Strand, London, WC2A 2LL
B e f o r e :
| CUMBRIA COUNTY COUNCIL
|- and -
|- and -
|LM AND KR
(child, acting by their Children's Guardian)
Ms. Heaton QC and Mrs Scully (instructed by Atkinson Ritson) for the 1st Respondent
Mr. Verdan QC and Miss Henley (instructed by Bendles Solicitors) for the 2nd Respondent
Mr. Kennedy (instructed by H.F.T Gough) for the 3rd Respondent
Hearing dates: 30th Nov, 1st, 2nd, 3rd,4th December 2015
Crown Copyright ©
Mr Justice Hayden :
"1.12. Brain windowed views designed to show the intracranial contents show an anatomically normally formed brain with normal basal subarachnoid spaces containing cerebrospinal fluid, ventricles and surface subarachnoid spaces which appear slightly prominent for age. Over the surface of both cerebral hemispheres, but more so over the right than the left, there is fluid of intermediate density between brain (grey) and cerebrospinal fluid (black). There are a couple of areas particularly over the right cerebral hemisphere and the left parafalcine region where there is high signal likely to represent fresh subdural blood."
"Several studies have shown an increased risk of subdural hematomas in children with external hydrocephalus after minimal or no known head trauma."
"In my opinion, since there is clear evidence that [LM] had chronic enlargement of the subarachnoid spaces from the time of birth, it is certainly possible that the subdural haemorrhages seen on CT and MRI scans may have occurred as a result of minor or trivial head injury during normal infant handling. "
"There is no specific pattern that indicates that a child has suffered a shaking injury or shaking with impact injury, and the diagnosis is one of exclusion, requiring analysis of the complete clinical scenario and all the evidence."
"It is possible that LM's retinal haemorrhages were caused by a shaking injury with or, more likely without, an additional impact injury.
Even such mild retinal haemorrhages as those seen in LM may be caused by a non-accidental injury as the RHs themselves are not pathognomonic and mild RHs cannot be differentiate accidental or pathological cause from a non-accidental cause. Severe RHs can have fewer causes when there is no history of trauma and no pathological cause found. Very severe RHs demand an explanation of why they are not non-accidental or inflicted
Tangential forces may be set up not only by a deliberate shaking injury but also, less likely, as a part of accidental trauma when a to-and-fro head motion is induced. One would not normally expect short falls, rolling backwards or other minor head trauma with retinal haemorrhages but they are not out of the bounds of possibility. Being very few in number, all small and all posterior in the eye, must mean that the sort of event that LM suffered could be caused by a cause just above the threshold for retinal haemorrhages to occur, whether pathological, accidental or non-accidental."
"No RHs are pathognomonic (exclusively characteristic of) of any cause. Accidental trauma could have caused LM's RHs but the trauma would have had to be quite severe even to cause such mild RHs. Severe as in significant moving car accidents or falls down step onto a firm surface.
Thus, retinal haemorrhages can occur from both accidental and non-accidental (inflicted) injuries. An important difference between the two is in the severity of the RHs. Mild RHs can occur in both accidental and non-accidental injuries and there is nothing to distinguish them by examination of the eyes. Severe RHs are common in shaking injuries and unusual in accidental injuries, unless the accidental injury is one involving a large amount of force. The more severe the RHs, the more likely it is that the cause is non-accidental and caused by shaking."
"It is the findings of the subdural haemorrhage and retinal haemorrhage that has raised the question of whether LM has suffered a non-accidental inflicted injury. This is because the event as described, a low level fall backwards, is not thought to cause fresh subdural haemorrhaging and retinal haemorrhaging. However, it has to be appreciated that many children who have such low level falls never have neurological imaging and never have specialist ophthalmological examination. The majority are either not taken to hospital because they are clinically well, or seen in hospital and discharged without imaging. Without positive imaging they do not have formal ophthalmological examination. LM came close to being in this category and had she vomited less, such that she was not admitted to hospital, the features that were identified would never have been found.
2.7 The question therefore has to be considered as to whether the described low level fall caused these features and, in fact, in the general population who do not get imaged these features occur more often than the medical profession appreciates, or whether the history as given was wrong and she had, in fact, suffered a much more forceful injury which her carers either did not appreciate she had suffered or have deliberately chosen not to inform medical staff about…"
"On the basis of the appearances of the subdural haemorrhage, the acute traumatic effusion and, although I would defer to an ophthalmologist, the retinal haemorrhages, I do not from a neurosurgical perspective think it is possible to determine which is the correct answer. Infants cannot be experimented on in laboratories to determine what forces are required to cause subdural haemorrhaging, acute traumatic effusion and retinal haemorrhaging. Studies where infants are routinely scanned even if there is no clinical indication to do so have not been carried out. It is therefore possible that acute subdural haemorrhage and retinal haemorrhaging following very minor trauma is more common than we think. Nobody knows. On the basis of those children who are scanned following relatively minor trauma it is thought unlikely to cause fresh subdural bleeding, acute traumatic effusion and retinal haemorrhages. However, we do not know this with scientific certainty.
2.8 There has been some publications from Japan where children who are alleged to have fallen backwards from Japanese floor-based changing mats have suffered significant head injury with severe brain disturbance, seizures, subdural haemorrhages and retinal haemorrhages being identified (Aoki 1984). Many outside of Japan consider these publications as indicative of a cultural resistance to accepting the concept of non-accidental inflicted injury and that the cases described as occurring as a result of low level falls were, in fact, missed cases of non-accidental injury. However, the Japanese authors maintain their position that the significant injuries were caused by low level falls. Similar publications have not been generated outside of Japan."
"2.9 There have been some publications drawing attention to a possible association between easier subdural bleeding and retinal haemorrhaging in the presence of benign enlargement of the subarachnoid spaces. Whilst, again, there has been no scientific verification of this concept, there are a number of publications linking the development of intracranial haemorrhage and retinal haemorrhage with low level of traumatic events in the presence of benign enlargement of the subarachnoid spaces. LM had benign enlargement of the subarachnoid space identified on MRI scanning and this is likely to have accounted for her large head, which was not growing at an abnormal rate. This, therefore, may be a vulnerability such that she suffered intracranial haemorrhage from a low level fall where intracranial haemorrhage would not normally be expected."
"2.12 In summary, therefore, whilst I cannot exclude the possibility that LM's presentation to hospital on 21st January 2015 was because she had suffered an inflicted head injury, I consider that the history as given is plausible for causing a very minor, transient disturbance of brain function, very small amounts of fresh subdural blood and acute traumatic effusion, especially in the presence of the benign enlargement of the subarachnoid space. I would defer to an ophthalmologist as to the retinal haemorrhages."
i) The disturbance of brain function can properly be described as an "encephalopathic event";
ii) The disturbance of brain function or "encephalopathic event" was transient and short lived;
iii) Encephalopathy is recognised as one of the vital signs of non-accidental head injury;
iv) The particular disturbance of brain function suffered by the child was compatible with a recent mild head injury. There was not evidence of acute encephalopathy;
v) The nature and degree of the child's symptoms render them of less weight/significance as a marker for non-accidental head injury than would otherwise be the case;
vi) The findings in relation to the child's brain could point to a non accidental head injury but could also point to the reported fall as being the cause of her symptoms. The medical evidence is inconclusive in this regard.
The expert's report shall be addressed to the court and prepared and filed in accordance with the court's timetable and must –
(f) in expressing an opinion to the court –
(ii) describe the expert's own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;
(iii) indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;
(iv) indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;
(g) where there is a range of opinion on any question to be answered by the expert –
(i) summarise the range of opinion;
(ii) identify and explain, within the range of opinions, any 'unknown cause', whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;
(iii) give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court;
"All counsel agree that the Court should approach any findings it may make in this case by having regard to the broad canvass of the evidence i.e. the medical evidence; the lay evidence; the social work assessments etc.
In this exercise the Court is entitled to conclude that the medical evidence from each of the disciplines involved may, both individually or collectively, support either of the findings contended for by the parties ( i.e. accident or non accidental head injury)."
i) This couple is highly committed to both children. Both are loved and very much wanted;
ii) The quality of the parents interaction with their children has consistently been observed to be warm and positive;
iii) None of the various professionals involved with the family has made any criticism of the parents willingness to engage and cooperate;
iv) Neither parent has attracted the attention of the social services in the past, prior to January 2015;
v) Both parents have a strong sense of family identity and both are self disciplined, hardworking individuals.
The Parent's Evidence
i) 'ur daughter is in our bed coz she seems 2 think its time 2 get up xx' (4.38am);
ii) 'shes bloody dancing n talking away 2 herself xx' (4.41am);
iii) 'murder comes 2 mind haha cheesey grins im getting wen I tel her its bedtime xx' (4.45am).
i) 'she has screamed the house down once again but I will b getting up wen u cum 2 bed so I will move her over' (5.31am);
ii) 'she knows wot she's doing she was full of smiles wen were walking out of her room xx' (5.33am).
"I can only liken to the distinctive smell that I had experienced before when caring for elderly people just prior to death when their organs were failing."
I find that the mother was highly anxious about LM's health
"we were both aware that they were there to help if they were needed, but it was not necessary"
"[LM] has regularly banged her head on furniture, radiators, windows or any other solid objects she could find. We first noticed her doing this as soon as she could sit up and support her own weight. As far as the head banging is concerned she will do this both to the front and the back of her head and she is now picking things up and banging herself with them. In the hospital we noticed that she was banging her head on the metal cot bars. We asked for a padded bumper to protect her but didn't get one so we organised padding ourselves. For the last couple of months she has been putting her hand up to the right side of her head by her ear. We did wonder if she had an ear infection and took her to the GP, but there was no evidence of this…"
"2. If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury 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. The fact either happened or it did not. If the tribunal 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."
(per Lord Hoffman)
"32. In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his 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 is able to make up his mind where the truth lies without needing to rely upon the burden of proof.
69. ...There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial "offence" may have been another example (see Bater v Bater  P 35). But care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.
70. My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."
(per Baroness Hale)
"(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same."
"(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. "
"(4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:"
"Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low."
I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities."
" Para 8. Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility. "
" Para 9. When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings. "
"Para 10. Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case."
Summary of Conclusions