This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF IB AND EB (CHILDREN)
Strand, London, WC2A 2LL
B e f o r e :
| DEVON COUNTY COUNCIL
|- and -
|A MOTHER (1)
A FATHER (2)
IB AND EB (by their children's guardian) (3) and (4)
SOUTHAMPTON HOSPITAL NHS TRUST
Kate Branigan QC and Andrew Powell (instructed by Goodman Ray) for the Mother
Paul Storey QC and Alexa Storey-Rea (instructed by Edward Hayes) for the Father
Mark Whitehall (instructed by Nash and Co) for the children, by their Guardian
Anthony Hand and Daniel Nother (instructed by Hempsons) for the NHS Trust
Hearing dates: 15th, 16th, 22nd, 23rd,24th,25th,28th,29th,30th, 31st October, 1st, 27th,28th November, 2nd, 10th,11th,12th,13th,17th December 2013, 6th and 30th January 2014
Crown Copyright ©
The Honourable Mr. Justice Baker :
(1) There was a long discussion about the cause of the tear to the posterior pharyngeal wall (described by Miss Ismail-Koch as a "deep, long flap"). There was disagreement amongst the doctors as to the cause of this tear, although Dr. Steele's note in the medical records says that this "may have been caused during procedures" and her running record quotes someone at the meeting saying that "the tear could have been caused by a laryngoscope".
(2) It was not known how long the foreign body had been inside E. It may have moved and caused escalation and de-escalation of the baby's symptoms. Now it was out, she was getting better.
(3) The nurses observed that the parents had been appropriate on the ward and had shown genuine concern about E.
(4) Dr. Connett advised that "the event is likely to have happened on 2nd January as the baby would have symptoms with the foreign body and she first presented on 2nd January to Plymouth."
(5) It was decided to instigate a s.47 investigation. The police and Dr. Connett would feed back to the parents on PICU. E was not to be discharged into the parents' care at present, and I was to stay with extended family and be medically examined.
(6) At the end of the note in Dr. Steele's running records, Dr. Connett is recorded as reiterating his concerns that there could have been more than one episode. Dr. Steele's note adds that bleeding did occur on PICU when parents were not there and that Dr. Hyde said that movement of foreign body could set off the bleeding.
ISSUES AND HEARING
(1) On x-ray imaging dated 11th January 2012, I was found to have sustained a buckle fracture to the base of the proximal phalanx of her left little finger. The injury was sustained non-accidentally as a result of the actions of the mother or the father.
(2) E suffered multiple bilateral rib fractures, most likely to have been caused as a result of a single episode occurring between approximately the 10th January and 17th January 2013 as a result of an inflicted non-accidental injury as a result of an applied force other than routine handling or physiotherapy/therapeutic intervention, caused by either the mother or the father.
(3) The blood in E's secretions on 2nd January, the more substantial bleeding as observed on the 4th January 2013 and the bleeding from the nose and mouth on the night of 10th into 11th January 2013 were all as a result of non-accidental trauma to her upper airway inflicted by either the mother or the father.
(4) The posterior pharyngeal tear within E's throat observed on 15th January 2013 was as a result of a non-accidental injury caused by either the mother or the father and/or a non-therapeutic manoeuvre in which an object or a finger was introduced to E's posterior pharynx deliberately or accidentally by either the mother or the father.
(5) The foreign body found in E's oesophagus on 15th January was cotton wool which had been placed into her mouth and pushed into her oesophagus as a result of the non-accidental intervention of either the mother or the father.
(6) The increased redness and swelling of the laryngeal inlet and the very swollen right arytenoid observed on 17th January, which was responsible for her airway obstruction and respiratory distress at the time, were caused non-accidentally by either the mother or the father between 15th and 17th January.
(7) These injuries represent a pattern of induced illnesses or injuries and are likely to have been caused by the same person. Such a person poses a significant risk to any child in their care and for whom they have responsibility.
(8) The parent who is not the perpetrator of the injuries has closed their mind to the possibility of the other having caused the injuries and that closed mind prevents them from being able to protect their daughters.
"Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities," (per Lord Hoffman in Re B at paragraph 15)
"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can be properly 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 exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the local authority has been made out to the appropriate standard of proof."
"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."
Later in the same judgment, Charles J added at paragraph 49,
"In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence 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 The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established."
"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."
"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."
CREDIBILITY OF KEY WITNESSES
"aspiration, when you get it, it doesn't sort of come and go. If you've got aspiration, secretions and increased respiratory difficulty, then it persists and aggressively gets worse rather than this episodic nature."
"On the balance of probability, the initial respiratory difficulty and haemoptysis which necessitated admission to Derriford Hospital were attributable to aspiration pneumonitis. In essence, I agree with the diagnosis proposed by the doctors in Derriford Hospital. Haemoptysis is uncommon in infants and neonates and is often associated with pneumonia or pneumonitis. Trauma to the pharynx and epistaxes (nose bleeding) causing contamination of the upper aerodigestive tract with blood can give a similar picture but there would not be the associated breathing difficulties. "
This remained his view during the experts' meeting, as recorded in the schedule of agreement and disagreement. Then, just as she had with Professor Fleming, Miss Cook in cross-examination took Mr Kuo painstakingly through the early medical records from Derriford in the first few days of January. She demonstrated, and he agreed, that there were no observation of significant breathing difficulty associated with the early incidents of bleeding as she put it, by 5th January "there is not the slightest hint of any breathing difficulties but we have had blood in the sputum at this point for 48 hours". She put it to him that with aspirative pneumonia you would have the breathing difficulties first and then the blood. Mr Kuo deferred to Professor Fleming on this issue. Ultimately, Mr Kuo agreed in cross-examination that it was not a pneumonitis case, and that, if it had been, the quality of the bleeding would have been different from that seen, for example, on the muslin cloth brought in by the father. He also agreed with Professor Fleming's evidence about the interpretation of the jaw-thrust manoeuvre.
"I am unable to say what type of trauma. I have seen small and superficial lacerations on the posterior pharyngeal wall in other patients; but in my experience I have never seen a tear as extensive as E had caused by intubation or nasogastric tube insertion. This tear would have been consistent as to the source of bleeding witnessed in Southampton and Plymouth. Repeated trauma to this tear may have caused repeated episodes of bleeding."
In oral evidence, she described it as quite a deep laceration of a sort which she had not seen caused by medical instruments. In her statement, she said that the tear could have been there for several days. Asked in oral evidence to age the tear, however, she said "48 hours, maybe a bit longer, depending on how long it takes to heal. But not recent because of the slough around it." Miss Burgess thought the tear had been there for at least 48 hours and could have taken two to three weeks to heal, depending on various factors such as further trauma, reflux, or infection. In oral evidence she said that the doctors had discussed whether the tear could have been caused by the tubes, but this was ruled out as they are "soft and rounded". She added that, if you use the instruments properly, there should not be an injury.
THE COTTON WOOL
"The use of makeshift dummies prepared in this way, the cotton wool being inserted in order to prevent the baby sucking excess air into their oesophagus and stomach, was in the past extremely common and despite having worked in infant wards and neonatal units where this practice was widely adopted over a period of very many years, I have never seen or heard of a baby accidentally ingesting cotton wool obtained from the bottle teat. The hole in the teat is far too small to allow cotton wool to pass through it except for the occasional strand. In order for a piece of cotton wool of the size identified in E to get into her oropharynx, it would, by necessity, have had to come from the back of the teat and unless a large piece of cotton wool was extremely loosely inserted into the back of the teat such that it was in danger of falling out spontaneously, it is very hard to imagine how a very small baby could obtain such a piece of cotton wool in their mouth without it being placed there by an older individual. "
In oral evidence, he added that if the teat was in place, even had cotton wool come out of the back of the rim, the teat in the mouth would have prevented it from entering her mouth. A further point made by the local authority is that neither the mother or the father saw any of the cotton wool escaping from or protruding from the rim end of the teat.
"Whilst it is of course possible that a piece of cotton wool which had accidentally found its way into E's mouth could have been pushed down into the oesophagus by the insertion of an orogastric or nasogastric tube, this seems inherently unlikely as in the process a piece of cotton wool the size removed from E would at the point it reached the oropharynx have provided substantial resistance to breathing and caused signs of obstructed air flow."
"The ribs and long bones appear somewhat osteopaenic with mild cortical thinning, best seen around the knees. The skull appears mildly scaphocephalic. There are fractures of the left fifth and sixth ribs laterally and the right third, fourth and fifth ribs laterally. None of the fractures show any evidence of callus formation."
"I have never seen this extent and this spread of fractures in a child with, at most, mild osteopaenia that was clearly related to chest physiotherapy."
Dr Watt agreed. He had only previously seen this number of rib fractures in premature babies where they had severe bone disease. The two experts therefore agreed that, whilst physiotherapy was a possible explanation of E's fractures, the more probable explanation was that this was an inflicted injury.
SWOLLEN ARYTENOIDS AND OTHER SIGNS ON 17TH JANUARY
"Although damage to the larynx can be cause by inexpert or repeated laryngoscopy and intubation, the damage is most commonly seen around the vocal cords and the portion of the trachea immediately below the vocal chords. Trauma from repeated intubation very rarely affects the arytenoids or the aryepiglottis folds."
No further procedure had been performed on E after 15th January. Mr Kuo thought that the examination on 15th January would have been "pretty gentle" and that E would have subsequently been given doses of steroids to ensure that such swelling did not occur. Furthermore, E's condition improved after 15th January before deteriorating again before the procedure on the 17th was carried out.
CONCLUSIONS AS TO INJURIES
FAILURE TO PROTECT