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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> N, Re (A Child: Fact Finding - NAI [2020] EWFC B80 (27 October 2020) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2020/B80.html Cite as: [2020] EWFC B80 |
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Gloucester House, 4 Dukes Green Avenue Feltham, TW14 0LR |
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B e f o r e :
____________________
THE LONDON BOROUGH OF HILLINGDON |
Applicant |
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- and – |
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(1) THE MOTHER (2) THE FATHER (3) THE ![]() ![]() ![]() ![]() |
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____________________
Nicholas
Goodwin QC & Ms Sara Granshaw (instructed by Hillingdon Legal Services) for the Applicant
Mr Cyrus Larizadeh QC & Mr Nairn
Purss (instructed by Duncan Lewis Solicitors) for the First
Respondent
Ms Janet Bazley QC and Ms Emma Hudson (instructed by Beck Fitzgerald Solicitors) for the Second
Respondent
Ms Sandra Fisher (instructed by Beu Solicitors) for the Third
Respondent
Hearing dates: 21-24; 29-30 September; 1, 9 October, and 5
November
2020
____________________
Crown Copyright ©
His Honour Judge Willans:
Introduction
Conclusions
Threshold
i) On 9 December 2019 N
was admitted to hospital with the following injuries:
a) Acute multi-focal, multi-compartmental subdural haemorrhage and acute traumatic effusions;
b) Acute subarachnoid haemorrhage overlying the top and right side of his brain;
c)Acute subpial haemorrhage in the left parietalregion
(
not
pursued)
d) Acute subdural haemorrhage in the lumbo-sacralregion
of the spinal canal;
e) Swelling within the paraspinal soft tissues/ligaments of the upper two cervical vertebrae of theneck;
f) Multiple bilateralretinal
haemorrhages within all layers of the
retina;
g) Linear bruise to the right forearm with overlying petechiae;
h) Petechial bruising on the anterior chest wall.
ii) Each of the head/spinal injuries [5(i)(a-f) above] was inflicted by either the mother or father by means of a violent shaking mechanism with or without impact against a soft surface, very shortly before the emergency services were called at 0533hrs on that date
iii) Each of the bruises [5(i)(g-h) above] was caused through rough handling during the course of the episode in which N
was shaken
iv) The perpetrator and anyone present when such injuries were caused knew that the force used to cause them was excessive and likely to cause N
significant harm
v) Whichever parent did not
cause the injuries knows (a) that the other parent did and (b) the circumstances in which they were caused, having heard and/or seen him immediately before and during the episode in which he was shaken.
Neither
parent has told the truth about the context in which he came to be injured. In such
regard
the Applicant
relies
upon:
a) the parents' physical proximity to each other
b) the probability thatN
was difficult to feed or settle immediately before the causative event
c) the probability therefore that thenon-perpetrator
was aware of the immediate prelude to the incident
d) and thereafter the occurrence of an untoward event by which means he/she oughtreasonably
to have concluded
N
was injured.
Real
Issues in Dispute
i) Did N
suffer the global injuries in question whilst in the care of his mother or father?
ii) Given the acceptance of a shake-like mechanism, what were the surrounding circumstances attendant upon the episode of shaking and particularly:
a) did the episode involve a shaking-type mechanism which was deliberate whether arising out of anger, frustration or some other equivalent emotion or (an 'abusive' shake):
b) did the episode involve a mechanism which mimicked (a) above but arose in circumstances in which the shake was eithernon-intentional
or arising out of an uncontrolled panic or
responsive
![]()
reaction
to an apparent emergency (an 'innocent' shake)
iii) Was/is the other parent aware of the factual nature
and circumstances of the episode?
iv) Alternatively to 6(i) above did the bruising alone occur whilst N
was
receiving
medical care following admission to hospital?
Legal Principles
i) The burden of proof rests
throughout on the Applicant, both as to proof of
non-accidental
injury and as to the identification of a perpetrator of any injury found to have been
non-accidental:
Re
B (Care Proceedings: Standard of Proof) [2008] UKHL 35. The standard is the simple balance of probabilities, more likely than
not.
This does
not
vary with the seriousness of the issue under consideration. The inherent improbabilities are simply something to be taken into account where
relevant
in deciding where the truth lies. Once something is determined to have occurred on balance then it is
no
longer improbable. The process of fact finding is binary. Once established on balance a previous allegation is ascribed the value 1 (proven as a fact). If
not
established, it is given the value 0 (
not
proven and thus wholly ignored). There is
no
room for lingering suspicion or innuendo.
ii) findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not
on suspicion or speculation. See the clear enunciation of the same principles by Munby P. in
Re
A (A
Child)
[2015]
EWFC
11
iii) when considering cases of suspected child
abuse the court must consider all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have
regard
to the
relevance
of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to a conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof. In
Re
U;
Re
B [2004] 2 FLR 263 Dame Elizabeth Butler-Sloss P. observed that:
"…the judge invariably surveys a wide canvas, including a detailed history of the parents' lives, theirrelationship
and their interaction with professionals. There will be many contributions to this context, family members,
neighbours,
health
records,
as well as the observation of professionals such as social workers, health visitors and
children's
guardians. In the end the judge must make clear findings on the issue of fact before the Court,
resting
on the evidence led by the parties and such additional evidence as the judge may have
required
in the exercise of his quasi-inquisitorial function…".
Also seeRe
B (
Children)
[2006] EWCA Civ 1186
iv) 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. See A County Council v K, D and L [2005] 1 FLR 851, per Charles J.
'It is important toremember
(1)that the roles of the court and the expert are distinct; and (2)it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always
remember
that he or she is the person who makes the final decision.'
As was made clear in A County Council v A Mother, A Father and X, Y and Z (by their Guardian) [2005] 2 FLR 129, per Ryder J. the medical evidence is but part of the evidence and mustnot
assume undue prominence:
'A factual decision must be based on all available materials, i.e. be judged in context andnot
just upon medical or scientific materials,
no
matter how cogent they may in isolation seem to be'.
Further, as observed elsewhere by Dame Elizabeth Butler-Sloss P
"The judge in care proceedings mustnever
forget that today's medical certainty may be discarded by the
next
generation of experts or that scientific
research
would throw a light into corners that are at present dark."
This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her twochildren
who had simply stopped breathing. The mother's two other
children
had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was
no
evidence other than
repeated
incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could
not
be said that a
natural
cause could be excluded as a
reasonable
possible explanation. In the course of his judgment, Judge LJ (as he then was) observed:
"What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise [sic] should be met with an answering challenge."
v) cases involving an allegation of non-accidental
injury often involve a multidisciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.
vi) 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
vii) 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 (see R v Lucas [1981] QB 720). When considering the question of 'lies told' the Court must be conscious of the full understanding of the principles contained within that decision. As explained in
Re:
H-C (
Children)[2016]
EWCA Civ 136 there are four conditions to be met before a lie can be taken to support the Applicant's case.
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it mustrelate
to a material issue. Thirdly the motive for the lie must be a
realisation
of guilt and a fear of the truth…Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness."
viii) Separately but similarly the Court has to consider the relevance
of inconsistency in evidence given over time. The court
needs
to apply caution in
relying
on such inconsistencies and discrepancies to prove a matter in issue. As Peter Jackson J (as he then was) observed in the case of Lancashire County Council v The
Children
[2014] EWHC 3 (Fam):
"... whererepeated
accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any
reported
discrepancies. They may arise for a
number
of
reasons.
One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other
reasons.
Further possibilities include faulty
recollection
or confusion at times of stress or when the importance of accuracy is
not
fully appreciated, or there may be inaccuracy or mistake in the
record-keeping
or
recollection
of the person hearing and
relaying
the account. The possible effects of delay and
repeated
questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may
not
be unnatural – a process that might inelegantly be described as 'story creep' – may occur without any
necessary
inference of bad faith."
ix) An associated point relates
to the caution the Court should apply when examining witness
recollection.
The mind is
not
a camera and memories are
not
instant shots of events experienced. Memory develops in a much more complex and unpredictable manner and caution is
required
when assessing witness testimony based on
recollection/memory.
In the case of Gestmin SGPS SA v Credit Suisse (UK) Ltd and Another [2013] EWHC 3560 (Comm) Leggatt J. (as he then was) commented on the fallibility of human memory and went so far as to suggest that in commercial cases little if any weight should be placed upon evidence based on
recollection
save where supported by documents. This viewpoint should be considered though in the light of Kogan v Martin and Others [2019] EWCA Civ 1645 which emphasised that:
'Gestmin isnot
to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the
need
to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable
reliance
can be placed.'.
As Baker J said in in Gloucestershire CC v RH and others [2012] EWHC 1370 (Fam at [42],
'it is essential that the judge forms a view as to the credibility of each of the witnesses, to which end oral evidence will be of great importance in enabling the court to discover what occurred, and in assessing thereliability
of the witness. The court must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The
relative
significance of oral and contemporaneous evidence will vary from case to case. What is important, as was highlighted in Kogan, is that the court assesses all the evidence in a manner suited to the case before it and does
not
inappropriately elevate one kind of evidence over another.
In considering credibility limited weight should be placed on the demeanour or manner in which a witness gives evidence: see SS (Sri Lanka), R (On the application of) v Secretary of State for the Home Department [2018] EWCA Civ 1391 per Leggatt LJ.). In the context ofchildren
law also see A (A
Child)
(2020) EWCA Civ 1230. Rather than base judgments on demeanour the Court should be considering the evidence given, its
reliability,
consistency and the extent to which is it inherently consistent with other evidence.
x) Here I am asked to consider the potential roles of both mother and father with respect
to the injuries identified. In this
respect
I have
regard
to the line of authorities dealing with the concept of a "pool of possible perpetrators". To determine an individual was
responsible
for an act
requires
a finding of this being more likely than
not.
Such an outcome is plainly desirable as this will be in both the public and private interests of the
child
concerned. However there will be cases in which the Court cannot make such a finding when choosing between two or more candidates for
responsibility.
In such cases the Court has to ask whether there is a likelihood or a
real
possibility that an individual was the perpetrator. If this is the case, then that individual is left within the pool of possible perpetrators. Whilst the Court will wish to identify with clarity the
responsible
party it should
not
inappropriately strain to do so.
xi) The use of the terms accidental and non-accidental
was considered by Ryder LJ in
Re
S (AChild) [2014] EWCA Civ 25:
"The term 'non-accidental
injury' may be a term of art used by clinicians as a short-hand and I make
no
criticism of its use, but it is a 'catch-all' for everything that is
not
an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to
negligence,
![]()
recklessness
or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say,
negligence,
it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute
requires
is something different
namely,
findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2)…The threshold is
not
concerned with intent or blame; it is concerned with whether the objective standard of care which it would be
reasonable
to expect for the
child
in question has
not
been provided so that the harm suffered is attributable to the care actually provided."
Background Detail
"This is a single-issue case relating
to the causation of injuries sustained by
N
on 9 December 2019, aged 2 months.
Neither
parent has any criminal convictions or history. There are
no
background social factors of any concern.
None
of the health professionals involved with the family in the period between birth and injury raised any queries about either parent's functioning or parenting. Yet, despite these positives,
N
was admitted to Hillingdon Hospital with serious head injuries, with
no
apparent explanation, together with bruising at different sites of his body."
'a warm and loving interaction …between mother and baby with mother responding
appropriately to…cues"[4].
The father helped by taking paternity leave and the family provided support to give the parents an understandable break from child
care in this early period. In this period the parents experienced a level of '
reflux'
when feeding.
Medical Treatment
i) N
arrived at the A&E ward at 6:07am[5] and was seen to be irritable with both upper and lower limbs hypertonic and a bulging fontanelle was felt. He
received
medication and multiple cannula investigations.
N
received
significant medical care from Dr Perumal (Dr Qureshi (SHO) and Dr Raoof (consultant)). In the course of Dr Perumal's investigations marks were
noted
including a mark on the right arm which the doctor considered to be a bruise. The totality of the evidence is of a worrying admission and a team working hard to ensure
N
was stabilised. In the course of this period of admission accounts of prior history were given.
N
later
received
a CT scan and intracranial (acute subdural) bleeding was
noted.
These
results
were forwarded to GOSH as it was considered
N
would
need
the support of a specialist
neurological
team. The
results
led to the Applicant being contacted due to developing
child
care concerns around the possibility of an abusive head trauma (AHT). Prior to transfer to GOSH the parents were informed as to concerns as to the possibility of a '
non-accidental
injury'.
ii) N
was transferred to GOSH on the same day where he was placed under the care of a team led by Dr Kaliakatsos (consultant paediatric
neurologist).
He has provided a medical
report
detailing the history[6]. An MRI scan (10 Dec) confirmed bilateral subdural collections; spinal bleed and bilateral
retinal
haemorrhages
noted
on ophthalmology examination (10 Dec). I detail the
results
below.
No
skeletal fractures were found. Various blood and urine tests were performed to consider underlying conditions which might explain the injuries.
iii) N
remained
at GOSH until 22 December 2019[7] where he
remained
for a short period prior to being discharged on 24 December 2019. He has
received
subsequent follow-up care, but I understand there are
no
particular causes of concern and he
remains
under
review
to ascertain whether he has any lasting effects of the matters which led to his admission.
Legal Process
i) The application was issued on 19 December 2019 (as above just prior to discharge) and was allocated to me for case management. Save for a hearing on 26 March 2020[8] it has been case managed by me throughout. The application made clear a section 20 agreement was in place for N
to be cared for by the maternal grandparents.
ii) On 8 January 2020 I held a CMH[9] and on 3 February 2020 a follow up directions appointment[10]. By 3 February 2020 all the appointed experts had been identified and were approved. Interim contact arrangements were considered and determined. A PTR was fixed for 3 June 2020 and this hearing was fixed to commence on 15 June 2020.
iii) On 20 April 2020[11] I approved a consent order which re-fixed
the hearing dates in the light of problems surrounding expert availability. On 30 July 2020[12] I heard an application for disclosure made by the Metropolitan Police. The PTR was heard on 19 August 2020[13] and confirmed this hearing's listing. The hearing has proceeded as per a witness template agreed on that date. Initially it was thought it would be better for the hearing to proceed by way of Zoom however subsequently this was varied in favour of Teams. Also provision was made for the parents to attend in person to give evidence (with the balance of the hearing being
remote)
– this was also subsequently varied by unanimous agreement.
Medical Evidence
Having tested the medical evidence during the hearing and having reviewed
the expert opinion in light of their live evidence, the Mother accepts their conclusions that the brain, eye and ligamentous and spinal injuries suffered by [
N]
were caused as a
result
of a single event at some point during the 5am feed…She accepts that a single shake could have caused the injuries and that
repetitive
shaking was
not
required
to cause the constellation of injuries to [
N].
She accepts that significant force would have been
necessary
and that the force applied by the father would have been inappropriate and misguided. [Mr Larizadeh QC for the Mother]
By the end of the expert evidence, it was clear (and the Father accepts) than:. The mechanism for [N]'s
head and
retinal
injuries is likely to have been a vigorous backwards a (sic) forwards movement involving extension and flexion of [
N]'s
head…[H]aving heard the medical evidence, the Father accepts what he did must have mimicked the shaking mechanism described by the experts…. [Ms Bazley QC for the father]
Given these concessions - which are realistic
- I am
not
required
to spend significant time analysing the expert medical evidence. However, I would wish
nonetheless
to make clear my gratitude to each of the experts for the care they have brought to this case. I would expect
nothing
less of clinicians who are pre-eminent in their field, but it
remains
the case that these sorts of cases demand the upmost care and consideration alongside an open and wholly undogmatic mind. They
require
experts who are masters in their own field but are willing and
ready
to acknowledge the limitations of their expertise. Each of the experts before me wholly fulfilled the expectations placed upon them. Perhaps most importantly of all these parents know their
child's
collapse has been comprehensively examined and that they have
received
the best help possible in understanding what happened.
i) There is evidence of an encephalopathic symptoms (malfunction of the brain) at home and continuing at the time of admission to hospital. The symptoms described by the father at the time of winding (and said to be illustrative of an apparent life-threatening event (ALTE)) could equally be symptoms of encephalopathy: See Dr Cartlidge and Mr Jayamhoan in particular;
ii) It isnoted
the suggested ALTE and encephalopathy are in close temporal proximity. But if the encephalopathy
resulted
from a panic
response
to an ALTE then close proximity is to be expected in any event: Dr Cartlidge;
iii) An ALTE is generally arelatively
short-lived event and will
resolve
itself in a short period after inception. On the facts it was unlikely to be in play when the parents were leaving the property many minutes after the initial collapse. As such any symptoms on the way to the car – en route to hospital are likely to be consequent on encephalopathy
not
ALTE: Dr Cartlidge;
iv) As to timing all experts were of the view that the trauma likely arose during the 5am feed and would have been unlikely to have arisen prior to a time whenN
was presenting as content (feeding etc). It is unlikely the
child
would have experienced a 'lucid interval' between the injury and deterioration and the trauma is likely to have arisen at the time of significant change in
N's
behaviour: Mr Jayamohan.
N
would have been obviously unwell immediately after the causal event: Dr Cartlidge. All experts rule out birth
related
trauma.
v) Equally the evidence supported one episode of trauma: all experts save Dr Ghauri given that ophthalmic haemorrhaging overlays previous bleeds.
vi) Dr Ghauri was of the clear view - absent organic explanation - theretinal
haemorrhages found, comprising of bilateral, multi-layered haemorrhaging which was widespread and with too many to count were indicative of severe head trauma. The findings lacked the characteristics of accidental trauma (unilateral/single layered/confined to the posterior pole). He did
not
consider the haemorrhaging to be secondary to raised intracranial pressure generated by subdural bleeds and they were informative as to cause in their own right.
vii) Mr Jayamohannoted
![]()
N's
increased tone, bulging fontanelle, abnormal posturing and later discovered subarachnoid and subdural bleeding / acute subdural effusions as only being explicable by a significant traumatic event[14]. He also
noted
the evidence of bleed in the lower spine and raised the question as to whether this was a de
novo
trauma (although it is accepted on the evidence of Professor Stivaros that this may
reflect
tracking from the brain bleed). Further he
noted
ligamentous change seen in the upper spine as being indicative of a traumatic event
requiring
significant flexion[15].
viii) Professor Stivaros' evidence mutually complemented that of Mr Jayamohan. The imaging patterns on which he has specialist skill was typical of abusive head trauma. It wasnot
of particular
relevance
as to whether the blood in the lower spine was de
novo
or
not
as in either case it was indicative of an inflicted injury. The evidence was of an initial acute subdural bleed with the development of associated acute traumatic effusion (via a tear in the arachnoid membrane). This all pointed towards
recent
rather than older harm. There is evidence of bleeding in the spinal canal low in the lumbo-sacral
region
which is increasingly
recognised
as a signal of a shaking injury and swelling in the
neck
![]()
region
(the ligamentous injury
referred
to above). As with the lower spine bleed there was a limited debate as to the significance of a feature
referred
to as either a lollipop or tadpole. By the end of the evidence this debate whilst interesting was entirely academic as it was agreed this had
no
bearing on either the mechanism or force of the incident (save that it
required
more than a low level of force – which was of course a conclusion drawn from the other evidence in any event).
ix) Dr Cartlidge ruled out anyreasonable
grounds for suspecting genetic/organic causation/disorders. In any event I agree with the Applicant that were there such a basis then it would be 'vanishingly improbable' for these separate injury components to have arisen coincident with a significant encephalopathy. The spinal/cervical injuries were caused by hyperflexion-hyperextension of the
neck,
typically seen in a shaking injury episode. The intracranial bleeding,
retinal
haemorrhaging and
neck
injuries were likely caused by shaking.
x) As to likely mechanism all experts pointed to a shaking episode or logically an event, which whilstnot
a classic shake, had the characteristics of a shake with a rapid hyperflexion-hyperextension of the
neck
(involving acceleration and deceleration). All agreed the mechanism would fall outside the
reasonable
handling of a parent and would generate alarm to a watching bystander. All agreed the trauma could have arisen from a single 'shake' so long as the force deployed was sufficiently significant. As to mechanism Dr Cartlidge made clear the movement
need
![]()
not
be simply back and forwards through a single axis and that such an episode would typically involve varying degrees of rotational force.
xi) In the course of evidence the father had provided a series of videos to assist in the understanding of the process he had undertaken withN
on the
night
in question. All the experts were of the view that they could see
nothing
in the suggested procedure that could have accounted for the injuries sustained in this case. Having considered the videos it is clear the process demonstrated by the father would
not
fall out of
normal
handling and could
not
generate anything like the forces
required.
This is conceded by the father in closing as was
noted
by Ms Bazley QC:
By the end of the expert evidence, it was clear (and the Father accepts) that:-…The Father's descriptions in his videos and to the police donot
demonstrate either sufficient movement or sufficient force.
xii) By the conclusion of their evidence it was clear (and isnow
accepted) that
N
suffered a shake like episode involving significant forces, and whilst this might have only
required
one 'shake', this 'shake' would have been of such force as to alarm a bystander and involved a significant hyperextension-hyperflexion to cause the constellation of injuries experienced by
N.
The descriptions to date given by the father, both orally and 'theatrically' fell significantly short of what was
required.
The injuries had an explanation other than that directly presented to the Court.
xiii) Inreaching
their conclusions it is plain the experts considered there to be a threshold of force
required
to explain the trauma suffered. Beyond this the picture is uncertain and it is clear to me one cannot proceed to correlate actual harm against force used. As such one cannot say with confidence that a
child
suffering a very serious level of injury experienced twice as much force as a
child
viewed to have suffered injury approximately half that level. That is territory into which the expert evidence cannot confidently tread. Dr Cartlidge addressed this point[16] and those acting for the father draw attention to the point in closing to suggest that peculiar vulnerability in the victim may mean the forces
required
are both unclear and potentially lower than might otherwise be expected. In the ultimate assessment I do
not
consider this point counts for much. Most importantly because all the experts agreed the forces
required
would be at a level to cause concern.
None
of the experts suggested there was a vulnerability in
N
which might explain his injuries by
reference
to a force that fell below the level of unreasonable handling. In my assessment Dr Cartlidge did
not
modify his conclusions in such
regard.
Additionally, I am
not
sure the experts agreed with the extreme variability posited by Dr Cartlidge, when he spoke of the possibility of one
child
suffering a fatal
reaction
to a force which might leave another
child
with only mild injuries. To the extent there was disagreement on the point I would be cautious to accept such a viewpoint, although I do
not
consider it is engaged on the facts of the case. I suspect for such a point to hold there would have to be other factors in play which influence the range of
response.
In this case the only point
noted
is the additional loss of muscle tone that may have arisen on an ALTE. It is hypothesised this may have led to greater vulnerability. However the expert evidence (and indeed the father's live evidence) was as to
N
having
no
material
neck
control and I do
not
find this to be a point that provides a meaningful alternative explanation or rationale for the level of forces
required.
In the ultimate assessment I find
nothing
turns on this particular point.
xiv) Dr Cartlidge dealt with the bruising issue. His evidence was that to the extent thechild
had suffered bruising either a shaking or shake-like episode would provide likely explanation for the bruise. The injury did
not
![]()
require
a separate episode and in that sense the bruise was consequential to the episode. He was of the view the arm mark was a bruise. He accepted the process of emergency treatment was such that bruises and marks might
naturally
be occasioned without grounds for complaint.
Discussion
Who was present with N
when he suffered his encephalopathic
response?
Points suggestive of the mother
a) The parents disagree (albeit not
forcefully) as to whether there was a 11pm feed on the preceding
night.
The Applicant questions whether this undermines the parents account of the feeding routine during the
relevant
period. The parents challenge the material
relevance
of this disagreement:
I do not
consider the limited uncertainty around the 11pm feed sheds material light on this question. Were there to have been an 11pm feed then the father would have been due to give the 2am feed. But this is agreed in any event and it is the events surrounding the 2am feed which are material. I can well understand how there may be some confusion as to whether there was an 11pm feed and
note
the confidence of the mother that the same did
not
take place. It is
noteworthy
the father was in any event elsewhere in the property and may well have assumed the feed was given, when in fact it was
not.
This was of course a
child
who would have been proceeding through
regular
changes in feeding pattern and it seems highly likely the father simply (and innocently) interposed into the feeding routine a feed that in fact did
not
take place.
b) The Applicant asks me to assess whether the parents account of the changing of responsibility
for the 2am/5am feed is concocted to shift
responsibility
to the father. I am asked to assess whether the explanation given of a miscalculated feed is correct or an intended distraction. The purpose of the same is to distance the mother from what would have been her feed
responsibility
at 5am. The applicant question whether it was in fact the mother who conducted the 5am feed. The parents stand by their account of the events of the 2am feed, with consequential impact on the 5am feed:
Having heard all the evidence I accept the unchallenged accounts of the parents as to the responsibility
they each took for the
respective
feeds at 2am and 5am. I accept the account of an error shifting
responsibility
for the 2am feed (and thus the 5am feed). This seemed to me a plausible account which had the ring of truth about it. I pause to
note
there would be a host of alternative, and simpler, explanations which could have been used. A simple explanation would have been to suggest the father was slow to wake at 2am. I consider there was
no
need
for the convoluted account and having listened to both parents I accept their consistent account in this
regard.
I found the explanation robust, genuine and plausible. It spoke of the type of mistakes and confusions that
regularly
arise in the early days of parenthood. That the mother then assumed the feed, having awoken, was equally plausible.
c) But did the mother give the game away in police interview when discussing the 5am feed when she replied
to questioning as follows[17]:
Q. Okay. My last question is what has…[the father]…told you about what happened whilst he was feedingN?
A. So the only thing he told me was is he was feeding him, obviouslynaturally
I'm
going to say what happened when I was asleep.
Q. Yes, of course?
A. I was feeding, he was feeding him. He sometimes, what happens withN,
and this has happened many a times, even with me, he sometimes chokes a little bit, it because he
needs
to burp, so we take the milk away and put the milk down and burp him, so that's what he did, and [the father], what he does, he feeds half the bottle, whether it's four or five ounces, he gives half, he changes him, because sometimes he gets a little bit sleepy and wants to go to sleep, but we try and encourage him to stay awake for his feed. [highlight added]
The Applicant suggests this error has potentiallyrevealed
the truth of the mother carrying out the 5am feed. The parents suggest it was a mere mis-speak in the course of a police interview late at
night
HREF='#
note18'>[18]
![]()
NAME='back18'>
and after a traumatic few days for the mother.
In my assessment this is a very fine thread on which to construct a case against the mother given the obvious potential for mis-speaking in the context of an interview in which the mother was moving between giving general accounts of her behaviour and the behaviours on the night
in question. It would of course be the easiest of errors and is one the Court sees very often. The mother immediately corrected herself mid-sentence and it is plain the investigating officer (who would be alive to the
responses)
made
nothing
of the error. I consider it to be
no
more than an error. Having
read
and viewed the interview it is entirely probable the mother was simply jumping between tenses in explaining what she had been told and hence went from saying what she was told in the first person by the father ("I was feeding…") to translating it into the second person for the officer ("he was feeding…"). This has potential as in the preceding answer the mother sets the scene for an explanation as to what she had been told.
d) A point made (but to a lesser extent) asks me to consider the likelihood of the mother taking such a non-hands
on role in handling
N
following the suggestion of her being alerted to his difficulties. On the parents evidence the mother did
not
handle
N
throughout this period, only in fact taking active hold of him on arrival at hospital. I think I was asked to consider whether this was plausible and whether it might in some way point towards the mother in some way distancing herself from
N
having caused him harm.
The difficulty with this point is that it hinges on the normalcy
of
response
in circumstances which are anything but
normal.
This was for both parents, on any case, an extreme situation and outside their experience. I question the value to be obtained by applying stereotypical analysis as to what is to be expected from each carer. An important facet of the case was that the father does
not
drive, and this feature undoubtedly fed into their
respective
roles as they approached the question of transporting
N
to hospital. Viewed clinically and in the cold light of the day it is a little unusual that the mother did
not
take hold of
N,
but I find little assistance in this and guard myself against imposing an artificial level of composure on what would have been a stressful period of time. The evidence is
not
of the mother simply sitting and waiting for things to happen. Instead she was active and engaged and had other important things to do. This sufficiently explains the role she undertook.
Features to the contrary
- It is striking to me that the above points are rather fine points rather than firm pointers towards the mother. Taken cumulatively they add little to my understanding of the case and I consider this itself is a pointer against the mother being the carer for
N
at the
relevant
time
- I also consider the parents' account to be sufficiently consistent throughout as to support the intrinsic truth of their
respective
![]()
responsibilities.
Subject to the most modest points (
noted
above) both the mother and father have consistently accounted for the 5am feed in terms of the father being
responsible
with the mother in bed. This has
remained
the case despite other challenges to the account.
- My assessment is that the account
regarding
the 2am feed is a genuine account from both parents. In
reality
this sets the scene for the 5am feed.
- The alternative proposition
requires
a willingness on the part of the parents to collude to shift
responsibility
to the father. Unlike the assessment of what happened with the father, this would inevitably bring into the parent's direct focus some level of understanding as to an improper act. It is difficult to see why they might proceed through this process in circumstances in which the mother had immediately
reported
an accident to the father. It
really
does
require
collusion between the parents in the knowledge that they are covering something up. It does
not
![]()
require
the father to know the full details, but it would plainly suggest the
need
for the truth to be hidden. Whilst of course this could happen (it is a possibility), I do
not
find it likely having heard and assessed all the evidence. In my assessment the evidence was sufficiently consistent to rule out such a proposition.
- The account given by the parents is in isolation logical and makes sense. If I, as I do, accept the mother took on the 2am feed then it is likely the father took the
next
feed. In my judgment all the evidence points to this being a true account of what took place.
Has the mother underplayed her knowledge of the episode?
Our particular concern is that the mother is surely likely to have heard an incident involving the father in the next
bedroom. The evidence establishes that that is more likely than
not:
(a) The house was small; (b) She was
not
a heavy sleeper; (c) Once awake (as she was at 5am) she took a long time to get back to sleep; (d) She was sensitively attuned to [
N's]
movements and the sounds he made, even to the point of waking up when his head rustled against his bedsheet; (e) If the father injured [
N]
in a momentary loss of control when frustrated, there is likely to have some prelude to the event. It is unlikely to have occurred out of the blue.
- I do
not
consider the geographical proximity point to be as powerful as it is suggested to be. The father was in a separate room with a small hallway and door separating the parents. This is more than sufficient to mask
noises.
Indeed as I understand the evidence the point of decamping to the other room was to leave the
non-feeding
parent the opportunity to sleep. This speaks of the potential for
natural
![]()
noises
to be deadened for the benefit of the sleeping parent.
- Whilst the mother agrees she is attuned to the
noises
of her son waking in synchronicity with him this does
not
mean she would
remain
attuned in circumstances in the middle of the
night
where he had been
removed
by the other caring parent to be fed. It is easy to see how a tired parent in such circumstances would fall into sleep. Indeed as
noted
above this was the very purpose of the shared routine. The mother had been awake at 11am and had carried out the 2am feed. She had experienced a busy weekend. It would
not
be surprising if she fell into sleep.
- The evidence of the mother struggling with sleep generally is
noted
but it only goes so far. It does
not
rule out the mother actually falling asleep.
- As
noted
above I accept that losses of control / indeed dramatic accidents/episodes may be accompanied by disturbance and uncontrolled
noise.
But they
need
![]()
not
be. A person misconducting themselves may be conscious to ensure they are
not
overheard. A loss of control may be sudden and quiet and the impact on the
child
may be to quieten the
child
rather than cause it to scream. Given the mechanism in this case is on any account potentially short-lived and sudden in character it is entirely possible that it was
not
surrounded by disturbance at all.
- I also bring into my assessment the mother's evidence and the wider canvas insofar as it concerns her. Having heard her evidence I find it most unlikely she would have colluded or deliberately covered for the father, were she to have been aware of a different account of what truly happened.
What happened to N?
- Prior to his 5am feed
N
was in good health and without injury
- The injuries (excluding bruising) considered within this judgment were occasioned during the period of that feed and had occurred prior to the 999-telephone call timed at 5:33am[19]
- The injuries arose whilst
N
was in the sole care of his father
- The injuries arose out of a shake or shake like mechanism under which
N
underwent a forceful acceleration/deceleration motion causing hyperextension-hyperflexion of the
neck
![]()
- The injuries may have been occasioned by a single 'shake' so long as that shake had the significant force
required
as explained by the experts
- The 'shake' episode fell outwith
reasonable
parental handling and would have been such that it would have alarmed a watching bystander
- For the avoidance of doubt the injuries (excluding bruising) are as detailed within the expert
reports
and as sought by the Applicant (as modified) involving acute subdural haemorrhage / acute traumatic effusions; acute subarachnoid haemorrhage; ligamentous swelling to the soft tissues of the upper vertebrae of the
neck;
acute subdural haemorrhage to the lumbar-sacral
region
of the spinal canal; multiple bilateral
retinal
haemorrhages within all layers of the
retina.
![]()
Does the evidence shed any greater light on the circumstances surrounding the 'shake'?
- The Applicant contends the Court proceeds from the expert evidence as to the mechanism
required.
The father has provided a detailed account of what took place, and this falls significantly short of anything that could have caused the trauma. The Court should be cautious in accepting the arguments based on a gap in memory and should be wary of being encouraged to fill the gap with an innocent explanation where it has before it a detailed account which is outwith the expert opinion. The wide canvas is important but sadly cases of this sort often arise within otherwise happy and functioning families.
- The father (supported by the mother's belief in the father given her knowledge of him) points to the evidence which supports the
notion
of the
child
suffering an ALTE and the likely impact on the father as carer. The father's counsel submits it is most unlikely the father would have latched onto this argument unless it had foundation in
reality.
The evidence suggested a panicked parent might have acted in a manner they would
not
have done when settled and there is potential for the father to have harmed
N
in the course of a panicked
response.
Viewed from this perspective there is
not
so much room between what the experts suggest is
required
and what the father accepts. In any evaluation of accounts
regard
should be had to the stresses the father was under and proper allowance should be given for the potential for memory to be blurred
notwithstanding
the father's best attempts to be of assistance. Any assessment must have proper
regard
to the wide canvas which is entirely positive.
- The guardian takes a
neutral
position pointing to many of the points identified elsewhere within the arguments.
The wide canvas
- There is strong evidence demonstrating a solid attachment and bond of love between the father and
N.
I have been shown a range of visual and other evidence which paints the picture of a
child
cherished by the father. This is important as one would expect such a bond to condition the behaviour of the father to the
child.
A sense of attachment and affection is likely to moderate the father's mood during challenging moments (which will arise in the care of any
child
at some point or other)
- The evidence in this
regard
extends to the positive evidence of the father's active engagement with
N.
It is clear he is
not
a hand's off father but has played a caring role for
N.
This is important as it likely provides him with skills to
navigate
a challenging moment. With experience likely comes tactical skills and the strategies to cope with moments of stress
- The father is
reported
to demonstrate gentleness and patience when caring for
N.
This
reinforces
the points above.
- It is clear that
N
was a wanted baby and the parents have put
real
effort into making his early life comfortable and supported. I consider this commitment
relegates
the prospect of the father acting out of a sense of anger at the
child.
![]()
- One can find a range of positive
references
for the father within the available evidence. From the support of his employer - which I agree presents the picture of the father as a gentle, kind and calm man who absolutely adores his wife and
new
baby – the maternal grandparents – who as Ms Bazley QC comments have an 'intimate knowledge of the Father and the dynamics in the household is therefore a very valuable source of information for the court, particularly in the context of their well-earned trusted and
respected
role in these proceedings as assessed and approved interim carers for
N'
and speak in warm and positive terms of the father as an individual, partner to their daughter and father to their grandson – and the early professionals such as the health visitor – who
noted
a warm bond and supporting role being performed by the father. These are all important positives assessments and must have purchase when assessing the father's likely behaviour patterns.
None
of these individuals have found the father to be aggressive, angry or uncontained.
- An important additional
reference
comes from the mother. She speaks positively of their
relationship
and is convinced the father would
not
have harmed
N
out of anger. Her evidence as to their warm and mutually supportive
relationship
is significant. Equally she confirms the father's support and measured
response
when they were confronted by a challenge to their
relationship
arising out of earlier significant ill health on her part. She is clear they share a happy loving family. For the avoidance of doubt I accept this evidence to be genuine and a fair appraisal on her part of their
relationship.
It is clear from the evidence that of the couple she has the more
natural
role as parent, but it is also clear the father is open in his communication with her and is willing to seek assistance when
required.
I agree this testimonial is additionally important given the mother signalled her prioritisation of
N's
![]()
needs
were these to come into conflict with her
relationship
with the father.
- A developing aspect of the wide canvas has been the father's acceptance that he was
responsible
for the mechanism that harmed his
child.
My assessment of the evidence was that – subject to appropriate enquiry – this was always likely to come into focus. On any basis this could
not
be easy but there is
no
equivocation on his part in this
respect.
![]()
- Finally I am asked to pay
regard
to the polite, calm and measured manner with which he has conducted himself within these stressful proceedings. This is a fair
request
and I do acknowledge the manner in which both parents have engaged with the process.
Ordinary, caring parents can however sometimes cause such injuries during brief losses of control. Such is the context in which the vast majority of 'shaking' cases come before the Family Court. This one, we suggest, is no
different.
Plainly such logic does not
cause me to ignore the wide canvas. To do so would fail to have
regard
to all the
relevant
available evidence. What it
reminds
me is as to the
need
to assess all the evidence and apply an appropriate rigour to my assessment. A wholly positive background does
not
answer the case any more than does any aspect of the evidence. It is valuable and must be brought into the ultimate analysis with all of the available evidence
The significance of the suggested ALTE
It is submitted that it is highly unlikely that the Father would have been able to describe the symptoms of an ALTE arising from choking on milk had he not
experienced them and, similarly, highly unlikely that he could have known that they are the same as an encephalopathic collapse. Accordingly, it would be far-fetched to suggest that the Father would have 'made up' a story of [
N]
stopping breathing in the course of choking in order to explain a shaking in the context of a loss of control. It is significant therefore, and supportive of the truthfulness of Father's account, that he immediately and consistently described the specific symptoms of an ALTE.
I struggle with this contention for the following reasons;
(1) it is agreed the suggested symptoms fit either an ALTE or encephalopathic
response;
(2) in describing these symptoms the father may correctly
record
how
N
presented without telling us anything as to the mechanism which caused the presentation; (3) in
reality
the father did
not
at any point define what he experienced as an ALTE, he simply
recorded
what he observed and that could be an ALTE or encephalopathy; (4) in
reality
it is the subsequent interpretation linked to the parties' cases which defines the presentation as ALTE/encephalopathy; (5) consequently this tells me very little as to likely causation as I
remain
entirely uninformed as to whether there was a pre-symptom shake or a post ALTE shake like mechanism. The above points tell me
nothing
of
note
and the father's account does
not
push me in one direction or the other. The
resolution
is ultimately found in my assessment of the sequencing of events
not
an interpretation which has subsequently laid over the account. It is said the father would have been unlikely to have been able to describe the characteristics of ALTE unless he experienced the same. But this misses the point as the father may of course be describing the consequence of a shake having shaken
N.
It may be said why then would the father have introduced this sequencing if there was
no
interspersed event between ALTE and encephalopathy. But on the facts is this actually a correct analysis. It is equally plausible the father simply described the symptoms suffered by his
child
to aid the treating team without an eye on ultimate culpability. Of course
nowhere
within the initial accounts does the father seek to
report
a shake-like mechanism. His account is of floppiness and dealing with this sudden emergency.
The father's account
The mechanism for N's
head and
retinal
injuries is likely to have been a vigorous backwards a (sic) forwards movement involving extension and flexion of
N's
head… The Father's descriptions in his videos and to the police do
not
demonstrate either sufficient movement or sufficient force… the Father accepts what he did must have mimicked the shaking mechanism described by the experts but that the shock and panic of the moment has robbed him of a clear memory of what took place.
Mr Goodwin QC for the Applicant disagrees:
The court should resist
the temptation to fill the gap with a conclusion that the father's memory is faulty…[T]he father's poor memory is indeed troubling – but only because he sought to evade difficult questions by hiding behind it during his oral evidence, thereby shedding more light on his case than he might have wished. There is, in short,
no
reasonable
basis on which the court may conclude that the father has simply forgotten, in panic, that he had mimicked an abusive shake whilst
reacting
to an ALTE.
a baby stopping breathing is such a frightening event that it is reasonably
possible that it could cause a carer to forget what happened immediately afterwards with the events and actual collapse itself being the focal point of the memory and the details hazy thereafter with an erratic
recall
of some details but
not
others.
The case law speaks generally of the fragility of the human mind and traumatic circumstances are not
a fertile ground for clear memory. A degree of caution must be applied when considering the accounts given by the father. I am asked to accept on each occasion the father was giving an essentially consistent case and that sequencing or other inconsistencies are to be expected.
- The earliest account was that given to the mother. However, this is forensically of limited value given the surrounding stressors; the fact
no
![]()
note
was expected to be taken, and; the obvious focus on the most important
need
to obtain medical assistance. It is
not
suggested that a lack of detail or absence of certain detail at this point is of particular probative value. I would certainly share that view
- The position changed at Hospital as
naturally
a history was taken to assist the treating team. Dr Perumal
received
a second-hand account via the mother[20] close to admission (approximated at 6am). The account was of:
…baby was well initially & dad was giving baby feed & suddenly baby choked on feed & becamered.
![]()
No
blue episodes. However, baby [unclear] breathless & parent got worried about breathing [and brought to] A&E
- A separate account was given by the father to Dr Quereshi[21] at 6:10am:
Previously well baby. Father says he was feeding baby usually gives half the bottle then changes thenappy
then gives half. He gave half the bottle and when he lied him down for changing the
nappy
when he
noticed
him choking which is quite usual for him but then
noticed
he stopped breathing so picked him up and started [patting??] him. He then started to have deep breathes so got in car and bought him [to A&E].
- On admission to GOSH a detailed account was sought from the parents by Dr Alison Steele[22] on 9 December 2019 between 4:45pm – 6:15pm. Dr Steele is the
Named
Doctor for Safeguarding and this
note
was taken at a meeting following the parents being aware of the concerns surrounding
N.
The
relevant
![]()
note
![]()
reads
as follows:
Dad woke to feed him…took him intonext
room…took 2.5oz, burped, small vomit, and changed him, baby was laughing/smiling, taking
remainder
of feed when Father became concerned as
N
made a grunting
noise,
went
red
and stopped breathing for 7/8/9 seconds. Baby lying in crook of father's arm. The corridor light was on. He then did some gentle cardiac compressions over central chest…Took some long abnormal breaths, was floppy with eyes shut as if fainted,
no
abnormal movements. Father took him to bathroom and wet his head, face and
neck.
Then woke up Mother.
So once itreaches
2.5[oz]…I then put the bottle down, I will burp him, so I will have him up here, his arms are on my shoulders…and then I'll
rest
him on the changing mat, I will change him…this is exactly what's happened…I've picked him up and I've carried on feeding him…So how I'm feeding him is, his bottom is on my palm, his head is over here with his bib. I pick up the bottle, it's got 2.5 ounces in it, I carry on feeding him…So two to three minutes while I'm feeding him the
rest
of the two and a half ounces,
he starts choking…I'm thinking, "Is this anormal
choke that usually happens?". I'll just
rest
him on top of my shoulders again and I'll rub his back, I'll tap his back, just to make sure he's burping, but when he's on my shoulder,
remember,
it's in a morning, it's me and him, I can hear everything clearly, he's
not
breathing. So he's on my shoulder, he's
not
breathing…So I'm obviously think there's something wrong
now.
So when he's
not
breathing, I feel like he wasn't breathing for about, to be precise, about ten seconds in total. One thing, another thing that you haven't asked me, but I'm going to mention it, with
N,
as babies, they develop their
neck
muscles…So one thing that my wife can tell you, which I don't know if she's mentioned it or
not,
but his
neck
muscles was
really
good, so we tend
not
to
rely
on holding his
neck,
his head as much, because he can hold it himself. So when, when I
realised
that he's
not
breathing, and I'm holding him this way…And I push him forward, I push him forward to see if everything's okay, he's then just dropped on my arms. He just dropped back on my arms, so it's almost like he's fainted. So what I tend, what I done straight away after that is I've put him on my arms here, I'm holding him, and my, the first thing I thought of doing is I gave him CPR with two fingers..That's the first thing I thought, that was my instinct, I just done it. So I've pushed into his chest,
not
too hard. I pushed in, about three to four times, and then he's, and then he just, he breathed, so when he breathed
now,
he was wheezing, and his eyes was closed, he was still floppy on my arms, so I'm trying to wake him up, he's
not
waking him up, he's
not
waking up. When he's breathing, he'll take a deep breath, it's
not
even a deep breath, like he'll just breath and then he won't
release
after like four to five seconds, and then he'll
release
again, and then after four to five seconds he'll take another, he'll take another breath. So then what I done straight away is I went to the toilet, I put cold water on my hand, I put it around his face, his head, his
neck,
his chest, I started blowing on him, and I'm bouncing him trying to wake him up. He's still breathing the same. So that's when I decided to go and wake my missus up…[24]
The father was asked to clarify his evidence as toneck
support and
responded:
if I'm burping him, I usually have my palm in between the top of his back and his head…Like that, so his head will be, his head will be like around here, and hisneck
will be around there, so I'm controlling his
neck
and his head at the same time…On his, on his shoulders…So imagine his back…So this side would be on his right shoulder….And then this side will be on his left shoulder…so even if he does drop his back, he'll just lie in between…If he puts his head back, this bit over here, it's still kind of protecting him
regardless
…[25]
The father was asked to detail the floppyresponse:
I'm moving forward for his weight to switch onto my arms….and while my arm is moving a bit back, I'mnot
seeing his face or his head or anything like that, but if I'm moving him forward and I'm moving my hands forward, then I'm seeing more of a glimpse of him…that's when everything just happened, that's when he just, he just, it seemed like he fainted in my hands…he didn't fall off my hands…he just, his arms dropped, his head dropped back, he had
no
control over himself…His head, when it dropped back, it kind of bounced to where his head limitation can go to, if that makes sense….So when I put my hand back on his back and his shoulders....In that V shape…Yes, so it went back and then it come, when it come up, that's when I sort of quickly like crawled up and caught his head with like my finger…[26]
The father was asked to detail hisresponse
to the floppy presentation. He described moving to give the CPR elsewhere described:
At that moment Irealised
of course that something was
not
right, so that's when I decided to perform CPR because he wasn't also breathing. and I've done it about two to three times, and the
reason
why I stopped is because he was breathing…he breathed in and then he was breathing out, but before he breathes out it was about three to four seconds….it was definitely longer, it was
not
![]()
normal
…So that was my instinct as well, so I went to the toilet, opened the cold water, put my, so I'm holding on my left hand, I put my right hand over the cold water. I didn't wet him but I kind of just cooled him down, so I put my hand over his head, his face, his
neck,
gently rubbing over his chest. I got him and I'm bouncing him
now,
and I'm blowing all around him trying to wake him up, trying to make sure, trying to get him to breathe properly, the way he usually does, but he's
not,
so then that's when I went straight to my wife…and I woke her up.[27]
The father confirmed through this process he was holdingN
in the same 'feeding' position in the crib of his left arm and that he moved at a safe speed using 'big steps'
- In his statement evidence the father
reported:
![]()
I pickedN
up after changing his
nappy
and sat down on the rocking chair with him and continued to feed him. After a few sucks on his bottle
N
started to choke. It was just like the
reflux.
I put the bottle down, I think on the food preparation table, and stood up by the window, holding
N
over my left shoulder trying to wind him. I would usually hear
N
winding especially when it was quiet at
night
but on this occasion I didn't hear anything at all. I could feel that
N
was very hot against my shoulder and
neck.
I could
not
hear him breathing. I had been holding my left hand supporting his bottom and I had been rubbing his back with my right hand. I leant him forward to see him and my hand was in a V shape extended across his back. He
normally
holds his head a good amount of time for my hand to slide up to support him but at this time he could
not
control himself and was all floppy. I
now
know this was because of his serious brain injury but I did
not
know that at the time. My main concern at that time was that he did
not
seem to be breathing. I brought him forward and his head and his arms fell back,
reaching
their limit because he was floppy. He felt heavier, weightier and I caught his head.
N's
complexion was
red
and he was sweaty. His eyes were closed and he did
not
seem to be breathing. I supported him across my left arm and applied CPR pressure to his chest with two fingers. I did
not
think about it; it was complete instinct. I had
no
idea what was wrong with him but I could see at that moment that he appeared
not
to be breathing. After I applied this pressure I heard
N
breathe. His breathing had a different quality than
normal.
His breaths appeared to be longer and deeper. I could feel that he was sweaty at the back of his
neck.
I took
N
to the bathroom and got old water from the sink. I took water in my hand and put it to the back of his
neck,
his head, face and chest in an effort to cool him.[28]
- I have also viewed the police interview and the videos filmed by the father. I will
return
to the visual evidence in my analysis below. The potential for the video to accurately
reflect
the episode is limited by the rigidity of the teddy bear being used as a proxy for
N
![]()
Then didn't hear him breathe…after that a blur…my mind was seeing the problem asnot
breathing…after that everything out of control…I have
no
better
recollection
…it is impossible…I have tried to
remember
myself
and when cross-examined
Iremember
him vaguely dropping onto arms…he dropped onto my arms…arm in front of me…I don't
remember
where he was before he dropped….all of this part has become a blur…I don't
remember
everything…[When asked what actual memory is
retained]
…It is almost like pictures of certain moments…I thought it was just another choking episode…I did
not
panic as a
result
…when I made the videos of how handled [
N]
…even then I was trying best…[
N]ot
introducing 'all a blur' for this hearing…I was answering the questions…but even then…more shocked due the information getting…there would be things
remember
and things
not
…possibly
not
want to
remember
….I don't
remember
the ordering…the information I gave must have been in my head but I don't
recall
it
now
…almost like my brain does
not
want to
remember
…100% he was
not
breathing, before this he was
normal
….after this I do
not
![]()
recall
the details of the sequence…[When asked did he fall with you catching him]…I don't
remember
…I can barely
remember
what happened….I
remember
losing control but don't
recall
how it happened…most of this is a blur…details were coming out but probably wrong details…mind all over the place
- I gain little insight from the suggested contradictions in account
relied
on by the Applicant. In my assessment there is a
reasonably
settled account provided by the father from the point at which he outlined the event to Dr Steele. This involved an initial feed followed by a
nappy
change and then further feed. During this second session
N
began to choke, the feed stopped, and he stood to wind the
child.
![]()
N
then acted strangely, and the father's account is as to the 'fainting' episode followed by CPR a trip to the toilet and then into the parent's room to wake the mother. I
note
the issues in sequencing in the earlier accounts and the absence of certain detail but consider this is likely to derive from the timing and the circumstances in which the history was taken. It is unlikely this was a considered interview but was more focused on understanding the key concern on presentation.
- I accept and agree with the expert view as to the detailed
reporting
![]()
not
explaining the trauma suffered. I have considered written and visual explanations provided by the father as to the motion
N
went through when said to have become floppy and it falls far short of the
necessary
forces that the expert tell me would be
required.
As with the experts I simply cannot see in the description anything that would approximate a hyperextension-hyperflexion movement.
- I found the father's account to the police clear and easy to understand. Having both
read
and viewed the interview I do
not
have the sense of the father being prompted into error by the police, although I accept, he was understandably prompted on occasion. I found his account to be clear, explicit and volunteered. He was quite clear in his description of having
N
on his shoulder and guarding him against dropping back by the use of a 'v' shaped hand in which the thumb and index finger cradled the upper shoulders and with the gap between the two digits being filled by
N's
head (albeit
not
supported as the head was lolled forward onto his own shoulder). Equally he was clear that as he moved
N
forward off his shoulder, so
N
was floppy. In this context moving forward meant moving his own cradling arm away from his body/own shoulder
region
so that the gap between arm and body was sufficient for him to view
N
more clearly. This process led to the lower arm moving from a vertical axis and closer to a horizontal axis and it was in transition that gravity caused
N's
head to fall back into the gap between thumb and index.
N's
head is
reported
to have gone fully back with a bounce-back. I
noted
the father in interview talking about catching the head but perhaps more descriptively crawling his fingers up the back of
N
to support the head. I have viewed this section of interview and I fully understand what is said. It is the shifting of the in-contact hand further up the torso to the head to give support that is clearly being described. By this mechanism the head was then supported. The father then described a lateral movement under which the same arm which was close to the horizontal was then brought at a similar angle close to the body to produce a cradling effect. Thereafter the father described
N
![]()
remaining
in this position during CPR; whilst in the bathroom and when brought into the parents' bedroom.
- I can see how this process led to a hyperextension of the
neck
(
neck
fully back with chin as far from torso as possible). However the father does
not
describe moving his arm in an uncontrolled fashion and as a consequence the forces which caused the hyperextension would have been gravitational and gradual in accumulation (as the arm moved away from the body). This would
not
have been a sudden motion and I struggle to conclude this was a forceful hyperextension. However, I cannot see an oppositional hyperflexion (chin as far forward as it can go). The father's account is of catching the head with his fingers crawling up. At most he speaks of a bounce-back effect which is presumably muscle tone
related.
There is
no
forceful
return
mechanism. On the father's description I can find
no
significant change in directional force between the movement back and then forwards, it is a purely
natural
elastic
response
if at all. In questioning mention was made of
N
being 'yanked' up but this is
not
found in the father's evidence or in the visual presentation to the police. The closest one comes to this is in the video presentation (without a teddy bear) but it is far from clear to me the father is describing anything that might be said to be a yanking manoeuvre. Indeed the evidence is consistent as to
N
being moved into the cradling position from the point at which he collapsed. I cannot see how this process could have generated either of the
necessary
forces. Ultimately
N
was being brought into a protected cradled position against his father's body.
- So plainly I agree with the experts that there has been
no
account of a process which would meet the test of a shake-like mechanism with the
requisite
forces.
- But I have also struggled to understand the case for a 'blurred memory' as advanced during the hearing. Whilst I accept the point in theory it does
not
sit comfortably with the actual facts of the case. In this case I do
not
think I have "too much detail" but I have an undoubtedly detailed account of what took place. Up to hearing the father had provided clarity as to what happened and in what order. His police interview in particular provides a sequenced walk-through of the events without any suggestion of poor memory or confusion. So the father set out in detail the events leading up to the
nappy
change during the 5am feed. He was asked by the police whether he was describing things on a typical basis but confirmed he was describing what had actually happened[29]. He then detailed when asked the 'floppy' episode and explained in detail the manner in which he held
N;
the loss of control and his movements. Bearing in mind this must on any case have been a matter of seconds he gave a clear account. He then proceeded to explain in detail the process of CPR before explaining what happened in the bathroom and afterwards. Each part of the sequence was detailed and there was
no
suggestion of uncertainty or blurring.
- I therefore struggle to insert into this account an evidential period of 'blurred memory'. It sits uncomfortably with the case as previously presented and it is far from clear where this should in fact be inserted. I struggle to identify room for this period of confusion. It is
not
clear it can go before the awareness of floppiness as this period was wholly usual for the father even with the choking. How can it go after the floppy period without abandoning a wholly clear description of a process of CPR (including force used; the sense of
N's
bones; the
number
of compressions and
related
breathing) or the process in the toilet (which is itself detailed in the video provided). One is left with the very short period between awareness something is wrong and the CPR. But this was a matter of seconds and is fully described in interview.
- For my part I was surprised by the father's inability to
recall
these events given the history of
reporting
including the video presentation. In preparation for the hearing it seemed to me the examination of the father would likely be most helpful as he appeared to have a strong
recall
with
respect
to the episode. It was puzzling that his memory seemed to have deteriorated and that at times this uncertainty was being pushed back to a time when he appeared in fact to have good
recall.
I was left concerned as to why this was the case. I ask myself whether this was a father being evasive and seeking to head off problematic questioning or an overly cautious witness
not
wanting to overstep the bounds of full
recollection.
![]()
- Importantly, I do
not
consider it appropriate on the facts to put to one side the clear history of
reporting
and largely
replace
it with an uncertain history. I consider this would be a perverse approach in such circumstances. I have to scrutinise the evidence with
real
care, but it is
not
proper for me to fill gaps and particularly so where the evidence questions the existence of gaps altogether.
- So I am left unfortunately with a detailed account of the period during which
N
suffered trauma which does
not
explain how he could have suffered the trauma. I am
not
satisfied there is within this same period a passage of time which
remains
unclear or 'blurred'. I am left concluding that I have
not
been provided with a full account of what took place. In
reality
it is only the father who could help me fully understand what happened.
Additional Features
The events of the weekend
The father's weekend
Not
alerting the mother immediately
The 999 call
An inadvertent admission
but at this time he could not
control himself and was all floppy. I
now
know this was because of his serious brain injury but I did
not
know that at the time.[30]
The Applicant suggest this is an inadvertent admission. I disagree and agree with Ms Bazley QC that this is no
more than the father stating his understanding at the time as to the state of the expert evidence.
Expert experience of ALTE based trauma
Bruising
- I particularly
note
the evidence of Dr Cartlidge as to the likely potential for the arm bruise to be consequential on the mechanism which led to the trauma whatever its detailed form. The
reality
of the
child
being held and significant forces operating support this view. In many ways it is common sense in just the same way as a bruise of this
nature
may be caused during the administration of urgent medical care.
- I
note
the mother in closing accepts the bruise pre-dated medical intervention. She also makes clear it was
not
present during bath-time on the preceding evening. I consider this is important evidence as the mother was present during the initial medical investigations and is able to time the bruise being
noted
prior to multiple efforts to place a cannula.
- I accept this was a bruise on the evidence
received
and I further consider it most likely this bruise arose during the same episode that led to the wider trauma. It does
not
amount to a separate assault on the
child
but is part and parcel of the same episode.
- As to petechiae I am less clear. I accept the process at the hospital was fraught and there is the potential for such a mark to arise out of good care. On balance I have been unable to
resolve
whether this mark pre-dated or post-dated admission. Having considered the evidence were I to have dated the mark pre-admission then I would
not
have been able to exclude the potential for the same to have arisen out of the inexpert
resuscitative
steps taken by the father.
N
suffered the head; eye;
neck
and spinal trauma alongside the arm bruise during a single event whilst in the care of his father on 9 December 2019
- The mechanism of the trauma was a shake-like mechanism with a forceful acceleration/deceleration component and with hyperextension-hyperflexion of the
neck
![]()
- I have considered the account given by the father and find it does
not
explain the
necessary
mechanism
nor
account for the trauma suffered
- I
reject
the
notion
of a 'blurred memory' having
regard
to the detailed and largely consistent overview presented by the father to the police and hospital (around 12 December 2019) and to the Court (statement February 2020 and videos)
- I accept the Applicant's case that the pre-'floppy' symptoms; the floppiness and the subsequent presentation are all part of an encephalopathic continuum
- I accept the father has given an essentially correct account of these symptoms. However, I do
not
accept any part of these symptoms are ALTE
related
![]()
- I am left unclear and can only guess as to the detail of the event that preceded these symptoms. I find it would have involved a shake mechanism and this would have been between the commencement of the 5am feed and the mother being alerted whilst
N
was in the care of the father
- Whilst only the father can fill the gap in understanding I consider it unlikely this was shake with a malicious motive or with intent to harm
N.
I consider I
remain
entitled to
reflect
on the wide canvas and I consider it most unlikely the father acted with such intention
- I am however unable to determine whether the trauma arose out of a temporary loss of emotional control (through for example frustration) or through some other action known to the father falling short of this (accidental injury in undisclosed circumstances). I accept there are pointers in favour of the former. I have
noted
the potential impact of tiredness on the father over the weekend and it is possible this affected his behaviour and made him more susceptible to an out of character action, but it could also have led to an error in handling. I also bear in mind my observations as to the puzzling failure to alert the mother, but this point might have purchase on either possibility (to cover embarrassment and guilt or culpability). Finally I
note
what is said about the unlikelihood of the father failing to be transparent if he simply suffered an accident. I consider this point has additional merit given the father
now
essentially accepts he was
responsible
for the trauma. It may be said what would
now
stop him from disclosing the actual detail? But then to do so would be to admit a lie (
not
being open) over a significant period, and with the impact it has had on his wife and the wider family. This might deter such a course of action.
- Unfortunately the evidence takes me only so far. I consider it would be dangerous to go further and to do so would amount to speculation. In
reality
only the father can provide the full answer.
Next
steps
His Honour Judge Willans
Note 1& Note 2& Note 3& Note 4& Note 5& Note 6& Note 7& Note 8& Note 9& Note 10& Note 11& Note 12& Note 13& Note 14& Note 15& Note 16& Note 17& Note 18& Note 19& Note 20& Note 21& Note 22& Note 23& Note 24& Note 25& Note 26& Note 27& Note 28& Note 29 Within
this judgment
references
[e.g. A21] are to the
relevant
bundle page&
nbsp;
HREF='#back1'>[Back]
nbsp; A66
HREF='#back2'>[Back]
nbsp; Chronology
8 Oct 2019&
nbsp;
HREF='#back3'>[Back]
nbsp; Opening
§6&
nbsp;
HREF='#back4'>[Back]
nbsp; H168
HREF='#back5'>[Back]
nbsp; I1457
HREF='#back6'>[Back]
nbsp; N102
HREF='#back7'>[Back]
nbsp; B82
HREF='#back8'>[Back]
nbsp; B58
HREF='#back9'>[Back]
nbsp; B66
HREF='#back10'>[Back]
nbsp; B87
HREF='#back11'>[Back]
nbsp; B104
& B107&
nbsp;
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nbsp; B109
HREF='#back13'>[Back]
nbsp; E179
HREF='#back14'>[Back]
nbsp; E180
HREF='#back15'>[Back]
nbsp; E319
HREF='#back16'>[Back]
nbsp; G69
HREF='#back17'>[Back]
nbsp; Interview
conducted between 22:16 – 23:46hrs&
nbsp;
HREF='#back18'>[Back]
nbsp; G251
HREF='#back19'>[Back]
nbsp; I1231
HREF='#back20'>[Back]
nbsp; I1077
HREF='#back21'>[Back]
nbsp; E3-4
HREF='#back22'>[Back]
nbsp; G77
HREF='#back23'>[Back]
nbsp; G105-9
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nbsp; G112-3
HREF='#back25'>[Back]
nbsp; G121-4
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nbsp; G125-9
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nbsp; C31-2
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nbsp; G106A
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