SITTING AT MANCHESTER
B e f o r e :
Lancashire County Council v The Children & Ors
(by their Children's Guardian)
Jane Cross QC and Carolyn Bland (instructed by JWR Law) for the Mother
Gillian Irving QC and Prudence Beever (instructed by Birchall Blackburn Law) for the Father
Samantha Bowcock (instructed by Forbes Solicitors) for the Children's' Guardian
Hearing dates: 6 – 21 May 2014
Judgment date: 23 May 2014
Crown Copyright ©
Mr Justice Peter Jackson:
1. First, the burden of proof lies at all times with the local authority.
2. Secondly, the standard of proof is the balance of probabilities.
3. Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation …
4. Fourthly, when considering cases of suspected child abuse, the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.
5. Fifthly ... whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.
6. Sixth, cases involving an allegation of non-accidental injury often involve a multidisciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.
7. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.
8. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas  QB 720).
9. Ninth, as observed by Dame Elizabeth Butler-Sloss in an earlier case "The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark." This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings  EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother's two other children had experienced apparent life threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed: "What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
10. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran  EWCA Crim. 126 at paragraph 1: "Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
11. In Re R (Care Proceedings: Causation)  EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, 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.
12. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of nonaccidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so."
The injury to K's head
Dr W, paediatric radiologist, in hospital at the time
Dr Karl Johnson, paediatric radiologist, in the initial proceedings
Dr Dawn Saunders, neuroradiologist, in the initial proceedings
Dr Ian Mecrow, paediatrician, in both sets of proceedings
Dr Neil Stoodley, paediatric neuroradiologist, in these proceedings
Dr Jayaratnam Jayamohan, paediatric neurosurgeon, in these proceedings
Professor Timothy David, paediatrician, in these proceedings
1) K had a right-sided parietal skull fracture and a sub-galeal haematoma about 3" x 2" in size. This swelling was noted as non-tender and fluctuant. A sub-galeal haematoma is a collection of blood and tissue fluid beneath the lining of the scalp. It had a small amount of fresh blood in it which could not be dated accurately from a radiological perspective. It was not due to a leakage of cerebrospinal fluid.
2) The fracture and haematoma were caused by an impact to the head. It is likely that they occurred at the same time. The precise degree of force required is unknown.
3) The skull fracture was less than ten weeks old. It is the most common area for the skull to be fractured and its type and location do not help to discriminate between accidental or inflicted injury.
4) The true incidence of injuries of this nature is not known as not all children are presented for medical attention. The fracture could have been sustained in an unwitnessed fall. If K fell from standing height on to the floor it would be unusual but not impossible for her to have sustained this injury. Low level falls without collision with other objects rarely cause fractures.
5) The haematoma cannot be dated radiologically. From a clinical perspective, the scalp swelling would probably start within a couple of hours, reaching its peak within a couple of days. It would probably resolve within a maximum of ten days, with five to seven days being a reasonable average. This swelling was last noted on the fifth day after admission to hospital.
6) Consequently, an incident on 2 November would be extremely unlikely to result in a scalp swelling first seen on 14 November. The possibility was described by a number of witnesses as being fanciful.
7) The visibility of the swelling would depend on matters such as the competence and attentiveness of the carers and the length and texture of the child's hair.
8) Skull fractures are almost always immediately painful but do not always cause ongoing pain. When the fracture occurred it is likely that K would have been distressed and that her carer would be aware that she may have had been injured. If K had an unwitnessed accident while unattended, she may have settled by herself. Thereafter, there may have been little in the way of symptoms to suggest to a carer that she had a fractured skull.
9) A subgaleal haematoma can be uncomfortable for a period of time but some can be completely painless. The child's reaction could have varied depending on the degree of force used when the swelling was touched.
The birth of the twins
The death of L
Dr Alison Armour, pathologist and Home Office Pathologist
Dr Melanie Newbould, paediatric histopathologist
Professor Tony Freemont, histopathologist
Dr Peter Cooper, forensic pathologist and Home Office Pathologist
Professor Timothy David, paediatrician
The post mortem examination
The Core Assessment
Statements by the parents
The parents' credibility
Conclusion in relation to K
Conclusion in relation to L