saying. I find the father did change nappies although the mother and the grandmother would do so too, and that he did bathe A although the grandmother may have done so sporadically. The professionals had not seen the grandmother do any of the caring tasks and the mother was observed to have had very little interaction with A.
  179. I find there was a clear delineation of caring responsibilities within the family. The mother and the grandmother were the primary carers for AS and I, this was the grandmother's main role plus household tasks such as cooking and cleaning.
  180. Another issue concerned how much the grandmother was in the household. The social worker got the impression the grandmother was there all time. The grandmother said she would come whenever she was needed and was there virtually on a daily basis. She said she stayed over either two to three time a week or, in her oral evidence, once to twice a week. Bizarrely the mother said that she never stayed over. The father said on the other hand that she lived there. She was certainly virtually always there when the family support workers visited. I find that she was there on a virtually daily basis and would stay over some nights of the week, and when she did stay over she would sleep with AS.
  181. The family situation in the home after 5th September

  182. I have already referred to the evidence about the tensions in the household and the father's statement according to mother and grandmother that he wanted to work, did not want to care for the child anymore and wanted her placed with foster carers.
  183. The mother's statement about the tensions in the household was filed long before the family support workers' notes came through and they verified her concerns about the tensions in the household. On this issue I accept the mother's account of what was going on in the household. The family support workers advised the social worker of the tension and arguments between grandmother and father. The social worker herself had observed this.
  184. I note that the mother expressed the concern that the father had changed when the social worker attended on 25th September and the grandmother confirmed it. I note the father downplayed everything to the social worker on that occasion. The father denied wanting to give A up and said it was the grandmother who had wanted to give A to her daughter in Birmingham. I find that he did express that wish and that this was said at a family meeting held with the elders of the family, but he then backed down.
  185. I agree with the guardian that whilst the grandmother was able to voice some concern about the father's care of A she had more concern than she was willing to disclose, no doubt out of fear that the child might be removed. The mother told the guardian about the bruising to A's eyes which she confirmed in evidence. The guardian did not consider that the mother, with her intellectual limitations, would make this up. However, the grandmother denied seeing bruising or the mother telling her, and I find this was an attempt by the grandmother to show that there was no deficiency in their caring or ability to protect. I find it likely, and agree with the guardian, that there was some bruising.
  186. I found none of the adults to be reliable witnesses. I have to make allowances for the mother's learning difficulties. All of them gave contradictory evidence as between what they themselves said at different times and as between what each one of them said compared to the others. I found the mother, and particularly the grandmother, were at pains to distance themselves from the care of A in their evidence. In my view they did this to reinforce their case that they were not the perpetrators and to deflect responsibility from themselves as having failed to protect A, for example the changes of evidence in relation to the shampoo incident, the mother's changes of evidence about the blood in the nappy and the grandmother bizarrely (although she was next to the child) not noting any problem. I note interestingly that in Mr. Cleeve's report at E289 he says the parents had described bright red blood in the stools.
  187. The mother

  188. I found the mother to be a gentle and unassertive personality. I find that she had done her best with help from her mother to bring up her first two children, there were positive interactions observed between her and both the boys. As I have said, I did not find her a reliable witness and find that this was a combination of her poor memory as a result of her learning difficulties together with an attempt to distance herself from the injuries. I find there was a lack of both motive and opportunity to harm her daughter. From the evidence she was never alone with A. Further, having read about her and having seen her I could not see her as someone who would commit such an assault in any event.
  189. The father

  190. I have already found that he was the primary carer for A. I find that the father felt trapped in the situation in which he found himself. It was culturally unusual for him to be undertaking this sort of role. I accept that he did not view a female child in the same light as a male child, and that he did make comments along the lines of, "why was A brought into the world?". I find that whilst he carried out his caring role out of a sense of duty, there was a lack of emotional connection between him and A and that he did not bond with her. Added to this was his difficult relationship with a mother-in-law who could be overbearing and critical. I find he felt isolated with so many female professionals around. I find that work was likely to have been an outlet for him and that he had lost this together with the degree of financial independence it gave him. He did not claim benefits and money was clearly very much an issue.
  191. I find he felt very tired by the four hourly regime of feeds day and night. He said to the social worker on 25th September, "Michelle, what is my life like now?". I also have accepted fully the evidence of Tracey Taylor as to her observations of his interactions.
  192. I find that he had both the motive and the opportunity to harm the child. I am not convinced that there necessarily was a fall at all. I find that his account about the liver and rib injuries and how the injuries could have been caused by AS after his return home inherently implausible and frankly not worthy of serious consideration.
  193. I have found that the injuries to the liver and ribs were caused on the day of 28th September. I find that he as the only person who had the opportunity to inflict them. I have to take into account the lack of likelihood of there being two or more family members who separately inflicted injuries on the child, and the fact that he inflicted the liver and rib injuries, in my judgment, as to the likelihood that he was reasonable for the other injuries.
  194. The grandmother

  195. I found her an unreliable witness, as did the guardian, who was seeking to distance herself from the care of A. I accept that she has a degree of physical frailty as a result of her stroke. However she had neither the motive nor the opportunity since she was rarely alone with the child, at least without someone else present in the home, to carry out such assaults. Again, I could not see her as being the kind of person who would carry out this type of assault. I find that she may well even have not been physically capable of doing so.
  196. AS

  197. I find the father latched onto the evidence of what AS had done at school in an attempt to displace blame onto him. This, I find, was opportunistic and frankly extremely unattractive. I reject the contention that AS could have caused the injuries for the following reasons:
  198. (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.
  199. I am satisfied on the balance of probabilities that the father was responsible for all the injuries sustained by this little girl. I am satisfied from the evidence that I have heard that there were two separate assaults causing the injuries to the brain and the subdural haematomas on one occasion and to the skull on the other. There was also a third injury whereby the liver and rib injuries were sustained. These were life-threatening injuries.
  200. Failure to protect

  201. I accept the analysis of the guardian as put forward by Miss Prince that both the mother and the grandmother failed to protect A from physical and emotional harm. I find that both the mother and the grandmother were aware that the father was not caring for A properly. I accept, as I have indicated, the mother's evidence that she saw bruising around the child's eyes. The grandmother said she did not like the why that the father handled her roughly, both to the family support workers and in her evidence.
  202. As the guardian said through Miss Prince, the family had very regular contact with social work professionals and it would have been easy to report their concerns. The grandmother did report her concern to Miss Furtado about the father's care but I find that she did not give the whole story and she then pulled back. I find that both had concerns that all was not well, although plainly did not know of the seriousness of the situation or the nature of the injuries A sustained.
  203. I also agree with the guardian that there was an element of neglect in this case whereby A would be left in her room for sustained periods when the father was not in the home.
  204. On 28th September both the mother and the grandmother describe A as being in a very poorly state. The mother said the father would not tell her what was wrong with the child when she asked which must have heightened her concerns. I accept her evidence that she saw blood but she may have got it wrong when she described the navel.
  205. I agree with the guardian that the mother and the grandmother appeared to have regarded it as the father's responsibility to deal with this situation. They did not appear to have considered calling an ambulance or even calling family members who are more competent than themselves and could have driven them to hospital. It was a long time from returning at 3 p.m. to the father calling the hospital at 4:39 p.m. The picture of the father taking the child on the bus with no money is an extremely worrying and frightening picture.
  206. I agree with the guardian and her submissions through Miss Prince that the mother and the grandmother simply seem to have regarded this as the father's responsibility. In my judgment, given what they saw and perceived on 28th September, plainly they failed to take appropriate protective action. I make that finding in the clear knowledge and taking fully into account the mother's learning difficulties.

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