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England and Wales High Court (Family Division) Decisions

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Cite as: [2014] EWHC 1367 (Fam)

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Neutral Citation Number: [2014] EWHC 1367 (Fam)
Case No: BS13C00646


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


- and -

AB (by his children's guardian) (4)


Stuart Fuller (instructed by the Local Authority) for the Applicant
Nkumbe Ekaney QC and Tabby Macfarlane (instructed by Kelcey and Hall) for the Mother
Robin Tolson QC and Elizabeth Harris (instructed by Fosters and Partners) for the Father
Claire Wills-Goldingham QC and James Cranfield (instructed by Bobbets Mackan) for the Maternal Grandmother
Stephen Roberts (instructed by Kirby Sheppard) for AB, by his children's guardian
Hearing dates: 10 - 21 March 2014



Crown Copyright ©

    The Honourable Mr. Justice Baker :


  1. On 30th April 2012, an eleven-week-old baby girl died in hospital in Bristol. Post mortem investigation found that she was suffering from a number of injuries usually associated with non-accidental trauma. But in addition, the baby, hereafter referred to as S, suffered from a number of conditions, all linked to a unique combination of genetic abnormalities. The team of pathologists who performed that investigation were uncertain as to her cause of death. No criminal proceedings were instigated.
  2. On 9th September 2013, S's mother gave birth to another child, hereafter referred to as "A". The local authority started care proceedings, relying on the circumstances of S's death. A was removed from the family and placed in foster care. The case was transferred to the High Court and listed before me for a fact-finding hearing into the circumstances of S's injuries and death. This reserved judgment is delivered at the conclusion of that hearing.

  4. The mother is aged 31. She works as a care assistant in the same sheltered housing scheme as her mother. She has worked there for nine years. The job entails giving personal care to elderly residents. The mother enjoys her work which requires sensitivity and patience.
  5. The father is aged 39. He was born and raised in Gambia where he was trained as an accounting technician. He has a son by a previous relationship. Ten years ago, he came to this country on a student visa, but lost his sponsorship and thereafter remained in this country unlawfully. In 2004, he started a relationship with another woman. According to his statement, they were subsequently married in Gambia.
  6. As a result of his immigration status, the father is not supposed to work or claim benefits. In fact, as he told me, he has worked steadily for several years, using an alias. He has applied for permanent leave to remain in this country. In his first statement in these proceedings, the father said that the application was originally based on his relationship with the mother and his having a child, S. He added that now the fact that he is the father of A will be a relevant factor. He hopes to be able to stay in this country and provide care for his son.
  7. The mother and father met in 2009 in a night club. They started living together after about a year. The relationship seems to have been fairly volatile. The father says that the mother has a short fuse and has broken things in the property in temper. The mother says that the father was controlling and has become angry with her on occasions, and called her abusive names. On one occasion he raised his hand to her although he did not hit her. The father denies being controlling. He says that the mother was under the control of her own mother. The father accuses the mother of drinking excessively. He is a Muslim and claims that he does not drink, but the mother says he does and produced a photograph at the hearing which showed the father holding a champagne glass. He claimed that the liquid inside the glass was non-alcoholic.
  8. Unusually, there is a dispute as to whether the parents are married. The father says that they were married in Gambia in 2011, in the mother's absence. The mother denies that they are married. She says that the father has obtained a false marriage certificate from Gambia to support his immigration application. She said that she signed the certificate under pressure from him.
  9. In 2011, the mother became pregnant. On 14th February 2012, S was born by emergency caesarean section about 3 weeks premature. In the late stages of the pregnancy, there had been concerns about the baby's low growth rate. At birth, she was very small, weighing only 1680 grams, well below the 0.4 centile, and had a very small head circumference. It was immediately noticed that she had a number of significant abnormalities, including dysmorphic features, a heart murmur and she had difficulty feeding. In her early days she suffered repeated episodes of respiratory distress and she was also found to have a congenital heart disease. Genetic studies revealed that she had a unique combination of genetic abnormalities. There is no known record of any previous patient born with this combination. I consider this important aspect of the case in greater detail below. The advice of geneticists and clinicians was that S would suffer a multitude of problems and that her life expectancy would be extremely limited. Sadly, that prediction proved all too accurate.
  10. In her first weeks, she stayed in hospital, moving between a normal ward, high dependency unit and a neonatal intensive care unit as her condition fluctuated. She had repeated episodes of oxygen de-saturations, respiratory distress, apnoea and seizures. One significant episode took place on 25th March. Curiously, there is no full contemporaneous medical record of what happened on this occasion, only a retrospective summarising note. It is clear that doctors were summoned urgently to attend to her in a state of collapse, but the details of the treatment given on this occasion are unknown. It is at least theoretically possible that she was given cardiac pulmonary resuscitation during this episode. That possibility cannot be ruled out, although routine practice would normally require that a note that CPR was administered should be kept on the medical records.
  11. It is the clear and unanimous view of medical staff that, throughout her stay in hospital, S received loving care and attention from her parents. There is not a hint of any criticism of either parent, despite the obvious strain and distress they experienced as it became clear that their beloved daughter had insurmountable problems and did not have long to live. They were trained in techniques needed to care for her. S was only able to take feed via a nasogastric tube which required two people to fit. This was difficult, but the mother said in evidence that she was able to feed her without difficulty and felt confident managing this. The parents were also trained in what to do if S collapsed and needed resuscitation.
  12. Notwithstanding the fact that, as one expert said in the course of the hearing, S was not really fit for discharge, the hospital staff agreed that her parents could take her home so that they could spend some time with her as a family. Thus, she was discharged home on 18th April, aged 9 weeks. Thereafter, the community neonatal nursing team visited daily for the first week. Most of the care of S at home was provided by her mother, supported during the day by her own mother and, when he returned home in the evenings, by the father. The maternal grandmother visited nearly every day, and stayed all day until she went to work. The mother was responsible for measuring and making up the feeds and placing the feed in a syringe which was fitted to the nasogastric tube. She gave most of the feeds, and, although the father used to help with the feeds at night, the mother was always awake when this happened. The father recalled one occasion when S had appeared to stop breathing but had revived when the mother rubbed her stomach.
  13. After S was discharged from hospital, her parents were advised not to take her out for the first week or so. On 23rd April, however, she was taken to an appointment with the community paediatrician, Dr Bradley. This involved a bus journey for the mother and grandmother across Bristol. Later in the week, the mother and maternal grandmother took S for a hearing test. On two other occasions, the mother was taken out by a friend and S was left in the care of the grandmother.
  14. On 28th April, the mother went out to bingo with the grandmother in the evening, leaving S in the care of the father. On her return, there was an argument because the father thought she had been drinking. The mother denied it and rang the grandmother who backed up her story. The father did not believe them.
  15. On 30th April, S was looked after as usual by the mother with assistance from the grandmother. Their evidence is that the grandmother left at about 5.30 pm that afternoon, and thereafter the mother looked after S by herself until the father returned home some time after 10 pm, having gone from work to the gym and then to watch a football match in a pub. There is some dispute between the parents as to exactly what occurred after he returned, and I consider their respective accounts in more detail below. What is agreed is that, at some point after 10.30 pm, S collapsed . The father tried to revive her using techniques learnt at hospital but when this proved unsuccessful the mother telephoned for emergency services and an ambulance arrived at 10.48 pm. On arrival, the paramedics found S asystolic with her pupils fixed and unresponsive. She was taken to the Bristol Royal Children's Hospital but all attempts to revive her were unsuccessful and she died at 11.30 pm that evening.
  16. A routine sudden death report was prepared by Dr Gainsborough, a community paediatrician. During the preparation of the report, the parents were spoken to both at hospital and at home. A skeletal survey revealed no evidence of bony injuries. A post mortem examination was instigated by a paediatric pathologist, Dr Platt, who detected scalp bruising, bilateral subdural haemorrhages and rib abnormalities. As a result, he suspended his examination and contacted a forensic pathologist, Dr Amanda Jeffrey, and with the coroner's authority a full forensic examination was undertaken. This involved not only a microscopic examination but also the taking of samples for expert analysis by a range of other experts.
  17. The examination by Dr Platt and Dr Jeffrey confirmed the presence of a scalp swelling. The intracranial bleeding seen by Dr Platt was no longer present at the time of this further examination. Measurement of the major organs was undertaken and revealed that S's brain was significantly below normal weight. Neuropathological examination confirmed the presence of intracranial haemorrhages, plus other signs supportive of trauma notably axonal disruption, but also the presence of significant brain malformations. Although radiology had not detected any bony injuries, histopathological examination of the ribcage revealed no fewer than forty fractures of the ribs, both anterior and posterior, of several different ages, some dating back to the time when S was in hospital. An ophthalmic pathological examination revealed the presence of bilateral retinal haemorrhages and fresh haemorrhage around both optic nerves.
  18. After these multiple examinations, which took many months to complete, Dr Platt and Dr Jeffrey finally completed their report on 21st May 2013, over a year after S's death. They concluded:
  19. "Based on the information available to us, we are of the opinion that there are some very concerning features in this case which raise the suspicion of a mechanical head injury with evidence of a previous episode of hitherto unexplained rib fracturing, albeit the latter having occurred during hospitalisation. However, the background medical history of this child is extremely complex. S suffered a number of episodes of apnoea and desaturation during her time in hospital and, whilst these required less intervention as time progressed, it would appear that these continued in the days leading up to her discharge from hospital. It is therefore very difficult to determine the exact causation of the death with any degree of certainty. We therefore believe that the cause of death should be considered unascertained."

    The cause of death was therefore described as: "sudden unexplained death in an infant showing some features that raised concerns of mechanical head injury but on a background of a poorly understood genetic abnormality and its medical complications." The police, having considered this report and interviewed the parents, concluded that there was a collection of injuries and medical conditions that were of concern but could not be conclusively put down as inflicted. It was noted that the parents' accounts were consistent and gave no scope for challenge. The case was not referred to the Crown Prosecution Service.

  20. Meanwhile, the mother was pregnant again and the local authority convened a pre-birth case conference. On 9th September 2013, the mother gave birth to her second child, a boy, hereafter referred to as "A" who happily is in very good health. The following day, the local authority launched care proceedings, and an interim care order was made, and A was placed in foster care where he remains, but with regular contact with his mother on several days a week. The father, who has separated from the mother and moved to a different part of the country, has contact on a less frequent basis.
  21. Because of the complexity of the medical evidence, proceedings were transferred to the High Court and listed before me for a fact-finding hearing over a two week period in March 2014. Before that hearing, I was supplied with bundles of papers comprising statements, medical records, social services records and expert reports from a variety of witnesses, including experts involved in the various pathological examinations, namely Dr Platt, consultant paediatric pathologist, Dr Jeffrey, forensic pathologist, Dr Al-Sarraj, consultant neuropathologist, Dr Jacques, consultant paediatric neuropathologist, Dr McCarthy, consultant ophthalmic pathologist, Professor Freemont, professor of pathology, and Dr Deryk James, consultant forensic pathologist, plus expert reports specifically prepared for these proceedings by Professor Patton, consultant clinical geneticist, Professor Kinsey, consultant paediatric haematologist, Dr David Robinson, consultant paediatrician, and Mr Peter Richards, consultant paediatric neurosurgeon.
  22. At the hearing before me, oral evidence was given by the following witnesses in the following order: Dr Bradley, consultant community paediatrician, Professor Freemont, Dr Gainsborough, Mr Richards, Dr Jeffrey, Dr Jacques, Dr McCarthy, Dr Robinson, Dr James, Dr Al-Sarraj, Detective Sergeant Curnock, the mother, the father and the maternal grandmother. I was assisted by comprehensive written submissions by counsel. I am grateful to them, and to their instructing solicitors, for their assistance in this troubling case.
  23. THE LAW

  24. The law to be applied in care proceedings concerning allegations of child abuse is well-established. I have set it out in a number of reported cases, and have those principles, and the authorities from which they are derived, firmly in mind. What follows is a summary of those principles, highlighting some points of particular relevance to this case.
  25. The burden of proof rests on the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. The standard of proof is the balance of probabilities: Re B [2008] UKHL 35. That is the standard required before making a finding that a child has been injured non-accidentally or killed. It is also the standard required in order to make a finding as to the perpetrator of such injuries, or the person responsible for killing the child. In assessing whether or not a fact is proved to have been more probable than not, "common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities," (per Lord Hoffman in Re B at paragraph 15).
  26. Findings of fact must be based on evidence and the court must be careful to avoid speculation. When considering cases of suspected child abuse, the court surveys a wide canvas and must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. Cases involving allegations of non-accidental head injury will invariably include expert medical evidence from a variety of specialists. 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. 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. It is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. As Charles J observed in A County Council v K D & L [2005] EWHC 144 (Fam) at paragraph 49:
  27. "In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established."
  28. 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. It is not uncommon 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. 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).
  29. As at least one expert in this case reminded us, medical opinion is constantly evolving. Dame Elizabeth Butler-Sloss President observed, in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567 that "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 may throw a light into corners that are at present dark". The court always bears in mind the possibility of the unknown cause. As Hedley J observed in Re R, (Care Proceedings Causation) [2011] EWHC 1715 (Fam), "there has to be factored into every case which concerns a discrete 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."
  30. This latter point is of particular importance in this case. As stated above, S was a child with a condition unknown to medical science. I therefore begin my analysis of the evidence by a more detailed look at that condition.

  32. The genetic testing revealed an abnormality leading to an exchange or translocation between the short arm of chromosome 4 and the long arm of chromosome 18. The translocation was unbalanced and produced a deletion of part of chromosome 4 (partial monosomy 4p) and a duplication of part of chromosome 18 (partial trisomy 18).
  33. The location of the abnormality on chromosome 4 placed S at a position intermediate between two recognised syndromes, Wolf-Hirshhorn and Pitt-Rogers Danks syndromes. Professor Patton advised that Wolf-Hirshhorn syndrome is estimated to occur in 1 in 20,000 births. The features of the syndrome include short stature, abnormal facial features, abnormalities of the eye (including optic nerve defects), congenital heart defects, skeletal abnormalities such as chest deformities, and abnormal teeth. Mental handicap is universal and very severe. Feeding difficulties occur in 75% of cases and seizures occur in up to 90% by the third year of life. Brain imaging is abnormal in many patients. S had a number of these features, including short stature, abnormal facial features, a neonatal tooth, feeding difficulties, seizures and an abnormal brain on MRI.
  34. The second component of her genetic abnormality involved chromosome 18 and was described as a partial trisomy. Full duplication of chromosome 18 or trisomy 18 is referred to as Edwards syndrome. This occurs in around 1 in 5000 pregnancies. If a child with this condition is born alive, they normally have major physical malformations which usually lead to death in the first few days. Professor Patton advised that there is less medical literature as to partial trisomy 18 but identified features include low birth rate, dysmorphic facial features, congenital heart defects and brain malformation, all of which were present in S's case. Professor Patton advised that it is difficult to obtain figures on life expectancy as partial trisomy 18 is relatively rare and each case will differ to some extent on the degree of chromosome imbalance. With full trisomy 18, most children will die within the first month of life and 98% will die by the age of one. The cause of death may be apnoeic episodes when breathing stops.
  35. Professor Patton advised that translocations can arise between any two chromosomes. On searching the literature, he was unable to identify any case with this specific translocation. It follows that S's case involved a unique chromosome imbalance. Professor Patton advised that this will have arisen as a chance event and would not be expected to recur in future pregnancies.
  36. There is no association in the medical literature between Wolf-Hirshhorn syndrome, Pitt-Rogers Danks syndrome or Edwards syndrome and a greater propensity to intracranial bleeding or bony injuries. But S's genetic abnormalities were a unique combination a dark corner of medical science. With that in mind, I turn to the medical evidence as to the injuries,

    Rib Fractures

  38. S's rib cage was submitted for examination by Professor Freemont, consultant pathologist at Manchester. He found features of established fractures occurring in relatively mobile bones. He estimated the callus present to be approximately 3-4 weeks old. He therefore concluded that S had sustained fractures which almost certainly occurred whilst she was in hospital. He noted that she required chest stimulation and that this may have involved CPR. He saw nothing in the evidence to suggest that either parent had inflicted injury while the child was out of hospital or that the fractures themselves contributed to the child's death. Equally, there was no evidence of a underlying metabolic bone disorder.
  39. Subsequently, the rib cage was examined by Dr James, a forensic pathologist. He was able to carry out a microscopic examination of the whole rib cage and astonishingly identified a large number of fractures, perhaps exceeding forty in number, of different ages. These fractures are all particularised and described in meticulous detail in his report, and illustrated on a most helpful diagram. Some of the fractures were only visible microscopically, others visible to the naked eye. Dr James concludes that the overall picture of multiple rib fractures was complex. He categorised three groups of fractures which had appearances which might be accommodated by a single injury event for each group.
  40. i) A group of injuries which appeared to be about 2-3 days old at the time of death;

    ii) A group of fractures which appeared to be around a week old at the time of death and;

    iii) A group of injuries each of which was definitely more than two weeks of age and maybe some weeks older than that.

    Each group involved both posterior and anterior fractures. Dr James advised, however, that the way in which the ribs showing similar appearances were grouped together tended to corroborate a single event causing each of the individual groups. He could not see any evidence of abnormal bone structure such as a metabolic bone disease or bone fragility syndrome or nutritional deficiency. He concluded in his report that there had been at least three episodes of significant chest compression, one during the hospital admission but two after her discharge.

  41. In oral evidence, both Professor Freemont and Dr James remarked upon the fact that none of the fractures had been detected radiologically, notwithstanding the fact that chest x-rays had been carried out on four occasions during S's hospital admission and a skeletal survey carried out post-mortem. Professor Freemont suggested that this might be explained by the fact that much of the repair of the fractures consisted of cartilage with only a small amount of bone, so that the amount of calcium would have been very small and therefore might have been missed radiologically. The contrast between the results of radiology and histopathology were stark. Dr James said that he had never come across a case in which there had been so great a disparity between the radiological and pathological findings. Dr Robinson also observed that this was the first case he had encountered with such a disparity between radiology and pathology.
  42. In oral evidence, Professor Freemont confirmed that his examination had revealed no obvious underlying bone fragility. Normally bone disease is visible on histological examination. He reiterated in oral evidence that CPR needed to be considered as a possible explanation for the rib fractures in this case, in particular the anterior fractures. He noted that fractures caused by CPR were under-reported, particularly in young children. He said that CPR needed to be excluded in this case.
  43. In his oral evidence, Dr James stressed that the dating of fractures in children, especially children of this age, was extremely difficult. The data base for comparison is extremely limited. Furthermore, it was unusual to have an opportunity to examine a rib cage such as had occurred in this case. Dr James observed that it was not possible to say whether less force was required to cause microscopic rib fractures than for those visible radiologically. He thought, intuitively, that a smaller fracture could be caused by a lesser degree of force. Again, the problem was the lack of comparative data. Examinations such as this were rare and it was impossible to build up evidence as to how many occult fractures exist generally. He concluded that he did not know the amount of force required to cause such fractures or how common they are.
  44. Dr James said that he had not come across a child with this combination of genetic disorders before. He always advised caution when interpreting results of this sort. The bones looked normal to him, but he added: "You've always got to be careful about what you don't know, and recognise in medicine things are always moving on and that what is unexplained one year becomes explicable the next." In answer to me, he added that, at the back of his mind, the fact that radiology had not seen these fractures led him to wonder whether there was something abnormal in the bones.
  45. In his report, Dr Robinson warned that extreme caution was required when analysing the rib fractures. In particular, the fact that one set of fractures occurred whilst she was in hospital required careful consideration. Either she suffered an unwitnessed squeezing episode whilst there, or she had an increased propensity to fractures which can not be explained medically. It was possible that her underlying diagnosis made her more susceptible to fractures although such an increased propensity has not been reported by other experts, or in the literature. In oral evidence, cross-examined by Mr Tolson QC for the father, Dr Robinson described that for a traumatic event to have occurred in hospital, in particular when she was on a high dependency unit or intensive care unit, would be possible but very unusual. On balance, he thought it unlikely that she could have been injured non-accidentally in hospital, given the level of observation. This led him to consider that S had a poorly understood condition that led to an increased propensity for rib fractures. In oral evidence, Dr Robinson reiterated the need to keep an open mind in respect of the rib fractures, because S's condition is poorly understood.
  46. Neuropathology

  47. Samples were taken from S's brain and spinal cord and sent for examination by Dr Al-Sarraj, consultant neuropathologist, who in turn recommended a further examination by Dr Jacques, a consultant paediatric neuropathologist. Their reports formed part of the corpus of material considered by Dr Platt and Dr Jeffrey and in due course by the court. In addition, I have had the benefit of the opinion of Mr Peter Richards, consultant paediatric neurosurgeon.
  48. It is convenient to start by referring to the conclusions reached by Dr Jacques. He found broadly two types of pathology in the brain and spinal cord. First, there were a number of significant malformations, including dysplasia of the dentate nucleus and large and frequent heterotopias in the cerebellar white matter. He concluded that these malformations were a consequence of S's genetic abnormality. He observed;
  49. "It is not possible to determine with certainty the clinical impact of these malformations but in my opinion these are significant abnormalities and represent anatomical manifestations of a substantial disturbance of normal brain development and may well be the morphological correlate of neurological problems."
  50. In addition, Dr Jaques found acquired pathology including acute subarachnoid haemorrhage over the spinal cord and brain, acute haemorrhage associated with the nerve roots, extradural haemorrhage over the spinal cord, axonal injury, including axonal spheroids, and microglial reaction in the cerebellar cortex. He noted that subdural haemorrhage had been seen at post mortem by Dr Platt although not visible during the microscopic examination.
  51. In interpreting these acquired abnormalities, Dr Jaques observed, as is well known, that the combination of subdural haemorrhage, retinal haemorrhage, and encephalopathy constitute the so-called "triad" of pathology associated with non-accidental head injury. (This court notes that this association is described as a strong pointer towards, as opposed to diagnostic of, non-accidental head injury.) Dr Jacques observed that a number of natural disorders have been described that may mimic components of the triad although he had not identified in the literature any link between the type of genetic syndrome seen in S and subdural haemorrhage. He added, however, "despite these observations, the genetic abnormality in this child is complex and I would remain concerned that underlying disorder may have predisposed a haemorrhage". As for the axonal injury, he describes this as sparse but in places in a distribution that would be in keeping with trauma. Given the pre-mortem medical history, however, he would not regard this as strong evidence of trauma in this case.
  52. From Dr Al-Sarraj's report, I cite his ultimate opinion that, considering the presence of subdural haemorrhage and retinal haemorrhage, the overall pathological features in S's brain and spinal cord, in particular the evidence of axonal distribution and the presence of extradural haemorrhage, were supportive of traumatic brain injury. He also observed that the appearances of the extradural haemorrhage in the spinal cord were consistent with both an old haemorrhage of a few to several days duration and more recent haemorrhage of less than 48 hours duration. He added, however, that the possibility of trauma had to be carefully correlated with the clinical history.
  53. In his report, Mr Richards observed that, when a child presents with features of head injury with no history of any event likely to cause such an injury, there can be only four possible explanations.
  54. i) that this was not a head injury at all and the doctors have been fooled;

    ii) that S was abnormally fragile and therefore suffered the head injury in circumstances where such injury would not be expected;

    iii) that an event occurred which, because of their mental capacity at the time, carers did not appreciate would constitute a significant head injury or

    iv) that a carer or carers are aware of an event likely to have caused significant head injury but for some reason have chosen not to inform medical investigators.

    In this case, given S's complex medical and genetic history, Mr Richards advised that the first and second possible explanations were worthy of some consideration. He noted that S had suffered a number of collapses whilst in hospital but added that these were of an order of magnitude significantly less than her final collapse so that it was therefore unlikely that the fatal event was the result of the same pathology. Given the fact that she had a number of microscopic structural abnormalities within the brain and her brain was not growing normally, the possibility of an unknown fragility as the cause of her neurological symptoms could not be excluded. Mr Richards raised the possibility that, in the panic following her collapse, S may have been shaken excessively as part of a resuscitation process, or that she had been put forcibly onto the floor without adequate support in a panic. He observed that the degree of force required to cause such injuries had not been scientifically measured, although clinical medicine indicated that it requires forces greater than those encountered in every day life or rough play. Cross-examined by Mr Ekaney QC on behalf of the mother, Mr Richards agreed that the subdural haemorrhages in this case were thin film and low volume. He accepted that a number of factors associated with a greater degree of force in non-accidental head injury were not present in this case factors such as tears, intra ventricular haemorrhages, mid-line shifts, global hypoxic ischaemic damage or damage to the nerve and root ends of the spine. He agreed that, as S was an extremely small baby, below the 0.4 centile, common sense suggested that less force would be required to cause the neurological injuries seen in this case. He agreed with Miss Wills-Goldingham QC on behalf of the grandmother that S was a very frail baby. He agreed with Mr Tolson that in this case a force not very much out of the ordinary could have caused these injuries.

  55. All three of the experts who gave evidence about the neurological condition of this baby stressed the need for caution. Mr Richards, like all the experts, had never encountered this particular combination of genetic abnormalities. He observed that there were significant abnormalities in S's brain, a number which predisposed her to seizures. In addition, her brain was not growing. He described it as a very small brain. According to the measurements taken at post-mortem by Dr Jeffrey, S's brain was 50 grams less than the normal reference weight, some 10% lighter than the normal bracket. Something was wrong, said Mr Richards, with the way S's brain was developing. It was not put together properly. A brain that was not growing was an indication of something that was seriously wrong. All this led Mr Richards in cross examination by Miss Wills-Goldingham to observe that "we can't comment on the unknown. We have lots of children with brain abnormalities who don't die of apparent head injuries, but I can't exclude the possibility."
  56. For Dr Al-Sarraj, this was "not an easy case." He noted the genetic abnormalities and the history of apnoeic attacks. This led him to say that "we have to be extremely cautious". There were features of head injury but there were many things in S's brain that led him to think that "we may have something not right." This led him to be more cautious about concluding that trauma was the cause.
  57. In his evidence, Dr Jaques said that he too had not seen a child with this precise chromosomal abnormality. He also thought that, if the brain was very small, that was a risk factor for subdural haemorrhage. He agreed that given the small size of S's brain, a unique genetic condition, and the brain malformations, "one has to be cautious in interpretation."
  58. Dr Robinson observed that the most likely cause for the subdural haemorrhage, encephalopathy and retinal haemorrhage, coupled with the scalp swelling, was a non-accidental application of head trauma against a hard surface with or without shaking, or alternatively an undisclosed accident. S's genetic diagnosis was not known to be associated with either subdural haemorrhage or retinal haemorrhage. Dr Robinson added, however, that it may have made her more susceptible to injury from a lesser force and as a result, "caution is required".
  59. Ophthalmic Pathology

  60. Dr McCarthy, a consultant histopathologist specialising in ophthalmic pathology, prepared a report for Dr Platt and Dr Jeffrey and gave evidence before me.
  61. He found that there was florid fresh haemorrhage around both optic nerves within the dural sheaths and also in the connective tissues around the optic nerves. Fresh retinal haemorrhages were observed histologically in both eyes, although they were relatively small in number and mainly located posteriorly. Dr McCarthy found no evidence of any older haemorrhage. The presence of haemorrhage in the optic nerves suggested a traumatic cause, either impact trauma or movement trauma. He noted the presence of a fresh scalp bruise as further evidence of impact trauma. Dr McCarthy had investigated the medical literature concerning Wolf-Hirshhorn and Pitt-Rogers Dank Syndromes and noted that the abnormalities observed in such syndromes do not include either retinal haemorrhage or optic nerve haemorrhage.
  62. In his oral evidence, like all the experts, Dr McCarthy confirmed that he had never encountered a child with this combination of genetic abnormalities. He agreed that these complexities made this case particularly difficult. He noted that S's eyes were small although he considered them to come just within the normal range rather than being pathologically small. There was no other anatomical abnormality, although her eyes were set far apart as part of her dysmorphic features. In answer to a question from Mr Ekaney about the degree of force required to cause these haemorrhages, Dr McCarthy said that he had been saying "for an awfully long time" that the degree of force required is less than previously thought, both for impact and movement trauma.
  63. Scalp Injury

  64. As mentioned above, S was found to have a scalp injury, described by Dr. Platt and Dr. Jeffrey in these terms:
  65. "An area of diffuse light swelling measuring approximately 3 cm in maximum diameter in the right parietal region centred 5 cm above the right ear. There was possible faint discolouration of the skin surface but the area was more easily detected on pulpation rather than visually. This overlay a haematoma in the scalp that measured 2 cm by 1.5 cm. There was no associated skull fracture. "

  66. In their post mortem report, Dr Platt and Dr Jeffrey added:
  67. "S was noted to have an area of bruising to the scalp over the right side of the head. This indicates an injury to the area. Microscopic examination of the bruise showed some iron staining which raises the possibility that this occurred a few days prior to death. It is known that scalp electrodes were used in the process of cerebral function monitoring whilst in hospital but this was over a month prior to her death. We are not aware of any other medical explanation for the scalp bruise. Whilst the bruise appears relatively recent and more in keeping with having occurred after discharge from hospital, it is well recognised that the dating of bruises is not an exact science."
  68. In oral evidence, Dr Jeffrey confirmed that she did not rule out the possibility that the swelling could have dated back to the time in hospital when electrodes had been inserted into S's scalp for the purposes of cerebral function monitoring. Dr Robinson, however, expressed a different opinion. In his report, he observed that most bruises disappear within 10-14 days. Superficial bruises resolve within 1- 3 days, and larger or deeper bruises may take 10-14 days to resolve fully. Fourteen days is the outside limit for resolution of a bruise and/or haematoma. He thought it unlikely that scalp electrodes used in hospital a month earlier would have caused the bruising and swelling seen on S's scalp. In oral evidence, Dr Robinson said that it would be very unusual to see a scalp injury persisting for longer than 14 days, and certainly not for five weeks. For Dr Robinson, the scalp injury was of particular significance. He said in answer to Mr Ekaney: "You can't back away from the lesion over the scalp."
  69. Medical Evidence: Further Discussion

  70. The consensus of medical opinion was that the constellation of injuries found at post-mortem were suggestive of trauma and, in the absence of any history of accident, the likeliest explanation was that S had sustained a series of non-accidental injuries, including a head injury that involved an element of impact. However, there was equally a degree of consensus amongst the doctors that this case needed to be approached with caution because of S's unique clinical picture. I have already cited a number of instances in which the experts made observations along these lines. In addition, Dr Robinson observed that the fact that extensive pathological investigations had shown no medical cause for S's post mortem findings should be interpreted subject to the proviso that her underlying genetic diagnosis is poorly understood. Furthermore, Dr Jeffrey said that this was by far the most complex case that she had dealt with during her career to date. She described S's genetic abnormalities as a "freak combination". She agreed with Miss Wills-Goldingham that the case was "a conundrum".
  71. One clear interpretation of the medical evidence is that S suffered a series of non-accidental injuries. On the other hand, one must always bear in mind the possibility of the unknown cause and in this case that possibility is greater because of S's extraordinary and unique genetic abnormalities, her brain malformation and her very small size. For this court, accustomed as I am to hearing eminent doctors give expert opinion in cases of suspected non-accidental injury, the degree of caution expressed by the experts in this case is striking. Taken by itself, the medical evidence left me distinctly uneasy as to the local authority's submission that this court should find that S had sustained her injuries non-accidentally.
  72. But of course, the court does not look at the evidence in isolation and I now turn to consider the evidence of the other witnesses and in particular the evidence given by the family members.

  74. There were some differences between the accounts given by the three family members mother, father and maternal grandmother about the events of 30th April.
  75. In her statement, the mother said that the grandmother had come to her flat as usual that morning at about 10.30 am. By that point, the father had already gone out. The mother and grandmother stayed at home all day. The mother had made up a small bed on S's changing mat which she placed on the floor in the living room. Her head was propped up and she seemed to respond to the television. The mother and grandmother took a number of photographs that morning. At about 4.45 pm, the grandmother left to go to work. S was fine at that time. During the evening, the mother picked S up from time to time and gave her a cuddle. She was always with her or in her sight, even if she went to the toilet or was in the bath. At about 8 pm, the mother gave her a feed and settled her down. She was on her bed on the mat in front of her while she watched television.
  76. The mother said that the father came home at about 9.30 pm having been to the gym and then gone to the pub where he had watched football on the television. When he got back, the mother wanted to go out for a cigarette but before she did so the father said he wanted to have a shower and change his clothes. After he had done so, the mother had her cigarette. The flat is on the first floor and the mother therefore went downstairs and stood outside the front door to smoke. When she came back after about five minutes, she went to the bathroom, washed her hands, cleaned her teeth and went into the kitchen to prepare S's 11pm feed. At that stage S was asleep but the father said he wanted to cuddle her. The mother protested but the father picked her up anyway to give her a cuddle. (In oral evidence, the mother said that she had got this wrong in her statement. This incident had occurred earlier when the father arrived home.) The mother had her back turned to the father and S but then heard him say that there was something wrong with her. She turned and noticed S's head resting on the top of his arm. He had his hand on S's belly rubbing it gently as they were advised. She did not respond, instead her skin colour turned grey and then she went floppy in his arms. The father placed her on the floor on her back and began to resuscitate her using the techniques they had been shown in hospital. S took one breath but did not repeat it. The father carried on trying to resuscitate her for about five minutes. Meanwhile, the mother phoned for an ambulance which arrived after about five or six minutes. After the paramedics had tried unsuccessfully to revive her, S was taken to hospital in an ambulance. The father went in the ambulance with S while the mother collected things and then waited for her own mother on the street corner.
  77. The mother's account is corroborated by the grandmother, up to the point where she left the property. The grandmother gives a very detailed account in her statement of the time she spent with S in hospital and after discharge, including on 30th April. In her statement, she said that she had arrived as normal that morning between 10 am and 10.30 am, bringing some shopping that she had collected on the way. She said that she, the mother and S did not go out that day. Instead they stayed at home. She described it as a normal day. She said that she was with the mother and S until between 4.45 pm and 5 pm when she needed to leave to go to work. Nothing had happened during the day that might have caused any injury to S. She said that, when she left the mother and S, everything was fine and she had no cause for concern.
  78. The father's account is that he went out at around 7 am that morning. After he finished work, he went to the gym as usual and then went to the pub to watch football. In his statement, he said he got home after the match at about 10 pm. In his oral evidence, the father gave more detail about his precise movements after the end of the football match, stating for the first time that he had been given a lift home that evening and on the way had stopped at a shop. These details were not included in his statement, notwithstanding his assertion in the statement that he had decided that the only way to deal with this case was to be completely open and to provide professionals with every piece of evidence that might be relevant.
  79. The father said that, on arriving home, there was a brief conversation between them before he went to have a shower and get changed, a process which, in oral evidence, he said took about twenty minutes. When he came out of the shower he went back to the sitting room. The mother was sitting on a sofa in the corner and seemed quite flat. S was lying on her mat about two metres away from the mother. The father said he had never seen S lie on the mat before. He thought it was unusual. He said in his statement that "there seemed to be an emotional and physical distance between the mother and S which I had not experienced before." He said that he went straight over to S and picked her up. It was immediately clear to him that S was making odd noises as she was breathing. In his statement he described this as "a kind of grunting noise." In oral evidence, he said that the noise had been different from that which she had given in hospital, and described it as a painful noise. It was a noise that he had not heard before. In his statement, he said that he had asked the mother what the noise was and whether she had heard it. He said that she told him that S had been "doing this all day". He asked her if she had contacted the health visitor or anyone else about it. She said that she had not, and then went out to have a cigarette.
  80. Meanwhile, the father continued to hold S. He was trying to soothe her by stroking her back. The mother came back into the room a few minutes later. When the father asked what had happened during the day, she told him that her mother had come over and they had gone shopping together. The father did not think this surprising as there were two shopping bags full of shopping in the kitchen. In his statement, the father says he asked the mother how S had coped with the shopping. The mother had replied that she had not liked being put in the push chair and that she had "cried her eyes out" and that every time she had put her in it she had looked unsettled. The parents then began preparing S's feed. The father said that the mother was standing next to him measuring the feed when S pushed her head back towards him. He then saw that she was not breathing. He told the mother that she was having trouble breathing. The mother leant over and rubbed S's tummy. S did not respond. The father said that he started to become concerned at this point and put S back on her mat and started resuscitation while the mother called the ambulance.
  81. The above accounts are taken from the parties' written statements given to the police (on legal advice, each replied "no comment" during their respective police interviews), their written statements in these proceedings and their oral evidence. In addition, there is evidence as to the accounts given by the parents in the immediate aftermath of S's death. On this occasion, there are records of three conversations that took place. There are some discrepancies between these notes and the accounts now given by the parents.
  82. First, in the earliest note made shortly after S's death, a doctor has recorded: "History from father. Had a choking episode. Dad patted her to help her vomit. She became floppy and stopped breathing. He started CPR immediately."
  83. Secondly, about two hours later, at about 2 am on 1st May, Dr Gainsborough, a community paediatrician tasked with carrying out a sudden death report, spoke to both parents and made this note:
  84. "History from parents. This evening: on mum's lap awake. Made retching noise. Dad picked her up and tilted her up as if to vomit but she didn't. Then felt floppy/relaxed. Took one deep breath. Over about four minutes trying to position and stimulate her. Put her on floor. Gave mouth to mouth and cardiac massage, while mum called ambulance."
  85. Thirdly, on the following day, Dr Gainsborough, accompanied by DS Curnock, visited the family home. Her note of this conversation includes the following:
  86. "Repeated history; [the mother] said she picked her up off mat, woke up handed her to dad and went out for a fag. Didn't notice a retching noise then (mentioned other day that she made these retching noises) Dad held her for a few minutes. Then made gulping noise after (the mother) came back in. Dad had her upright, leaning onto his right hand to tap back with left. Went floppy plus arm out (relaxed position) breathing very weak, normal colour put her on floor to start CPR and called ambulance."

    Later, the note continued: "Retching noise heard before but with vomiting, this time didn't vomit. Last feed 8 pm (next due 11pm)."

  87. These inconsistencies were put to the parents in oral evidence. They were unable to account for them. Of course, I bear in mind that they were in a state of extreme distress and shock when they spoke to the doctors. I also take into account that the doctors' notes have been challenged, and that, in the case of the third conversation, there are some differences between Dr. Gainsborough's note and that taken by DS Curnock. Furthermore, as DS Curnock acknowledged, this was a conversation, not an interview. Nonetheless, the inconsistencies are matters to be taken into account. Mr Fuller on behalf of the local authority invites the court to consider which is the true account and whether the discrepancies matter.
  88. There are a number of other matters about which the parents give starkly different accounts.
  89. (1) Were the parties married? The father says yes, the mother no. She says that in about 2011 the father acquired a false marriage certificate from Gambia and pressurised the mother into signing it. The father says that a marriage ceremony took place in Gambia, but that, as is (according to the father) customary in that country, the mother was not required to be present. The mother says that, so far as she is aware, the father is still married to the woman he married some years earlier.
  90. (2) Was the father working? It is the father's evidence that he was working throughout S's life, as he had done for some years previously, in a warehouse run by a windscreen company. As he does not have permission to stay in this country, he is not supposed to work, so he has assumed an alias. The mother's evidence is that he lost his job after S was born because he was spending so much time away from work. She accepts that, after S came home, he spent most days out of the house, but she did not know that he was working. The father stuck to his account that he was working, that the mother knew that this was the case because he used to leave home wearing a uniform.
  91. (3) Had the parties separated? The parties say not, but according to several professionals, including Dr. Gainsborough and DS Curnock, they said that they had not been living together when S came home from hospital. Mr Fuller suggests that the parents may have lied about this to conceal tensions between them.
  92. (4) Did the mother go out on 30th April? It is the mother's case, supported by the grandmother, that she did not go out of the home at all that day. The father asserts, however, that she told him that she had been to the shops, giving an account of how S had been unhappy in the pushchair, and that this account was supported in the father's mind by the sight of shopping bags in the kitchen when he arrived home. The mother accepts that the bags were there but says that they had been brought in by the grandmother, who in turn corroborates her daughter's account.
  93. (5) Was it unusual for S to be put on the mat? The mother and grandmother say that it was their habit to make up a little bed on the changing mat and place S on it on the floor of the living room, sometimes in a position where she could see the light of the television. They say that this was more comfortable than her babychair which was too big for her. The father says that he had never seen her on the mat before he arrived home that evening.
  94. (6) What was the noise made by S on the evening of 30th April? The father says that, on arriving home that evening, he noticed S making an unusual noise which he had not heard before. When he mentioned it to the mother, she said that she had been making it all day. The mother denies this account. She says that S did not make any unusual noise that evening, The noise she did make was a grunting sound, which she had made previously and which the parents had been told related to her respiratory difficulties. As recorded above, during their conversations with Dr. Gainsborough in the day or so after her death, the parents are said to have given a different version about the noise made by S shortly before her collapse. Mr Fuller asks whether the father is lying about hearing a new noise that evening to cover up something he has done, or to protect himself from being wrongly accused. Alternatively, Mr Fuller suggests that, if the father is telling the truth, the mother may be lying to hide something that had happened earlier that day.
  95. (7) Finally, it is important to consider the gradual emergence of the father's case in the period leading up to this hearing. Initially, he and the mother were united in their response to what had happened. In the police investigation, the father made no allegations or insinuations about the mother. Over time, however, and in particular in the Summer of 2013, the father has raised suspicions about the mother's conduct. He has pointed to things which he says are untrue in her account of the events of 30th April notably, what he says is her lie about not having gone out during the day and which, he says, lead him to have suspicions. The case advanced by Mr Tolson on his behalf was not to accuse the mother of having killed S but rather to raise concerns and, in particular, to demonstrate that the injuries must have been sustained by S before the father arrived home that evening. A substantial proportion of the questions put by Mr. Tolson were directed to this latter issue. In the course of his cross-examination by Mr Ekaney, however, the father finally said that he thought it likely that the injuries were non-accidental and it was likely that the mother or grandmother was responsible. Later, he retreated from this position again, saying that he merely had suspicions. On the other hand, in the course of his cross-examination by Mr Ekaney, he accepted that the mother was nice, caring, hardworking, trustworthy, loving and kind, and that she was a good mother. I was left uncertain about exactly what the father was saying, and why he was saying it.
  96. Looking at the parents' evidence overall, I make the following observatrions and findings. First, I found the mother to be fundamentally truthful. Her evidence was sometimes vague and confusing. At times, I doubted whether what she was saying was entirely accurate. But that is, I find, because she is not of a reflective disposition. She is, as Mr Ekaney put it, a relatively simple and unsophisticated person. I believe and find that on the key issues in the case, including the important aspects of the events of 30th April, she was telling me the truth. Above all, I found her evidence about her feelings for her daughter to be compelling and moving. She said: "I could never harm any child, let alone my own child. She meant the world to me." Later she said: "when they told me that I was going to lose her, it didn't make any difference. She was still my daughter. She still needed to be cuddled and loved." She did not think that the father had harmed S, and wanted him to play "the best part he can in A's life."
  97. Equally, I found the grandmother to be a truthful witness. She too was devoted to S. I accept her evidence unreservedly. Her answer to Mr Ekaney that she didn't think that either parent had harmed S was spoken with an impressive conviction.
  98. I have had more difficulty deciding what to make of the father's evidence. He is a much more sophisticated and, I suspect, intelligent person than the mother. He too spoke movingly of his feelings for his daughter. But his arrogant and condescending manner was concerning, and I find that he was, as the mother describes, very controlling of her. I find that he has acted deceitfully in the course of his employment, and I also find that he has lied about his marriage to the mother. I accept her evidence that he obtained a bogus marriage certificate and pressurised her into signing it.
  99. It is at this point that the Lucas principle is particularly relevant. The father has acted deceitfully about those matters because he wants to stay in this country. I strongly suspect that this has influenced him in other ways in the course of these proceedings, although I make no findings on such speculations. The question is whether the fact that he has lied about some matters mean that he has lied about the main issue, and of course Lucas teaches us that we must not make that leap. His reason for lying about his immigration and his marriage is to achieve his aim of being allowed to stay in this country. To my mind, it carries little weight in my analysis of the circumstances of S's death.
  100. On the issues between the parents arising out of the events of 30th April, I accept the evidence of the mother, supported as it is in some instances by the grandmother. Thus, I accept that she did not go out shopping that day. I find that she had put S down on the changing mat on other occasions. I also find that she did not say to the father that S had been making the noise all day. It follows that the father has not been truthful about those matters and has embellished his account of what happened that evening. I have considered whether this is material evidence that he was responsible for S's collapse. Again, Lucas is relevant. It is equally possible that he is anxious to pin the blame on the mother to avoid a finding that he was the perpetrator or in the pool of perpetrators. The case advanced on his behalf was largely focussed in that direction.

  102. The courts have repeatedly emphasised that all the evidence in these cases needs to be considered in the light of all the other evidence. Thus the medical evidence is not considered in isolation. It is considered alongside the rest of the evidence. Only the judge can do this.
  103. It is accepted by Mr. Fuller on behalf of the local authority that, other than matters arising from post mortem examination, there have never been any concerns about the care offered to S by any of the adults in this family. It is also accepted that (in spite of their differences with regard to other matters) neither the mother nor the maternal grandmother have expressed concerns about the father's care of Sophie, nor he about theirs. On behalf of the guardian, Mr. Roberts submits that the evidence is of a family who were all grateful for the arrival of their child, and all of whom loved and cared for her in every way they could, and that the court is entitled to form a view, from the way in which each of the lay witnesses gave evidence and spoke of S and of A, of the love and devotion that they respectively felt towards the children.
  104. In these circumstances, and bearing in mind the principle in Lucas, the local authority does not contend that the lies told by one or both parents suffice to tip the balance of probabilities in favour of a perpetrator finding. It is contended, however, that there is such a level of mistrust and suspicion that both parents must have been under a considerable degree of stress over and above that which must inevitably have been present because of their baby's medical condition and extremely negative prognosis. Mr Fuller submits that this may be a relevant factor when considering whether their evidence and their circumstances in April 2012 are such as to militate against the weight of the medical evidence and push the court towards "unknown cause."
  105. The local authority contends that the medical evidence, taken in the context of the whole picture, leads inexorably to the conclusion that S's injuries were inflicted culpably by one of the parents. I disagree. Certainly, it is possible that they were inflicted culpably. But the factor of magnetic importance in this case is that S was an extraordinarily vulnerable and fragile child with a combination of genetic disorders previously unknown to medical science, a tiny child with a malformed brain who could have died at any minute. All the doctors couched their opinions in varying degrees of caution. Dr. Jeffrey called the case a conundrum. This is a case in which the unknown cause looms large in the court's assessment.
  106. Plainly the injuries did not happen spontaneously. Something must have happened to cause them. But finding as I do that she sustained her first set of multiple rib fractures in hospital, when she was surrounded by medical and nursing staff, I conclude that it is wholly implausible that those fractures were inflicted culpably by one of her parents or for that matter by anyone else. And if that is so of the first set of fractures, there is no reason to think the subsequent fractures were sustained in a different way. Although there was no evidence of bone fragility detected either radiologically or histopathologically, the evidence overall leads me to conclude that she may well have been vulnerable to fracture in ordinary handling because of her insufficiently understood genetic condition. If that is true of the fractures, it may also be true of the intracranial bleeding.
  107. Of all the injuries it is the scalp bruising paradoxically the least serious that has raised the greatest concern in my mind. That suggests a blow to the head. There is the possibility that it might have been a vestigial consequence of the electric nodules inserted in her head while she was in hospital. The preponderance of expert opinion, however, was that this was unlikely.
  108. Overall, however, I accept Mr Ekaney's principal contention, skilfully developed throughout painstaking cross-examination of the medical witnesses, that S's extremely complex and poorly understood medical history may have made her vulnerable to injury, collapse and sudden death even on normal handling.
  109. Ultimately, my decision turns on probabilities and improbabilities. It would normally be thought extremely improbable that a child could sustain injuries of different ages of a type commonly associated with trauma in circumstances that were anything other than non-accidental. In this case, however, that calculation is rendered much more uncertain by her pre-existing medical conditions very small size, brain malformation, and unique genetic abnormalities. Furthermore, having seen and heard these parents, I consider it inherently improbable that either of them could inflict injuries on this little baby that each of them adored, let alone systematically on at least four occasions. Although it is not impossible that such a parent could have inflicted injuries in a momentary loss of control, it would in my view be surprising if that is what happened here. There were stresses within this family, and such stresses may lead to a momentary loss of control. In this case, however, I think it unlikely that this happened on at least four occasions, or at all. In any event, as I have already indicated, I find the mother and grandmother to be truthful and honest witnesses and I accept their evidence. As for the father, although I do find that he has lied about some matters, I do not consider that those lies lead to any conclusion that he has lied about the circumstances in which S died.
  110. In all the circumstances, I conclude that the local authority has not proved on a balance of probabilities that S's injuries were inflicted non-accidentally. This finding and judgment will form the basis of future decisions about the future of A. The first consequential decision is that the threshold criteria for making an order under s.31 of the Children Act 1989 have not been satisfied. The local authority's application is therefore dismissed.

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