IMPORTANT - The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them or persons named in the judgment may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved. If reported, it is the duty of the law reporters to ensure that this direction as to anonymity is followed.
BRISTOL DISTRICT REGISTRY
B e f o r e :
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF JS (A MINOR)
| GLOUCESTERSHIRE COUNTY COUNCIL
|- and -
|- and -
|- and -
|JS (by his child's guardian)
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Mr. Paul Storey QC and Mrs Alexa Storey-Rea (instructed by William Bache and Co) appeared on behalf of the First Respondent mother
Mr. Nkumbe Ekaney QC and Miss Linsey Knowles (instructed by Rowbis, Solicitors) appeared on behalf of the Second Respondent
Mr. Mark Horton (instructed by Humfrys and Symonds) appeared on behalf of the Third Respondent by his child's guardian
Crown Copyright ©
"I understand you are going to send my grandson J to a paediatrician in view of the size of his head. We feel you should know that J has had what we can only describe as funny turns when he goes very stiff, then very limp. It has happened two or three times and it is quite frightening when it happens. [The mother] and [the father] asked me to write to you as we can't remember whether it was mentioned to the health visitors."
Issues and the hearing
"If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1."
"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to 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."
"There has to be factored into every case which concerns a disputed 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."
The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others  EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.
The Medical Evidence
Subdural Haematomas - General Observations
"Research has identified something that we thought was not there before. It used to be thought that unless something catastrophic occurred there would not be subdural haematomas after birth. The research papers of Looney, Whitby and Rooks have showed we were wrong and the Rooks paper suggests that half of us have subdurals at birth. What has yet to be seen is whether this can set off a chain of events that leads to a chronic subdural haematoma. But the numbers that have been scanned on follow up in these research studies are very small, only a small percentage of the acute subdurals seen at birth. We know that only a very small number of acute subdurals go on to develop into chronics, so it is not possible to say that because the research has not shown it cannot happen. So far we have not got any evidence that it cannot happen, so I would not exclude the possibility.
We do not know what causes acutes to become chronics. The vast majority of acutes are cleared away by the body's mechanisms. In a few cases, more commonly in infancy and old age, it starts off a chain reaction that makes it worse; the fluid expands, membranes are created, leading to more blood. That becomes a chronic subdural. Why Patient A gets it and Patient B does not we do not know, but it is not the usual response. In most cases the acute subdural disappears without trace."
"The vast majority might disappear without trace, but the occasional one might sneak through into a chronic."
"We have enormous gaps in our knowledge. Anything anyone says is informed speculation, not scientifically proven fact, including what I say in the reports."
Retinal Haemorrhages - General Observations
"that non-abusive head injury was a rare cause of retinal haemorrhage and, when present, compared to those in abusive head trauma, was more frequently unilateral, fewer in number and restricted to the posterior pole. Retinal bleeding is much more likely to be found in cases of abusive head trauma with the retinal bleeding described as multi-layered, extensive and extending to the periphery, but ... can occur in non-abusive head injury where they are more likely to be unilateral, non-extensive and restricted to the posterior pole."
J's Head Circumference
1. On the day after birth 33.8 centimetres, that is to say on the 50th centile, allowing for prematurity.
2. On 24 November 35 centimetres, again on the 50th centile.
3. On 17 January 41 centimetres, on the 98th centile.
4. On 24 January 41.5 centimetres, above the 98th centile.
5. On 22 February 45 centimetres, above the 99.6th centile.
Subdural Haematomas in J's case
J's Retinal Haemorrhages
"In the six images with visible detail there is no evidence of disc swelling. There are no haemorrhages on the discs and no superficial retinal haemorrhages. The images show retinal haemorrhages above and below the discs. There are two images of one eye, which I take to be the right eye using the accepted visualisation for these images, and four images of the other left eye. In all the images the retinal haemorrhages are within zone 1. In the images from the presumed right eye the bleeding obscured the underlying retinal detail, which indicates that it could be either under the internal limiting membrane and therefore intra-retinal or, if it has breached the internal limiting membrane, subhyaloid in position. The images from the presumed left eye showed a large haemorrhage image inferior to and abutting the macula, with some haemorrhage above the disc. The inferior haemorrhage obscures the underlying retinal detail and the superior haemorrhages would appear to be within the retina as there appears to be a retinal vessel overlying the haemorrhage."
"It has been reported that infants have an accentuated intracranial pressure/volume curve in which the intracranial pressure in infants rises much higher than in older children or adults when there is increase of mass inside the head, e.g. from blood. Thus, there may be greater transient increases in intracranial pressure in acute head injury infants compared to older children and adults."
Conclusions on the Medical Evidence
1. J's head circumference was normal at birth.
2. At some point thereafter, probably between the end of November and the end of the first week in January, he suffered an acute subdural haemorrhage that evolved into a substantial chronic subdural haemorrhage.
3. The chronic subdural haematoma caused the enlarged extra-axial space and the consequential cranio-cerebral disproportion and not vice versa.
4. The subdural haematomas could have originated at birth but more probably were attributable to a traumatic event that included an element of shaking.
5. The small volume of fresh blood in the chronic collection could have been caused by a rebleed from the membrane within the collection or by a further incident of trauma.
6. The mild bilateral retinal haemorrhages could have been caused by raised intracranial pressure but more probably were attributable to a further traumatic event between 2 February and 2 March.
The Lay Evidence
"My boy and my girlfriend, realistically I've got fucking nothing left, have I? Hey? I've got nothing left thanks to you. I wish you'd never fucking moved into this place. Quite simply I was actually trying to contact you. Trying to actually work with you on it. Instead of that you just take on board every bit of bullshit you can do of what your solicitor - you don't want to change your mind because you've made your mind up. That's what you want to do, don't you?
Save L from what? I have once - once attacked L, once, but why did I actually do that? You can't remember the reason why I exploded that night, can you? We had an argument."
"I don't fucking know, do I? You're fucking deranged half the time. What you're actually putting this around at is quite simply my explosive behaviour. You turn that around at every single person. Oh, he's just an explosive character. I was never fucking like this until I met you. It's a fucking important thing we're talking about. Don't you fucking walk away like that."
"On 21 January I recall that J stayed with me during the day and overnight at my mum's to give the mother a break. I believe that it was a Saturday and that I had him from about 9am. J seemed okay and he slept okay. I recall that it was at night time that J woke up for his 3am feed, i.e. 3am on 22 January. He woke up I would say quite upset and irritated. I got up to get him. He was sleeping in the next door bedroom in a Moses basket. I started his feed but he did not quite seem himself. Part way through the feed I thought he might have some wind, so I sat him on my thigh with my hand on his chest and patted his back. It was as if he was very sensitive to his back being touched and it was then that he threw his arms back like a spasm and his legs went out. I could not get what I thought was the wind up. He then, I would describe, flaked out. I have to say that I thought he had died. When I listened he was breathing, but it seemed to be very shallow. I believe I called my mum in. She has experience of babies, obviously having her own, and also because she is a home care assistant. She thought that J had stopped breathing and I handed J over to her. I think that this only lasted for a few minutes, but it felt like forever. J then started to come round, but he still wasn't his normal self. He was making a whimpering sound. It took about 20 to 30 minutes before he started to feed again. He took the rest of his bottle. I did not shake him at any point. All I did was wind him and hold him when his breathing went shallow. We thought afterwards that he had just got his milk stuck and that is why he wasn't breathing properly. I think both me and my mum were both relieved that J seemed to recover from this incident. We did not seek medical attention at the time, but I do recall that I told the mother about the incident occurring. I do not believe that the mother raised this with the health visitor."
"On 12 February 2011 J was again with me at my mum's. Again he was asleep in the next door room and I recall it was a similar time in the middle of the night during a feed when virtually the identical situation occurred. Again my mum came in to assist. Again we thought that the same situation had occurred with him getting his milk stuck. Whilst again J presented in the same way as previously and this was concerning, as he recovered I did not seek medical attention. I again told the mother the next day what had happened. I would say on this occasion that it took slightly longer for J to recover and that he wasn't himself for about 48 hours afterwards. He seemed very sensitive to movement on his back, which was again unusual. Again I'm not aware that the mother mentioned this to the health visitor. I do not believe that she sought any medical attention."
"As he was telling me this his hand gesture was as if he was holding a child around the chest. He then said he thought J had stopped breathing. As he said this his hand gesture was that he was shaking the baby while holding him around the chest. His demonstration was quite vigorous. It was as if he was trying to demonstrate a shake to revive a child. I don't know if he was conscious he was making these gestures or not. I asked what happened and he said he panicked. I asked how much time elapsed and he replied that it could have been 10 seconds or it could have been a minute."
I accept the maternal grandfather's account on this point.