IMPORTANT NOTICE
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 child[ren] and members of their [or his/her] 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.

Case No.  VA13C00053
IN THE LEEDS COUNTY COURT
The Courthouse
1 Oxford Row
Leeds
LS1 3BG

Date: Monday, 30th September 2013

Before:

HER HONOUR JUDGE HILLIER
______________________

In the matter of:

Re: B (A Child)

______________________
 Transcribed from the Official Tape Recording by
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______________________

Counsel for the Local Authority:	MISS MASON

Counsel for the Mother:	MR MAXWELL-STEWART

Solicitor for the Father:	MRS TAYLOR

Counsel for the Guardian:	MR GEORGE
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JUDGMENT
1.	THE JUDGE: I am concerned with a child, B, who was born on 13th November 2012, so he is 10 months old.  By an application dated 10th April 2013, Wakefield Council applied for a care order in respect of B.  
Representation  
2.	Wakefield City Council was represented by Counsel, Miss Mason.  B’s mother, Miss C was represented by Mr Maxwell-Stewart.  Mrs Taylor represented D, B’s father.  D did not attend the hearing and was not implicated in the causing of the alleged injuries in any event.  B was represented by Mr George, taking his instructions from the children’s guardian, Mrs Curtis.  
Forensic Background
3.	I need to just say a little about forensic background.  The matter was listed for final hearing commencing 23rd September with a time estimate of five days.  It was clearly not possible for the matter to be concluded at that time because the care plan was one of adoption and the maternal grandfather, who cares for another of the mother’s children and has done so without question or concern for over a year, has put himself forward as a potential permanent carer for B.  I am surprised that the Local Authority did not approach him earlier.
4.	The medical evidence in relation to B’s alleged injuries was scheduled to be heard on 24th September, with two consultants having been booked to attend to give evidence for some time.  I had previously indicated that I did not view this case as necessitating a split hearing, especially since it is not a single-issue case, as is demonstrated by the threshold document, but I took the pragmatic approach to treat the hearing as a fact finding into the injuries alone and to use the court time and the medical experts as productively as possible.  It is therefore important to record that this is not a threshold hearing; it is a hearing to determine the causation of haematomas which developed on B’s head and were observed by professionals at A and E in the early hours of 13th March 2013.  This judgment is therefore confined to paragraph 1 of the threshold document.
Brief factual background  
5.	On Sunday 10th March 2013, B was presented at hospital shortly after lunchtime.  His mother said that she had fallen over whilst carrying him.  He was checked over, nothing was found to be of any concern and he was released from hospital.  On 11th March, B had his immunisations at the GP surgery.  He was seen by a GP and was given a check because he was reported to have a wheezy chest.  His fontanelle was examined and recorded as normal.  On 12th March, B was at nursery for at least the majority of the afternoon from shortly after lunch until just about six o’clock in the evening and the history given by his mother is that he then went to the teenage pregnancy project with her, where he remained. 
6.	On 13th March, shortly after midnight, B was taken to A and E with bilateral haematomas or swellings over his temples.  He had a CT scan and X-rays and blood tests.  He had no bleeding to the brain and no fractures.  In fact there were no external manifestations of injury to his head at all, no bruising, no lesions, no other marks.  I have seen photographs of his head and they are quite extraordinary.  They show two apparent ‘lumps’ on his temples, absolutely symmetrical, but nothing else.  B’s platelet count was very, very low and he was transferred to Leeds General Infirmary with a view to further assessment.  In fact that assessment was for a potential bone aspirate which is a test for leukaemia, although it is falsely recorded in various documents that he was being tested for a bone marrow transplant.  B’s platelet count recovered, thank goodness, and there was no need for any further intervention.  The medical evidence about the platelet count was that B had developed immune thrombocytopenia, ITP, so Dr Grainger, who is the acknowledged ITP expert in the UK, was instructed to provide an opinion.  On 19th March, B was voluntarily accommodated at the time when he would be due for discharge from hospital.  The Local Authority applied for a care order on 10th April.  
7.	In a statement dated the 30th April, Miss C said that she had been dishonest about the circumstances of presentation on 10th March.  She said that actually she had been carrying B in a bouncer and that she had lied because she was very concerned that he would be removed from her care.  
The Evidence  
8.	The written evidence is contained in a bundle supplied to all parties by the Local Authority.  In addition to the bundle, I admitted a third statement filed by Miss C on the third day of the hearing, after she had heard the oral medical evidence.  I also admitted several photographs supplied by the Local Authority of the baby bouncer, B’s cot and a bath.  I did not confine myself to the evidence about the alleged injuries.  I have considered all the surrounding information in weighing up the evidence as a whole.  I heard the oral evidence of Dr Peter Morrell and Dr John Grainger and of Miss C, the mother.  

The expert evidence
9.	Dr Morrell produced an initial report and an addendum to that report and had attended the experts’ meeting.  He was a consultant paediatrician at the James Cook University Hospital at Middlesbrough, and has recently retired.  His qualifications are MBCHB, FRCP, FRCPCH and he has been a consultant paediatrician at Middlesbrough since 1985. He has been working as a locum consultant paediatrician for South Tees Hospital until the end of August. He is a paediatrician with training in neonatology and special interests in childhood disabilities and child protection.  As a consultant paediatrician he appears regularly in these courts.  He has a particular expertise and experience in childhood neuro-disabilities and has run development assessment clinics at the James Cook University Hospital for many years.
10.	Dr Morrell’s opinion was that the haematomas were either caused in an accident which had not been disclosed or were caused by non-accidental injury.  In respect of the disclosed incident of 10th March he said that he was concerned that there was no description of trauma to both sides of the head on that occasion.  He said that he had considered a subgaleal haematoma causing the swellings, but he felt that the swellings on B’s head were discrete and appeared to be separate.  He said he had been struck by Dr Shenton’s description at the experts meeting of two discrete swellings, although he agreed with Mr Maxwell-Stewart that the person feeling the swellings would need to be trained and “know what they were looking for”.  He also agreed that Dr Shenton’s description was given some months after the actual examination, but he felt that the Pinderfields hospital staff had held the same view, e.g. two swellings.  He thought that it was clinically unlikely that an impact on 10th March would result 48 hours later in swelling, even with a subgaleal haematoma.
11.	Dr Morrell accepted that the swellings were very unusual, particularly their symmetry.  He said that there were no lesions, abrasions, scratches or external bruising – all the types of marks which might indicate how a non-accidental injury or inflicted injury had been caused. 
12.	Dr Morrell regularly gives evidence in these cases.  He is very well aware of the sorts of injuries which are common indicators of non-accidental injury.  He is someone who  is fully aware of the type of injuries which would indicate clinically that non-accidental injury had been caused, but he agreed there were none.  Dr Morrell has some experience of children with ITP, but not babies of this age, and he said that he had not seen subgaleal haematomas where a child had ITP.  
13.	I have considered his report in some detail.  It is quite an extensive document.  It records B’s presentation thus: “When B presented to hospital on 13th March, he was noted to have a low platelet count on two occasions and also a low neutrophil white blood cell count.  B was referred to the haematology department at Leeds General Infirmary where it was shown that the blood count had improved and the opinion of Dr Shenton, the paediatric haematologist, was that B had no underlying haematological disorder and the transient low platelet count and low neutrophil count were most likely to be the result of transient viral infection.”  In fact, that turned out not to be the case because when Dr Grainger’s opinion was received it was agreed by everyone that the most likely cause of the ITP was the vaccination on the 11th. 
14.	Dr Morrell was asked for his opinion as to the likely explanation for aetiology of any noted injuries; factors and mechanism which were likely to explain the same; and whether any noted injury was more or less likely to be non-accidental.  He said, “Clearly the most significant abnormalities are the bilateral swellings to the head.”  He noted in his report that B also had some bruising that may or may not have had significance to his back and to his right inside knee.  I stress at this stage that it was clear from his oral evidence, and from the evidence overall, there were no other bruises for me to be concerned with which could relate to a non accidental injury and that everyone is agreed that the noted bruise to B’s leg was caused when he had his vaccination. 
15.	Dr Morrell stated “These bilateral swellings are most unusual and would be unusual even in the presence of a well-described injury”.
16.	The radiology report describes the swellings as “moderate bilateral frontal scalp haematomas”. It does not describe bleeding below the periosteum or covering of the skull, and Dr Morrell reported that “a subgaleal haematoma, bleeding below the aponeurosis of the skull, may not be excluded”.  
17.	Dr Morrell brought a paper to court which concerned a 12-year-old girl who had no known head trauma or non-accidental injury but who had developed a subgaleal haematoma with no impact.  She had no skin discolouration and the swelling had occurred over a period of four days.  Dr Morrell said that since there were no other indications of non-accidental injury, and that he had not seen such swellings before, he had looked to see if they were described in papers on non-accidental injury and they were not.  However, he was concerned that B was only 5 months old as he did not feel that B could have inflicted the injury himself.  The swelling was obvious at presentation on 13th March but not earlier in the day at nursery, and Dr Morrell’s opinion was that it was unlikely that there would have been an acceleration of the swelling that evening.  
18.	In his opinion, therefore, there was either a single significant impact or two impacts with similar force.  He felt that a carer would know that the injury had occurred but deferred to Dr Grainger on the level of force required with a child who had ITP.  He thought it likely that B would be startled at the time of the injury and that there would have some pain unless the cause was spontaneous in which case “there would be no pain or trauma”.  He thought that the tissue swelling would develop over some hours but that the ITP would speed the process up.  He said, “I think that it would take some hours; it could be a longer period.  I think it is an unknown.  I would be speculating”.
19.	As a result of this highly unusual condition Dr John Grainger was instructed to prepare a report. He is a consultant paediatric haematologist with a special interest in childhood leukaemia and bleeding disorders.  He trained at Birmingham Children’s Hospital and Sheffield Children’s Hospital and then went on to complete training in haematology based in the Manchester region.  He became a research fellow at Manchester Children’s Hospital, investigating transplant models and he participated in the consultant haematology rota during that time.  He was then appointed as consultant paediatric haematologist at Royal Manchester Children’s Hospital in June 2004.  He is the UK expert in ITP, arising from his interest in childhood leukaemia and bleeding disorders and he is the lead for leukaemia services. He developed a particular sub-speciality interest in ITP.  He is the medical advisor for the ITP Support Association and was the paediatric lead author on the International Consensus Recommendations for Management for ITP, setting up the UK childhood ITP Registry in 2007. He is the chief investigator for two clinical trials in ITP.
20.	Dr Grainger explained in his report that the most marked feature of B’s blood test was the drop in platelet levels.  A normal platelet count is 150 to 550 and B demonstrated a drop to 19; that is 19 from a norm of 150 to 550.  He said that the drop in neutrophil count was relatively mild and that the blood counts subsequently recovered over a few days.  This transient drop, a drop that just occurs for a short time, can only be explained by a condition referred to as ITP.  
Prevalence of ITP
21.	About four in every 100,000 children develop ITP each year.  It can be triggered due to the immune system mistaking platelets for foreign bodies and attacking them, and that is why sometimes it happens after a virus that the immune system goes on to think that the platelets are viral material and attacks the platelets.  Dr Grainger explained that the majority of children with ITP come to hospital with a pinprick rash, petechiae, bruising or bleeding. 
22.	There are occasions where ITP children have bruising or bleeding. Dr Grainger said that bruising most commonly follows “minor knocks” and is known as “easy bruising”, but it can also occur spontaneously without trauma.  Apart from the bruising or bleeding, ITP children are otherwise well.  The common sites of spontaneous bleeding include the gums and nose.  One is most likely to see spontaneous bruising or bleeding where the platelet count is below 20.  Luckily about half the cases Dr Grainger sees recover within six weeks, although ten percent of cases can take over a year to resolve.  
23.	The initial report of the National Registry for ITP published in 2011 was based on 225 cases.  Eight percent of those cases reported were under one year of age and six of those followed on from a vaccination and all of the infants got better after six months.  Other causes of low platelet count, such as leukaemia, can be excluded because there is a spontaneous recovery of blood counts in an otherwise well child.  This informed Dr Grainger’s opinion as to why in this case, unlike Dr Shenton, who had thought that the ITP might have been caused by a virus, ITP was caused by the vaccination. 
24.	About 25 percent of the national cases are referred to Dr Grainger, especially in the North West, where the medical profession are alert to his specialism.  He said there is no specific gene associated with ITP and there is no non-invasive test. He has several years’ experience of ITP cases and he was modest enough to say, “We are still learning”.  Dr Grainger reported and attended the experts’ meeting.  He thought that the ITP was probably caused by the vaccinations because in most children under one that is the trigger and, in this case, B had been vaccinated on 11th March.  He said that with ITP the degree of force needed with an impact to cause bruising or swelling is less than, and the degree of bruising or swelling much larger than, in a non-ITP child.  In his experience swelling would be hastened by the ITP and would most likely occur within 6 to 24 hours of an impact. This had led him to conclude that the fall described by the mother when B was taken to the hospital on 10th March was not the cause of the injury.  He said that he had tried to make a link.  Experts usually see if they can make a link between something that is described and something that is observed because that is very helpful.  He had tried to make the link with the described fall but said “It was almost impossible”.  
25.	Dr Grainger told me that spontaneous bruising is seen in ITP children with platelet counts of less than 20. He felt that in B’s case the haematomas might have required a more substantial bump or a squeeze against something firm.  He said that the force required would not necessarily make the child cry but might startle him and it would be more than normal handling.  Given B’s age, he thought that the haematomas were unlikely to be self-inflicted. 
26.	 On the day of presentation at A and E B had not been noted to have any petechiae or other bruising and so Dr Grainger had come to the view that the swellings were either caused by non-accidental injury or by accident as yet unidentified.  He concluded: ‘From the evidence I think it is likely to be an accident because of the very unusual swelling, the ITP and the timing of the swelling”.  He felt that to cause the bilateral swelling in a non-accidental injury scenario, “would be relatively hard”, and he ruled the fall out only on the question of timing, unless the swelling was a subgaleal swelling.  
27.	Dr Grainger did not think that on his observations of the photographs, and the observations of Dr Shenton, that the swelling was subgaleal but he had experience of a child with an unprovoked subgaleal haemorrhage.  Dr Grainger agreed with counsel that the photo showed an unusual presentation which he had not seen before.  He thought that “unknown aetiology”, which was put to him by Mr Maxwell-Stewart, was a possibility but would be exceedingly unusual, especially since he thought that there were two swellings which militated against a subgaleal haematoma.  In relation to the question of force, Dr Grainger was clear that quantifying force in these cases is extremely difficult, if not impossible.  
Miss C’s evidence
28.	I also heard the oral evidence of the mother, Miss C.  She was cross-examined by the Local Authority on the basis that she had been untruthful, and she said to me that she knew how important it was to be honest with me in giving her evidence when we were talking about what had happened to B.  She said she knew that she would have to tell if someone had hurt him, and she made it clear that she was the one who had care of Bon the evening before he was taken to hospital. Save for B being at the nursery in the afternoon, she had been his sole carer throughout the relevant period.  She does not seek to blame anyone else for the alleged injuries and she is also very clear that she had not let anyone else look after him.  
29.	She described to me the teenage pregnancy unit where she was living at the time.  It is a place where she had a bedroom that she had a key to that she could go and be alone. She had to leave the room if she went to the bathroom, which is shared, and also if she wanted to go down to make any substantial meals.  There was a kitchen downstairs.  She has water in her kitchen area, which contains a sink, a microwave and a fridge.
30.	Miss C also identified some photographs which the Local Authority had taken of the baby bouncer.  It was very helpful to see a photograph of it because there are so many different sorts of baby bouncer and I really cannot stress enough to the advocates the need in these cases to include photographs of this type in the bundle as a matter of course. The baby bouncer in this case is a sort of the V-shaped cradle bouncer, where you place the baby in a padded seating area and you can gently rock them rather than the harness type of bouncer where you are holding them up.  
31.	Miss C said no-one had told her not to carry B in the bouncer, but in fact she generally did not carry B in it.  She said that, looking back, the reason why she did not was because she knew B could have slipped or rolled out.  She would strap B in when the bouncer was down on the floor and when he had been fed or if he had had a bath.  Miss Mason asked her  “Why not strap him in on that occasion when you were going to move him - because that was the dangerous thing?”  Miss C was unable to give an explanation.
32.	Miss C gave evidence that she had said at the hospital that B had been in her arms and she had fallen because she knew that she should not have carried him in the bouncer without the straps done up.  She said that while she was in the hospital she knew that the Local Authority would become involved if she said that he had fallen from the bouncer.  She had not “pre-meditated” to say this but, when she was asked what happened, she said that she had fallen although she knew that was a lie. She said that she knew he should have been strapped in but had lied to avoid Social Services’ further involvement in her life.  
33.	Miss C further explained that on the 11th she had taken B to the doctor’s.  He had been a bit ‘wheezy’ or a bit ‘chesty’, and she said that therefore he had not just had the immunisation but she had also taken him to see the doctor and he had had a full examination at that time. The doctor had said everything was normal and B had been measured. It is common ground that the doctor examined his fontanelle at that stage and recorded that it was normal.
34.	 Miss C told me that in the afternoon she used to go to well woman group which is fairly close to the teenage parent project.  On the morning of the 12th she went out in the morning and did some shopping and then she took B to nursery.  She then went to see S  in the afternoon from about 14.30 till 18.00.  She misjudged the time and she was a bit late getting back to the nursery. She had then taken B back to the teenage pregnancy project where she talked with the staff and had a cup of tea, had gone to her room, filled the bath and then given B a bath, fed him and put him in the bouncer.  She thought that was about ten past eight and she said that she changed him about at ten or eleven at night and put him back in the bouncer and not noticed anything at that stage that was untoward. 
35.	The reason Miss C had put B in the bouncer rather than putting him in the cot, and she was very clear that she had not put him in the cot, was that he generally did not settle straightaway when she put him in the cot. Her normal routine was to cuddle him when she was going to bed and then she would, once he had settled, put him in the cot at that stage.  During the rest of the evening she would place him in the bouncer.  
36.	Miss C said, “People have asked me about what happened”.  She said he “never had a mark on him” and she was baffled.  She said that she did not ask for any advice about anything because nothing did happen.  She did not think that anything that she had done or had happened to B would have caused the bumps that she saw; she just does not know.  After she had heard Dr Grainger’s evidence, particularly the cross-examination about the degree of force, Miss C said she had started to think about what else could have happened and she made a third statement describing giving B a bath on the evening of the 12th March to see if that might have caused the injuries.  She also gave evidence about B head-butting her; she said it is something that he used to if she was holding him, and he still does.  She would sit watching TV holding him and she would be distracted on occasion. On the evening in question she had been distracted and his head came forward and connected with her face.  She said he did this nearly every day and he has continued to do it.  It hurts her a lot more now because his head is heavier and on 12th March it had hurt her because her jaw had shut quite quickly and painfully. She said that there was no reaction from B and she just carried on watching TV.  
37.	Miss C looked at photographs of a baby bath and agreed that it was the bath that she had used at the teenage pregnancy project.  It is a normal baby bath, it has two ends and at one end, usually used as the ‘foot’ end there is a little shelf.  Miss C explained that she did not use the baby bath that way around because, for her, it was easier to have the shampoo on the shelf nearer his head because of the way she washed him. She said that on that evening he had gone a bit stiff in the bath and had stretched, kicked out against the bottom of the bath and bumped his head against the shelf. She said he did not react, he was not startled, and in effect she thought nothing had happened.  She said, “I have not seen anything that caused him to startle.  I was with him all the time except when I went to the toilet.  He was either strapped in or I was holding him.  I did not see any marks.  He did not cry.  It is a puzzle”. She also stated: “I probably should be aware of what happened but, as far as I know, I don’t know”.  
38.	Miss C was asked questions about stormy relationships.  She said that in respect of a relation with J, a sexual relationship she had had when she was only 13, that they had pushed and shoved each other. She said that sometimes she started this, but that she now does not lose her temper quickly. She said that she had never lost her temper with B and that she had not even shouted at him. 
39.	Ms B accepted that she was with S on the afternoon of 12th March. She was very very clear that she would not ‘cover’ for S and that he did not have any care of B at all on that day.  She explained that S came to the hospital that evening but that he had not been with her when she had gone there. When the ‘bumps’ had appeared she had gone to a friend in the teenage pregnancy project and that friend had accompanied her to the hospital. It was just after midnight and so when the friend had gone back she had been left at hospital on her own. She said that is when she got in touch with S . She said this explained why he had gone to the hospital, namely because she did not want to be there on her own.  
40.	Miss c was asked about whether there was any accident at all that she could think of that would cause the bumps, and she said, “Well, the only thing that I can think of is the fall on the 10th..” She said that she thought that that must be the cause.  She told me that she does not understand the medical evidence. She said, “I would have come forward straightaway if there was anything at all.  I have not been rough with him.  I have not banged his head.  I would have remembered if I had made him cry but I haven’t.”  
41.	Of her relationship with S , she said that she was aware that he was a man that the Local Authority did not want B to have contact with but she understood the position to be that she could have contact with S if B was not present. She said all they had done that afternoon was that watch some DVDs and nothing more.  
42.	In relation to a description of B, Miss B described him as a placid baby.  I think it is agreed he is a generally placid little boy.  He is not a ‘screamy’ baby.  He is not a difficult baby.  He is generally a ‘smiley’ baby and he is clearly a delight to her, even though she only sees him in contact now.  The other thing that I should now record about him, which has not been introduced into oral evidence was the fact that the children’s guardian spoke to his foster carer and apparently B still does bruise easily and it is something that is going to be looked into when he has a further paediatric assessment later this year.
The issue
43.	The Local Authority’s written opening, prepared by Miss Mason, sought a finding of fact that the alleged injuries to B’s head were caused non-accidentally.  The sub-issues which arise from that are: the nature of the swellings, the question of whether the swelling or haematoma is subgaleal or comprised two separate haematomas and the causation of the swellings.  The potential explanations explored during the course of the hearing were (i) a spontaneous occurrence related to the underlying condition; (ii) an accident or incident disclosed by the mother; (iii) an accident not disclosed by the mother; or (iv) non-accidental inflicted injuries.   
The Law  
44.	From the outset of my managing this case, I have reminded the Local Authority of the obligation on it to prove its case.  I was particularly concerned that the allegation of non-accidental injury seemed to be based on the premise that the mother could not explain how the haematomas had come about.  I have returned to the theme during the case and asked for submissions on this point, primarily to direct the parties, especially the Local Authority, to address their minds to it.  Mr Maxwell-Stewart addressed the point in full in his written submissions.  I am grateful to him.  They are excellent.  
45.	He referred me to the case of Re AA (A Child) [2012] EWHC 2647, where Mr Justice Baker gave a very helpful summary of the law.  He started off by referring to the words of Baroness Hale of Richmond in Re: B (Children) [2008] UKHL 35, where she said: 
“The likelihood of harm is the prediction from existing facts or from a multitude of such facts about what had happened in the past, about the characters and personalities of the people involved and the things which they have said or done,”
46.	Baker J went on to address the burden and standard of proof.  The burden of proof lies with the Local Authority.  It is the Local Authority that brings these proceedings and identifies the findings that they invite the court to make, although of course it is open to me to investigate or make other findings if that is appropriate.  The burden of proving the allegations rests with the Local Authority and to that extent the fact finding component of care proceedings remains essentially adversarial.  The court has an important discretion as to the ambit of the inquiry, and in this era of greater judicial case management is under a greater obligation to ensure that only the relevant issues are litigated, but that does not alter the basic principle that the burden of proof rests with the Local Authority.  
47.	The House of Lords in Re B (Children) [2008] UKHL 35, clearly established that the standard of proof is the balance of probabilities: “If the Local Authority proves on the balance of probabilities that the mother killed J and or B this court will treat that fact as established and all future decisions concerning A’s future will be based on that fact.  Equally, if the Local Authority fails to prove that J and or B were killed by their mother, the court will disregard the allegation completely.”  And as Lord Hoffman observed : 
“If a legal rule requires the facts to be proved, a judge must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are nought and one.”  
48.	Baroness Hale expressed the principle at paragraph 32: 
“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place.  If he finds it more likely than not that it did not take place, then it is treated as not having taken place.  He is not allowed to sit on the fence.  He has to find for one side or the other.  Sometimes the burden of proof will come to his rescue.  The party with the burden of showing that something took place will not have satisfied him that it did, but generally speaking, a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof.” 
The submissions
Subgaleal haematoma
49.	The advocates all produced written submissions upon which they expanded orally.  In her submissions, Miss Mason said that in so far as I was able to determine whether the swelling or haematoma was subgaleal, she invited me to find that it was not.  She rested that submission on the basis that the experts said that a subgaleal haemorrhage was less likely, and Dr Shenton had referred to the tissue between the swellings being normal. Dr Morrell and Dr Grainger had also said that that in their view the swellings were less likely to arise from a subgaleal haemorrhage.  
50.	Mr Maxwell-Stewart said that hindsight is a wonderful thing and he reminded me that Dr Shenton had attended the experts meeting some months after the initial examination and had expressed a view from looking at the photographs.  The photographs are extraordinary.  From the front they show a swollen head but on the side views show, what would appear to be two swellings. Mr Maxwell- Stewart urged me to take into account the fact that this could “very well be a subgaleal haematoma”. 
Spontaneous occurrence
51.	In relation to the four possibilities, Miss Mason submitted that the swellings were very unlikely to be a spontaneous occurrence.  She submitted that effectively this possibility was discounted by the experts and that I should rule it out. Mr Maxwell-Stewart submitted that an expert saying that something is extremely unlikely or almost impossible does not actually rule it out.  
Known fall on 10 March/ other explanations
52.	On the question of whether the swellings were caused by a known or disclosed accident, namely what had happened on 10th March, Miss Mason said that I should not make such a finding because both experts had agreed and it is recorded in the schedule of agreements and disagreements that the incident on 10th March was not likely to have caused the swellings on 13th March on the balance of probabilities and, in particular, she stressed the fact that ITP might accelerate the visible signs of injury rather than delay them.  She also asked me to discount the ‘bath incident’ as a possible cause on the basis that Dr Grainger in his oral evidence had said he did not think it was likely to have caused the injuries, and Dr Morrell had confirmed this as his view subsequently in writing.
53.	Miss Mason asked me to discount the described ‘head-butt’ as a cause of the swellings.  Dr Grainger said that he did not think that that was the likely cause of them and he thought that there might have been a greater impact required.  Miss Mason developed her submissions and said that once one has excluded a spontaneous injury or an accident and the fall on the 10th, only an undisclosed accident and non-accidental injury are left.  She submitted that once those have been excluded “… the court can and should find that the cause is something other than spontaneous or an incident already described.  B was 4 months old at the time of the injuries; he did not have the strength to inflict them himself.  The mother claims to have been in the same room as B throughout the relevant time and claims not to have left B unsupervised with any other person.  The court will have to determine whether these facts are accepted or not.” 
54.	Miss Mason went on to submit that on the Local Authority case Miss C knows how B came to be injured or at least should know. She said that if the cause was an accident “one must wonder why she cannot tell the court about it.  This is especially so when she is given the history of B falling from the bouncer.  If the court accepts that the most likely cause is a dual-site impact or two impacts, then the incident is likely to be unusual and potentially there have been impacts, each of which would be significant.”  Miss Mason concluded that I can and should “…draw a reasonable inference from mother’s silence about the occurrences without reversing the burden of the proof.” 
55.	Mr Maxwell-Stewart also went through the four possible explanations for B’s haematomas.  Of non-accidental injury he says that that can and should be immediately discounted on the medical evidence. Firstly because Dr Grainger had said that the cause was more likely to accidental than non-accidental, and secondly because Dr Morrell had said that there were no other clinical indicators for non-accidental injury.  
56.	Mr Maxwell-Stewart submitted that I should reject Dr Grainger’s contention that the most likely explanation is that the swellings were caused by an accident known to Miss C but one she is not disclosing unless I find her to be dishonest.  He described Miss C’s evidence as ‘emphatic’ and ‘impressive’ particularly because during cross-examination by the Local Authority and the guardian she declined numerous opportunities to embellish or lie. He cited as an example, the fact that the experts talked about a possible injury in the cot, we even had a photograph of the cot bars, but Miss C was clear and consistent that B was not in the cot that evening.  Further, when it was put to her that B would have been startled or cried, she consistently maintained that there was no occurrence, even with the bath incident and the head-butt incident, or a startle or a cry.
57.	Mr Maxwell-Stewart continued by stating that although Ms C did not fully understand the medical evidence she produced a clear, calm account of each possibility for the court to consider.  He said that I should look at all the circumstances of the case when I am considering whether in fact she knows what has happened and has not told me.  Crucially, he said, Miss C sought the opinion of two other people including a member of staff late on 12th March, as soon as she saw the swellings. She sought prompt and appropriate medical attention on three occasions, on 10th March after the fall, on 11th of March for the immunisations and on 12th March when she saw the swellings.  
58.	In relation to known accidents and unknown aetiology, Mr Maxwell-Stewart said that Miss C did not positively assert that either the bath or the head-butt were causes of the swellings, all she was saying that they worthy of exploration and he urged me not to criticise her for putting them forward.  
59.	Mr Maxwell-Stewart said that the 10th March fall and the ITP combination had been described by Dr Grainger as a ‘remarkable coincidence’, and reminded me that but for the timing, the pre-vaccinations and the known ITP, Dr Grainger would have concluded that that was the cause.  He submitted that remarkable coincidences like that cannot be discounted as being causative; in a few years of further medical research it might be perfectly well understood as a cause.   Mr Maxwell Stewart stressed the fact that neither expert had seen any similar haematomas or a child present in the way that B did.  His injuries are extremely unusual and the only child that these experts had seen like this; further none of the research papers had reported similar swellings.  He submitted that we do not know or fully understand how the onset of ITP interacts with an existing injury.
Level of force
60.	Mr Maxwell-Stewart also submitted that it is very important to weigh into the balance that it is impossible to be definitive about the level of force, if any, which is required to produce such swellings. He also said that Dr Morrell’s evidence that the child would have cried or screamed was undermined by Dr Grainger’s evidence. In his submission you need to know the level of force required before you can say whether the child would have cried or screamed or been startled. 
One or two impacts
61.	 On the question of whether there were one or two impacts, Dr Grainger has said during the experts’ meeting that he could not postulate whether there had been one impact or two, and Dr Morrell said two impacts were more likely but did not exclude one impact. 
62.	In paragraph 12 of his closing submissions, Mr Maxwell-Stewart says: 
“We may simply never know what caused the haematomas.  Dr Grainger may never see a case like it again.  It is the arrogance of medicine to assume that it must have been caused in such a way that it was significant enough for mother to have known about, yet is failing to disclose.”  
63.	He did not of course assert in any way that these experts were arrogant.
64.	Mr Maxwell-Stewart concluded his submissions with a quote from Mr Justice Hedley in the case of Re: R (Care proceedings: Causation) [2011] EWHC 1715:
“In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure.  It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism.  Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”
The Children’s Guardian’s position
65.	Mr George provided written submissions on the behalf of the guardian.  He said that credibility of mother’s account or otherwise was a matter for me and that I would weigh the factors in respect of possible non-accidental injury and determine the likelihood or otherwise of those.  He said: 
“The children’s guardian will not urge the court to make a finding of non-accidental injury because the children’s guardian was not satisfied on the totality of the evidence, that it pointed sufficiently in that direction.”
66.	The Children’s Guardian considered it more likely that causation was accidental and known to mother but not disclosed and Mr George exhorted me to consider mother’s inexperience and propensity towards lack of honesty and frankness and the other potential factors in the circumstances “…where the court currently does not have a clear account of how B sustained the injuries.”
67.	 Some of the factors which Mr George outlined were: the background of child protection concerns, domestic violence in the mother’s relationships, recurring dishonesty, and association with risky individuals. He said that expert evidence identified causation of the injuries as probable inflicted injuries within the few hours leading to admission to hospital. He concluded that since the cause was not ‘normal handling’ and the experts had said that there would be a reaction of B that a parent would be aware of a finding of undisclosed accident should be made.  
Analysis and decision
68.	I have reminded myself that findings of fact in these types of cases must be based on evidence and I should be careful to avoid speculation, particularly in situations where there is a gap in the evidence.  I have taken into account all the evidence and furthermore considered each piece of evidence in the context of all the other evidence.  As Dame Elizabeth Butler-Sloss observed in Re: T [2004] EWCA Civ 558
“Evidence cannot be evaluated and assessed in separate compartments.  A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard or not.”
69.	I have carefully weighed all the evidence into the balance in reaching my decision because, as Mr Justice Ryder observed in A County Council v A Mother and Others in 2005:
“A factual decision must be based on all available materials, be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”
70.	I was also struck by the views of Mr Justice Charles that, whilst appropriate attention must be paid to the opinion of medical experts, their opinions need to be considered in the context of all the circumstances because, at the end of the day, it is me that makes the final decision.  In A County Council and K, D and L [2005] EWHC 144, he said at paragraph 49:
“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 that either a) on the balance of probability an injury has a natural cause or it 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 of course is that in a case where the medical evidence is that there is nothing diagnostic of non-accidental injury of human agency and the clinical observation of the child, although consist it 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 in fact been a non-accidental injury or human agency as asserted and the threshold is established.”
71.	Judges were also recently given a very firm reminder by the President of the Family Division in Re B-S (Children] [2013] EWCA Civ 1146 in September that we should clearly show our reasoning and the factors we have taken into account.  
Analysis
History of lying 
72.	Miss C has a history of lying.  She lied initially when presenting B at the hospital on 10th March, saying she was carrying him and fell.  She lied then because she knew she should not have risked carrying him in his baby bouncer without strapping him in.  She lied to cover her tracks but did eventually tell the truth. She has also lied to Social Services on occasions about her relationships.  People lie for many reasons and the fact they have lied about one thing does not mean they have lied about another.  I listened carefully to her evidence. It was striking.  She presented as a young woman who said to me and who feels quite clearly she has nothing to lose.  I assessed her as candid, frank and willing to accept responsibility for her actions.  
73.	Miss Mason asked rhetorically:  “If there had been an accident, why would not mother just say?”  She posited that the obvious answers are that the mother was doing something dangerous or risky, that she inflicted the injury or she was not there when it happened.  I am satisfied that B was in his mother’s care from leaving nursery to the time when he was presented to the hospital.  In fact I am satisfied that he was in Miss C’s care from 10th March onwards, save for a period at the nursery on 12th.
74.	I find that Miss C was telling the truth about seeing S earlier in the day and that she was alone with B in her room at the teenage pregnancy project throughout the evening of the 12th.  There is no evidence that S or anyone else accessed the premises that night or had any contact with B.  
75.	Of course, if she put forward a lying explanation in order to exculpate herself then that would be another matter.  I am satisfied that she did not.  In addition to Mr Maxwell Stewart’s  list of possible times during evidence when she could have embellished or lied, I add my own observation. When I asked Miss C about the possibility of a bilateral grip to B’s head when he slipped in the bath, which potentially could have been an explanation for a symmetrical grip to his temples and might have been something to put to the doctors, she was very clear that that had not happened.  She is not stupid and if she was trying to exculpate herself she could so easily have agreed with me but she did not.  I think that the reason why she did not is because she was telling the truth; it may be that she has lied on many occasions but not, I think, in relation to her evidence  about B before me. 
76.	The Local Authority not only criticised Miss C for putting forward those potential explanations but also say she has failed to explain what occurred.  Miss Mason says I can draw a reasonable inference from her silence without reversing the burden of proof. I find that Miss C has done her best to explain what happened but cannot. I draw no inference from her inability to explain.
Background context
77.	I have of course taken into account the fact that mother has two older children, A and D, neither of whom live her.  In March 2012, A was found wandering alone at 5.30 in the morning.  Her mother failed to notice that she was missing for over an hour and a half.  The locks on mother’s home were seen to be non-functioning and there was no handle on the door.  At that time the children were placed with Mr J, maternal grandfather.  He was unable to care for both the children and A went to live with her father, R.  D remains with her grandfather and a residence order has been made in his favour.
78.	I have also reminded myself that this is not a single-issue case.  There are allegations that Miss C had associated with risky individuals, has prioritised her own needs above those of B and has lied to Social Services about B’s paternity.  She has also admitted a lack of care towards B on March 10th.
Conduct on 10 March 2013
79.	I am satisfied on the evidence that Miss C is now telling the truth about what happened on that day. She carried B in a baby bouncer without strapping him in, she knew that he should have been strapped in but was anxious to go for her lunch, she carried him through a door which hit her arm causing her to let go of one side of the bouncer and drop B from waist height. She accepts, and I find as a fact, that her actions were very dangerous and that she lied to the hospital about what had happened to avoid Social Services becoming further involved. I make it clear that the bouncer is suitable to place a child. It is not like a child’s car seat where you would have real concerns about a child being left in it for any length of time. The bouncer is much more open than that, although of course the downside is that you should not carry children in baby bouncers like this as the mother has candidly admitted.  
Aggressive behaviour
80.	The Local Authority and the children’s guardian submit that I should also take into account the fact that there are two recorded incidents of mother being aggressive towards former partners.  I do, but that must be against the context that the mother has no cautions or convictions for violence.  The earlier of the two instances was when she was only 13 and in a sexual relationship, and the latter occurred in the context of a later volatile teenage relationship.  There is no other evidence of her being a young woman who regularly or easily loses self-control, no allegations of temper loss or aggression at the teenage pregnancy project and above all no observations of aggressive conduct or rough handling of B.  My observations of her are of a young woman who still lacks maturity but who has obviously matured in recent times. She has not been observed to be aggressive to adults or to B and I have given little weight to her earlier conduct in at least one abusive relationship.
Relationship with B
81.	There are some ‘concerns’ about Miss C’s contact with B.  I do not think I have ever seen notes of contact when a child is in care where there are no concerns raised at any stage but the criticisms of Miss C are very, very minor in this case and there is certainly no mention of aggression or rough handling to the extent that would cause or be likely to cause fear for B.  
82.	Miss C presented B promptly for medical treatment and showed nothing but appropriate concern.
83.	In my analysis I find that Miss C loves her son very much and that shone through when she was talking about him.  The Local Authority and children’s guardian criticised her for raising the possibility of a bump in the baby bath or a head-butt from B to her chin as possible explanations at the last minute.  I do not.  I am satisfied that she really thought that the written medical evidence was about inflicted blows to B’s head and felt that when she heard the medical evidence, particularly Dr Grainger, that she should at least mention the other matters.  

Force required
84.	Dr Morrell deferred to Dr Grainger’s view that force is impossible to quantify but is less than would be required in a non-ITP child.  In my view it is therefore speculative to opine about the likely reaction of a child, especially since human beings vary so much. 
85.	Despite the invitation by the LA to do so, I do not exclude the possibility of the swelling representing subgaleal haematoma, and in this case, spontaneously occurring subgaleal haematoma even though such occurrences are very unusual. This is, after all, on my analysis an extremely unusual case. I therefore find that Miss C cannot explain what has happened because she has not done or seen anything which made her think that she had caused the injuries.  In particular, neither of the experts had ever seen a set of haematomas like this.  They had never seen a child present in the way that B did.  
Subgaleal haematoma and ITP
86.	We do not know or fully understand how the onset of ITP interacts with an existing injury and there is evidence before me, albeit an isolated, single case involving a 12-year-old girl, of spontaneous subgaleal haematoma, to which my attention was drawn by Dr Morrell.  Isolated though that case study seems to be, and even though they did not express it quite like this, it is accepted by the experts as establishing the possibility of the subgaleal haematoma with neither traumatic origin nor satisfactory medical explanation.  In the context of this case, that is highly significant.’
87.	Despite the evidence of Dr Grainger and Dr Morrell I do not find on the balance of probabilities that there were two separate swellings.  Dr Shenton said there were two in the experts’ meeting, but I find that a long period of time has elapsed, he was giving a retrospective view looking at the photographs and there would need to be more cogent evidence to satisfy me on the balance of probabilities that there were two separate insults to B’s head.  Dr Morrell made significant concessions about the ability of even an experienced doctor retrospectively to diagnose subgaleal haematomas – you have to know what you are looking for – and Dr Shenton did not know when he was examining B that the issue of one or two swellings would be important.  
88.	I have really given some considerable thought to the possibilities of swelling caused by spontaneous subgaleal haemorrhage or an accident of which mother was unaware.  I conclude that either of those is a real possibility.  If I were able, on the evidence, to choose between them, I would make a finding accordingly.  However in the context of this most unusual of cases, I am forced to conclude that I do not know what happened.  I do not feel, having reminded myself of what Mr Justice Charles said in Re R, that this is a forensic failure on my part.  It is, however, of the greatest significance in the context of consideration of the burden of proof and its discharge or not.
89.	The relevance of subgaleal haematoma is that it could explain a single-site impact being responsible for what appeared to be two swellings, as opposed to a dual-site impact or two impacts.  More importantly, it could explain a swelling without an impact at all because such occurrences have been known.  It does not have any particular relevance to the issue of force that is required in this case however there is some suggestion that a subgaleal haematoma might require a larger force because it is often associated with a fractured skull than a normal haematoma.  Of course, with a child with ITP the issue of force is very different.  
90.	I heard evidence about spontaneous subgaleal haematoma and I have taken time to re-read the paper that was provided by Dr Morrell produced entitled ‘Subgaleal haematomas in a child without skull fracture’. It concerns a very, very unusual case.  The 12-year-old girl subject did not have ITP and her swelling was more diffuse, it was not in separate areas. At 12 she was able to say that she had not suffered any trauma or insult, and she had no other marks or injuries.  The paper demonstrates that such occurrences are possible.
91.	I have to say I did not find either of the medical witnesses to be arrogant.  I was, however, particularly impressed by Dr Grainger’s fairness.  He is not an expert who gives frequent day-in/day-out evidence in these types of cases, and I thought that that his fairness really shone through.  It is refreshing to hear an expert who is willing to put everything into the balance before he makes his decision. 
92.	This is such an exceptionally unusual case, the level of force required really cannot be quantified. I find that it is impossible to know how a child might react, as to whether it would be scream or startle or, in the case of B, a happy gurgling placid baby, maybe do absolutely nothing at all.  
93.	Of course, if, as I have found is possible, the haematoma was spontaneous in its genesis, there is by definition no traumatic origin, and so no pain or discomfort reaction would be expected.
94.	Ultimately, then, this is one of those highly unusual cases in which it is not possible properly to reach a finding on the balance of probabilities as to the manner of causation of the undoubted swellings.  It is, in such a case, the burden of proof which comes to the rescue.  The Local Authority, in order to prove its case, must establish, on the balance of probabilities, that the abnormalities, so strikingly visible in the photographs, were caused in a manner which finds parental culpability at its root.  It has not proved this.  In so deciding, I find myself echoing Mr Maxwell-Stewart’s final submission, “we are, as Mr Justice Hedley observed, fearfully and wonderfully made”.  
Decision
95.	I have concluded on the totality of the evidence that I am not satisfied on the balance of probabilities that the swellings on B’s head were caused by a non-accidental inflicted injury.  The children’s guardian did not urge me to find non-accidental injury and the Local Authority did not pursue the finding in closing submissions with any substantial vigour, suggesting instead that I could find that the cause of the swellings were either an undisclosed accident or a non-accidental injury in unknown circumstances. 
96.	I agree with Dr Grainger that the cause of these swellings was more likely to have been accidental than non-accidental because they are so unusual and would be quite difficult to inflict in such a symmetrical manner. I also agree with Dr Morrell that there are no clinical indicators of non-accidental injury. I go slightly further than that, however, as I hold there to be, alongside accidental injury, the possibility of an organic, spontaneous, but medically unexplained cause. I disagree with the experts’ conclusions as I am entitled to because I have weighed all the evidence, medical and lay, and as I have had the undoubted advantage of being able to form an assessment of the mother, her credibility, her motivation and her character. It is all of that evidence which has been weighed into the balance, weighed very carefully, and which has led to my ultimate findings. My conclusion is that the evidence falls some way short of proving non-accidental injury. 
97.	It follows that I am not satisfied that the cause of the swellings was an accident which mother knew about that has not told me about, maybe because she was negligent or careless.  It would be tempting to think that.  She has admitted exceptionally careless handling of him on 10th March to me, so I could easily fall into the trap of agreeing with the Local Authority and the children’s guardian that there was an undisclosed accident which occurred at some point on the evening of 12th March and which the mother simply has not disclosed.  I say ‘trap’ because that is what it would be to make such an assumption. It would also be to embark on the linear type of thinking which Lord Justice McFarlane recently warned against in Re G (A Child) [2013] Civ 965 and would be a failure on my part in coming to a conclusion on something other than our binary system of evidential evaluation. I believed that she was telling the truth and I am not satisfied that she knows what happened and is covering up.
Findings summary
98.	I find that the Local Authority have not proved on the balance of probabilities that the swellings to B’s head on 13th March 2013 were caused by non-accidental injury or an accident which has been deliberately not disclosed by the mother. I therefore do not find her culpable of causing the swellings or knowing how they were caused and failing to disclose what has happened. I make no finding as to the other postulated causes of the swellings.
99.	Miss C’s admissions and my finding that she is telling the truth, about what happened on 10 March are relevant to threshold even though they are not relevant to causation of injury. This finding should be recorded on the order for use in further assessment and at the future hearing. On 10th March 2013 Miss C carried B in a baby bouncer without strapping him in. She knew that he should have been strapped in but was anxious to go for her lunch, she carried him through a door which hit her arm causing her to let go of one side of the bouncer and drop B from waist height. She accepts and I find that her actions were very dangerous and that she lied to the hospital about what had happened to avoid Social Services becoming further involved. 
 [Judgment ends]