35 Vernon Street
Liverpool, L2 2BX
B e f o r e :
| Lancashire County Council
|- and -
(instructed by Lancashire CC) for the Applicant
Mr Alistair MacDonald QC and Miss Sara Lewis
(instructed by Wollen Michelmore Sols) for the 1st Respondent
Mr Paul Storey QC and Mrs Alexa Storey-Rea
(instructed by Edward Hayes LLP) for the 2nd Respondent
Mr Karl Rowley QC and Mr Stuart Martin
(instructed by Ratcliffe & Bibby Sols) for the 3rd Respondent
Hearing dates: 3-11 October 2013
Crown Copyright ©
Mr Justice Mostyn:
i) The local authority must prove its allegations on the balance of probabilities, no more, no less: Re B (Care Proceedings: Standard of Proof),  1 AC 11,  3 WLR 1,  2 FLR 141, at paras  and .
ii) The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para  per Lord Hoffmann.
iii) The more serious or improbable the allegation the greater the need for evidential 'cogency': Re Dellow's Will Trusts; Lloyd's Bank v Institute of Cancer Research  1 WLR 451 at 455; Re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563,  2 WLR 8,  1 FLR 80; Re S-B (Children) (Care Proceedings: Standard of Proof),  1 AC 678,  2 WLR 238,  1 FLR 1161 at para . Evidential cogency is obviously needed where the harmful event is itself disputed. However, where there is no dispute that it happened the improbability of the event is irrelevant: Re B (Care Proceedings: Standard of Proof), at paras  and .
iv) Sometimes the burden of proof will come to the judge's rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge ought to be able to make up his mind where the truth lies without needing to rely upon the burden of proof: Re B (Care Proceedings: Standard of Proof) at paras  and ; Rhesa Shipping Co SA v Edmond and Another: The Popi M  1 WLR 948.
v) It is impermissible for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event: Rhesa Shipping Co SA v Edmond and Another: The Popi M; Ide v ATB Sales Ltd; Lexus Financial Services t/a Toyota Financial Services (UK) plc v Russell  EWCA Civ 424 at para .
vi) There is no pseudo-burden or obligation cast on the respondents to come up with alternative explanations: Lancashire County Council v D and E  2 FLR 196 at paras  and ; Re C and D (Photographs of Injuries)  1 FLR 990, at para .
vii) The judge is the decision maker, the expert is not. An expert is not in any special position and there is no presumption of belief in a doctor, however distinguished he or she may be. It is, however, necessary for the judge to give sound and articulated reasons for disagreeing with experts' conclusions or recommendations: Re B (Care: Expert Witnesses)  1 FLR 667; Re B (A Child) (Split Hearings: Jurisdiction)  1 WLR 790,  1 FLR 334; Re D (Care Order: Evidence)  1 FLR 447 at para .
viii) The expert evidence is part of a wider canvas. It must be weighed against the lay factual evidence and the court's conclusions concerning the credibility of the participants. This holistic forensic process may legitimately lead the court to reach a conclusion which does not accord with the expert evidence: A Local Authority v K, D & L  1 FLR 851 at paras [39(i)], [39(ii)], [49(iii)] and ; A County Council v M and F  2 FLR 939 at paras  and .
ix) 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 will throw light into corners that are at present dark: Re U (Serious Injury: Standard of Proof): Re B  2 FLR 263 at para [24(v)]. Scientific certainties of a past age are often proved conclusively wrong by later generations: A County Council v M and F  2 FLR 939 at para [251(iv)]. Today's orthodoxy may become tomorrow's outdated learning: R v Holdsworth  EWCA Crim 971 at para .
x) Evidence of propensity or a psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a purely factual issue: Re CB and JB (Care Proceedings: Guidelines)  2 FLR 211. However, the assessment of a parent's core personality and the extent to which damage resulting from his early life experiences was disabling and permanent was primarily for the experts: Re M (Residence)  2 FLR 1059.
xi) The assessment of credibility generally involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance: Onassis and Calogeropoulos v Vergottis  2 Lloyd's Rep 403, per Lord Pearce; A County Council v M and F  EWHC 1804 (Fam)  2 FLR 939 at paras  and .
"As I was sitting on the sofa, N was propped up to my right hand side. In order to get up, I firstly lent forward from where I was sitting and turned to the right slightly, towards N. I placed my right hand under N's bum and my left hand around her back, I then brought her towards me and held her to the left side of my chest so her legs were straddling the left side of my chest. I then stood up and lifted her with me as I stood up, still holding her to the left side of my chest. As I stood up I stood on [the] dog toy with my right foot."
I interpolate the father's account to observe that the dog toy in question is shaped like an animal's skull and is about 4 inches long and 3 inches high – a fairly substantial object. I continue with the father's account:
"When I stepped on the dog toy I went over on my right ankle and stumbled forward. I put my left foot forward to balance myself, however, with my left foot, I then stood on the baby bouncing chair which was in the middle of the floor and fell forwards. I was still holding N at this point, in the same position to my left hand side. As I was falling forwards, I was worried I was going to fall on N as I was aware she was underneath me, so I tried to twist my body to the right to avoid landing on top of her. As I was falling my left arm was still around N's back and I went to put my right arm round her as well to protect her but did not have time as it happened so fast"
I again interpolate to observe that in his oral evidence the father slightly altered this account to say that when he stood up he did not directly stand on the dog toy but did so as he moved forward. Although Miss Heaton QC places some emphasis on this discrepancy I do not believe that it is a material alteration in his story. I continue with his account:
"As I fell forward the back of my left shoulder and then the left side of my head struck the outside of the arm of the medium sofa and then the top corner of the dog cage. On top of the dog cage was a magazine and baby travel chair. The force of my body weight hit the sofa and dog cage before I hit the floor and N was thrown from my arms. She flicked round as she was thrown from my grasp as I impacted on the furniture. She went from facing me where I had been holding her, during the fall to landed (sic) facedown, facing away from me with both arms close to her side. She landing (sic) close to the dog cage and corner of the porch wall. Her body had turned almost 180° sideways during the fall. The travel chair on top of the cage obstructed my view as I impacted with the cage so I cannot say whether N hit anything as she fell nor did I see her impact with the floor"
In his oral evidence the father slightly enlarged on this account to say that as he fell he felt N's foot go through his left bicep and he tried to clench it. Again Miss Heaton QC places some emphasis on this embellishment (as she would have it) but I place no significance on that – if anything it is an admission contrary to the father's interests for if this clenching was effective it would have reduced the force of the impact suffered by N.
i) spinal subdural bleeding
ii) damage at the cranio-cervical junction
iii) posterior rib fractures
iv) limb metaphyseal fractures
v) raised intracranial pressure
vi) bruising to trunk or ribs
vii) raising of the fontanels
Further, as Dr Samuels and Mr Richards accepted, the subdural bleeding here was predominantly right-sided and was therefore in keeping with an impact rather than shaking.
i) The presence of subdural and retinal haemorrhages, and for that matter encephalopathy (which taken together constitute the famous "triad" referred to in the jurisprudence and the medical literature), do not of themselves prove anything other than the infliction of a head injury. As Mr Richards said, the triad is an indicator of injury only, not of how it occurred.
ii) Inasmuch as the presence of the triad is, or some of its components are, used in the process of forensic proof then this is based on statistical or empirical evidence, which states that there is a high prevalence of these features in many proven cases of abuse. However I was not given evidence as to how many of these cases were proven as a result of the presence of these features, as opposed to those which were proven to be abusive by reference to other evidence, such as confessions. If many were in the former class then of course the process of logical proof may be said to be circular, as Mr Richards pointed out. Further, it is a fact that very many children who present with head injuries arising from an indisputable accident such as a fall are neither scanned nor subjected to ophthalmological testing. They are just patched up and sent home. This is because a CT scan by definition irradiates the brain, which is something to be avoided wherever possible. For a child of more than three months of age a MRI scan requires general anaesthesia – again a procedure not be undertaken unless unavoidable. Ophthalmological testing requires awkward and unpleasant dilation of the pupils. These tests are only likely to be commissioned where there is either a suspicion of abuse or where there are clear symptoms of head injury, such as persistent vomiting. Therefore the data is compiled from a class which has a high prevalence of suspected abusers. Accordingly it might be said, and Mr Richards agreed, that the sample on which the empirical analysis is based is a false or skewed sample.
iii) In the realm of subdural bleeds there seems to have been a relatively recent shift away from the prevailing orthodoxy. Not so very long ago the presence of a subdural haemorrhage in a recently born child was taken to be strongly indicative of abuse unless the birth was especially traumatic. On the basis of this supposition very many children will have been permanently separated from their parents. Yet, authoritative research over the last decade has demonstrated that this supposition is false. The Rooks paper in 2008 was the last of three important pieces of research and showed that no fewer than 46% of normal births caused subdural bleeding. We now know that many appalling miscarriages of justice must have been perpetrated in reliance on the old, now discredited, orthodoxy. Further, current medical and clinical thinking is now prepared to accept that short falls can in many cases cause subdural bleeds; the view that this could only happen exceptionally is now regarded as outdated. As Mr Richards said to me (and this chimes with the judicial opinions cited by me at para 8(ix) above as well as with Secretary Rumsfeld's famous apothegm about unknowns) "the more you know the more you know you don't know".
iv) The ophthalmological world has not undergone an equivalent shift in thinking. Here the view remains that multitudinous bilateral retinal haemorrhages are strongly indicative of abuse and that it will only be exceptionally that they will be the result of an accident. But this is not a unanimous view. Mr Richards told me of the work of Dr Gillian Adams at the Great Ormond Street Hospital who is apparently collating a body of material which she intends to publish which challenges this orthodoxy. Further he referred me to the work of an American pathologist called Dr Lantz who (among other pieces of similar work) has published an article in the Journal of Forensic Sciences in November 2011 entitled "Fatal Acute Intracranial Injury, Subdural Haematoma, and Retinal Haemorrhages Caused by Stairway Fall". This was a case study concerning a 7¾ month old child who fell down a flight of six stairs through a vertical height of 1.42m at a pitch of 37°. Sadly he died. An autopsy established that he had not only suffered from subdural bleeding but also from extensive bilateral retinal haemorrhages. This led Dr Lantz to conclude:"These published reports of original data are discordant and controversial, making the correct classification of a young child death following a reported short fall a diagnostic challenge. Most childhood stairway and low-level falls do not cause serious head injuries. Nevertheless, not all seemingly minor falls are minor. This case report refutes a pervasive belief that childhood low height falls are invariably trivial events and cannot cause subdural bleeding, fatal intracranial injuries, and extensive multi-layered retinal haemorrhages. The harmful and potentially devastating consequences for a caregiver or family facing a false allegation of child abuse obligate physicians to thoroughly investigate and accurately classify paediatric accidental head injuries"
"If the injuries sustained by N were non-accidental, i.e. abusive, the injuries on her skin are actually more difficult to explain. Abusive head injury is not as commonly accompanied by a surface injury (or skull fracture for that matter) as accidental injury is. Where there is surface injury, abusive injury will usually have finger markings, hand slaps or punches (e.g. on the scalp or ear), or petechial (pinpoint), or sub-conjuctivical (surface of the eye) haemorrhages. In N's case, abusive head injury might have been accompanied by impact to the side of the eye causing an abrasion. The chin is more difficult to explain as part of an abusive injury, but would also involve some impact or graze. As these are in two different planes, it implies that there were two impacts or that the abuse might have involved rotation too. For abuse to have caused rotation and two injuries, this would have been very violent, with an expectation that more severe cerebral injury would have occurred."
"I think the balance of evidence is still that in the majority of cases in traumatic injury multiple retinal haemorrhages do not occur unless there is very severe force such as in a road traffic accident but there is a growing awareness of unusual cases being increasingly documented so many experts are now less dogmatic than they used to be and accept that rare things happen rarely".
"Any cranial trauma from vertical falls in children under the age of two years producing severe epidural bleeding can also cause retinal haemorrhages not related to maltreatment. Nevertheless, these haemorrhages are often unilateral and few in number. Therefore the finding of bilateral and diffuse retinal haemorrhages must continue to point to another cause different from the fall as the origin of the traumatism, and it is still mandatory to rule out to maltreatment"