Case No: ……………..
IN THE MATTER OF [THE CHILDREN ACT 1989]
IN THE MILTON KEYNES COUNTY COURT
AND IN THE MATTER OF B [ A CHILD]
Date: ……17th JANUARY 2014……………….
HHJ ANTONY HUGHES sitting as S.9 Judge
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Buckinghamshire County Council
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B(3) [ a CHILD ]
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Giles Bain of Counsel for the Applicant Local Authority
Frances Judd Q.C. and Simon Miller of Counsel [ instructed by Wilsons Solicitors ) for the Second Respondent father
Malek Wan Daud of Counsel for the third Respondent Child
- 6th 7th 8th 9th 10th 13th 14th 15th 16th and 17th January 2014
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Judgment Re B (A Child)
1. The court is concerned with a child “B” whose date of birth is 24th March 2013 and it is his welfare that is the court’s paramount consideration. He is represented in these proceedings through his guardian, by Malek Wan Daud of Counsel.
2. B’s mother “D” is 19 years old. She is represented by leading and junior Counsel, Leslie Samuels QC and Abigail Turner instructed by BLM Solicitors.
3. B’s father is “T” who is 20 years of age. He is represented by leading and junior Counsel, Francis Judd QC and Simon Miller instructed by Wilsons Solicitors.
4. The Local Authority is represented by Giles Bain of Counsel.
5. On 2nd August 2013 the Local Authority issued an application for a care order and interim care order in respect of B and the proceedings have continued since that time. This was originally a threshold and fact finding hearing to determine whether B’s admission to Hospital on the 22 May with bleeding in his brain was caused by an accidental or natural process, unknown aetiology or non-accidental cause; or whether it was a deliberate infliction by shaking and if so, on how many occasions. If the injuries sustained by B were found to have been a non-accidental head injury (NAHI) the court would have had to consider identification of a perpetrator or perpetrators. At the conclusion of the live evidence the Local Authority indicated that it no longer sought findings of NAHI but pursued findings relating to domestic abuse and the volatility and instability of the parents relationship and its impact on B. The parents have accepted that the Threshold Criteria under s31 of the Children Act has been crossed but there has been a dispute on the factual basis and the findings made by the court have been directed to the amended draft findings now sought by the Local Authority.
6. There has been a lengthy forensic process comprising of seven days of oral evidence, followed by submissions and a wealth of complex and often conflicting medical evidence and research material; notwithstanding the Local Authority’s revised position, it is clearly still a matter of importance that the issues in the case are ventilated in this judgment given the public debate about ‘shaken baby cases.’
Progress of the proceedings
7. On 16th August 2013, the proceedings came before Mr Recorder Goodwin, who made extensive case management directions, including the making of an interim care order in respect of B, which has been renewed periodically to date. Permission was given for the parties to jointly instruct Dr Alan Sprigg (Consultant Paediatric Radiologist) and Mr Elston (Consultant Paediatric Ophthalmic Surgeon). Full timetabling was agreed, with a 10-day fact finding hearing fixed for 6th January 2014 and 5 day welfare hearing on 17th March 2014.
8. B was placed in foster care on 30th May 2013 and has remained settled in placement to date. Contact was arranged to take place three times per week, with each parent, supervised.
9. The proceedings came before me on 29th August 2013, when further extensive case management directions were approved. Permission was given for the parties to jointly instruct Professor John Wyatt (Emeritus Professor of Neonatal Paediatrics).
10. The proceedings came before me again on 26th September 2013, when further case management directions were made, including permission being given to the Local Authority to seek disclosure of voice calls for specified periods (15th April 2013 – 3rd June 2013 and 16th August 2013 – 26th September 2013), between the mother and father.
11. Further case management orders were made on 23rd October 2013 and 22nd November 2013 and an Issues Resolution Hearing on 16th December 2013.
12. On 16th December 2013, the father was given permission to instruct a psychologist for the purposes of a cognitive assessment being completed. The father failed to attend a scheduled appointment on 23rd December 2013 with Dr Keene. His representatives however are clear that there are no capacity issues and every allowance was made in the hearing for any perceived learning difficulties.
Relevant background & chronology
13. The first respondent mother, D, was born on 22nd February 1994 and is therefore 19 years old and the second respondent father, T , was born on 23rd August 1993 is therefore 20 years old.
14. B was born on 24th March 2013 and is approximately 9 months old. There was no evidence of any significant problem in fetal health and development prior to delivery. He was born by a Neville Barnes forceps delivery at 12 noon on 24th March 2013 and the forceps delivery appears to have been straightforward and uncomplicated according to the record. Also of significance is the fact that there were no concerns about B’s behaviour expressed by health professionals in the first hours and days of life.
15. B was seen by a health visitor on 8th April 2013 when good weight gain was recorded and no concerns expressed by either parent or any other healthcare professional.
16. On 18th April there was an alleged incident of domestic abuse when it seems the mother telephoned police, when she was residing with her parents when father arrived at the address, tried to get in and was not allowed entry. On 25th April 2013, or thereabouts, B was admitted to Stoke Mandeville Hospital with a history of vomiting and a single episode of loose stools and was discharged after appearing well on 30th April into the care of his parents.
17. It seems that there was another domestic incident on 1st May when this time father was the reporter of a domestic incident involving an argument between mother and father relating to the care of their child which involved other family members and the police took steps to take the child to a suitable carer for the night (the maternal grandparents). Police reported that the matter had been “fuelled by alcohol,” an issue denied by parents. There is little doubt that there was a family argument.
18. On 22nd May the mother made a 111 call as she was concerned about B’s health. The log makes it clear that she was concerned about B being “a bit unresponsive” and “projectile vomiting.” She said his skin was clammy. She said that about six o’clock that evening B went really floppy and unresponsive and was given certain advice.
19. The very next day, namely 23rd May, mother made a 999 call reporting concerns with her eight week old baby, rehearsing her concerns of the previous day and reporting that B had started to go unresponsive that morning. She said that he had been sick and the individual that took the call could hear screaming. B was admitted to Stoke Mandeville Hospital. Some time after admission a bruise over the left hip was noted.
20. On 24th May post admission a number of tests and investigations were carried out including a CT scan which indicated bilateral subdural haemorrhigic effusions and a small frontal subcortical haemorrhage comprising what was believed to be acute and chronic subdural haemorrhages. An ophthalmological examination also recorded retinal haemorrhages on the left side and B was transferred to the neurosurgical unit at the John Radcliffe Hospital, Oxford.
21. On examination in Oxford bruises were noted on the medial aspect of the right upper arm and posterolateral aspect of the left arm and on the left flank. No bruises were found on initial admission and it possible that bruising can have been caused by blood tests and/or the lumbar puncture respectively. Additionally, two blot haemorrhages were identified in B’s right retina.
22. B was transferred back to Stoke Mandeville Hospital on 26th May.
23. On 28th May one symptom of pink bruises were present on the anterior aspect of both upper arms and a one centimetre bruise overlying the left hip and I have already mentioned the possibility of causation by medical procedures, a possibility accepted by the medical health professionals. On 30th May a further ophthalmological examination showed a number of retinal haemorrhages now in the left eye, those in the right eye having apparently resolved. I record also that various medical tests were completed including a skeletal survey, which was normal. Clotting studies were carried out and were expressed to be within normal limits, there was no evidence of congenital metabolic abnormality or rare congenital clotting abnormalities. No explanation was given to hospital staff for B’s presentation by either parent and on 30th or 31st May B was discharged from hospital into the care of the Local Authority.
24. It appears that there was another domestic incident involving the parents on 31st May which I come to in due course.
25. The parents were interviewed by police on 5th June in relation to suspected non-accidental injury.
26. On 9th September the father assaulted the mother, was convicted of common assault and fined. There appears to have been another incident on the 25th September involving a degree of domestic abuse.
27. An application was issued by the Local Authority on 2nd August. During the course of proceedings Dr A Sprigg, consultant neuro-radiologist, Mr John S Elston, consultant ophthalmic surgeon and Professor Wyatt, consultant paediatric neonatologist considered the radiological ophthalmological and clinical findings. In an experts’ meeting there appeared to be a consensus, that events immediately prior to the admission of the 22 May were highly significant and all then believed that B had suffered a recent event a matter of minutes or hours before his deterioration but none could exclude a previous process that had been going on from birth or from some other undisclosed traumatic event at some time previously. Suffice it to say that this view unraveled to a marked degree during their oral evidence when the views expressed became increasingly tentative during lengthy cross examination.
28. I now turn to a brief summary of that written medical evidence as it was at the start of the hearing to set the scene which I have drawn from the Local Authority’s helpful opening notes; insofar as there is any conflict in that summary with any of my subsequent findings, my findings of course prevail, as I have heard from the key medical witnesses in oral evidence. In any event findings are not pursued by the Local Authority on the issue of NAHI but it is nevertheless important the available evidence is evaluated so that the Court can be satisfied that the stance taken by the Local Authority is correct in all the circumstances of this case.
The Medical Evidence
The lead treating clinician
29. On admission on 23rd May 2013, B’s care was managed between two hospitals and overseen by Dr Beneera Shrestha (Consultant Paediatrician). She was of the view that the subdural haemorrhage was suggestive of NAHI pending further investigations.
The report of Mr John Elston – Consultant Ophthalmic Surgeon 03.09.13
30. He focused on the retinal examinations of B carried out on 24.05.13, 25.05.13 and 30.05.13. He confirms: ‘the documentation in the notes of the presence of retinal haemorrhages is somewhat problematic and contradictory’ and goes on to conclude:
‘The possible causes to be considered in this case for the retinal haemorrhages are:
a) Inflicted trauma. This could account for the haemorrhages documented on 25.05.13 and would correlate the finding of acute on chronic haemorrhage and a presentation with intermittent floppy episodes two to three days earlier. No other cause was found for this illness.
b) Naturally occurring illnesses or disorders. No naturally occurring illness such as acute overwhelming infection, acute leukaemia or other blood clotting disorder was identified which could have caused the retinal haemorrhages documented.
c) Unknown cause. I cannot identify a definite cause for the retinal haemorrhages documented in the left eye as present on 30.05.13.’
The report of Dr Alan Sprigg – Consultant Paediatric Radiologist 06.10.13
31. Dr Sprigg reviewed the imaging, in particular the CT scan carried out on 24.05.13, MRI on 25.05.13 and MRI on 11.06.13. He identified this as a complex case that required multiple expert input. His opinion included the following: ‘The neuro-radiology is complex. I defer on the issues of clinical neurology. The first CT scan shows bilateral symmetrical subdural haematomas. This is a mixture of recent bleeding and fluid. The fluid could be EITHER a traumatic effusion (=recent injury) OR old chronic subdural haematomas (=weeks old and could theroretically date back to birth)....Radiologically the evidence for acute effusions vs chronic subdural haematomas is finely balanced in this case.’
The report of Professor John S. Wyatt – Consultant Neonatologist 31.10.13
32. Professor Wyatt was instructed to provide an opinion in respect of the causation and consequences of foetal, perinatal and neonatal injury. He concludes: ‘the forceps delivery appears to have been straightforward and uncomplicated.’ He identifies this case at paragraph 101 of his report as ‘...an unusual and complex case and that the available medical evidence about the causation of B’s injuries is not entirely consistent or conclusive.’ Again at paragraph 102, he says ‘The subdural haemorrhages and residual collections may have been caused by one or more episodes of undisclosed non-accidental head injury. One episode of non-accidental heard injury may have occurred at an undisclosed time early on in B’s life, leading to acute subdural haemorrhage and the subsequent development of subdural collections. A second episode of non-accidental head injury may have occurred on 22 May leading to the sudden deterioration in B’s behaviour and the development of seizures and encephalopathy.’
33. At paragraph 103 he says, ‘Alternatively it is possible that B developed asymptomatic subdural haemorrhages due to natural causes at birth and that these led to persistent and slowly accumulating subdural collections. In this case the sudden deterioration on 22 May leading to seizures and encephalopathy is unexplained.’
Experts meeting – 5th November 2013
34. Whilst it has not proved possible it seems to summarise the areas of agreement and disagreement from this meeting, it would appear that there was agreement at that stage there had been a recent event, with Professor Wyatt identifying the clinical presentation on 22nd May 2013 as being important.
35. Following the hearing on 16th December 2013, permission was given for additional questions to be asked of the medical experts, and I have read the responses that have been filed. The relevant issues I rehearse in my review of the oral evidence later in this judgment.
36. Recent blood tests have been completed in respect of B in connection with a further extended clotting study and test for Glutaric aciduria. One test, acetyl carnitine, was not taken due to the level of distress B was under having had 8 sample of blood taken. Professor Wyatt has confirmed that he does consider any further blood tests to be justified.
37. On 16th December 2013, the court directed the Local Authority to clarify its position in respect of bruising recorded to have been seen on B during his admission to hospital from 23rd May 2013. The Local Authority takes note of the alternative aetiology for this bruising but still initially sought a finding in relation to this matter, when set in the context of the wider forensic examination of alleged non accidental injuries being suffered by B. I have had in mind other innocent possibilities arising out of medical treatment and have been taken to the observations of the treating clinicians.
38. I heard in oral evidence from the witnesses whose evidence is summarised below.
39. Dr Alan Sprigg is a consultant paediatric radiologist who has extensive court experience in relation to his area of special interest namely paediatric neuro and skeletal imaging in suspected non-accidental injury cases. His extensive qualifications are set out in the preamble to his report. He is a jointly appointed expert in the case.
40. He has extensively reviewed the available radiology in this case together with the medical notes.
41. His written report makes it clear that the radiology is complex and I have already rehearsed his comment that the fluid in the brain revealed by the radiology could be either a traumatic effusion or old chronic haematoma, theoretically dating back to birth. He records that there was no evidence of impact injury at the time of presentation. There was no scalp swelling until after a later MRI scan but this was after B’s skull had been tapped for fluid. There was no evidence of focal brain damage although B’s history could be interpreted as “fitting” which implies a focal brain source.
42. He was clearly much exercised in relation to the evidence presented revealed acute effusions or chronic subdural haematoma describing this aspect as “finely balanced.” He indicated that other factors could assist for example, an examination of the head size, examination of the fluid drained from the brain and the dating if possible of retinal haemorrhages.
43. He clearly found it significant that there was a small area of acute subarachnoid haemorrhage on the initial CT scan and on the first MRI scan in an area where there was no prior injury or fluid. This indicated “a recent bleed.” He records that the ventricles and surface subarachnoid space was prominent on the initial scan and that usually where there are large bilateral surface subdural collections the subarachnoid space and ventricles show some degree of compression but if anything, the reverse was true in B’s case on reviewing his scans. He was open to the possibility therefore that if the brain is freer to move inside the skull then this may predispose to subdural haemorrhage with lesser force than an average baby. Set against that the vast majority of scans that are performed on babies with a degree of disproportion do not show any subdural or subarachnoid bleeding (old or new). He opined that with a normal baby the force would have to be significant and well beyond normal handling but if the brain was smaller than normal then lesser force might be needed but this was difficult to quantify. The presence of large pre-existing chronic subdural haemorrhage bleeding into the subdural place can occur with minimal force but normally subarachnoid haemorrhage needs significant force.
44. He was clear that in relation to the possible causes of the neurological injuries including (if applicable) any unknown cause required multi-disciplinary review before coming to a definite conclusion. It is not without significance that he agreed with other experts that on the balance of probabilities there had been a recent event, a matter of minutes or hours prior to B’s deterioration on 22nd May.
45. I have read his report with care together with his contribution to the experts’ meeting and replies to additional questions posed to him in correspondence. By the time he gave his oral evidence he had updated himself in relation to the parties’ position statements, the Local Authority’s opening document and the research material that has been filed with the court. When he came to give his oral evidence he was taken to the experts’ meeting when he indicated that the first CT on 24th May showed evidence of definite recent bleeding in both the subdural and subarachnoid space making it clear that only a very small amount of subarachnoid haemorrhage was present over the right frontal lobe but he nevertheless thought that that was significant.
46. In the subdural space he described higher density fluid and that this could be due to two things. Firstly, a chronic subdural that was weeks old if not longer theoretically going back to birth mixed up with acute blood. The other explanation which it is clear he found to be finely balanced and which he described as “equally viable” is that all the findings are recent and the presentation was one of acute blood which he described as “white mixed up with acute effusions which are black giving a grey picture.” So in short form it was his view that there were two possible explanations. One was as a recent bleed plus an old bleed; the other explanation denotes just a recent injury only.
47. The finding of subarachnoid haemorrhage was in an area that there cannot have been old bleeding. It emerged more clearly in his oral evidence that he also set some store by the CT finding on 26th May that “there is a thin posterior fossa subdural collection best appreciated on the sagital images (T1 hyper/T2 lsc - hyper).” He described this as “acute blood in the cerebellum where there was no chronic collection and would be dated in the same date range as the deposit of acute subarachnoid blood i.e. 3 to 7 days. He clearly found it significant that there was no chronic collection suggested in that area and although he accepted that it was possible that acute blood (possibly caused by re-bleeding) can move to another area he clearly thought it unlikely it being more likely that chronic blood would move rather than acute blood because of its density and consistency. This particular collection in the posterior fossa he described as more symptomatic of a recent injury. He said that acute blood around the cerebellum could support a recent injury.
48. Matters have been made more difficult in this case because of the lack of head circumference measurements from birth until admission in order to track enlargement of the skull giving support for the possibility of birth induced haematoma and the fact that the radiology in the second MRI scan had been compromised by the clinical decision for B’s head to be tapped some thirteen or so hours before that scan.
49. He was open to the possibility that re-bleeding could occur into the subdural space and this could occur if the membranes crossing the subdural space bled and this bleeding could be caused by either minor trauma or be asymptomatic.
50. However it was his view that acute effusions do not re-bleed and he was resistant to the notion, although did not exclude it as a possibility, that the same process could not occur in the subarachnoid space. It was clear that he thought it unlikely.
51. In a normal infant force outside reasonable handling would be required to cause a bleed in the subarachnoid space and any recent bleed was more likely to be due to shaking as there was no evidence to suggest impact. His view at the experts’ meeting was that if there had been a recent episode the most likely explanation for that would be forcible shaking by way of traumatic injury which would explain the subarachnoid bleed. It could also explain the subdural fluid and it was not possible to exclude one event as having caused the bleed at the back of the head and the subarachnoid bleed all in the presence of an old subdural haematoma.
52. He agreed that the court was dealing with a complex case that required multiple expertise. The missing head size measurements and the fact that there could have been a scan before tapping were not helpful, neither would it seem was the absence of evidence from a neuro surgeon.
53. So far as head measurements were concerned, as far as he was concerned at birth B’s head size was in proportion to his body weight but there had been an increase on admission to the 91st centile. He maintained that head size could go up quite quickly after acute effusion and would continue to rise after tapping. It was possible after one traumatic event for the head size to continue to increase and a small proportion of children fell into that category.
54. He was plainly well aware of the competing research in relation to the contentious area of the causation of subdural haematoma in neonatal children. He accepted, and this was a measure of his balance, that the position changes as the frontiers of science advance.
55. He was open to the possibility that B could have had an acute haemorrhage at birth and this could explain B’s subsequent chronic subdural bleed. He couldn’t say without head measurements taken in the intervening period – a missing piece of the jigsaw. He accepted in evidence, as he did in his written evidence, that re-bleeding can occur after little or no trauma in relation to subdural haematoma.
56. He accepted that B has a larger subarachnoid space and Tretically he could have a predisposition to bleed with no or very little trauma but he emphasised that this is not something that he has seen in his career and there was no research to deal with this particular point.
57. He stood by the observations that he had made in the experts’ meeting that if B had suffered a traumatic injury due to shaking the person with him at the time would have recognised that their handling was inappropriate but they may not have realised that they caused any bleeding inside his head. For someone who had not actually witnessed the event they may find it as fairly non-specific presentation such as vomiting, drowsy and the type of presentation that was recorded on the mother’s 111 call. Calling the 111 number would be a reasonable response given that presentation.
58. He was clear throughout all his evidence in relation to the possibility of re-bleeding in the subdural space because of the stretching of veins and/or membranes over an enlarged space but was resistant to the notion that the same would equally apply in relation to the subarachnoid space. Equally he accepted that bleeding in the subarachnoid space was not commonly seen in shaking cases. He also said, notwithstanding the research, that it was rare to find acute subdural haematomas at birth grow into chronic subdural haematomas subsequently. Although he was open to the range of possibilities that were suggested to him throughout his evidence he stood by his evidence that there had been a recent traumatic event and this was based on his observation of the subarachnoid haemorrhage and the presence of acute subdural blood in the cerebellum on the CT scan that he reviewed. I am mindful that his expertise is necessarily limited to radiology and he expressly invited a multi disciplinary approach. However his opinion has been substantially weakened when considering the evidence of the other experts, as my summary of their evidence indicates and I was struck by his concession that it was not easy to fit all the pieces of the jigsaw together and that there was a lot of missing information.
59. John S Elston is a consultant ophthalmic surgeon based at the John Radcliffe Hospital where he specialises in paediatric and neuro ophthalmology. He is an experienced expert witness and has been jointly instructed by all the parties. As part of his brief he has reviewed the medical notes in relation to ophthalmology in this case although has not examined B’s eyes or indeed seen photographs of examinations carried out by others which is now often the case.
60. His report deals with an analysis of each of the ophthalmic examinations carried out on B between 24th and 30th May 2013 of which there were four the last of which were conducted by a Dr Burke and the consultant, Mr Benjamin, probably at the same time with Mr Benjamin reviewing Dr Burke’s findings.
61. A senior house officer, namely Dr Harvey, at 12pm on 24th May identified a red area in the medial corner of the right eye. The pupil responses were recorded to be normal.
62. The second examination took place later the same day but the examining doctor has not been identified and the small pink patch noted earlier was not documented. It was the first retinal examination.
63. A retinal examination took place after it is assumed dilation of the pupils with drops although this is not documented. Apparently the examination was difficult and no speculum was available. There was an indication that there might be a retinal haemorrhage in both eyes in the temple periphery but Mr Elston did not think much reliance can be placed on the results of this examination as he has questioned the methodology of the examiner and only a limited view was obtained.
64. A second retinal examination took place at the John Radcliffe Hospital after B was transferred on 25th May by an experienced associate specialist, Moustafa Issa. Two blot haemorrhages were revealed in the right eye inferior to the optic disc and no abnormalities were documented in the left eye and Mr Elston regarded this examination as being likely to have documented the true state of retina in both eyes on this occasion.
65. The third retinal examination (and the fourth observation of B’s eyes) took place again at Stoke Mandeville Hospital this time on 30th May and was carried out by a trainee ophthalmologist who documented dilating the pupils and the use of an indirect ophthalmoscope. Perversely perhaps no retinal haemorrhages were seen in the right eye, three in the left eye and these findings were confirmed by Mr Benjamin, the experienced consultant ophthalmologist who agreed that there were no retinal haemorrhages in the right eye but three in the left, two intra retinal in the temporal retina above and below the vascular arcade and one at the macular.
66. In short form therefore there were three retinal examinations, four examinations in all counting the last retinal examination by Dr Burke confirmed by Mr Benjamin as one examination although there may well have been two on that occasion.
67. Mr Elston has described the presence of retinal haemorrhages as “somewhat problematic and contradictory.” He places reliance on the second and third retinal examinations. One revealing retinal haemorrhaging in the right eye which had resolved by the time of the third examination which documented three retinal haemorrhages in the left.
68. In his report he says “it can be argued that the two retinal haemorrhages documented on 25th May are compatible with there having been an episode of non-accidental injury which led to the three floppy episodes on 22nd and 23rd May, the acute haemorrhage superimposed on the chronic subdural effusions at the admission to hospital. These haemorrhages … would be compatible with the natural history resolved spontaneously by the time of the examination on 30th May.” However he identifies that in accepting this hypothesis also means accepting that the new retinal haemorrhages developed in the left eye between 25th May and 30th May while those in the right eye resolved. It is that issue that presents the conundrum in relation to this case which begs explanation, one possible explanation being a sudden elevation of intra cranial pressure but he was concerned that the notes revealed no clinical correlate of that proposition. B of course was in hospital during this period under close supervision and there is nothing in the notes to suggest he was subjected to any additional injury or untoward event.
69. Of course he was aware of Dr Benjamin’s letter to Dr Shrestha indicating that it was possible that the current haemorrhages (i.e. those revealed on 30th May) were related to the recent surgery that B had if he had significant changes of inter cranial pressure. Mr Elston was troubled that there was no indication in the notes that had happened that a neuro surgeon would be required to comment it was likely that this had occurred but his view is that if it had been a matter of concern the clinical notes would correlate.
70. It seems clear from his report and oral evidence that although he was alive to other causes of retinal haemorrhage none of these causes are indicated in the documentation and had been actively excluded.
71. He was asked to consider the possibility of retinal haemorrhages in a child that had been delivered by forceps. It is clear that he discounted forceps delivery although recognising it as a recognised cause that these retinal haemorrhages tend to resolve spontaneously by 16 days in the vast majority of cases. He was prepared to accept it only as a remote possibility.
72. One possibility was that the haemorrhages discovered in the left eye had spontaneously resolved and he was alive to the possibility of a rise in inter-cranial pressure. Certainly the rise in inter cranial pressure must have been significant enough to justify the taps and Dr Issa’s examination came twelve hours or so after the tap had been undertaken.
73. Matters were further complicated by the different descriptions of the haemorrhages and the fact that they were in different eyes and he clearly found the situation perplexing and difficult. This inevitably led to a discussion in his evidence as to possible causes and an unknown cause could not be excluded. A birth related cause was only remotely possible for the haemorrhages on 25th May and only if there was extensive haemorrhaging at birth.
74. As to whether raised inter cranial pressure could be an explanation for the haemorrhaging in both eyes, that would depend on whether there were a series of fluctuations over the relevant period of time because the left haemorrhages resolved five days later.
75. If there had been a acute elevation of inter cranial pressure he would have expected to have seen more evidence of retinal haemorrhages to compare more closely with a case of abusive trauma and in this case he agreed with the proposition that was put to him by the father’s Counsel, Miss Judd, that there were extremely limited retinal haemorrhages at the lower end of the spectrum.
76. He agreed that the conventional view of the cause of retinal haemorrhaging in shaking cases was due to reduced drainage from the eyes combined with shearing forces a mechanism wholly different from retinal haemorrhages occurring at birth where the mechanism was higher pressure occasioned by the birth process itself.
77. He was open to the possibility that extra fluid in the brain could affect the drainage from the eye and this could be transmitted to the optic nerve sheath and there was potential for this to occur but of course this may be offset to an extent by an increase in the head circumference.
78. If there had been an acute elevation of cranial pressure the drainage from the eyes becomes restricted but he said it was usually more extensive and would depend very much on the rate of rise of the pressure.
79. It was suggested to him that if the retinal haemorrhages recorded on 30th May were of an unknown cause then surely it was more likely that the same would be the case on 25th May and he agreed with this proposition provided that trauma had not been indicated.
80. Taking the retinal findings as a whole it was not possible for him to be dogmatic in relation to the cause. In my judgment his evidence does not assist in any conclusion that there has been inflicted trauma. It goes further perhaps in the light of his concession in cross examination that it was absolutely right to consider unknown cause in this case.
81. He accepted the proposition that it was right that he should take the views of other professionals into consideration informing his view and was asked to consider whether he thought the other experts had sufficiently taken into consideration the difficulties that he had encountered in reaching any firm conclusion in relation to their views as this does not appear to have been canvassed in the experts’ meeting. He accepted that if the retinal haemorrhages were of an unknown cause then that could be relevant to the subdural findings. He agreed that although he had made his position clear at the experts’ meeting an unknown cause does not appear to have been discussed.
82. Professor John Wyatt is a consultant neonatologist, a jointly appointed expert in this case and his area of expertise is the causation and consequences of fetal, perinatal and neonatal injury and the medical care of newborn infants. His extensive qualifications are set out in his report.
83. He has reviewed all the written material in relation to this case and has concluded in his written evidence that this is an unusual and complex case and that the evidence about the causation of the subdural collections is not entirely consistent or conclusive. He opines that the subdural haemorrhages and residual collections may well have been caused by one or more episodes of undisclosed non-accidental head injury with one episode of non-accidental head injury having occurred at an unknown point early in B’s life leading to a subdural haemorrhage and the subsequent development of subdural collections. A second episode of non-accidental head injury may have occurred on 22nd May and this would explain the sudden deterioration in B’s behaviour.
84. Alternatively, he reports that it was possible that B developed asymptomatic subdural haemorrhages due to natural causes at birth and this led to persistent and slowly accumulated subdural collections. However in this eventuality the sudden deterioration on 22nd May leading to seizures and encephalopathy is unexplained.
85. He originally expressed the view that the bruising over B’s left hip was more likely than not to be the result of non-accidental injury or rough and inappropriate handling a position which I am bound to say he resiled somewhat from in live evidence. He said the bruising on the upper arms is of uncertain significance and could have been either caused by non-accidental injury or rough handling or accidentally following admission. He defers to Mr Elston in terms of the causation of the retinal haemorrhages and Dr Sprigg so far as the radiology is concerned.
86. It is plain from his report that a number of matters exercised him even at that stage. One was the apparently dramatic increase in B’s head circumference which was on the 9th centile on 24th March and somewhere between the 91st and 98th centile on 24th May. His investigations have, in my judgment, been severely hampered by the absence of measurements of head circumference between these two dates but he does indicate that it is most likely that the excessive increase in head circumference was due to gradual accumulation in the size of the subdural collections leading to a rise in inter cranial pressure. There is a suggestion that the rise in inter cranial pressure may have resulted in the episode of vomiting (diagnosed as gastroenteritis) which occurred in the period between 26th and 30th April for which he was hospitalised.
87. He records that from discharge in hospital in June 2013 B’s head circumference has continued to increase suggesting that the subdural collections have persisted and may have increased in size.
88. There is no positive evidence of congenital metabolic disorder, no imaging evidence of brain shrinkage and B’s clinical presentation and subsequent progress was not at all characteristic of any congenital metabolic disorder and significant the range of testing carried out on B during his admission at hospital indicates no organic cause as was evident from his replies to supplementary questions.
89. When he came to give his oral evidence he was questioned on the likely causation of the chronic subdural haematoma. He stood by his written evidence and his observations at the experts’ meeting that a birth related cause was possible but unlikely accepting as he did that the matter was finely balanced and would have been assisted by head circumference measurements in the period following birth including the admission into hospital in April. He reminded the court that a natural process at birth was a possible explanation as appears to have been revealed by research in an increasingly significant proportion but was inconsistent with other evidence and it was his view that B’s sudden deterioration before his admission on 23rd May suggested some acute event.
90. As to the lack of head circumference measurements, he indicated that this was missing information but was not perhaps of vital significance and it was still possible to give an opinion based on the other information putting together the pieces of the jigsaw puzzle. He accepted that some pieces in that puzzle had more or greater significance and if it was right that the evidence in relation to the retinal haemorrhages should be put to one side given Mr Elston’s difficulty in forming a diagnosis, then that would alter the overall picture.
91. He was reminded that Dr Sprigg had identified a second area of acute bleed around the cerebellum and over the right side of the tentorium and he agreed that this had not been discussed at the experts’ meeting. As to timing, he deferred to Dr Sprigg and said that if it was fresh blood and not related to the chronic subdural collections, and more likely to be recent it would strengthen the proposition of a fresh area of trauma a few days before admission. It would not however rule out the proposition that the chronic collections could be birth related.
92. He acknowledged the research and the evolving state of knowledge and acknowledged that a significant proportion of otherwise healthy babies were found to have thin film subdural haematoma (often bilateral) from birth. A small and significant proportion of these children go on to form chronic collections but if this was happening on any significant scale it would be revealed by routine scans of radiologists up and down the country. He obviously had an eye to the research material that was put to him but said that there was a lack of statistical power as these were very small studies. He calculated that there were 700,000 births a year in the country and even if subdural haematoma at birth accounted for 1%, that would amount to 7,000 babies in the community and those numbers were not seen in routine clinical examinations and therefore the phenomena could not be common otherwise would be seen.
93. Returning to B’s delivery, in this case he said that B was in good condition at birth and remained so for the first few days of his life and bruising and marks as a consequence of forceps delivery was not unusual and there was no evidence of damage to the brain; nor was he troubled it would seem by the length of the labour which he described as being within normal limits for a first birth.
94. He could not exclude the possibility of a traumatic event after B first went home but B’s behaviour was apparently reported to be normal and he was thriving. He was fundamentally well and healthy and there were no professional concerns. A feature in this case has been B’s admission to hospital in April where the diagnosis was gastroenteritis. He deals with this aspect in his report when he states that the commonest cause for acute onset of vomiting in young babies is viral gastroenteritis. However it was unusual that there was no elevated temperature and the blood pressure was noted to be elevated which was unusual in gastroenteritis. An alternative cause for the vomiting was raised inter cranial pressure secondary to subdural haemorrhage. This would explain the lack of temperature elevation, the lack of diarrhoea (which in oral evidence he thought was especially significant) and the raised blood pressure. It would also explain the unusually low haemoglobin concentration that was recorded at that time. He said “however if the cause of the vomiting episode was raised inter cranial pressure it would be unusual that no other neurological abnormalities were noted.” It is clear from looking at the medical notes that none were even considered and it is a significant gap in the evidence. I note in any event that B’s head was not measured and certainly a rise in inter cranial pressure at this juncture certainly would have been informed by a measurement of the head circumference. The upshot of this differential diagnosis was that he felt unable to come down on one side or the other and said that much would depend on what the court made of the evidence in relation to the events immediately preceding 22nd May.
95. He ascribed little or no significance to mother’s report of the Tesco incident a week after B’s birth when described him as being bubble and dazed or indeed his recorded breath holding on 15th August when he was in foster care.
96. I indicated earlier that he seemed less willing to attribute any great significance to the bruise after being reminded that there was no bruising recorded on admission and the notes indicated that Dr Mandava and the relevant senior nurse felt that the small bruise on B’s hip might have been caused during the lumbar puncture procedure and the bruise to the arms may well be due to pressure from the blood taking particularly as the right arm was held tightly and he was open to the suggestion that inadvertent and excessive force could have been used.
97. It became apparent through cross examination that the April admission troubled him because of the lack of data. If it was related to subdural haemorrhages then these could be birth related but the accumulation was likely to be slow rather than a sudden event as occurred in May and this dramatic change he described as an important element in determining whether there had been a recent traumatic event.
98. The sudden change of B’s behaviour, the presence of acute fresh blood, and the retinal images (of whatever provenance I suspect) were difficult to explain by birth related events, but remain unexplained.
99. Crucially perhaps if there had been a continued and slow accumulation which involved hospital admission in April he would have expected it to continue from April to 23rd May although it may be significant that B does not appear to have been reviewed by health professionals in that period. A sticking point to this particular case also seemed to be that B got better after the April admission and then acutely unwell very rapidly towards the end of May and he continued to find that difficult to trace that back to a birth event.
100. He acknowledged of course that any process of re-bleed could cause the symptoms and there could be slow accumulations thereafter and a gradual process was certainly possible that is to say, of slowly accumulating effusions. It was possible that re-bleed could occur and not be seen if for example, there was a seizure but he thought that that would come apparent in a non specific way in terms of B being off colour, poor feeding. However he accepted that general practitioners may not pick this up or inexperienced parents. He was dismissive of a notion that some sort of apnoeic attack could be linked to the subarachnoid bleeding as this was more usual in cases of prolonged hypoxia and there would be normally an identifiable event and therefore he thought this scenario was pretty unlikely. The fresh subarachnoid bleeding (albeit “tiny’) was a piece of the jigsaw.
101. A dramatic increase in head size could be a feature against a view that it was a single incident on 22nd May but a rapid rise over a 24 hour period in hospital was possible against the background of an acute event.
102. He was taken to that part of his evidence that dealt with B’s prognosis and he recorded that it seemed likely that B has persistent subdural collections which are leading to the increased head circumference. He said in his report “it is possible that the subdural collections will continue to enlarge in the future leading to raised intracranial pressure and the risk of neurological injury.” He emphasised the need for regular review and said in oral evidence that it appears that B has continued to have a significantly enlarged head and this was an unusual feature but a small and significant number will have persistent collections and this includes the potential for re-bleeding and raised inter cranial pressure.
103. He accepted, in the above context looking back to examine whether the subdurals were birth related and as to whether this was a condition that existed from birth from some undiagnosed cause. He said the difficulty with that position was the very rapid rise in the head circumference in May.
104. As to the progression and enlargement of the subdural collections, he said that it was perfectly possible to have a small but significant amount of blood without significant signs and he agreed that a consequence of that will be re-bleeding after minor trauma so far as the subdural haematoma were concerned leading to fresh blood and a new stimulus for accumulation of fluid.
105. He agreed that chronic subdural haematoma are variable and can present in unusual ways the suggestion being that there was a tipping point of some sort in April and a further more tipping point in May without the infliction of trauma and certainly he appeared troubled that if indeed B’s presentation was caused by one traumatic event it was at the lower end of the scale and significant that there was no permanent brain tissue injury as is more commonly observed in these cases.
106. It was more common for the baby to stop breathing and if the court accepts the 111 call and the 999 call by the mother as accurate, it is not a typical pattern in a shaken baby case.
107. He acknowledged, when taken to it, that the subarachnoid bleeding was described as “tiny” and the acute bleeding in the cerebellum was “small” and he appeared to accept as a possibility in the context of subdural haematoma that the bleeding occurring in one place in the skull could appear in another hemisphere because of the fluidity and interaction of the various membranes in the brain. He was less disposed to consider that possible in the case of a bleed in the sub-arachnoid space but could not discount it as a possibility.
108. At the conclusion of his evidence and the provenance of his paediatric overview, the court was struck by the range of conflicting issues in this case and the differential diagnoses from an expert of his undoubted calibre and experience. His views became increasingly tentative as his oral evidence was progressed and I detected that he became increasingly troubled by some of the complex features in this case. However in looking at the holistic picture his earlier concerns regarding the bruising appeared to carry less weight, the retinal evidence is to say the least troublesome, B’s admission to hospital in April was confined to a diagnosis of viral gastroenteritis that could have revealed vital information as to the progression of head size and raised inter cranial pressure, and the causation of the chronic subdural haematoma remained substantially in doubt.
109. Importantly perhaps in the context of the alarming rise of B’s head circumference, subsequent to his oral evidence he filed a head circumference chart in which he plotted B’s head circumference measurements available at birth by interpolating a straight line between that measurement at birth and the first measurement on 24th May and, subsequently post admission through to September and it is not without significance that although his graph was not intended to imply that the actual head circumference necessarily followed his interpolated line, the continuation of head growth has tracked on steady and graduated increasing basis rather than any supposed sharp increase immediately prior to admission on 23rd May. It is a worrying feature and potentially goes to the proposition that B’s injuries were due to some unknown cause. His concession, in this unusual and complex case, was that it was difficult to get all the pieces to fit together and as the evidence was developing it was not getting any easier. He was not in a position to rule anything out.
110. Dr Baneera Shrestha is a consultant paediatrician who has had overall responsibility for B’s care except of course when he was at the John Radcliffe Hospital for brief period of time. She continues to be responsible for his care. She last saw him at Christmas when he looked well and happy but she reported that his development was a bit delayed.
111. She is the author of numerous entries in the medical notes and prepared a medical report on B on 28th May in which she highlighted her concern following B’s presentation with acute and chronic subdural haemorrhage and retinal haemorrhages. She took the view that B’s injuries were suspicious of non-accidental injury (shaken baby syndrome) and I think it fair to say that it was her medical concerns that largely led to the initiation of these proceedings.
112. Of particular interest in relation to the fact finding exercise, she was taken to a note that she had made in two parts on 24th May at 21.15 and continued it at 21.40. She had earlier identified bruising on B’s body and knew that none had been identified by Dr Mandava, the admitting officer. She had made an enquiry earlier in the day to Dr Mandava and recorded that Dr Mandava and “senior nurse Chris” had felt it might have been caused during the lumbar puncture procedure. She made enquiry about that because she took the view that any bruising on a child particularly in these circumstances with an unexplained head injury was a serious matter.
113. Dr Mandava had told her that she had been too busy to notice whether there were any bruises as she was too busy trying to treat the baby. She had also asked the parents during the course of her interactions with them whether there had been any incident of domestic violence or altercation between the parents (she being concerned that B may have been caught accidentally in the crossfire) and recorded that both parents said “no.” Her own view seemed to be that bruising caused by the lumbar puncture procedure would be unusual although she has confirmed the view of the individuals who carried out that procedure that it may well have been accidentally caused in that way.
The mother’s evidence
114. D is B’s mother and she gave evidence over the extent of an entire day on the fifth day of the hearing. She has filed four statements in the care proceedings all of which I have read, given two statements to police dated 25th September and 14th October respectively and was interviewed by police in respect of which I have read the transcript dated 5th June.
115. The most substantial change to her evidence was her current description of her relationship with T from that which is contained in earlier statements and she maintains that the true account is the one that she has filed shortly after the commencement of this hearing. She acknowledged that she minimised the state of the violence and abusive relationship with the father because she still loved the father and felt ashamed by the relationship acknowledging as she does now that it wasn’t a healthy relationship and indeed was a controlling one.
116. She hid the true extent of the abusive relationship from her own mother because she thought that her mother would think less of T as a person, an explanation I found more difficult to understand. What perhaps is more understandable in terms of why she either lied or minimised the extent of the previous violence was that she has remained in love with T and that is still her position although she acknowledges that the relationship is over.
117. The second issue that she wished to correct when she gave her oral evidence in chief was that it was wrong of her to have criticised the social worker as she did in her first statement as she was in denial about the state of her relationship with T.
118. She commented in relation to the father’s latest statement which he too has filed during the currency of this hearing in which he sought to reply to her rather clearer allegations and she maintained notwithstanding what he has written that her account is true, acknowledging in the past that she has not been entirely honest about the relationship. She makes it plain in her statement that she has come to realise the unhealthiness of her previous relationship because of assistance from a one to one session with Women’s Aid in Aylesbury and being able to reflect back in relation to the relationship.
119. By way of summary, she has explained the escalating violence that started before B was conceived; it started with a forceful push and escalated into pulling hair and slapping during arguments. The slapping was a regular occurrence in some weeks as much as once or twice a week and then there would be gap or so of may be a week or two without any slapping. She says in her statement “it became a normal part of our relationship.”
120. She maintained that on another occasion she had been head butted and slapped and this would have been sometime after B had been taken into care and before the assault for which T was convicted on 9th September.
121. It is clear that she has cooperated with the Local Authority. The contact notes are positive in relation to her involvement with B. She has been involved in going to hospital with B with the foster carers when he has had tests and in the period immediately after Christmas when B was in hospital for the entire day having tests she and her mother and the foster carer all attended and she played tribute to the good work done by the foster carer in relation to B. There are no problems between her and the foster carer and they both use the contact book.
122. She acknowledges in relation to the father that she has never physically hurt the father but has pushed him back after he has assaulted her. Historically he has always said that he was sorry and she would believe him and she was left feeling that it was her fault.
123. Her written evidence deals with each of the allegations set out in the Scott Schedule and notwithstanding her previous lack of honesty and candour in relation to the extent of what was going on, her evidence had more than the ring of truth when it came down to dealing with elements of domestic violence. Her position has been given greater credibility, perhaps perversely, by the fact that she has still maintained her love for T and acknowledged that they were corresponding until two weeks ago on Facebook and she has not emotionally separated from him, but still stands by her allegations.
124. Her position in these proceedings is that she has never hurt B even by accident or seen anyone else do it and given her present stance in relation to the allegations of domestic violence against T, the fact that she stoutly maintains that he would not harm B even by accident must carry some weight at least.
125. Her present position is that she is on antidepressants. She has history of depression but was taking two varieties of antidepressants after B was taken into care but after 9th September. She managed to come off Diazepam until the start of this hearing but couldn’t sleep and has been re-prescribed.
126. My observation and assessment of the mother when she gave evidence, making every allowance for how difficult that that must have been for her, was that she presented as a vulnerable and very immature young woman who acts substantially below her chronological age. Her presentation is largely passive and she appeared to have little recollection of substantially important events in the short chronology of this case especially in so far as it impacted on her son. I had in mind her poor recollection of the events preceding B’s admission to hospital on 25th April or thereabouts and her then current relationship with T as well as of course her difficulty in remembering what was happening in her relationship with T in the context of some rather ambiguous text messages that were sent to her by him when B was in hospital in April. I shall come to these again presently in so far as it is possible to draw anything from them.
127. When cross examined by the Local Authority she was bound to accept that her previous assertions regarding the state of the relationship between her and the father amounted to significant and misleading lies the consequence of which is that she has given a wrong and misleading impression and, amongst other things, cast a shadow of blame over the social worker.
128. She accepted that she had lied to the medics and particularly Dr Shrestha when asked a direct question about domestic violence. She has lied to police to whom she denied physical assaults and played down her concerns and understands now how important it was to be truthful.
129. It is evident however she still has strong feelings for T who she still loves despite the violence, control and intimidation that she alleges and, moreover, the threats to her life. Her position is that she does not feel threatened now which of course gives rise to a substantial risk of resumption of that relationship in some shape form or another as it is plain that she has not emotionally separated from him.
130. She was of course challenged that even in her latest statement she had not included the allegation in August when she was sitting in a parked car in the garden with the father when she was slapped across the head by him. She recorded feeling upset about this incident and had forgotten to mention it. The incident in itself is fairly trivial in as much as she tapped the father playfully on the head because he was looking at some passing girls and he slapped her back. She denied that this was a hard slap on her part and said that it was a harder slap on his. It was, if I may say so, an indication of the immature relationship between these two vulnerable parents and certainly not as serious as some of the other allegations.
131. She was taken to an incident when she attended Accident & Emergency on 4th July 2012 with abdominal pain. She was of course seven weeks pregnant with B at that time and the notes make it clear that she had been hit in a scuffle. Her first reaction was to say that she couldn’t remember that incident but then when reminded she recalled that it involved a fight between her brother and T in the bedroom that she shared with T and she was stepped on while lying in bed. She had not mentioned this before because so far as she was concerned it was between her brother and T but it was clearly an incident when her unborn baby was put at risk in relation to some sort of violence altercation and significant enough in normal circumstances for her to have recorded it. She said that it hadn’t come into her mind and I am sure that she is right about that but there is still a substantial question mark in relation to this and in her ability to identify what is serious and what could have the potential of threatening her child (albeit unborn). The Local Authority now also rely on an incident on 31st May when she was pinned down on her bed by T and her father had to intervene. The consequence of that was that her father banned T from the house. The mother agreed that she had been held down.
132. She agreed that the father’s temper was unpredictable. He would be fine and happy one moment and then would “kick off.” She agreed with the proposition that there was no obvious trigger and that he could snap for no reason.
133. She agreed that she had been reluctant to leave B alone with the father. She said that she was afraid of his short fuse but didn’t, somewhat perversely perhaps, believe that he would hurt B because he loves B. It was suggested to her that the father had told her on numerous occasions that he loved her but had continued to hurt her. She accepted that proposition but maintained that T wouldn’t do anymore than shout at B or indeed shout to another person if he happened to be on the telephone when B was in his care and it is a significant and enduring feature of her evidence that she has been consistent in her view that the father would never hurt B. I am bound to say that she found those questions difficult to answer and agreed that her reluctance in those circumstances to leave B with the father didn’t make much sense. However on the other hand given the escalation of her allegations regarding the father in the very recent past there was of course an opportunity for her to give chapter and verse on the father if she believed that he had genuinely hurt B either accidentally or deliberately.
134. In terms of the father’s cannabis use, she maintained that after B’s birth the father would smoke cannabis every three days and this would have a calming effect on him. She confirmed in oral evidence that he would become more agitated after three days if he had not smoked cannabis and agreed with the proposition that he would be “bouncing off the walls.” He would behave in an angrier way to her but not, she emphasised, to B.
135. In doing so of course she had to acknowledge that B was caught up in their verbal arguments and sometimes was in the same room when there was a physical argument but she has maintained throughout that B was not caught up in any accidental violence between them.
136. She accepted that she’d had to go to her parents from time to time because of the domestic violence because she felt safer both physically and emotionally with B at their home and from time to time there would be split ups and then she would return to the relationship.
137. It seems that certainly up until the end of December she has been in almost daily communication with the father and this has subsisted from the end of September. They have not spoken about the case and she indicated that she would be prepared to allow access to her Facebook. She thinks this communication stopped because the father is in another relationship but when she last communicated with him she told him that she still cared for him although she recognises in oral evidence that it is an unhealthy relationship. In doing so she has accepted that she has given an impression to the social worker that she has not been communicating with T.
138. Her mobile phone was seized as part of the police investigation and examined for text messages on 5th June 2013.
139. Lengthy cross examination was conducted to ascertain whether the messages indicated evidence of either parent’s knowledge of some cause of accident or inflicted trauma in relation B revealed by exchanges between the parents. The exercise was necessarily limited by the fact that it is only the mother’s mobile phone that was examined and the dangers of drawing inferences are clear in the absence of the full context of exchange of messages from father’s phone.
140. What was revealed was considerable tension and difficulties in the relationship and adolescent bickering. The exercise was hampered by mother’s apparent lack of recollection of the context and potential significance of a message and there is little doubt that some of the messages were exchanged during the police involvement but I am bound to say there is little evidentially that can be drawn from most of them. The mother’s invariable position was that she could not remember the context of the vast majority of what was put her. It is unsurprising however that the Local Authority wanted to ascertain from the mother her interpretation of certain key messages which had the potential of significance.
141. For example, on 28th May, when B was in hospital, a message from father “it was an accident.” Another enquiry received was from father on 25th May “wat ar the feds sayin.” There may be a level of suspicion attached to these messages given the chronology but nowhere could I detect evidence of the parents possessing some guilty knowledge that would explain B’s condition.
142. In the main there is little that can effectively be drawn from this information other than evidence of threats by the parties against one another, disagreements, curiosity about the police investigation and frustration from mother about father not being at hospital when she clearly thought he should have been.
143. What did emerge from mother’s evidence was the extent to which she went backwards and forwards from her parents’ house to father’s flat during the whole of the period prior to B’s admission into hospital as the parties fell in and out of a relationship.
144. Mother accepted in cross examination by father’s Counsel that B was in fact hardly ever left alone with father and in any event she never saw father doing anything of concern in relation to B. Conversely however she didn’t want to leave father alone with B because she was concerned about him shouting or not paying proper attention. She was not concerned about him hurting B.
145. She was not however was exaggerating her allegations against him and she maintained her account and whatever uncertainties were indicated by her evidence as a consequence of her lack of recollection, she impressed as a witness who was clear, albeit late in the day, in relation to the scale of abuse and violence that she had suffered from the father. It was perhaps a measure of that truthfulness that she was able to acknowledge in cross examination that the relationship was volatile and there was an element of cat and mouse in relation to the telephone exchanges when they would both not answer calls and then get cross. She was challenged that in fact the father had not slapped her on a regular basis but she said that he had acknowledging that the slaps had not caused marks or bruises and sometimes would happen once or twice a week. She was challenged that she had exaggerated the car incident in August when she had playfully slapped him and he had slapped her quite hard back, but maintained her account.
146. She became upset when challenged that her account in relation to father head butting her sometime after B had been taken into care was not true and she said she was upset because the father was lying. In short form she maintained the truthfulness of her most recent account and it would certainly explain to a great extent her various comings and goings from father’s flat to her parents’ property from B’s birth.
147. Notwithstanding the scale of what she alleges she still maintained that she would be happy for the father to see B in some sort of contact if she were to resume care of him and agreed with the account by the health visitor on 8th April that the health visitor had observed good interaction between them.
148. I am bound to say that the health visitor records and some of the medical records make interesting reading. It seems that there was only one successful visit to the young parents where no concerns were indicated with mother picking B up and handling him appropriately and the parents cooperating.
149. However a recommendation in relation to the mother attending a 12 week support group was not taken up. There were four failed hearing test appointments and, crucially in the context of this case and the great gaps in relation to a contemporaneous medical account insofar as what was happening in B’s life was concerned. On 9th May the mother did not attend for the 6 week post natal check up at the GP’s surgery at which time there is little doubt that B would have been weighed and examined quite thoroughly.
150. A picture, in my judgment, emerges from this evidence when coupled with the evidence of mother moving backwards and forwards from the maternal grandparent’s address and their flat, namely a complete lack of sensible and responsible engagement with the health services against a background of the mother’s preoccupation with maintaining her abusive relationship with the father to the obvious detriment of B.
151. This was laid bare in cross examination by the guardian’s Counsel and it was clear from the mother’s replies that B’s interests were not always her first consideration.
152. One such example of this is mother moving back into her parents’ house on 16th April, mother accepting father’s invitation in a text to return to the flat on 17th April, her travelling to the flat in a taxi with a three week old B to spend the night. She was not able to get into the flat so returning to her parents’ home and the father turning up outside her parents’ home at 3 o’clock in the morning of 18th April kicking the door when the police had to be involved. An ugly incident.
153. Notwithstanding all that, perversely she found it necessary to return to the father again on 22nd April and we know that within a matter of two or three days B had to be admitted to hospital with repeat vomiting.
154. Within a short time of B’s discharge perhaps even the next day on 1st May B was present during an argument between mother, father and father’s mother in which father’s brother subsequently became involved and a shouting match ensured with father and B upstairs in father’s flat and father’s brother outside contributing to that argument. As a consequence of this altercation which the police described as alcohol fuelled, mother once again returned with a five week old B to her parents’ flat.
155. She told the guardian’s Counsel in cross examination that that pattern continued throughout April and indeed May.
156. One of the suggestions in this case is that B has had an abnormally large head for some time and she recalled her father saying as much when B was admitted to hospital in May. It seems however that this was not mentioned to the health visitor when she visited on 8th April and had the mother of course attended her antenatal check on 9th May it is a matter that would have had the opportunity of being raised.
157. It is her case that on one occasion after B’s removal but before the assault for which the father was convicted on 9th September, she was assaulted by the father who head butted her in bed and she received a black eye and a bruise on her forehead. She concealed this with make up. After comparing her accounts with the father’s accounts and hearing them both in evidence I have little doubt that this is true. The concerning feature in the context of this case is not necessarily whether or not it happened, and in my judgment it did, but the mother’s complete failure to mention this to the social worker with whom she has a good relationship or indeed at contact.
158. The contact records are clear namely that the mother interacts appropriately with B and meets his physical needs but she has demonstrated in the short time that B was in her care that she has little aptitude for placing his needs ahead of her own emotional need to remain in a destructive relationship with the father. The failed appointments tell their own story and it is perhaps unfortunate that it is against that background that the court has been asked to consider whether B has suffered inflicted injuries.
159. S is B’s maternal grandmother and she has made two statements within these proceedings.
160. The first statement which she made with her husband, “A”, is dated 28th October and in it she and her husband reposed the belief that B’s injuries were not intentional and are directly connected to his forceps delivery at birth. She expressed the wish that B be returned to his mother and family by Christmas. In the intervening period it would seem that her husband has been convicted of a charge of assault and is serving a period of imprisonment.
161. I should add for the sake of completeness that she and A were subject to a carer’s assessment and concerns raised in relation to A’s previous criminal offences and domestic incidents involving their own relationship in 2004 and 2007 when A appears to have been in drink and assaulted S. Incidentally when I asked her in relation to that last incident she said she could not remember it.
162. Having said all that I am prepared to accept evidence that S has tried to support her daughter following B’s birth and continues to be a source of support to her as her daughter is now living with her.
163. She runs her own small cleaning business and she would be prepared either to give up work to care for B full time or work alongside her daughter and the father’s aunt in effect to provide a package of care. Her husband on release would live elsewhere as she said “family comes first.” Her last statement was filed in the first days of this hearing and in summary she categorises the second respondent father’s controlling behaviour towards her daughter and his verbal abuse characterized , she would say, by the father being resistant to the mother having pain relief in hospital during the course of B’s birth and then being reluctant thereafter to allow family members to return to hold B.
164. She was aware of T’s abusive behaviour but did not, until recently, understand the extent of the violence.
165. She expressed herself as being very positive that her daughter would not reunite with T. Since the separation her confidence had grown and expressed shock and surprise when hearing in the witness box that the mother had indicated in evidence that she still loved T after all that he had done. Accordingly, there must be a question over her own judgement and the extent to which she truly knows her own daughter.
166. She also said that she didn’t think that her daughter had been in communication with T since separation notwithstanding of course that her daughter gave evidence that she had been in communication on Facebook as recently as Christmas.
167. It was difficult to reconcile her lack of knowledge of these key features or indeed the extent to which her daughter had suffered violence at the hands of T with her position that there were no secrets in her family which gives rise to some concern as to what protective force she would be if charged with a responsibility to care for B either on her own or with others. I do not doubt her good intention, I do doubt her effectiveness.
168. It seems that before B’s birth she had been concerned about the relationship between the parents and said that the father was constantly phoning and texting and she didn’t think this controlling aspect of the relationship was right. Her daughter appeared isolated from her friends. Sometimes the calls would be repeated up to fifteen or twenty times a day and she agreed with the suggestion that T’s behaviour was obsessive, becoming worse when her daughter became pregnant.
169. She was asked about the incident in her own house that led to the mother’s admission to Accident & Emergency in 2012 when the mother was seven weeks pregnant and had to be taken to casualty by police because of abdominal pain having been caught in the crossfire of a fight between her son and the father. She said she hadn’t been able to establish exactly what had happened but knew obviously that her daughter had to go to the Accident and Emergency department. Her state of knowledge appeared scant.
170. To her substantial credit and the substantial credit of her husband, it seems it was they that took the initiative in supplying the equipment necessary for B’s arrival and had previously helped T fit out his flat. She said “we provided what they needed” and I am sure she is right. I have little doubt that without her involvement mother and father would have been singularly ill prepared.
171. She knew that her daughter would be a good mother. She said the father was very excited about the baby but her concern was that he seemed to want a baby to himself. She agreed that the relationship between the parents appeared unstable with the mother (and in particular B) going backwards and forwards from her house and the father’s flat. She and her husband wanted her daughter to come home initially for three or four days and she was therefore surprised and disappointed that on the very first morning after their arrival they decided to leave and we know from the chronology that mother went backwards and forwards with B who was, at that stage, a very small baby indeed.
172. She was plainly also aware of the instability in the parents’ relationship in April and May but it remains a fact that she was unable to influence her daughter sufficiently to stay in one place and she agreed that it was the police who had returned B and the mother to her house following an argument between paternal family members on 1st May. She however did not think that B would not be safe. That is difficult to reconcile with even her scant recollection of the July 2012 incident when the pregnant mother had to be checked out in Accident and Emergency.
173. On 31st May she said that her husband had reported an incident whereby the father was holding the mother down on a bed when they were staying overnight at their house and that her daughter had been audibly upset.
174. Against the background of what she now knows of father’s volatility, his domestic violence towards her daughter and his controlling and obsessive behaviour she said that she would be very shocked if the father had done anything to hurt the baby because both father and mother were very good with him and there was no doubt that the father loved B and loved playing with him and talking to him as well as interacting with him. In fact she had no concerns as to his care, he was really very good with B. She had the impression that the parents shared some of the feeds but that her daughter did most of the night feeds.
175. She was constrained to accept that the father kicked the door and caused a disturbance in the early hours of 18th April and had seen the father getting angry and aggressive in his speech and his behaviour was more angry than agitated.
176. Notwithstanding all her concerns, it seems that she would not present any obstacles to the father seeing his son. I should record at this stage is that my impression of S is that she is a hardworking mother and a devoted grandmother but I wonder to what extent her safeguarding antenna were properly engaged in relation to this case knowing that her grandson was exposed to such instability in the early periods of his life.
177. She clearly didn’t know the number of missed health appointments. She was taken to a detailed chronology of B’s comings and goings from her house throughout April and May and even against that background of frequent and constant contact with the mother it is a source of grave concern that she apparently knew little of the father’s behaviour towards her daughter and the extent to which necessarily it would have exposed B to risk.
178. It will be part and parcel of any further assessment in the welfare stage that her understanding of the risks of exposing B to volatility and domestic discord are properly investigated as given that she has said that she has a close relationship with her daughter, she was significantly badly informed in relation to key elements of her daughter’s care of B in the first weeks of his life.
179. T is B’s father and he has made five statements including his response to the findings sought. He was also interviewed by police and the transcript of the interview that took place on 5th June is in the bundle.
180. When he gave his oral evidence in chief he went further than his written admissions and admitting slapping the mother but was not specific in relation on how many occasions that took place. He admitted slapping the mother in the parked car in August and going round to the property in the early hours of 1st May. His other admissions are recorded in his last statement. It was apparent however that he took issue still with the extent of the mother’s allegations involving him.
181. He explained that he had been very excited when he had learned of the mother’s pregnancy and was overwhelmed. He described it as “the best thing in the world” when he first held B. He explained that he had made improvements in his life, was looking for work, had stopped smoking cannabis, was keeping fit by going to the gym and was going to go to anger management to deal with “things.”
182. He accepted that he had gone over the top on a number of occasions saying a lot of things he didn’t mean. By way of example he acknowledged that he had behaved in a wrong way to Dr Shrestha to whom he used abusive language on 30th May when she explained that Social Services were coming to take B. It may well be that such language in the heat of the moment from a distressed parent is understandable but that pattern of abusive and unpleasant behaviour is replicated throughout the chronology of this case in father’s dealings with social workers at contact particularly in the early days, other professionals, the mother, his own family and the mother’s family and he presents throughout the evidence as a man with poor self control and a propensity to act first and think later. I acknowledge of course that this may in some way be attributable to his own background. On his own admission he has learning difficulties and I have been alive to any difficulty that he may have with the court process.
183. In view of his present position in that he acknowledges some incidents of violence (although not all), in his earlier written statements when he says that there were no incidents of physical violence between the mother and himself, it is of course a lie as indeed was his assertion and that of the mother to Dr Shrestha that there were no domestic violence elements in their relationship.
184. His case however is that he has separated from the mother and did so on 21st August notwithstanding the fact that they had spent a night together at the end of September. On his case there has been very little communication between himself and the mother and he has also been involved in a short relationship which is now over as he wishes to focus on his son.
185. Notwithstanding what the mother has said about recent communication on Facebook, his case is that he sent two messages on Facebook between 7th and 19th December basically indicating that firstly he was not going to argue and secondly, that he wasn’t going to have any communication because he had signed a document at the police station and thought that he was bound by the terms of some injunction. When Facebook records were disclosed it revealed that his recollection of those limited exchanges was broadly correct.
186. From 21st August (two days before his birthday so he remembers it distinctly) he said that he and the mother thought that it was best to split up until everything finishes. After that matters if anything, got worse and we know that on 9th September he assaulted the mother.
187. He said that he was upset by this separation. He had in effect lost his family and he has struggled with it and he understood that the mother had been advised to separate and it had nothing to do with the way that he had behaved to her and he did find it difficult to understand. More than once he made it plain that he still loved the mother and there was more than a hint that a relationship at some unspecified time in the future could not be ruled out.
188. His justification for assaulting the mother on 9th September is a curious one and contained in his October statement. He said in that statement that he was upset and this led to an argument with the mother after contact. Leaving his son after contact was very hard and he was under a lot of pressure and emotional upset as a result of the case. He said that he was sorry about the loss of control but the mother was saying hurtful things to him about the relationship and appeared to be playing games. He was subsequently convicted of common assault. Of course I am mindful of the fact that this is not an isolated incident and part of a continuing pattern of his relationship with the mother which is made clear in the chronology.
189. He resisted any notion that he had been slapping the mother sometimes as often as once or twice a week but unable to proffer any real explanation as to why she should be untruthful about that. He accepted that he may have pulled her hair “once or twice” as part of rough play or in a sexual context. He denies any suggestion that he head butted the mother. One of his Tries?? was that she somehow resented matters because he had “moved on.”
190. Notwithstanding his dispute with the mother regarding the factual aspects of the extent of domestic violence, he still was at pains to describe the mother as “a perfect mother” and his case was that B should be with his mother assisted by her own mother.
191. In relation to possible re-ignition of his relationship with the mother, he was challenged that in his October statement he indicated that he still loved the mother and that she did not want to see him for reasons best known to herself. He wasn’t able to say why he had said that in his statement but indicated that he did care for her, saying later in his oral evidence that he still loved her and B but a relationship should not be in their heads for a year or two or more. He acknowledged that in effect he had been forced to separate.
192. He was challenged extensively on his inconsistencies regarding his cannabis use.
193. In oral evidence he claimed not to have used cannabis since late October/early November 2013 but smoked one spliff over Christmas starting smoking cannabis in July 2012 or thereabouts. He denied any suggestion that he had ever smoked six cannabis cigarettes a day. At B’s birth he had one or two cannabis cigarettes a week and there was no smoking in the house or in B’s presence.
194. Of course mother had previously said that he was smoking cannabis daily but had cut down a bit after B’s birth. In his later statement filed in the beginning of these proceedings he indicated that he had stopped smoking cannabis before B was born and when challenged with his latest oral account and that of the mother, he said that stopping cannabis was a process and acknowledged that he had not stopped completely.
195. Earlier in the proceedings and dated August 2013 he admitted smoking one spliff a day and said that he used to smoke six spliffs a day something that he said he never did when he gave his oral evidence.
196. He is plainly lying about the extent of his cannabis use. He took issue with the mother’s account that he needs cannabis to remain calm and did not accept that he was less patient when he was not smoking cannabis. He did acknowledge that he didn’t just “care as much.” His untruthful account in relation to his cannabis use goes of course to his credibility and the extent to which he seeks to minimise this use has a parallel, in my judgment, in relation to the extent to which he seeks to minimise his abusive behaviour of the mother. He clearly did not accept the suggestion that he has “a short fuse” and claimed not to lose his temper quickly but the weight of the evidence is clearly against him. His suggestion that he gets “a bit agitated” is not borne out by examples of his extreme volatile behaviour recorded in the contact notes when it is evident that his behaviour was having a direct effect on B who was becoming upset and agitated.
197. Interestingly in terms of his exchange with Dr Shrestha although he acknowledged that it was wrong, he sought to justify it in terms of it being “not about losing my temper” but about standing up for your family. I detected more than once an element of minimisation and justification in relation to his behaviour which substantially undermines his acknowledgement and acceptance that others may feel threatened.
198. I have already alluded to his behaviour in contact. In fact it was the contact on 7th August when father complains in an angry tone that the foster carer was spoiling B and swore. As I have said, B started to scream at one stage as the father was getting more agitated. He had complaints that the foster carer was overfeeding B saying “she thinks she is his fucking mum.” His voice was raised and he was swearing to the extent that others in the community noticed what was going on. He referred to the foster carer as a “bitch” and said that he would take a gun and shoot her to the extent that the threat was reported to the police.
199. He admitted that what was reported was substantially true but thought to minimise the threat element by indicating that there was nowhere that he could get a gun and he seemed to find the incident amusing. Incidentally there are numerous references to text messages in this case and some of the messages to the mother are threatening e.g. on 4th June “ok then if you wanna live” which the mother took as a threat. He accepted he was trying to get his own way but that wouldn’t have been seen as a threat. The words had gone out without him thinking and he described it as an empty threat and that the mother knew that it was. At every question he sought to limit or modify the extent of his behaviour and in any event said that his self control was now “a million times better.”
200. He was resistant to the notion that his early hours visit to the maternal grandparents’ home at 3 o’clock in the morning of 18th April had been fuelled by anger and that he was out of control notwithstanding the fact that the police had to be called because he had been kicking at the door.
201. He did not accept any responsibility of the altercation with the mother’s brother in July 2012 despite the fact that the mother was taken to hospital by police. He did not lose his self control he said “I didn’t do nothing.”
202. It was suggested that in July 2012 the police record indicated that he had been involved in an assault on his own mother and had run off when police arrived but was resistant to any notion that he was in possession of an imitation firearm although acknowledged that he had at least one air rifle at the time.
203. Most surprisingly however was his assessment of his relationship with the mother following B’s birth. He explained his devastation at learning of the mother’s infidelity a year previously from a friend but said that he forgave her. He also said that during their discussion about the matter he had pushed her and she tumbled backwards. After B’s birth and up to May 2013 his case was that the relationship was getting stronger. He just wanted to forget everyone else and get on with their lives. He felt that the mother’s parents were interfering and that they should be making the decisions and appeared to have no insight at all on the impact on B of moving backwards and forwards every few days between his flat and the mother’s flat.
204. His lack of insight in relation to what a young baby needed in terms of stability was perhaps demonstrated by his view that B did in fact have a routine moving backwards and forwards from the property but I am afraid the chronology is firmly against him. He denied any suggestion that the relationship was unstable but the text messages clearly adds support to the chronology for the constant arguing and bickering between the parties. His contention therefore that the “relationship was fine” was breathtaking.
205. I have already mentioned that there are some disclosed entries in relation to his Facebook account and that of the mother. Perversely, and it was an act of crass stupidity in the teeth of a direction given by me I note that the mother deleted two messages from her Facebook account which related to allegations made by the father of her using drugs.
206. I return to his exchanges with Dr Shrestha in the hospital to which I have already alluded. Dr Shrestha’s contemporaneous account was put to him and his use of bad language. It was plainly a loss of temper but he would not accept it justifying his behaviour by claiming that Dr Shrestha had lied to him. There seemed to be little capacity for any understanding on his part that he could have dealt with his upset in a different way.
207. Dr Shrestha also recorded a slightly later incident the same day when once again he became aggressive and was agitated and pacing the floor and the father said that his emotions were running high and it was the only way he could express his feelings maintaining that his loss of control does not happen suddenly and it would need something hurtful or untrue to make him agitated such any suggestion that he had hurt his son. Once again, an even allowing for the extreme difficulty of this interview with Dr Shrestha, I was struck by his self justification and complete absence of any strategies to deal with matters in a different way.
208. He was challenged that there may have been difficulties in the way in which he handled B by perhaps not holding his head up and holding him like “a little aeroplane.” But he maintained that he was always careful with B and there was no rough handling.
209. He accepted that he has lied about the relationship with the mother and he didn’t tell the police or Dr Shrestha but perversely in the context of the extent of the domestic violence does not accept that he has not been truthful.
210. He was not able to accept that the mother was sometimes in fear of him and was not able to differentiate between what he called “an empty threat” and what would be perceived by a third party.
211. He was taken to a portion of the mother’s latest statement that the maternal grandfather had reported to the social worker that he thought that she was scared of the father. She said “he is right, I was scared of him because his temper is so unpredictable. One minute he can be fine and the next minute really angry and violent.” The mother said in the selfsame passage that she did not feel that she could take the risk in leaving B with the father although he did not think that he would necessarily hurt B. Again, father when challenged with that passage said that the mother knew him and knew that the threats would not happen. He has little understanding of his impact on other people.
212. In terms of minimisation, his account of 9th September both in his statement and orally was less than satisfactory. Mother recorded that she had received a bruise and a cut lip. He was prepared to accept a bruise. When pressed he was prepared to accept that on this occasion that he had lost his temper but sought to justify by saying that he really didn’t think about it and it was in the context of an argument in which the mother said that he would never see her and B again rather than on the mother’s account, him slapping her when she said that she was going to report him to the social worker because he was preventing her leaving in the taxi. What is truly astonishing about this incident is that the father was so disinhibited and so oblivious of being in a public place and his behaviour witnessed by an independent third party, namely the taxi driver, that nevertheless he proceeded to assault the mother in a totally unacceptable way. This goes directly to his lack of self control.
213. The incident when he slapped the mother by way of retaliation (he says) when sitting in his parked car in August, he sought to justify in that he said it felt like a boy was hitting him, in other words the mother hit him quite hard. As he was taken by surprise he reacted as if a boy had been sitting next to him and hit him. This account is totally implausible as he would have been aware of the mother sitting next to him sitting in the car listening to music before the incident happened.
214. Whatever his account he was resistant to the notion that this was in fact an incident of domestic violence describing it as “an accident” all arising out of a misunderstanding. It was suggested to him that he was reluctant to admitting hitting the mother on a regular basis (as she has said) because it was embarrassing but he didn’t accept that an allegation of that sort could be embarrassing.
215. His account of what occurred in the bedroom at the mother’s parents’ house on 31st May was challenged. He said that he was not pinning the mother down but she could have been crying because their son was in care. His case is that he was just talking to the mother but the maternal grandfather was sufficiently concerned to have entered the room hearing of his daughter’s distress. Once again, more self justification. The father didn’t like the way the maternal grandfather spoke to him. He was unable to provide any coherent explanation as to why the maternal grandfather and the mother should lie about this incident and I am fully persuaded that it happened in the way described by the mother and rehearsed in an email sent by the social worker on the same day after the facts had been reported to her.
216. He was taken to his account of what occurred on 1st May. The police documentation indicates that there was some sort of disagreement amongst adults which they report was “alcohol fuelled.” The father was not drinking, the mother had had a drink and they had been at his mother’s house a short distance away. There was an argument as he wished to go home and the mother wanted to stay and he took B to his flat accompanied by a friend called Lynn. It seems that his brother was involved at the behest of his mother and the brother started shouting outside his property in the street. We know from other evidence that the mother was sitting with the brother’s girlfriend in their car outside. The record is clear that the father called the police. He was breathalysed by police and found not to be over the limit and a question arose as to where B should stay the night. It was he that went in the police car to the maternal grandparents with B and he was not happy at having to take B to the maternal grandparents.
217. There was no insight at all at the impact of this episode, howsoever it was caused, on B and the lack of control at every level emanating from the adults.
218. Social Services were necessarily involved by police and mother did not resume visiting his property until a letter was sent by Social Services dated 7th May. He accepted thereafter the mother came to stay with him once again from time to time in the period from 7th May leading up to B’s admission on 22nd May.
219. Throughout his evidence he was clear that he had done nothing either intentionally or accidentally to harm B and it is an enduring feature of this case, that notwithstanding the differences between the parents, he is supported in that view by the mother.
220. He emerged in evidence as a volatile young man who presents very accurately in accordance with the Local Authority assessments of him. I have little doubt that he has shown loving interaction to B and it is significant that contact was improved when he enjoyed contact on his own. His lack of empathy or understanding in relation the impact of his aggressive and volatile behaviour on others is marked and he and the mother have unnecessarily exposed B to domestic violence and instability all of which goes directly to their capacity to provide good enough care and the risk of significant harm to B.
221. So as to assist the court from the outset with its fact-finding enquiry the relevant legal principles are summarised below.
222. The burden of proving the facts required to establish either limb of section 31(2)(a) CA rests on the Local Authority (see Re H and R (Child Sexual Abuse: Standard of Proof)  1 FLR 80, affirmed in Re B (Care Proceedings: Standard of Proof)  UKHL 35,  2 FLR 141).
223. The standard of proof in finding facts necessary to establish the threshold under section 31(2) CA (or the welfare considerations in section 1 CA) is the simple balance of probabilities (see Re B above).
225. It is the role of the court to consider all the circumstances of the case. In Re B above, Baroness Hale observed, at para :
“Judges ... are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses.”
“…Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.”
· that in determining whether the standard required is met, it is very necessary to view each stage in the history of the case in the light of all the others – concerns that arose in relation to later periods inevitably infected earlier periods; and
· further that the issues of protection and perpetration had to be considered in the round – adverse findings in relation to the failure to protect were inevitably relevant to the findings as to perpetration.
“[In] my view, in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth)  QB 720 and R v Middleton  TLR 293. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. Also I accept that there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child.”
229. Also of relevance in the same case : ‘‘It is important to remember
(1) that the roles of the court and the expert are distinct; and
(2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.'
‘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 …’
230. In Re R (Care Proceedings: Causation)  EWHC 1715 (Fam),  2 FLR 1384, Hedley J, who had been part of the constitution of the Court of Appeal in the R v Henderson; Butler; Oyediran case, developed this point further. At para , he observed:
‘A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, 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.'
231. Later in the judgment, at para , Hedley J added this observation:
‘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 acknowledgment that we are fearfully and wonderfully made.'
232. There have been one or two recent decisions at first instance in relation to so called shaken baby cases in which the judges concerned have highlighted the difficulties of attributing the presence of subdural haemorrhages, retinal haemorrhages and encephalopathy to some malignant cause of inflicted injury against a sometimes complex and conflicting range of medical evidence.
233. In the case of Lancashire County Council v R  EWHC 3064 (Fam) Mostyn J reviewed the expert evidence of a paediatrician, a neonatologist and an ophthalmologist who varied in the strength of their view that the injuries were non-accidental.
234. I draw from that decision a number of themes as described by the Learned Judge :-
1. The presence of subdural and retinal haemorrhages and encephalopathy (which taken together form the well known “triad” referred to in the jurisprudence and the medical literature) do not of themselves prove anything other than the infliction of a head injury.
2. In as much as the presence of the triad or some of its components, are used in the process of forensic proof and this is based on statistical or empirical evidence which states that there is a high prevalence of those features in many proven cases of abuse. However the difficulties involved in conducting examinations and particularly CT scans on young children in that the data is compiled from a subset of children presenting with head injuries in which there is a high prevalence of suspected abusers. Accordingly the sample upon which the empirical analysis is based may be said to be false or skewed.
3. In the realm of subdural bleeds there seems to be a shift away from the recent prevailing orthodoxy with authority of research now demonstrating as false the supposition that a presence of a subdural haemorrhage in a recently born child is strongly indicative of abuse unless the birth was especially traumatic. Current medical and clinical thinking is now prepared to accept that short falls can in many cases cause subdural bleeds and the view that this could only happen exceptionally is regarded as outdated.
4. The ophthalmological world has not undergone an equivalent shift in thinking and the view remains that multitudinous bilateral retinal haemorrhages are strongly indicative of abuse. But this is not a unanimous view with a body of material shortly to be published which challenges the orthodoxy as well as a report by an American pathologist advising the need for caution in concluding that abuse has occurred.
5. A schism is beginning to form between the subdural and retinal disciplines concerning the forces involved in low level falls and in some respects medical evidence given on behalf of respective disciplines is irreconcilable. It would be dangerous to judge the case predominantly by reference to the mainstream orthodox opinion expressed by the ophthalmologist particularly where there is a research in the wings which may question that orthodoxy. The overall assessment of the medical evidence looked at in isolation was that it did not provide a sure or firm basis on which to conclude that it was more likely than not that the injuries were caused abusively.
6. The absence of any telltale concomitant injuries which so often feature in shaking cases was important in helping inform the court’s judgment. It was also of significance that the mother who knew the father better than anyone, firmly believed he was telling the truth.
7. No weight would be placed on the father’s criminal record of assaults on adult males or on some instance of abuse of the mother which were of a class apart from the conduct alleged here.
235. Also of note are the words in Mr Justice Baker in his judgment in the case of Gloucester County Council and JS (2012) EWHC 1370 (Fam), when he said “manifestly there has been considerable development in medical knowledge in this area in the last decade. The most striking is research into birth induced subdurals. There is also greater understanding about the presence and behaviour venous membranes within chronic subdural haematoma and the propensity for the veins in the membranes to fracture, causing re-bleeding to recur within chronic collections. In addition, Mr Richards and Dr Anslow confirmed that subdural haematoma can cross from one hemisphere of the cranium into the other … . “ The Judge noted that one eminent expert in that case observed that there had been an evolution of understanding about subdural haematoma over the last few years and that he was sure there was more to be discovered. I have of course had all these features in mind in assessing the broad canvass of the evidence.
236. In the context of perhaps the need, with the benefit of hindsight, and the observations of the experts in this case that the involvement of a neuro-surgeon would have been helpful, in a similar case (as yet unreported save in Lawtel) Devon County Council v EB  EWHC 968 (Fam) Baker J said
“This case demonstrates yet again the importance of a full and thorough forensic examination of cases of suspected child abuse. A full and thorough investigation involves a number of elements… Secondly, this case required the involvement of a range of experts from different disciplines. If the case had been decided purely on the basis of the treating doctors. The outcome may have been very different. The perspective brought… by…. has been very important. Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied they are necessary for the determination of the issues in proceedings.” (paras 155 and 156)
Findings and conclusion re the medical issues
237. Helpfully in this case, the Local Authority properly conceded at the conclusion of the evidence that it would be difficult to persuade the court to make findings of non-accidental head injury with Counsel for the Local Authority conceding that the evidence pointed in a number of different directions and that he could not rule out the prospect of a birth related cause or unknown aetiology, that the court’s task was “in no way an easy one” and that the Local Authority has a difficult course to chart.
238. Significantly Dr Sprigg accepted in cross examination that it was not easy to fit all the pieces of the jigsaw together and there was a lot of missing information. Mr Elston described the evidence as to retinal haemorrhaging “perplexing and difficult” and that it was “absolutely right” to consider unknown cause. Professor Wyatt said that this is an unusual and complex case and that it was difficult to get the pieces to fit together and that as the evidence was developing it was not getting any easier. He said he was not in a position to rule anything out.
239. There is consensus at the Bar as to the nature and extent of the special evidential difficulties that occur in this case and effectively these have been set out by Mr Samuels in what is unusually, and helpfully, really a joint submission. I can do no better than to rehearse the very powerful points he makes in this judgment. The points that I rehearse below make it abundantly clear that the Local Authority’s assessment of the evidential difficulties in relation to the case are legion and the case, if based on non-accidental head injury alone, would inevitably fail to cross the threshold.
240. In the hope that this judgment will add to the debate regarding such cases I faithfully rehearse the points made below:-
“ (1) It is impossible to distinguish by way of scan alone between an ‘acute on chronic’ subdural presentation and an acute bleed accompanied by an acute traumatic effusion (the escape of CSF into the subdural space through a tear or other perforation in the arachnoid membrane) (Dr Sprigg). Thus it was impossible for the experts to determine whether what had occurred to B was a single event or a combination of 2 or multiple events. The clinical evidence e.g. analysis of the subdural tap did not appear to assist on this issue.
(2) Dr Sprigg found evidence of compartmentalisation and stranding on the MRI scanning which, if present at the time of admission, would provide strong evidence to support an acute on chronic presentation. Unfortunately, the MRI scan in this case only took place after the subdural tap and it was therefore impossible to know whether what was seen was pre-existing or a result of the surgical intervention.
(3) None of the experts could rule out the possibility that B had sustained an asymptomatic SDH at birth. From the most recent research paper (Rooks) it seems that up to 46% of babies are born with asymptomatic SDHs. It is at present unclear what the predisposing factors are likely to be but it is evident that SDHs occur with all delivery methods including caesarean. There is no real evidence base as to what then happens to those children – only 27 children from the 3 studies were followed up. Experience from other areas suggests that a small proportion of such SDHs might, for reasons unknown, develop into chronic effusions. That is likely to be due to a combination of liquid being drawn from other areas into the SDH and the process of re-bleeding. All the experts conceded that B could have been one of those children, however small the percentage.
(4) The only measurements taken of B’s head circumference were shortly after birth and at hospital in May 2013 – there was nothing in between recorded either by the health visitor or during the hospital admission in April. During this time his head circumference had increased from the 9th to the 91st centile. Professor Wyatt agreed that it was more likely that this had been a gradually evolving problem rather than associated with an acute event shortly before the May hospital admission, but he could not rule this out. After giving his oral evidence Professor Wyatt provided his own chart of the increase in head circumference which does support the inference that there was a pre-existing problem. A dramatic increase in head circumference immediately prior to the hospital admission would have been expected to cause a more severe clinical deterioration than had occurred to B.
(5) In his report and at the experts meeting Dr Sprigg had drawn attention to a ‘tiny amount’ of fresh blood present in the sub arachnoid space. He had concluded that this was strongly suggestive of an acute event shortly before the May hospital visit. However this has to be balanced against the evidence of Professor Wyatt who accepted that such blood might have been caused through fitting or by an unseen episode of apnoea. The court has to be alive in these cases to the possibility of ‘a domino effect’ from a pre-existing problem and that much remains unknown about the progression of these unusual head injuries. Some experts postulate that blood can cross the arachnoid membrane although this remains untested. It is perhaps important in these cases not to give too much weight to one particular medical finding but for the court to consider the evidence in the round. There is much less of a prospect then of future developments in medical science undermining the foundation of a previous finding.
(6) In his report, Dr Sprigg had drawn attention to the fact that B appeared to have a large subarachnoid space. He postulated that this “may mean that the head is relatively loose inside the skull, as a theoretical predisposition to acute subdural haemorrhage.” This was the opposite of what is usually seen in the presence of large bilateral subdural collections where there may be some degree of compression of the subarachnoid space and ventricles. Dr Sprigg could not explain why there may be a predisposition to subdural but not subarachnoid bleeding, given that the bridging veins which are said to be one possible cause of subdural bleeding (and are more susceptible to bleeding if they are stretched) also run across the subarachnoid space.
(7) In his oral evidence Dr Sprigg drew attention to a small amount of fresh subdural blood in the cerebellum and away from the site of any chronic collection. Although this had not formed the subject of any particular comment in his report or at the experts meeting, he said in his oral evidence that this too was strongly suggestive of an acute event. He did not accept the prospect that acute blood might move from one part of the head to another and suggested that if anything the chronic collection would be more watery and more likely to move. When pressed he said he was unable to produce any research material to substantiate that conclusion and accepted that this was ‘at the cutting edge’ of medical understanding. This appears to contradict the evidence of Professor Wyatt who described a chronic collection as ‘like engine oil’ and the evidence given in Re JS , referred to earlier , where Baker J said at paragraph 59:
“Mr Richards and Dr Anslow confirmed that subdural haematomas can cross from one hemisphere of the cranium into the other. Indeed, Dr Anslow demonstrated from the MRI that this appeared to have occurred in J’s case. In surgery both Mr Carter and Mr Richards have seen perforations in the falx, that is to say the fold in the dura that descends into the inter-hemispheric fissure, which would permit communication between the potential subdural spaces in the convextus above the two hemispheres. Given these developments, it was not surprising to hear Dr Anslow observe that there has been an evolution of understanding about subdural haematomas over the last few years and that he is sure there is more to be discovered. Mr Richards observed frankly of this area: “we have enormous gaps in our knowledge. Anything anyone says is informed speculations, not scientifically proven fact, including what I say in the reports.”
This is all the more reason, we suggest, not to place too much reliance on a single piece of the complex jigsaw in these NAHI cases.
(8) The evidence as to the April hospital admission was perplexing. B was treated as having suffered from gastro-enteritis and this was clearly the view of the treating doctors on this occasion. However, as Professor Wyatt analysed in his report the evidence really pointed in a different direction. B did not appear to be suffering from diarrhoea, which would be unusual with gastro-enteritis. He did not have an elevated temperature. He did have significantly raised blood pressure and an unusually low haemoglobin level which would be more consistent with raised intracranial pressure secondary to a SDH. However, if that were to be the explanation then it would be unusual for the symptoms to resolve spontaneously without treatment. He accepted that an enlargement of B’s head consequent upon the raised intracranial pressure might have relieved the pressure and therefore the symptoms. Without wanting to criticise the medical staff in April, SDH would have been on his list of possible causes for B’s symptoms and an investigation into possible head injury on that occasion (or at very least a measurement of B’s head circumference) would have resolved many of the unknowns that the court is currently grappling with.
(9) Even more perplexing was the ophthalmic evidence. No reliable ophthalmic examination took place until over 12 hours after the subdural tap was performed (2.30am 25th May). Dr Issa, Associate Specialist in Opthalmology, conducted a full examination at 3pm on 25th May and found 2 blot haemorrhages in B’s right eye with no haemorrhages in his left eye. B was later examined by Dr Burke and Mr Benjamin, Consultant Ophthalmic Surgeon, on 30th May. Mr Benjamin found no haemorrhages to B’s right eye and 2 intra retinal haemorrhages and a macular haemorrhage to his left eye. Mr Elston concluded in his report that “the retinal abnormalities in this case are problematic and not susceptible to straightforward analysis.” Mr Benjamin had postulated in his letter that the haemorrhages he saw could have been the result of raised intracranial pressure resulting from the surgical intervention and reiterated this in response to being shown Mr Elston’s report. Mr Issa had responded that he agreed with Mr Elston’s conclusion. There was some suggestion that Mr Issa, an experienced doctor, may have got his right and left mixed up. Not only was there no direct evidence upon which the court could reach such a conclusion but, as Mr Elston accepted, this could not provide a full explanation as the haemorrhages seen by each were different in number and in location. It was possible that by 30th May the haemorrhages to the right eye seen on 25th May had resolved but if new haemorrhages were to have developed in that time, given B was in hospital, the only likely explanation was raised intracranial pressure. If anything, the pressure was likely to have been greater before rather than after the surgery. Thus if raised intracranial pressure was the explanation for the haemorrhages seen on 30th May they could not be excluded as the explanation for those seen on 25th (indeed Mr Elston conceded as a matter of common sense that if RHs are noted on two separate occasions within a relatively short time frame the cause of each is likely to be the same). Mr Elston readily accepted the prospect of unknown cause as an alternative hypothesis.
(10) In short, an analysis based on the ‘triad’ was unlikely to be of any assistance in this case. It was possible for the SDH to have a birth related origin. At least one, and possibly both, sets of retinal haemorrhages were likely to have been caused by raised intracranial pressure or were simply unexplained. Any encephalopathy in this case was relatively mild and symptoms arising from the development of a birth related SDH could not be excluded as a cause. There was certainly no imaging to suggest B had sustained any brain injury.
(11) There was no evidence of any contusion or axonal injury to B’s brain. A skeletal survey had revealed no fracture injuries. On admission to hospital B was not reported to have sustained any bruising. There was evidence of bruising to both arms and to his left hip noted the day after admission which disappeared within 2 days. However the treating clinicians had been quick to consider and to note in the medical records the prospect that such bruising could have been caused when undertaking a lumbar puncture. Thus it was impossible to attribute the bruising to any NAI inflicted prior to hospital admission.
(12) Whilst the court inevitably surveys the wide canvas in these cases, there was nothing on the evidence heard by the court to suggest that either of these parents would inflict a NAHI on B. Although young, both presented as loving and caring parents. Although the father has something of a history of violence, and was said by the mother to have slapped her and pulled her hair on frequent occasions and to have head butted her once causing bruising, the court could not assume he would similarly assault B. A propensity of violence generally does not of itself provide an evidential foundation to assume perpetration of violence to a young baby. Nor can it necessarily be inferred that B had been ‘caught in the crossfire’ of a dispute between his parents. What was notable in this case was that neither parent could believe that the other would cause harm to B and neither gave account of an incident where harm may have resulted to B. What was also important is that the LA and the Guardian did not seek to challenge the account that each gave of the events giving rise to B’s hospital admission in April and May. On both occasions prompt medical attention was sought for B and a consistent history of the development of B’s symptoms was given to the treating clinicians. However tempting it may be to conclude that a young man with a propensity to violence to adults (or a young mother receiving less than optimum support during night time feeds) must have inflicted harm on his young baby, such a temptation would reflect lazy judicial decision making. An overall analysis of the evidence in this case did not point with sufficient clarity towards a conclusion of NAHI. Thus, the LA could not, as they recognised, discharge the burden of proof upon them.”
241. I have subjected each of these submissions to careful scrutiny. They are well made out and correspond with the Court’s concerns regarding the medical evidence. The Local Authority’s stance therefore is expressly approved. The evidential burden cannot be discharged.
242. The parents have conceded that the threshold criteria pursuant to s.31 (2) of the Children Act has been met. The Local Authority asserts that B was exposed to domestic abuse in the period between his birth and the second hospital admission on 23rd May and the court is invited to make findings in relation to the Local Authority’s amended threshold document which relates to the evidence that has now emerged in relation to domestic abuse. The additional findings are clearly set out in the amended Scott Schedule.
243. Further, the guardian invites the court to make additional findings based on the court’s impression of key witnesses and their responsibility for the instability to B in the first eight weeks of his life. I shall come to those presently.
244. By way of introduction to these specific findings the court has been mindful as to the extent of both the parents’ vulnerability. Father admitted in evidence that in 2012 he tried to hang himself from a tree. His anger, aggression and cannabis use are set out clearly in the papers. The court is also mindful of the positives in relation to the father namely that he clearly loves B and actively promotes the mother as B’s prospective carer. He is clearly a young man who struggles to maintain his emotions as demonstrated by the findings and any prospective role that he may have in B’s care needs to be carefully evaluated.
245. The mother is also vulnerable. She has had depression and is currently assisted by medication. Her psychological vulnerability needs to be explored in assessment as indeed does both parties’ cognitive abilities.
246. The second feature to mention by way of preamble to the findings is the issue of lies. Both parents have lied. I mention in passing that both lied to Dr Shrestha regarding domestic violence. Mother has lied in her past statements regarding the extent of domestic violence which she alleged at the hearing and in her final statement. The mother also lied in relation to spending part of a weekend staying with the father in September.
247. Mother has admitted that she has lied because she was ashamed and embarrassed about what had happened and had not recognized until recently that it was an unhealthy relationship. In my judgment it goes farther than that, namely that it is clear from the text messages that she continued to be enmeshed in a relationship with the father to whom, to this day, she feels attached. It goes therefore further than her explanation that she lied just through shame and embarrassment and, in my judgment, the mother is now telling the truth because she recognises the need for her to be honest so that the court can properly determine B’s future, and I suspect she has been well advised.
248. In my review of the father’s evidence it was clear that I found him to be either grossly minimising the extent of his abusive conduct or lying. I of course throw into the balance that he was broadly truthful about the extent of the entries on Facebook but his motive for lying, in my judgment, is that he wishes to portray himself in a better light in relation to the court’s evaluation of him as an individual with a role to play in B’s life.
249. I have carefully scrutinised the parents’ respective accounts in relation to the issues. I have looked at the contemporaneous records where they exist. I am entirely persuaded that on the balance of probabilities the mother’s account is to be preferred over and above that of the father and that the evidence that she has given in the witness box in relation to the father’s conduct, as set out in her fourth statement and in the witness box, is true. I have considered whether she would have a motive to lie or exaggerate and reject that proposition firmly. She has no reason to lie. If anything she would have a motive for concealing the extent to which B was exposed to her abusive relationship with the father. I therefore find that all the domestic abuse set out in paragraph 2 of the Local Authority’s Scott Schedule is true as indeed are all the findings sought in paragraph 3 under the title ‘Additional Findings.’
250. Paragraph 3.16 requires some refinement and I make a finding regarding the mother’s false account of the continuing relationship between herself and the father limited to her initial lie about spending the night and the next day with the father on 221st and 22nd September. Subject to that, I make all the findings sought by the Local Authority.
251. The guardian wishes the court to go further in relation to findings. I have read the guardian’s submissions with care together with the chronology attached thereto which demonstrates the various comings and goings of B in the first eight weeks of his life.
252. I have no hesitation in finding that B’s security, stability and wellbeing was not prioritised during that period of time and the role of the maternal grandparents as a protective force at that time left a lot to be desired even making allowance as I do, for the difficulty in them being able to effectively police the activities of their daughter. The maternal grandmother minimised the volatility of the relationship between the mother and the father and there was no evidence that she ever questioned or challenged the mother regarding the very evidence instability to which B was being exposed. There will of course be an opportunity for her to reflect on those shortcomings but it would be wrong if they were not clearly identified in this judgment.
253. The role of the maternal grandfather also bears some comment. He was complicit in his daughter’s lie that she did not spend the weekend of 20th to 22nd September at the father’s home. He is serving three years for an offence of violence. He has a range of difficulties of his own and the viability assessment of the maternal grandparents makes it plain that there were two serious incidents involving him assaulting the maternal grandmother while in drink. The papers reveal that he tried to kill himself in August 2013 by taking an overdose of Diazepam (which is the same drug the mother is prescribed for her depression). I make no particular adverse comment regarding that summation but these are all features that should “go into the mix” in relation to any plan for future care.
254. However in relation to the guardian’s position, I have no difficulty in finding that B’s peripatetic life moving backwards and forward from home to home in the first eight weeks of his life was directly contrary to his welfare and it is an important feature that as part of that picture important medical appointments were not kept.
255. This is a case where it is absolutely necessary that there needs to be an expert risk assessment involving the principal adults to determine the viability of care by family members.
256. I should record that I am grateful to all Counsel for their careful handling of an extremely difficult and complex case. I have reiterated in more than one judgment recently that the integrity of the forensic process in family justice would be severely undermined and compromised if it were not for the expertise of the Family Bar coupled with the availability of experts of the highest possible calibre to assist the court. That would necessarily include the availability of public funding for leading Counsel in early course of the proceedings to assist the court with determining complex issues surrounding the instruction of experts particularly in head injury cases. An additional essential ingredient to achieve justice is the availability of experts of sufficient expertise to assist the Court in these difficult NAHI cases. I fear the pool is diminishing and the public funding cap on levels of remuneration does not assist to reverse that process.