Case No: EY13C00271
IN THE HIGH COURT OF JUSTICE
COVENTRY DISTRICT REGISTRY
Coventry Combined Court
Little Park Street
West Midlands CV1 2SQ
Date: Wednesday, 2nd April 2014
HIS HONOUR JUDGE CLEARY
Sitting as a Deputy High Court Judge
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Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
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Mr A Neaves for the Local Authority
Mr Vater QC and Mr J Sampson for NH
Ms F Judd QC and Mrs Styles for GD
Mr L Samuels QC and Miss Pemberton for KH
Mr C Adams for JW
Mr N Goodwin QC for the Guardian
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1. VH was born on 17th June 2013. His mother is NH (N); his father is JW; and his maternal aunt is KH. In addition to those three blood relatives, to whom I shall refer by their first names, the mother began a relationship with GD (G) following V’s birth. On 13th September 2013 paramedics were called to the flat where G and N were then living with V. The infant was in a very poor state and appeared to have suffered a significant seizure. He was medicated by the ambulance crew and taken immediately to hospital where he made a swift recovery. In accordance with protocol he was fully examined and, on that day and over the ensuing days, a number of investigations revealed that he had suffered bleeds over his brain. Additionally, as is normal, a full skeletal survey was carried out and the resulting radiographs by CT scan and MRI imaging revealed that he had sustained fractures to each leg and his left arm. A small bruise was found above his right clavicle with all the appearance and size of a fingertip. V’s presentation was strongly indicative of non-accidental injury and the hospital engaged in the appropriate child protection procedures. The local authority was informed and in short order childcare proceedings were brought.
2. My task in this judgment is to address two issues: first, to establish whether the injuries which were revealed by the hospital examination were likely to be non-accidental; secondly, if they were, is the court able to identify the likely perpetrator? Those two questions have in fact been broken down in the following way. The questions are subdivided thus: what injuries did V suffer? Are they what is commonly termed non-accidental? When is it likely he suffered those injuries? Who is the likely perpetrator of those injuries? In the event of the identification of a perpetrator, did any other member of the pool of perpetrators fail to protect V? I shall address my task in that order.
3. To assist me I have received evidence from three eminent clinicians. They have had access to all the appropriate case papers and also to the reports of the treating clinicians at the hospital. I have also received oral evidence from two of those latter clinicians, Dr Shalala and Dr McLachlan. I have had a good deal of paperwork put before me in four large Lever Arch files. Within those files I have had access to the medical notes of the treating physicians whom I have identified together with an agreed minute of a helpful meeting between all three of the expert clinicians who gave oral evidence. I also have an entire Lever Arch file of police interviews of N, G and K and three further lay witnesses who gave oral evidence in the second week of the case. I have also read the statements of N and G, who each put two statements before the court in response to directions. As will become clear, in addition to the filed statements I received further statements, two in manuscript and one in typeset from witnesses who were called late in the day. From time to time I have been referred to a good number of other individual documents, which I might not identify in this judgment, but which nonetheless remain in my mind as I respond to the questions which require my decisions. Receipt and attention to all that I have described has accounted for no less than 80 pages of closely typed notes on my laptop.
4. I turn briefly to the law which governs this chapter of the case. By direction of the Supreme Court in Re B  UKSC 33 I am required to adopt the civil standard of proof. Thus the local authority which brings the case before me and on whose shoulders the burden of proof remains must satisfy me that as I proceed through the questions which I have identified, that its case in each area is made out on the balance of probability, what therefore is more likely than not. By the same token I am required not to leave things hanging in the air. If the assertion, whatever it might be, is not made out then I am required to reject it. Either the case is made out to the required standard or it is not.
5. The first question: the nature of the injuries which were discovered. V arrived at hospital at 10.30 in the morning where he was seen by a registrar, Dr Rauf. Having been medicated by the paramedics, he appeared calm and was breathing spontaneously. In the mid-afternoon of that same day he was seen on the paediatric ward by a doctor, who noted a small bruise over his right upper chest. A CT scan was undertaken and described in the report of the treating radiologist, Dr Shalala, as bilateral, sizeable, chronic subdural haematomas. That clinician reported that the scan revealed bleeding over the brain on either side. Both haemorrhages, he said, were chronic. Neurosurgical intervention, however, was not required. An ophthalmic review showed that there were no retinal haemorrhages.
6. On Monday, 16th September a full skeletal survey was carried out. This revealed a corner fracture on the medial aspect of the left distal femur; that is, the left thighbone had suffered a chip off the corner on the inner aspect of the bone at the knee end. A similar break was suspected at the outer aspect of the right thigh, again at the knee end. A third fracture was observed at the right proximal tibia. However, the hospital radiographer did not detect that which was subsequently observed by Dr Chapman, consultant paediatric radiologist and paediatric neuroradiologist, who received joint instructions from all parties and reported to the court on 13th December. On observing the subsequent chest X-ray dated 4th October he had noted an additional fracture, this to the left proximal humerus, just below the left shoulder. He was to explain in his report that up to 50% of such fractures are not evident on X-ray, because the fracture may be incomplete or is seen through a curved structure on the film. Each of those fractures – that is to the legs and to the arm – are described as metaphyseal fractures and are explained in the report of Dr Chapman as being the result of a pulling or twisting force applied to the limb. Thus V had sustained injury to five areas of his body: his brain, his left arm, his upper right chest and each leg.
7. The discovery and identity of the injuries. As soon as Dr Shalala saw the CT scan he suspected that the presentation was indicative of non-accidental injury. He alerted Dr McLachlan, the named doctor for child protection in the local authority area and a paediatrician herself. In her report of 19th September she recorded the injuries and concurred with the view that V’s seizure, which had caused his mother and G to contact the ambulance service in the first instance, was likely to have been caused by the subdural haemorrhages which had been noted on the CT scan. She was unable to form an opinion on whether or not those haemorrhages were caused by an acute inflicted head injury or whether they were caused by a previously inflicted head injury causing bleeding and subsequent irritation of the brain. It was her view that there had been two different bleeds around the brain caused by very significant, non-accidental, injury on at least two occasions. She was unable, she wrote in her report of 19th September, three days after admission, at G509 to form a view on the likely age of the broken thighbone - at that stage she only knew of one leg injury - and/or of the age of the bleeds around the brain. However, she was of the view that those three injuries occurred on two or three separate occasions. There was no doubt in her mind but that those injuries and the bruise to the child’s chest were non-accidental in origin.
8. I should say at this stage that all parties to this unhappy case concur with that opinion. Dr McLachlan admitted that it was beyond her expertise to comment on ageing and indeed she was not a radiologist. Dr Shalala, although a radiologist, is not a paediatric radiologist. Thus the court accepted an application by all parties that there be joint instructions to the three eminent clinicians of whom I have spoken: Dr Chapman, consultant paediatric radiologist and paediatric neuroradiologist at Birmingham Children’s Hospital, an expert of national reputation with especial interest in the radiology of non-accidental injury in a department which undertakes about 60,000 imaging investigations on children each year, including approximately 3,500 CT scans and 12,000 MRI scans; Dr Stoodley, consultant neuroradiologist in practice at a number of hospitals and in particular the Bristol Royal Hospital for Children, again with a nationally recognised area of expertise in the interpretation of imaging investigations of the brain and spinal chord, with a specific interest in the neuroimaging of children; and Dr Morrell, consultant paediatrician with particular expertise and experience in childhood neuro-disabilities.
9. Each expert submitted their respective reports in December of last year. On 7th March of this year they attended a joint meeting. The meeting addressed the nature of the injuries and the experts attended this hearing to be questioned upon their respective reports and upon their conclusions set out in the agreed note of their meeting. I shall first address the respective injury sites.
10. The presentation of the brain injury. Given the report arising from the initial CT scan and the assumptions made by Dr McLachlan, Dr Stoodley was questioned as to the nature of the subdural bleeding. In simple terms was it acute? Or was there evidence of an earlier chronic bleed with a further acute subdural bleed? Again in simple terms both he and Dr Shalala accepted that the brighter the appearance of blood on the scans the more recent the haemorrhage. He was to accept that in terms of the appearance on the scan there were two possible explanations, either that darker fluid which was observable on the scan represented older subdural blood – that is blood which had been bright, but had become progressively darker with age and could be identified as chronic subdural haematomas – or it revealed collections of dark matter representing acute traumatic effusions. He took the view, which he maintained in his evidence under cross-examination before me, that the latter explanation was to be preferred. He justified his view by the absence of membrane formation within the collections, formations which were not detected either by the CT scan or the more sensitive MRI scan; so also he found that the collections had increased in size between the initial CT scan and the subsequent MRI scan, which again pointed towards acute traumatic effusions rather than chronic haematoma. Finally, as we shall see from the observations recorded by N and G, there had been nothing to indicate a disturbance of V’s brain function; that is, there had been no previous seizure or worrying behaviour which might suggest a previous episode of significant subdural bleeding, which might indicate an earlier injury leading to a bleed. This expert accepted that the appearance of bright blood would indicate an acute bleed and that ageing – that is from an earlier insult – would result in a darkening of the fluid. However, as became plain during his evidence, that was not the only fluid which had escaped in the subarachnoid space for cerebrospinal fluid was also present. To the naked eye that fluid is clear, but on radiographs it presents as black. Consequently, the presence of both fluids in one collection can, to use a non-clinical term, result in the presentation of a misleadingly dark appearance. Dr Stoodley concluded that the effusions as pictured on both scans were acute. They were found on either side of the brain and at the rear, the posterior. He was perfectly satisfied that they had occurred on one occasion and were not indicative of chronic bleeds.
11. The evidence of Dr Shalala where it conflicted with that of Dr Stoodley was not persuasive. He found it difficult to accept, for example, that he saw much, if any, bright blood on the scans. He accepted there was no evidence of loculation, which is perhaps better described in lay terms as compartmentalisation, of the collections which were revealed by the scans. He went so far as to suggest that such brightness as did exist was explained by the reflection from the rim of the dura, a suggestion which was politely but firmly rejected by Dr Stoodley. He also accepted that there was no sign of methaemoglobin, which one would expect to see if acute blood had been present for any significant length of time, and there was no sedimentation, which usually appears during the haematoma’s sub-acute phase, between 72 hours and two weeks. Dr Shalala was candid enough to accept that he has a far greater experience of imaging following trauma to the adult brain and that his practice was to ensure that paediatric examinations were historically, and indeed currently, referred by his hospital to the children’s hospital in Birmingham. At the stand he abandoned his opinion as expressed in his brief report, a document which extends to no more than a dozen or so lines, that the imaging revealed chronic haemorrhages and he deferred to Dr Stoodley.
12. Dr Morrell supported the view of his colleague that there was no evidence of encephalopathic injury prior to the morning of the admission of V to hospital and he agreed with the conclusion that the presentation of the brain injury was suggestive of one recent injury.
13. The observation of lay witnesses plays a part in establishing whether or not and when an injury to the brain had occurred. Neither N nor G had given a history of accidental head trauma of sufficient severity to account for the appearances of subdural bleeding. While impact injury can, Dr Morrell conceded, give rise to subdural bleeding, acute subdural bleeding is usually seen at a single site and not, as here, at several different sites. There is no explanation which would account for the pattern of acute bleeding found by Dr Stoodley and conceded by Dr Shalala. The evidence of those closest to V in the hours and days leading up to his seizure did not indicate any earlier insult which had been responsible for the existence of chronic haematomas. Were that to have occurred and had there been an injury to the brain, then the significant symptoms which would follow and follow quickly would have been observable to the uninformed bystander or parent. Thus, as Dr Morrell deposed, there would have been an immediate and obvious decrease in consciousness, reduction in heart rate and a rise in blood pressure. All the descriptions at the stand indicated that although V might have been unsettled, his discomfort was not of any great moment.
14. Some time was spent, both in the expert meeting and under cross-examination, on the issue of V’s head circumference. The circumference had increased in size very significantly over the infant’s short lifespan, moving through the centiles at a very significant rate. However, Dr Morrell considered that this was a pattern which was sometimes seen in young babies and in any event was running in parallel with his overall body development. Measurements had been taken at birth, at two weeks and then 11 weeks. It will be remembered that the baby was almost exactly three months, that is 13 weeks, old when he was presented to hospital. The circumference was then measured and was found to have increased to just below the 91st centile. However, Dr Morrell was reassured both by the baby’s general development, which as I say has paralleled his circumference development, and by the absence of other clinical indications that the infant had come to any harm. He anticipated in any event that a good deal of the enlargement of the skull, bearing in mind that at that age the skull is not set and is elastic and is equipped to expand as a baby grows, was very probably due to the bleeds into the intracranial space. To put it simply, the skull had expanded to accommodate the fluid, avoiding pressure on the brain itself.
15. I shall come in due course to the suggestion by counsel for G during the presentation of the lay evidence, which was not shared by all those who had had direct contact with V during the first month of his life, in cross-examination of Dr Stoodley that his crying might have been symptomatic of brain irritation. It will be seen that I reject that suggestion, just as none of the experts accepted that there was any indication of earlier brain injury. As Dr Morrell said in evidence, a shrill cry is common to babies with brain damage, but there will be evidence of brain damage, for example developing meningitis. There would have to be evidence of continuing damage, damage which does not appear on the CT scan or MRI scan.
16. At this stage of the exercise it is pertinent to remind myself of the oral evidence of each of the experts at the stand. In the case of Dr Morrell the radiological picture – that is the brief report to which he then had access, that being the observations of Dr Shalala – had been that the bleeds were chronic, ‘but I was suspicious that his symptoms on 13th September arose from an acute event.’ There was nothing in the clinical history which related to a brain injury or encephalopathy. Dr Morrell was to be shown in due course the report of Dr Stoodley after his own had been submitted and with that report and the view as to the timing and presentation of the injury as an acute occurrence he agreed. He went on:
‘Whatever neurological insult occurred happened within hours of admission, had there been hypoxic ischaemic damage there would have been continuing symptoms, which did not present themselves; so also a build-up of fluid in a subdural haematoma. It is probable,’ he said, ‘the insult occurred within minutes of the collapse. The seizure was indicative of an acute brain injury.’
In response to a suggestion of a previous injury and a re-bleed, his response was simple and to the point. ‘I have not encountered symptoms as severe as these in the context of a re-bleed.’
17. Turning to Dr Stoodley, he deposed:
‘The acute bleeding has not come from re-bleeding. The acute blood and effusions have come from a single recent event.’
He described the child’s clinical presentation, respiratory collapse, fitting, and dramatic change, and he maintained under successive cross-examination from counsel that the head injury can be explained as a single, acute, recent event. ‘There is no evidence of older incidents of significant subdural bleed and’, he went on, ‘the symptoms were caused by the direct injury to the brain.’
18. The cause. The mechanism of injury, in Dr Stoodley’s view, is likely to have involved shaking, producing a backward and forward movement of the unsupported baby’s head, pivoting at the neck. This will have caused rotation of the brain within the skull, leading to stretching of the subdural veins crossing the subdural space, leading then to the bleeds. All the experts agree that the presentation does not enable the court to conclude that the injury arose from an impact. A blow to the head would cause bleeding, but at the site of the impact, whereas the bleeds in V’s case are multiple and on three sides of the brain – in inelegant and non-clinical terms, to each side and the back of the head. When challenged directly as to the mechanism Dr Stoodley responded that throwing would not replicate a shaking event. That would produce an impact injury. Dr Morrell excluded any organic process or disease which might have caused the bleeds, an opinion shared by Dr Stoodley.
19. Given that Dr Shalala changed his mind and deferred to Dr Stoodley and given the consensus of the experts’ meeting and the quality of the expert evidence at the witness stand, which withstood the closest cross-examination, I am quite satisfied that on the balance of probability and indeed with a significant degree of certainty that the bleeds over the brain were indicators of one acute injury.
20. The limb fractures. I remind myself that we see from Dr Chapman’s analysis of the skeletal survey that there is a metaphyseal fracture of the left proximal humerus – that is the left arm – just below the left shoulder. There is a similar fracture to the left distal femur – that is the thighbone – just above the knee and also to the right distal femur and the right proximal tibia, which is the upper end of the shinbone on either side of the knee. Dr Chapman referred in his evidence to other terms for metaphyseal fractures. They are also known as corner fractures or bucket handle fractures. They refer to an injury to the metaphysis, which is a growing plate at each end of each long bone such as a tibia or femur etc. In the case of an infant – that is a child under the age of one year – the metaphysis is not actually bone, but is more akin to a piece of cartilage and only fully ossifies when the body and the skeleton become mature. Dr Chapman was not challenged as to the presence of any of these fractures.
21. The cause. Such fractures cannot be caused by a non-ambulant infant to itself. The cause therefore is external and inflicted by a third party. I shall deal more fully with the mechanics when I address the next question.
22. Meanwhile, the bruise. It may be easy to overlook this injury, but it was significant enough for Dr McLachlan to record it in her report and indeed it is discussed also in the experts’ meeting and in the report of Dr Morrell. The bruise over the clavicle is in an unusual place. It is likely, in Dr Morrell’s view, to have been caused by firm pressure, probably with the fingers, given the small circumference. The fact remains that the child sustained a haematoma on his upper torso and the suggestion by either N or G that it could have been closed by the placing of the sticky holders of the electrical connections to the hospital monitoring equipment was clearly fanciful.
23. This leads me to the next question on the menu which I have constructed. The experts agreed it is in an unusual place and cannot easily or indeed at all be explained by CPR given its positioning.
24. Are the injuries non-accidental in nature? It has been conceded by all the respondents to the case brought by the local authority that they are not. I do not propose in this judgment to embark on a discussion as to the limitation or inadequacies of language which have grown up around the term ‘non-accidental.’ I acknowledge that it is unsatisfactory for a court to be faced with a binary choice in such limited form. There must, as I think has been acknowledged within the Division, be a spectrum of insults to which an infant is exposed ranging from accidental through unintentional to reckless and then to abusive and then to intentional. I will endeavour in this judgment to confine myself to answering the question in this way. Can the injuries which V suffered be explained as accidental? If not, then as a matter of logic they will be classified as non-accidental.
25. Turning therefore in similar order to the injuries which have been identified, the brain injury. The summary by Dr Morrell in his overview at E58 gives a very clear analysis of the traumatic causes of subdural haematomas. He gives a very helpful analysis of the occurrence of bleeds at birth and, as a result, of accidental trauma in infancy. Whereas a substantial proportion of babies born by normal delivery do have subdural haematomas (for they are seen on brain scans after birth), they are small and all have resolved by three months after birth. There are no recorded cases of those haematomas developing or expanding into larger, chronic subdural haematomas. Baby V was almost exactly three months when he was admitted to hospital. It is unlikely, in his unchallenged opinion on this issue, that the images on the CT scan or MRI scan could date back to his birth. Accidental injury was rejected by Dr Morrell.
26. N and G referred to a possible injury to his brain when the baby might have bumped his head on the edge of his pushchair and G spoke of some sort of roll on the sofa when the infant descended a very short distance, measured presumably in inches, into a fold between the sofa cushions. Dr Morrell dismisses the reported episodes as having insufficient force to cause or exacerbate subdural haematomas.
27. He moves then to the research and history of cases involving non-accidental injury and his maintained view is that the mechanism is a shaking injury, a description which I have already mentioned when addressing in part the remarks of Dr Stoodley. Both experts agree that the subdural haematomas which are seen in non-accidental injury are usually multi-focal; that is that the bleeding occurs in different parts of the brain and commonly also found in the posterior fossa of the brain. Both experts acknowledge that there were no retinal haemorrhages found in the ophthalmic examination of the baby and while both acknowledge that retinal haemorrhages are often associated with shaking injuries, the absence of retinal haemorrhages is indicative only of the likelihood that the insult to V was at the lower end of severity. Dr Stoodley was firm in his presentation of evidence and at the experts’ meeting. He reported that the investigation and tests have not shown evidence of any naturally occurring medical condition which might reasonably account for V’s clinical presentation - that is, his seizures on the morning of 13th September when N and G observed that he appeared to have stopped breathing and that he had become rigid - or the appearances on the scans. He agreed with Dr Morrell that there is no history of accidental head trauma of sufficient severity to account for either, and all of the features seen on the scans are well recognised and well reported in cases of non-accidental head injury involving shaking mechanisms. On balance both clinicians believe that the intracranial abnormalities have been caused by shaking; that is by a non-accidental mechanism. With those opinions I respectfully agree.
28. The metaphyseal fractures. The mechanism for these injuries is described by Dr Chapman as being pulling and/or twisting forces applied to the limb beyond rough handling. V was non-ambulant and was incapable of inflicting these injuries on himself. In simple terms the doctor described these fractures as being invariably the result of a good ‘yank’ rather than any direct force or fall. The amount of force needed is not known, given that logically experimentation on babies is not possible, but even really rough handling would, this expert attested, be insufficient.
29. In his report at E53 Dr Morrell again gives a helpful overview of the possible causes of these bony injuries. He reports that the classical metaphyseal corner fracture is one of the more specific features seen in child abuse and is seen rarely in accidental form. Classic metaphyseal lesions are seen most frequently in the areas in which fractures have been found in V’s skeletal survey. He agreed with Dr Chapman that the mechanism of causation is traction or twisting and pulling. Both clinicians mentioned that it is possible to exert these forces by shaking in that fractures can occur if the limbs flail about while shaking takes place. However, both Dr Morrell and Dr Chapman were satisfied that it is most likely that the fractures seen on V’s skeletal survey are the result of pulling and twisting forces. In Dr Morrell’s report from pages E54 through E60 he addresses and rejects any genetic explanation for the injuries revealed by the scans and the skeletal survey. He was not challenged at the witness stand as to these findings and indeed none of the experts were deflected from their view expressed in their experts’ meeting and in their reports that V was likely to have suffered non-accidental injury to his legs and his arm. Little, if any, argument was presented to the experts as to the existence and probable cause of the injuries to the baby’s limbs. The experts maintained their expressed and agreed views.
30. Given the quality of their respective reports and my assessment of their responses to questions from the Bar, I conclude that their expert evidence cannot be usefully challenged. It is probable – and again I use the civil standard of proof – that the fractures were non-accidental. Again my conclusion rests very high on the scale of probability.
31. The bruising. On admission to hospital there was no mention of the bruise on V’s upper chest on the admission forms. It is first described that afternoon when it appears that it was noted at 2.35 p.m. It is entirely probable that before that time, the bruise would have been developing and is likely not to have been noticeable when he was first admitted to hospital. As I have said, the cause of the bruise in that comparatively unusual area is likely, in the opinion of Dr Morrell, to have been either firm pressure or a blow. It is unlikely to have been inflicted by an ECG sticker. The presence of the bruise is wholly unexplained and no history has been given by either G or N which could explain it. As before, there is no genetic explanation for its presence. In my judgment, since the baby certainly could not have inflicted the bruise on himself and since it is unlikely that it could have been inflicted in hospital, then in the absence of explanation it is non-accidental.
32. The timing of the brain injury. Dr Stoodley made a helpful contribution to the March meeting with these comments:
‘Assuming that the court accepts that the darker subdural fluid is traumatic effusion rather than chronic subdural haematoma and that all the subdural abnormalities occurred at the same time, the timing of the shaking event is best assessed on the basis of the clinical features of the case. It is likely that there would have been a change in behaviour at the time of the causative event. The infant would not have behaved normally after the causative event, which is likely therefore to have occurred after the last time the court is able to find as a fact on the basis of the factual evidence that he was behaving neurologically within the bounds of normality.’
He went on to say that there would have been an obvious change in his neurological behaviour at the time of the causative event.
33. Dr Morrell was clear, both from what Dr Stoodley said and from his own reading of the papers, there was no evidence that he could find of any encephalopathic injury prior to the morning of the admission at hospital. Dr Morrell was challenged to accept the possibility of injury occurring before the morning of admission to hospital, but his response was forthright. The signs and symptoms on 13th September are consistent with the findings of the brain scan, which does not admit to earlier insults and delayed presentation. That, he said, is not feasible clinically.
‘That an earlier injury causing a haemorrhage was initially quiescent, but then emerged with the symptoms then displayed does not fit with a clinical scenario that I would recognise.’
Thus whatever neurological insult occurred happened within hours of admission.
34. There was a good deal of discussion about the possibility that the baby was struggling from time to time with his breathing. Dr Morrell was perfectly satisfied that the child had not in his short life experienced difficulty of such severity as to starve his brain, however temporarily, of oxygen. Had there been an airway obstruction of significance then the consequence would have been evident on the scan, but there was nothing. He said:
‘Had there been for example hypoxic ischaemic damage there would have been continuing symptoms, which did not present themselves.’
There was no evidence put before the court which could challenge that expert opinion. As I have already recorded, in answer to the suggestion that the chronic subdural haematomas were present and would explain the seizure on the morning of 13th September, he had this to say:
‘Chronic subdural haematomas can cause raised pressure on the brain, but that will not cause a seizure without pre-existing, significant symptoms.’
I asked Dr Morrell myself whether or not these symptoms would be observable to the uninformed bystander. His answer was plain. They would. Over how long a period before a fit? Within a few hours was his answer. Thus, as he said, it does not seem possible that chronic subdural haematomas were present for a while and suddenly and spontaneously caused an acute phase. He was firm in his view. Again, as he said, it is probable that the insult occurred within minutes of the collapse.
35. Dr Stoodley was equally plain. Challenged to consider the possibility of a delayed crisis he responded in evidence with these words:
‘There is no evidence of underlying brain damage. Imaging does not reveal a bleed of such mass as to cause distortion of and pressure to the brain.’
From his evidence I conclude that subdural haematomas are unlikely to persist in a normal, rapidly growing brain unless there has been injury or some hypoxic event, which plainly there had not been prior to 13th September. He was satisfied that the incidence of development from acute to chronic subdural haematomas is unlikely unless there is an associated brain injury, but, as was increasingly plain from his and his colleagues in evidence, subdural haematomas, if they emerge, effectively dissolve in time and therefore disappear from the scene. He concluded with these words:
‘I would expect a significant change of behaviour at the moment of the event. I cannot find on the scans an earlier trauma and then a lucid interval. Thus the causative event took place after the last time that the child was observed to be behaving normally.’
36. It is plain that the overall view of the meeting was that, subject to my conclusion that Dr Stoodley’s explanation of the images on the scans is one which I accept, the injury to V’s brain and his seizures arising from that injury occurred on the morning of 13th September. My short response is this. Just as Dr Shalala defers to Dr Stoodley, so also do I accept his expertise and his evidence. There is no or no adequate challenge to his findings and on the requisite test I am satisfied that there was one effusion arising from one acute insult, causing multiple bleeds on V’s brain. Thus I find that the conclusion of the meeting was correct and that it is more likely than not that the brain injury occurred on the morning of 13th September and cannot be explained by an occurrence on any other day.
37. The timing of the fractures. The opinion of Dr Chapman is overwhelming and, in my view, unassailable. There were two skeletal surveys, the first within three days of the admission to hospital on 13th September and the second on 4th October. By the time of the second survey some three weeks later all the fractures had healed. Such fractures are known to take about five or six weeks post-injury to heal and if therefore five weeks is accepted as the minimum time then there is no possibility that the fractures occurred around 13th September. I remind myself that both legs had suffered fractures, two fractures to the right leg and one to the left. In addition his arm had suffered a fracture. While the doctor conceded that it was possible that the fractures to the legs had occurred on the same occasion, it was not in his view possible that the arm had suffered injury at the same time. Thus these fractures must have occurred on at least two separate dates. The logic for that assertion seems persuasive.
38. There is no doubt, as he and Dr Morrell agreed, that it is notoriously difficult to date metaphyseal fractures, but there is equally no doubt that the fractures were not inflicted on the same occasion as the brain injury. However, looking back from the second scan on 4th October, Dr Chapman was reasonably confident that the fractures occurred at the very end of August or the very beginning of September. The further away, either into August or into September, the less confident he could be. Nonetheless, by the fifth day of the hearing it had become plain to the parties and particularly to the local authority that on the basis of the compelling evidence from the experts, the timing of the injuries was such that it was not possible to maintain that K, the child’s aunt, was in the likely pool of perpetrators given that it was agreed that the last occasion that she had had contact with her nephew (to the extent of having the opportunity to inflict damage on him) was 25th August. Thus it was not possible for her to have inflicted the injury to the brain on the day which I have already accepted was the date of the insult, namely 13th September. Also, the likelihood of fractures occurring to the boy’s limbs on that date was regarded by Dr Chapman as unlikely. Again there is no evidence to contradict that of the jointly instructed experts in the field and therefore I accept that the local authority would not be successful in establishing on the balance of probabilities that K was in the pool of possible perpetrators, let alone the perpetrator herself.
39. The timing of the bruise. As Dr Morrell made plain in the experts’ meeting, it is equally difficult to judge the age of bruising from its appearance. He noted however, as I have already mentioned in this judgment, that there is no record of the bruise when the child was admitted to hospital. That being the case, then it could imply a very recent injury, because a bruise could still be developing during the period in which the child was being admitted to hospital. It would either be less noticeable or even missed. However, it is reasonably obvious that a bruise does not present itself at the moment of the insult to the flesh and therefore one must conclude that either there was a blow or other inappropriate use of force inflicted on the child’s chest at hospital, which in my view is highly unlikely, or in a short period before his admission to hospital on 13th September when the child suffered a forceful blow or pressure and the evidence of trauma appeared within a short time of his admission. As I have already indicated, I proceed on the civil standard and must be satisfied as to what is more likely than not. On that basis I conclude that it is highly unlikely that the medical personnel inflicted that injury upon the child and that therefore the bruise is more likely than not to have been caused by inappropriate force being used before admission to hospital at some point on the morning of 13th September.
40. The lay witnesses. In addition to the medical experts whom I have identified, I heard from a number of witnesses called on behalf of N and G. I also received evidence from Denise Levermore, the family nurse. I did not derive the greatest assistance from these witnesses. In each case they were remarkably vague when they might have been expected to be precise and yet on other occasions they gave very detailed accounts of memories which one would have expected to have faded. Thus I was to hear from KB, a former boyfriend of K, V’s aunt, who lurched from the vague, protesting that he had a bad memory, to belligerent when he was challenged to the very detailed criticism of JW, when he appeared to be sneering as he spoke. His ability to remember anything at all seemed to be something of a challenge if, as was frequently the case, he did not care for the question. He remembered for example with great clarity bouncing V on his knee on the day before the hospital admission, describing a scene of absolutely no consequence in minute detail. Yet, having in his police interview recalled that K and N were screaming at each other in Ikea on 7th September, he claimed that that had not been the case and that their voices were simply raised. He became visibly irritated when he was asked to recall what it was they were arguing about. As it happens I regard the meeting at Ikea by most of the lay personnel in the case save for G, who was not present, as being of no great moment or indeed relevance. I am used in these courts to hearing evidence of screaming which is little more, on analysis, than hyperbole. He regarded V, he said, as his ‘nephew’, a surprising assertion, since although V and his mother shared KB’s home as a result of his mother’s generosity, he was self-evidently not related to him and he had only been in the child’s company for a matter of weeks. Why therefore he should present (as he described it) in such an emotional state in the police interview, protesting it would not be picture perfect because of his anxiety, is difficult to understand, particularly since the interview itself records him as being in high spirits, sharing laughs with the interviewer.
41. The only evidence from this witness upon which I could safely rely was his inability to detect any particularly alarming feature in V’s crying. He, like his mother in due course and as N was to say in her evidence, observed that V appeared to suffer significantly from colic, but although uncomfortable was not exhibiting any particularly alarming symptom which would concern the uninformed observer. I am persuaded, however, that he was telling the truth when he asserted that K and her sister N both doted on V.
42. KB’s mother, A, struck me as kind-hearted. She had agreed without hesitation that N should take up temporary accommodation in her home with V after N was thrown out of her mother’s home when the baby was just three weeks old. She knew little, if anything, about N save that she was the sister of her son’s girlfriend. She gave helpful evidence about N’s relationship with her son. A particularly striking part of her evidence was that both mother and son would ‘light up’ upon seeing each other. I found that evidence to be spontaneous and compelling. She was also helpful as a mother of some experience when she described V’s crying thus:
‘Nothing in his presentation alarmed me. His cry was just an ordinary baby cry. As for the colic, my daughter had had colic and that caused pain until it was resolved and that maybe caused me to identify a similar history in V.’
She was able to reassure N that a change in V’s food would very probably resolve his discomfort, both from her own experience and from that of a neighbour whose baby had exhibited similar symptoms. It appeared from her evidence, which I accepted, that her diagnosis and the outcome were both correct. Unlike the other lay witnesses, A did not attempt to demonise either G or N. V’s mother was, she said, like her sister, clearly very close to the baby whilst she candidly accepted that she saw nothing in G’s interaction with V to concern her.
43. The local authority called M to the stand, supported by a manuscript statement which it appears she had composed only a week beforehand. Her evidence however came as a surprise to no-one. She is the mother of a little boy, R, now four. She described a curious relationship with G, which appears to have endured for some five years, moving between friendship and a deeper relationship, which one assumes was sexual and quite close. She was not prepared to indicate why it was that the relationship kept breaking down and she protested that when it did she and G remained at a distance for only a few weeks before resuming their friendship.
44. In the summer of 2013, G had been left alone with her son whilst she visited the shops. I detected from her evidence that although G was well liked by R and although he did mind the child from time to time she did not rely upon him as a regular babysitter and she did not classify G as a father figure, no matter how close he was to her and her son. While she was at the shops G and R had a confrontation and the boy was being rather naughty and had taken hold of a television remote. It appears that that irritated G, who was unable to control the situation, and when the child refused to hand the remote over to him, but kicked out with his bare feet, one of them coming into contact with G’s chin, G reacted by striking the toddler across the face. While no great physical damage was done the child was clearly upset and later that afternoon, after G had left, he reported the incident to his mother, describing how G had smacked him across the head. M was outraged and telephoned G for an explanation. When he initially failed to disclose what had happened, until he was challenged with the specifics, M had said that she would ‘do’ him and thereafter broadcast his behaviour on Facebook.
45. Following that confrontation G himself elected to visit the police and inform them as to the occurrence and it seems that the police chose to warn him about his behaviour, but to leave things as they were. The incident was however logged and although he was not charged, there is a record of unlawful chastisement on the police logs.
46. The curious way in which M gave her evidence and the issue of whether or not she was an abusive parent were not wholly relevant to this case, but in passing one might express some surprise at the manner in which G chose in his statement to describe her parenting in less than complimentary terms. Certainly his endeavour, if endeavour it was, to deflect the observer’s attention from his worrying behaviour to that of R’s mother was to entirely miss the point. Subsequent evidence suggested that she was not being entirely open or honest either about the manner in which she treated G and their relationship or indeed about her approaches to him last week, but although a little surprising, that evidence did not detract from the primary issue, that of G’s assault upon her infant son.
47. G called AB in support of his case that N was both violent and abusive. AB however was not a persuasive witness. Describing himself as like a brother to G, he asserted that he was extremely concerned about the relationship with N. He deposed about that which he claimed G had confided in him, asserting that N would use physical force against him. In fact his written statement on this issue is impossible to decipher, speaking of ‘fingers using force’ in language which simply makes no sense. Doing the best one can, it appears that AB was attempting to describe how N would grip G’s arms, presumably hard. At its height his evidence went no further than that.
48. However, in some puzzling way, AB had devised, he said, a code whereby instead of G having to tell him that N had lost her temper and had been violent towards him, he would instead utilise the term ‘presents,’ so that should N overhear the two of them talking she would not be alerted to the fact that G would be speaking of her violence. I confess that I found that evidence wholly unconvincing, both because G and AB would not have to speak in her presence in any event given that it was obvious that the two of them would spend a good deal of time together without N being there and, secondly, because upon my inquiry, AB conceded that the code had only been used once or, as he said, possibly twice when he had telephoned G and asked him whether or not he had received any such present, to which the answer had been yes, but no more. It was wholly unsatisfactory that AB then indicated that he ‘would have’ spoken to G about that later. He was quite unable to give any particulars of any such subsequent discussion, nor any description of the present to which he was referring.
49. He insisted that G would never hurt the infant and protested that he was entirely innocent of any of the blame for V’s various injuries. One had to assume therefore, as he clearly did, that the only person who could have injured the baby was his mother. During one particularly unsatisfactory interlude in his evidence, AB suddenly blurted out that N was not as innocent as she looked. I derived no satisfaction from hearing about all or any other part of his evidence, which I am afraid to say I found to be wholly unreliable.
50. G then called AG in support of his case, a neighbour whom I found to be an unreliable historian. As questions developed it appeared that despite his denials, (for he asserted that he had not discussed the case with G at all, let alone in any detail), AG knew a very great deal more about the case than he first suggested. When he was pressed he gave a reasonably clear account of his understanding of G’s movements on the morning of 13th September. He spoke of G laying V on the settee and the child being unable to breathe and of G administering CPR. It had all happened in a flash, it seemed from AG’s evidence, yet despite the detail, which included G’s suggestion that N should make a bottle for the child, nothing was said about attempts to keep a dummy in V’s mouth, nor about the child being placed in the bouncing frame or the supposed difficulty in settling him.
51. This witness spoke in detail of 27th August, a date which he asserted he could remember with greatest clarity. It appears to be accepted by all parties that this was likely to have been the first date when G was left alone with V. Indeed it was later to be confirmed by N that when she returned from her expedition, G was then at his flat with V and AG. By the time AG came on to the scene it is plain that G had already changed V’s nappy. He was holding it in his hand when he answered the door. G was to admit in due course that N had left him to prepare a feed, then feed the child, then wind him and then change him. AG saw nothing to suggest that there had been any difficulty and he remained talking to G until N returned. That did not tell me a great deal. I do not know how long it was after the baby had been changed that AG came on to the scene. It appears however that when he did so the baby was settled. Of particular importance therefore is not whether or not in the time before that gentleman came to the flat there had been something untoward, but if there had been, would AG have known?
52. It will be realised therefore that there are two particularly important issues arising from the medical evidence which cannot be avoided. First, the window or timeframe in which V is taken to have been likely to have suffered the fractures was opening at this time. As Dr Chapman had said, it was entirely likely that the fractures had been inflicted at the very end of August or the very beginning of September, although the further away from those dates the more uneasy he became. It is for this reason, as I have said, that the local authority had abandoned its assertion that K could have been responsible for the fractures when she had the care of the child on 25th August. Secondly, the presentation of a baby suffering from metaphyseal fractures would in all probability not be sufficient to alarm the uninformed observer after some 10 minutes or so from the insult since the baby would very probably settle within that period.
53. Therefore, what could AG tell us? On analysis not much. The baby was settled when he saw him and AG was satisfied in generality as to G’s own demeanour and his suggested gentleness. That particular assertion was a little surprising, since he overlooked the behaviour of his young friend only months before when he was awoken from his night-time slumbers by a serious commotion in the block of flats in which they were neighbours, to which the police had been called. G was behaving in a worrying and indeed dangerous manner and had to be restrained. He was sectioned that night and was later assessed by a psychiatrist, whose notes are found at G352. It was suggested by AG, as if to dismiss it, that it was alcohol fuelled and yet strangely, despite apparently visiting his flat for several times a week, he had no recollection of or had not noticed that G had smashed up his flat on another occasion, (whether fuelled by depression or alcohol would therefore be something of which he presumably would be unaware). I found his evidence to be unpersuasive and provable of very little, if anything.
54. On the third day of the case JW emerged from the shadows, or should I say was drawn into the case from the shadows as a result of an application by counsel on behalf of G. The court had permitted J, V’s father, to remain present as an observer, albeit represented, given that he is the birth father. During the months before the case came to trial J had been the subject of a parenting assessment since he had offered himself as a carer for his son after discovering that he had been placed in foster care. Counsel had had the wit to look at that parenting assessment and had discovered that part way through J, in giving the history of his relationship with N, had recorded that while he had not been violent to her she had been violent to him and she had, he asserted, head-butted him during one particularly violent argument. Anticipating that the case against G would include the record of his own loss of self-control when in 2013 he struck R across the head, counsel sought to introduce this allegation against N and could only do so on calling J. After hearing argument on the issue I acceded to the application and over the following 24 hours J’s solicitor prepared a witness statement on his behalf and in due course he came to the stand.
55. I anticipated that his appearance might have caused some trepidation at the Bar since, given the outcome of the parenting assessment which disqualified him as a carer and raised a particular issue about his use of cannabis and his difficulties with anger management, he might have been regarded as something of a loose cannon, but as it transpired his evidence revealed a young man who had reflected carefully about his behaviour and who presented as thoroughly candid in his evidence. He left me in no doubt but that he was endeavouring to tell the truth and that he was deeply ashamed of the thoroughly unpleasant way in which he treated N, verbally abusing her and frightening her very significantly. He accepted that there were regular arguments in which he endeavoured to control N to the extent of not permitting her to set foot outside their accommodation without his approval or even his presence. He would belittle her and insult her and had by March 2013 become intensely jealous of her, not as a result of her behaviour, but because of the paranoia induced by his increasing use of cannabis, which she had endeavoured to persuade him to cease, with little success. He had smashed up one phone of hers and had run off with another. Ultimately he was to steal £40 from her purse. At the very least he was terribly unkind to her and there was little doubt but that she was the victim of recurring domestic abuse. When she alleged and it was put to him in cross-examination that he had broken down the bathroom door when she took refuge away from him, he initially denied it at the stand, but ultimately, upon hearing her evidence, he reflected once more and recalled that he had after all broken into the bathroom and he conceded as such through counsel when N was part way through her oral evidence.
56. As I have said, J’s evidence was refreshing in its candour, but there remained areas in which there was nonetheless some uncertainty. There was no doubt that many of the arguments were fuelled by cannabis and probably by alcohol. There is also little doubt that even now some of J’s recollections remain hazy. A prime example is the bathroom incident, which he denied outright when first challenged about it at the stand. He did insist however that N had head-butted him. He insisted that his memory was quite clear on that issue as he described how the last argument between them, which lasted into the small hours of the morning and resulted eventually in his lying on his back on the bed effectively challenging N to get him out of her flat, had continued. He described how he had goaded her and laughed at her, effectively showing her how powerless she was. He then described how she struck him on his nose with her head. Whether that can be described as a head-butt remains unclear since in popular television or cinema drama typically one might observe the use of a head as a weapon, striking the forehead of the victim with the forehead or the top of the head of the assailant. In this instance he revealed that her head struck his nose, which itself had not bled. It is doubtful that he gave the most serious thought to that injury and if N had struck him in that way at all - and there remains some doubt about that - I do not take the view that it should be classified as an indication of a serious attack. Although N denies the blow – and she was only challenged repeatedly about a head-butt – I take the view that in all probability she could well have been desperate enough to do anything to fight back at her abuser and get him out of her accommodation and in her desperation she might well have struck him in the face. She conceded that she had pushed him in the face with her outstretched hand. The particularity however is not easy to accept since the alleged victim was again fuelled by cannabis and/or alcohol and I doubt that his recollection would have been as clear as he imagines.
57. I anticipated it would be said, and indeed in submissions beforehand it was argued, that bringing J to the stand was to achieve balance. If it were more than that and if it was designed to show that N was an abuser or is prone to violent outbursts, then it failed. Instead it revealed that her abuser was remorseful and, in answer to my own question, J said that he had not detected any impatience in the way that N behaved with their son on the few occasions that he saw them together. Subject to my interpretation of the alleged head-butt, in the very few instances where their evidence differed I preferred that of N, although in the main I remain satisfied that J was endeavouring to tell me the truth.
58. KH, N’s older sister, was in fact the first lay witness to be called. She had found herself in the pool of possible perpetrators because of the few times in which she had cared for V on her own. There were three nights when she babysat overnight with V. As I have said, the dates were common ground and after receiving the evidence of Dr Chapman the local authority conceded that K was outside the timeframe in which the baby suffered the fractures, nor did she have contact with the baby at the time it had become clear he suffered the brain injury. K could be of little more assistance. Like a good number of the other witnesses she struggled on numerous occasions with her memory, but essentially I did not detect that she was seeking to mislead the court in the primary focus of her evidence, which, having disposed of the dates when she could have had any unsupervised contact with V, the remainder of her evidence focused on her admiration for her younger sister’s endeavours to care for her nephew and, when asked, she sought with limited success to assist the court with her understanding of the baby’s cries.
59. The baby appeared to have something of a different cry ever since he was born, she said. It had been described by J as something akin to a squeak, explained he thought by the child’s soft larynx. Indeed it was noticed by the general practitioner in the early part of September when J attended the surgery. On the one occasion, on 7th September, which I have described as something of a gathering at Ikea when J had had contact with his son and was returning with him, K noticed what she regarded as a particularly distressed cry.
60. As I hope will become plain from this judgment, I take the view that the baby was probably giving out signals that from time to time he was indeed very uncomfortable, but we must remember that he had fractures to four different sites and from the expert evidence which I have heard, those fractures were no more than seven to 14 days old. When resting and still he would be asymptomatic. When disturbed however it is entirely probable, in my view, that he would experience discomfort. I therefore do not dismiss K’s recollection, but I put it in context.
61. On the morning of the tenth day of the hearing the court was presented with the second of two manuscript statements, this time written by ST, who, it transpired, was a friend of both N and G. It appeared that she had accompanied N and given her support for three of the ten days the hearing had lasted (I am giving judgment on day 13). She was, as I say and as was generally conceded, a friend of both G and N and had known them both for some years. N, she said, was like a sister to her. She had known G since college. She was aware that V had been taken to hospital and she knew that he had suffered a seizure and he had had bleeds to his brain. She also knew that V had been in foster care since September and that N was understandably distressed at being parted from her baby.
62. She – that is ST – had revealed to K or N – it matters not which – a few weeks after V had been admitted to hospital that she had recalled an incident, now some four years ago, when G and she had spent a short time together one morning when she was babysitting for her infant nephew. Nothing more had been made of that incident until Friday of last week after G had concluded his evidence-in-chief at the stand and when K recalled what it was that had been said to her and her sister last autumn. It appears that ST’s disclosure was discussed with K’s legal team, one of whom was deputed to approach ST and asked her to give a statement. She was most reluctant to do so given that she was a friend of both G and N and she became quite tearful and angry at the suggestion. However, despite her protests, she was prevailed upon and she elected to put a statement before the court explaining that if she did not do so she feared that what she had to report would perhaps be exaggerated.
63. In fact her evidence was indeed important and the Bar conceded that she should be interposed before G was cross-examined. At the stand she maintained her evidence, that being that during the hour or so that she and her nephew, JN, then 18 months old, had spent with G he behaved inappropriately. She had left JN in his company for a short period while she, on her evidence, dashed to the shops to get hold of some nappies for the child since none had been provided by her sister. When she returned she found that JN was particularly clingy and would not let go of her. It appeared that during her absence he had urinated on the floor. G took the view that the child should not be allowed to cling to his aunt in that way and he took it upon himself to administer some form of correction. That, in ST’s evidence, took the form of his raising the child’s arm above his head and then administering a sharp slap to the child’s thigh below the recently placed nappy. That, she told the court, left a red mark. The child was immediately distressed and cried, but G insisted that he should be placed on a sofa and should not be comforted by his aunt. He indicated to ST that she should sit opposite the boy on the other sofa so that, to use my words, the correction would not be watered down or excused. ST found the experience excruciating. She realised that it did not last for an eternity, but it seemed like that. G, she said, was insistent. She would be a bad mother if she did not maintain the correction and if she gave in and cuddled the child in those or similar circumstances.
64. If her recollection is right, it bears an unhappy resemblance to the admonitions by G to N of lazy parenthood during the arguments about V’s dummy. This was remarkable evidence and understandably ST was challenged at some length both as to her presence in court at all and as to her recollection. G did not, as it transpired when he was recalled to the stand, deny that there had been the meeting of which ST spoke, nor did he deny remembering placing the child on the sofa and requiring ST to leave him and not immediately comfort him. He did however deny emphatically that he had ever struck the child, angrily insisting that it would be quite wrong to strike a child. The irony of that insistence appeared to have been lost on him given that three years later he had lashed out at R. As counsel for the local authority pointed out to him, the incident and its surrounding detail was, save for the slap, clearly not invented by ST. ST was a timid witness, who was clearly distressed at being called to the stand and she was clearly unready for what she viewed as an ordeal. It was suggested that her evidence was fabricated and that her disclosure had been made up, rather than forgotten about or overlooked in the months leading to the trial. However, without wishing to be unkind to her, I found her not to be the most forthright or quick thinking of individuals. She did not, in my judgment, appear mischievous. To the contrary, she was visibly uncomfortable at having to be involved at all between two friends.
65. For his part G accused her, when questioned, of lying and of being part of a conspiracy against him. I have considered his responses and the evidence given by ST most carefully. Where the two of them diverge – and they do so only in two areas, one being the length of time that ST was out of JN’s presence buying nappies, G claiming she was away for up to 40 minutes whilst she insisted it was no more than 10 or 15, the other being his assault on the boy – I take the view that ST was not lying and I prefer her evidence to G’s.
66. The family nurse, Denise Levermore, gave evidence which in some respects was puzzling. Having lodged a statement at the request of the local authority confirming her admiration for N, she came to the stand and initially repeated her positive remarks. N was, she said, an admirable young woman. She had confronted and overcome the difficulties presented by her childhood, parental mental ill-health, the abuse suffered at the hands of J and her pregnancy at the age of 16. Her interaction with the baby caused her no anxiety. She was, she deposed, a resilient and determined young mother, delighted at the pregnancy and the newborn baby. Her notes, which were almost indecipherable, recorded N’s pleasure at being pregnant and her adherence to all the necessary health checks for the child in whom she clearly delighted.
67. It was not immediately obvious therefore why the nurse thought it appropriate to then make some curious and even disparaging remarks about N’s failure to disengage from J, which on analysis was not true, as it became plain in the evidence that despite her tender years and her vulnerability at the hands of her abusive partner she did manage eventually to eject him from her flat and terminate the relationship, and about her apparent disinterest in V’s medical report which was disclosed to the child protection meeting, which again was inaccurate since N had had the medical report disclosed to her some days previous to that by the police. It remains a mystery to me given that it is the local authority’s case that N had failed to protect her unborn child and thereafter her baby why at this front line stage, if I can call it that, the family nurse and indeed at least one other social worker with whom N was clearly cooperating made no effort to assist her either with alternative accommodation or over disengagement from J, about whose abuse they were clearly aware, or perhaps with an appropriate educational resource such as the Freedom Project. None of this was mentioned to N and it remained entirely unclear why it was that the nurse during her evidence appeared to become increasingly critical of her. I found that aspect of her evidence unsatisfactory.
68. She referred to her experience as a social worker and a health visitor of some 20 years. She was able to rely on her own sense that something was wrong about G’s presentation. She said that she found him controlling. He was asking inappropriate questions given the brevity of his relationship with N and her baby. She was concerned about his relationship with this young mother some eight or nine years his junior and so recently out of an abusive relationship. He appeared, she said, to dominate discussions with the nurse to the extent that N appeared to be excluded. Of course N had not informed her of G’s disclosure of his assault upon R. Given the nurse’s inactivity thus far, it is however not clear what she would have done with that information, because in due course she did establish it for herself by making contact with the police and discovering that the assault was on G’s record. There is a suggestion on the notes that she was about to follow the appropriate path for a referral to child protection, but given that she had thus far not offered any relevant help to N, who had in her own words been told by another social worker that she – that is N – was doing her job for her, it remains unclear just how quickly, if at all, the nurse would have ensured N was given the appropriate advice and given the necessary help to extricate herself from a possibly further abusive situation.
69. There was one matter which remained unresolved and to which I shall return briefly in due course. The nurse saw a bruise on N’s face. As it happens the nurse recorded it, no doubt increasingly anxious about the abuse which N was reporting at the hands of V’s father. However she did not, as far as can be established, challenge N about it. If there was a failure to protect herself and her unborn child, then at whom should the finger be pointed? Perhaps at N, but perhaps also at one of the first trip wires or advance guards of the statutory child protection agency.
70. Finally, I must turn to N and G, first to assess them as witnesses and then to examine the question of the identity of the culprit, given that it is now generally accepted by the Bar and the local authority that they are the only two remaining occupants of the pool.
71. N. We have to remember that N was 16 when she conceived. In the same year she left home with little opposition from her mother, who, if she did not actively collude in the abuse which N suffered as a child, was aware of it. That lady suffered from depression and gave no support to her daughter. N was 17 when she gave birth and although she returned home, she was to be assaulted and forcibly ejected by her father with her three-week-old baby in the most disgraceful fashion. As a teenager, those who should have protected and cared for her turned her backs on her, while the relationship with the father of her unborn child, a young man of questionable record and two failed relationships behind him, brought her literally out of the frying pan and into the fire. Yet she was emerging from this perfectly dreadful background determined to better herself and had managed to secure a place against significant competition with the National Stud, in Cambridge and was on the path to a rewarding career. Then she became pregnant, a development which might have caused a lesser person to have descended into self-pity or to seek a termination of her pregnancy. She did neither. From the evidence which I have heard and which I accept, far from resenting it, she delighted in her pregnancy. I shall come to my assessment of the evidence against her and against G in due course, but my assessment of her as a witness is that, notwithstanding areas where she candidly admitted that a number of her responses either in that which appears in her written evidence or in her police interviews were mistaken, I can rely on her as a witness of truth.
72. Again I must remember that at a very young age she suddenly found herself in a maelstrom. Her baby had been taken to hospital with, as it initially appeared, the most worrying symptoms. In short order she was then told that her baby, on whom she clearly doted, had an injury to his brain and then late at night and for the first time in her life she was to spend hours under close questioning in a police interview room facing two police officers and a tape machine into the small hours of the morning. Her situation was not just daunting; it must have been frightening. Therefore, I can forgive her for laxness in coherent narrative and for errors in time or sequence.
73. Two matters, perhaps minor but important in my assessment, struck me. One was her general presentation, the other an example of truthfulness. The first was the manner of her demeanour at the stand over the best part of two days. She was obliged to endure firm, although courteous, questioning sometimes repeated, from no less than six inquisitors learned in the law. If it were anticipated that she was quick to anger or impatient with the questions, she was neither. She described herself at one point in response to a suggestion that she would lose control as being quite the opposite and I believe her. Her self-control was admirable and in distinct contrast to that of, for example, K. She was certainly distressed and there were moments when she had to be given a breathing space, but those moments were rare. Given the enormity of the allegations against her, I found her composure to be compelling rather than pretended.
74. The example of which I speak was but a small part of her cross-examination, but a telling one. Towards the conclusion of her evidence she was asked about the bruise to her face. It was, as the nurse had noted, just below the eye. Had J caused that, she was asked. She reflected and had to do so more than once, but repeated that she simply could not remember the bruise. A witness of less character, indeed a dishonest witness, having been challenged to describe her experiences at the hands of J, whom she did not immediately trust to have any unsupervised contact with V, contact which she initially opposed until being talked round by her sister, might very well have taken the opportunity to build on the suspicion of the nurse and use this one obvious and objectively provable indication of physical abuse in an attack on J. She did not. Indeed she denied that the bruise was caused by his hand.
75. Again, I find her honesty to be compelling and when challenged to accept that only she and G now occupied the pool and when presented point blank by counsel for V with the challenge that she harmed him or knew of the harm to which he had been exposed, she was visibly appalled. ‘He’s my boy,’ she protested. I found it impossible to ignore the depth of unspoken emotion behind that response.
76. G. That causes me to turn to the emotional response of G. We know that on several occasions in his police interview he was in tears. Again, I accept that having to endure questioning in the police station would have been almost as distressing for him as it was for N, although it was not the first time that G had ever been to a police station and indeed only a few months before G had spent an entire night in police cells, having been detained at his flat following his troubling behaviour, which had resulted in his being taken into custody. But why, I wondered, was he again tearful within moments of coming to the stand in his evidence-in-chief? Because, he said when he had composed himself, he had lost his family. I found that to be not the most convincing of answers given that he had only had the most fleeting of relationships with N and her son. They had met on 5th July 2013 and within a few days of V’s admission to hospital on 13th September the relationship had ended. Plainly, he viewed the relationship far more intensely than N and equally plainly they became close very quickly and by early August N was a frequent overnight visitor to his flat, but his emotional reaction explained by that answer was not the most persuasive. That alone of course was not sufficient to provide an overview of his presentation as a witness but there are other equally troubling areas in which he failed to convince me of his reliability.
77. It is appropriate therefore to remind myself of the standard direction which is given to juries in appropriate cases arising from the case of R v Lucas 73 Cr App R. This is a direction, as I say, given to juries and I remind myself that in this instance at this stage of proceedings I am trying jury questions and the direction to which I refer is a direction which has been drawn from that case and it is now used frequently in the Crown Court by judges directing juries within the scope of standard directions prepared by the Judicial Studies Board. The test of that standard direction reads as follows:
‘The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons and they may possibly be innocent ones in the sense that they do not denote guilt. For example, they could be lies to bolster a true defence, to protect somebody else, to conceal some disgraceful conduct other than the commission of the offence, or out of panic, distress or confusion. If the jury thinks that there is or may be an innocent explanation for the lies then the jury should take no notice of them. Only if the jury are satisfied that he has not lied for an innocent reason then his lies could be regarded by the jury as evidence going to prove guilt.
78. As his evidence developed I became less persuaded that G was a witness of truth. He contradicted himself on numerous occasions to the extent that eventually it was not possible to establish whether he had told the truth to the police in interview, or to the court in his written evidence, or finally to the court in his oral evidence. He rounded on counsel in one angry outburst and he came to the point of almost refusing to answer questions at all when Mr Varter on behalf of N was seeking to establish why he had not immediately called an ambulance. Was it not the case, Mr Varter asked, that G feared that V was dead? How dare counsel ask him that question, he demanded. He had never said any such thing. On this occasion – and it was not the only one – instead of tears there was fury on G’s face, fury that was wholly misplaced because, as Mr Varter subsequently pointed out, G had on three separate occasions in his police interview indicated he had feared that V had died.
79. Naturally, evidence does not stand or fall on the outcome of one exchange, but it was significant, and his denials and changes of mind and contradictions built one on the other until eventually I could place little reliance on his evidence. Out of fairness, I should give more examples. Thus he insisted he had visited the police after his assault on R as an indication of his immediate remorse and recognition of his inappropriate behaviour. I do not accept that. He visited the police only after he had been telephoned by M, the child’s mother, who promised in her angry exchange to have him ‘done’ for it. Before that telephone call he had said nothing to R’s mother on her return from her expedition and had then gone to the gym. When later she telephoned him he did not volunteer what had happened until she challenged him. In his written evidence he sought to explain his silence by suggesting that he was in fact protecting the boy from further physical admonitions by his mother, who would, he suggested, punish him once more for fooling around with the television remote. That assertion was wholly unpersuasive.
80. He insisted as his cross-examination opened that he had never had treatment for anger issues. He was pressed on the subject. He maintained his denial. That was patently untrue, given that he was then shown his medical records from 1998 revealing an appointment with his general practitioner which recorded that he had been suffering from anger issues for the previous two years and a very much more recent letter from the City College seeking to refer him for similar and indeed more troubling issues, which included his assertion that he was reporting, at times of stress, the existence of and his awareness of another person within him. If that report of his own admissions and anxieties is at all accurate, then one must feel the greatest concern and indeed sympathy for him, for it reveals a very troubled soul indeed. Quite why then he should assert, as he did in answer to questioning, that he does not get stressed continued to escape me, for, quite to the contrary, it is perfectly evident from his record that in May 2013 he was detained by the police, as has already been said, for behaviour which was not only inappropriate but even dangerous at his flat, as also was his tension and anxiety very obvious from his demeanour at the stand. His initial tearfulness, about which I have remarked, was repeated until eventually it appeared that upon being faced with an uncomfortable question or questions which he did not care for he was reduced very quickly either to ill-concealed annoyance or tears, some of which could be explained by anxiety, but others which could only have been caused by his unsuccessful search for a sensible or, in my judgment, an honest explanation.
81. I felt obliged to stop proceedings on a number of occasions and on another, G sought a break himself when he was not for once in tears after his confrontation with Mr Varter, when his emotions clearly got the better of him. His presentation was rarely better than his first tearful assertion that he had lost his family and was frequently worse, and counsel for the child asked him patiently and kindly to reflect carefully on the recording by the psychiatrist who examined him after his being sectioned in May 2013 that he clearly needed help. In tears and barely able to collect himself, G insisted that he did not propose to seek help from anybody and he could deal with his problems himself. In direct contradiction to that assertion, I found his presentation so troubling as he attempted to respond to that invitation that I called yet a further halt to the proceedings so that he could recover.
82. Returning to his evidence, it was not possible to establish whether what he said to the police was more accurate than that which he eventually deposed under cross-examination. Thus, although in his statement and in evidence he made something of an apparent blow to V’s head in a child’s pushchair, he made no mention of it in his interview to the police. Yet having told the police that V had struck his head – he used the term smacked his head – on a wooden part of the sofa – it transpired that he actually meant the frame of the sofa, which he asserted had not been particularly well covered – he had mentioned nothing of that to N. He claimed that V had a red mark as a result of that blow, but that it had disappeared after a few minutes and indeed before he left for college, yet subsequently he claimed that it had not disappeared at all and indeed he had noticed that in its place when he returned was a bruise. He was to assert that that may have been derived from contact between the baby’s head and the nappy box when N was changing the child, but, as he muttered almost as an aside, he did not want to get N into trouble. In his written evidence he asserted that he had told her of the sofa incident. In his oral evidence he said that he had not. To the police he said that the child pretty much smacked his head on the sofa. To the court he said it was not really that bad. To the police he said that N had seen a mark on V’s head and that he had pointed it out and mentioned it to her, but in court he said that he had not.
83. His description of the moments between his getting up on the morning of 13th September to attend to the infant and his eventual calling 999 and speaking to the ambulance personnel became more and more confusing as his contradictions mounted. It was wholly unclear whether the child was crying persistently throughout, as he asserted part way through his cross-examination, or whether he settled and resumed crying from time to time, or whether he was not crying at all, but simply ‘whinging’ most of the time, whether from discomfort or hunger, since G’s evidence continued to be contradictory, moving from the child being dopey to being inconsolable. At one stage he suggested that he put the child in the cot because he was concerned about his back, although he insisted in answer to my questions that he could not recall saying that, while on another he asserted that the child arched his back only immediately before he took him out of the cot as a result of his scream, when at that moment he became rigid.
84. G insisted that he did not get stressed, as I have already said, and, as I have already said, that is an assertion which simply did not withstand the merest scrutiny of his demeanour. He insisted that he was a happy soul who liked nothing better than to make others happy, a statement which he volunteered to counsel for the child in the face of the similarly unprompted remark in his interview with the police when he asserted that he enjoyed annoying people. None of these assertions assisted me in my endeavours to establish whether he was at all reliable.
85. The balance of G’s evidence was equally unhelpful, as was his attack on N in his second statement when he contradicted his assertions to the police about N’s good qualities and their loving relationship, choosing then to describe her as hateful and violent. He justified his about-turn by his discovery, he said, of ‘39 lies’ in N’s second statement. When asked by his counsel in re-examination, he was unable to give any example save for his insistence that when she demanded that he telephone for help on 13th September she did not, as her statement attested, identify the ambulance service. Another lie, he said, was that he had never called her ‘babe’.
86. I found it particularly troubling that within moments of the child’s seizure G was questioning everyone and anyone whom he could address for reassurance that he had not caused the insult which had befallen the baby. He asked the ambulance coordinator, various medical staff at the hospital and even the police for that reassurance. He made curious and irrelevant disclosures to the police in interview about perfectly innocuous details on the sofa and later in his written evidence he described two incidents which he had not revealed to N until later, one involving the pushchair and the other the bouncer, advancing in the latter disclosure in his second, January statement a description of lurching and jolting, which might fit the shaking mechanism described in the medical evidence which had been produced in the previous month. From almost the commencement of his police interviews it is recorded that he had dissolved into tears. This is a man of some nine years senior to N behaving in a way which has continued to trouble me throughout the case.
87. The local authority puts it succinctly in its closing submissions. G’s reaction to the events of the morning of 13th September was suggestive of profound shock and remorse as he questioned what he might have done, albeit accidentally, to produce V’s symptoms. For my part I found it distinctly unattractive for G in the closing moments of his evidence to assert that N had herself become exasperated with her son, saying, ‘Fuck it, let him scream,’ evidence which I found as unpersuasive as that which I did upon hearing AB, who, as the local authority suggest, concocted with G the assertion that N was violent to him.
88. Opportunity, presentation and identification of the perpetrator. It has become clear that the evidence has identified two timelines, one for each of the sets of injuries suffered by the baby. The first timeline relates to the fractures of his legs and arm, fractures which are most likely to have occurred in the last days of August or the first day or so of September. That evidence, as I have already said, is perfectly clear from that of Dr Chapman. The second timeline relates to the bruise and the brain injury. Again, from the medical evidence before the court, which I have accepted, that timeline commences from the last moment that V was presenting normally from a neurological perspective. To establish that, I am obliged to examine the evidence I received from those who were last in contact with the infant.
89. I shall firstly address the second of the two timelines given that we have a greater degree of certainty as to the date and time of the assault since, having accepted the medical evidence as to the probable moment of the insult, it is more likely than not that the injury was inflicted on 13th September within hours of admission to hospital. Thus of the two occupants of the pool, which of them had the opportunity to injure the baby? There is of course no independent evidence other than the expert opinion as to timing of which I have spoken. Whatever happened occurred behind the flat door. I am obliged therefore to examine the areas where the two witnesses agree and where they do not.
90. They agree that on 12th September V was presenting normally. He was not particularly comfortable, but there was nothing to suggest that this discomfort was anything more than colic. At nine p.m. he took his feed and was put down to sleep. G volunteered for the first time in the closing moments of cross-examination by counsel for the child that N was angry with him and would not let him near V. I reject that assertion since it had appeared nowhere hitherto either in writing or in interview or in evidence. Other than that, neither of them suggested that there was anything unusual about the evening or, therefore, V’s presentation. N deposed that she remained awake, finding it hard to sleep. She said that she passed the time texting on her mobile phone. In fact neither of them set out with any great clarity in their written statements the chronology over the 12 hours between the child’s 9p.m. feed and the calamity which befell the child at about 9a.m. on the morning of the 13th. G appears to in generality speak of getting up at 4 a.m. and then 6.30 a.m. in answer to the suggestion that he was being caused stress generally by being late for his work placement. Under cross-examination that appears to have been translated into the occurrences of that morning. N does not in fact give a timeline herself save under cross-examination, given that again, times do not appear in her written statements.
91. To the police N said this at Fl03:
‘After his nine o’clock feed we put him straight into the cot. We didn’t like touch him after that, so, you know, he was in the cot and then – then I found it hard to sleep, so I was up and stuff. I picked him up and took him into the living room because he was crying. I didn’t want to wake G, because he does like get up with him quite a lot, so I thought I would let him sleep and stuff. So I picked him up and took him into the front room and lay down on the sofa with him and then he fell asleep and I was just texting my mates on my phone. I thought, “I will try and put him into the cot,” so I picked him up, went into the bedroom and tried to put him in and he started stirring again like he didn’t want to be put down, so I picked him up and took him back, not wanting to wake up G, to try and settle him again. Then eventually I put him in and then he started crying and then G woke up and put a dummy in his mouth and I think he settled again and then we both went to bed and then, if he cried during the night or slept through it, I woke up with him in the morning.’
Thus no times are given in that interview.
92. At the witness stand she said this:
‘I was up in the night with V. He started to cry. We had the habit of swaddling him. I asked G to re-swaddle him, but V wriggled and G started to get stressed, so I picked him up and took him into the living room with me and put him on the sofa and I saw to my Facebook. When he’d fallen asleep I took him back to the cot, but that woke him up and he started crying again, so I woke G to have him rewrapped. This time he did and he settled.’
It appears to have been generally accepted that this was about 4 o’clock in the morning, but G’s account appears not to have been on all fours with N’s. At F11 he says, as I have already mentioned, in what appears to be the historical present tense:
‘I have just started this course and obviously, you know, I’m trying my hardest to be there on time, but, you know, he cries in the morning about four o’clock, so I had to get up, wrap him up and make sure he’s alright, see to him, go to bed and everything and then get up at half past six again. He’s not hungry or anything, because he’s just started sleeping through. He’s just, you know, getting a bit – and then he just needs something to know that people are there.’
93. In his first statement at paragraph 33 he writes this:
‘V slept a lot that evening. N put him to bed at about 9 to 10 p.m. and he slept through until he woke at 4 a.m. There was nothing that happened on 12th September that caused me any concern. My interactions with him that day were limited.’
In his second statement at C236 he writes:
‘I woke up to V’s stirring at around 4.10 a.m. I gave V his dummy and waited until he had settled before getting back into bed.’
Thus he makes no reference to N getting up. Then he continues:
‘I was woken up again by V whinging about 6.30. This time I gave him his dummy, but he did not settle. I picked V up to comfort him until he had settled. I then lay him back in his cot and tucked him up and snuggled up to N in bed. I woke up at 8.20 a.m. by my sister texting me. I replied at about 8.37 a.m. I stayed in bed and tried to get a little more sleep, cuddling up to N, but then V started 15 minutes later. I figured that since it was close to his morning feed V must have been hungry. I got up and picked V up out of his cot and carried him into the front room.’
However, in evidence G retracted that statement and said that after all he had not got up at 4 o’clock in the morning. He said his statement was wrong and he had instead only got up at 6.30. When he asserted that he had got up at that time he said the baby was fine and settled perfectly well after being comforted. When further examined, this time by counsel for the child, he changed his mind once more, indicating that he might after all have got up at 4 o’clock, but that N had not been awake and she had herself not got up.
94. It was not possible to establish from his evidence whether or not the baby was crying or, as he put it, whinging. As I have said, he moved between crying a lot (to the police) to settling in (in his evidence) to whinging (in answer to my questions). However, I am satisfied as best I can be that up to 8.37 a.m. that morning V was not behaving in any unusual fashion. He was, in my judgment, stirring and was ready for his morning feed.
95. I pause. It appears to be common ground that N is a heavy sleeper. Whereas she would wake up when her baby cried in his cot close to her bed, she would not awaken when the baby was not in the room, whether he cried or not, nor would the Television wake her. At F37, G said this to the police in answer to the question, ‘Why is it that you do a lot of the care in the morning? How’s that?’ He replied:
‘Oh, that’s nothing to do with N. It’s just I wake up a lot quicker, so I wake up if he moans. I wake up if he whinges just once. I wake up four o’clock in the morning. It’s just like having a little whinge. It’s best if I wake up because she’s a bit of a heavy sleeper. She told me many times just to wake her up, but I think obviously when I started our relationship I still want to be able to get up with him and help her a little bit and stuff and then obviously wake her up.’
N was not best pleased that G would frequently get up and tend to V without telling her. She was already becoming slightly anxious that he appeared to be taking on a role for which she was not ready, but she was quite satisfied that she had been awake earlier on the morning of 13th September, because she, rather than V, had not settled.
96. Given that her evidence was maintained and given also that G indicated that his statement was not correct I prefer her evidence on that particular timeline. At least however they both appeared to agree that although V appeared to have woken up from time to time he was not particularly out of sorts and, on N’s evidence, fell asleep on her and, on G’s evidence, settled easily with his dummy.
97. We then move to the moment that G got up. Although I remain dissatisfied with G’s chronology thereafter – that is from when he picked up the child – it does appear probable that N remained asleep as G got out of bed. This, it seems, was not unusual given the heavy sleeping of which I speak and given her reported dissatisfaction that he would frequently get up and see to the boy without waking her. As I have said, she had complained about that. It is reasonably clear therefore that the child was not making a particularly noticeable complaint, notwithstanding that he might have been hungry and ready for his food. N remained asleep and appears by then to have at least subconsciously accepted that G might feed the baby in the morning. I am satisfied that it is entirely probable that had the child been making an unusual noise or had been crying loudly she would have woken. She did not.
98. G then took the child into the living room. At my suggestion a sketch was made of the floor plan of the flat, from which it is clear that the living room and the bedroom do not face each other. There is a wall between them. G went into the living room and sat with the child with the television on. From that moment we only have his own testimony as to what happened since, as he agrees, N remained asleep in the bedroom. For her part N heard or saw nothing until G returned to the bedroom and placed the baby in his cot.
99. In her first statement at paragraph 94, N says this:
‘I woke up to V crying, I presume for his nine o’clock feed as he was due a bottle. He was becoming more distressed and I sat up in bed. I could see G was leaning over the cot. I assumed he was tucking V into his blanket. Then his crying became louder and louder. G picked him up and took him into the living room away from me. G then shouted, “Babe, babe,” in a panic. I rushed out of bed into the living room to see what was going on. G was holding V and V couldn’t hold himself and was flopping in G’s arms. G seemed panicky and upset.’
N’s second statement does not touch on the morning of 13th September. In her police interview at F85 she says this:
‘I woke up. G was at the cot. He was just whinging kind of thing and then he was like tucking him in through the bars. I could see he was tucking him in. He was crying a bit more. He took him out of the room and I thought he’s probably crying for a feed kind of thing. G said, “Oh, babe,” shouting, kind of worried, so I went running in. He was like, “I don’t know what’s happened.” So he’s like just there and I leant over him. He was on the sofa while G was holding him and like trying to see what’s wrong with him. He was floppy like he was unconscious.’
In the interview at F88 N recalls the change in her son’s cry. ‘I can just see him taking him kind of thing and then he’s just freaked out.’ She was asked, ‘What do you mean, freaked out?’ ‘Like he went from a whinge to a kind of very like ...’ Then she appears to imitate the sound. ‘Do you know what I mean?’ Then the questioner: ‘What, screaming do you mean, or ...’ to which N replies, ‘It was like more an upbeat cry. Do you know what I mean, and then all the rest happened.’ She was asked, ‘So at the point where you see him tucking him in and then V starts crying and screaming, what happens then? What does G do?’ She replied that G picked him up, went into the living room and in effect began panicking. Her responses appeared consistent with the evidence which she gave to this court. She said:
‘His crying changed. I checked the crying on my phone to see if he still needed feeding. Then he screamed. I’ve never heard that cry before. He was still in his cot. Then G picked him up and took him into the living room and then he shouted for me to come.’
100. I am satisfied that something had happened to the boy to cause that scream. Within moments the child appears to have had a seizure and to have then gone floppy, appearing then to lose consciousness. I am satisfied certainly to the required standard that between G picking him up and taking the child from his cot and then returning the child to his cot the baby was injured. I quite accept that I do not know how the injury occurred, save that I have accepted the medical evidence that there is little doubt that the baby was shaken and the head, without the baby being able to control it, shook from side to side, rotating and causing the brain to move within the subdural space, causing vessels to sheer and bleeds to emerge. Nor do I know exactly how long the child spent with G in the living room or, other than that which G has deposed, how the child moved from place to place in that room, or the manner in which he was moved. G asserts that he placed him first on the sofa, then in the baby bouncer and then back on the sofa before returning him to his cot. There can be little doubt save that during the moves he was handled in such a way as to cause the injuries. I am satisfied also that the bruise was inflicted at the same time. It is entirely likely that it came from a poke or pressure which was entirely inappropriate.
101. I consider that I am entitled to infer a momentary loss of control on G’s part. There is ample evidence that he is a young man who is deeply troubled, deeply stressed and unable from time to time to restrain his outbursts. That was plain from his demeanour at the stand and also from the history of the case. He has, in my judgment, behaved inappropriately towards two other children, both of tender years. He assaulted JN, in my judgment because of his exasperation that the child had been demanding attention from his aunt. Thereafter he behaved in the most cruel fashion both to her and more particularly to the child, obliging the two of them to remain apart when the child needed comfort. He assaulted R by hitting him across the head in a momentary loss of control because of his irritation that R would not hand over a television remote. In neither of those two instances can I find any justification or indeed mitigation for his behaviour. He denies the first and excuses his behaviour in relation to the second. He revealed to me as his evidence closed that he had been involved in fist fights, one in which he and his opponent ended up falling over a wall and the other when he came to blows with a stranger on the street. Despite his denials, he clearly has anger issues which are wholly unaddressed, despite admitting them to his general practitioner and his college counsellor.
102. It is entirely probable, in my judgment, on the morning of 13th September his emotions got the better of him. He became impatient or exasperated and V was injured as a result. The local authority now confidently asserts that he was the perpetrator and with that submission I respectfully agree.
103. This brings me to the first timeline, which progresses through the two weeks preceding 13th September when V was presented to hospital and again I have to call once more on the evidence of the uninformed bystander or parent to inform me as I examine the child’s presentation. As we know, the medical witnesses and Dr Chapman in particular were asked about the presentation of any infant who has suffered fractures of the nature seen in this case. What, in simple terms, would be the consequence of the fractures? Would he be in pain? Would he cry out? Would that be obvious to the uninformed observer?
104. In the joint meeting Dr Chapman described how the child would have been upset and distressed and crying, but he added this: ‘it is possible of course that he was already distressed and crying and screaming and that may be the thing that actually caused the perpetrator to commit whatever they did commit’. All the experts accepted that the pain would subside in a comparatively short period. In his report at E61 Dr Morrell suggested that although the child would continue to cry for some time, probably up to 30 minutes, (in his evidence before the court he refined that estimate to closer to 10 minutes), thereafter the distress would gradually settle. However, there may be, as he said: ‘some swelling or tenderness around the site of the fracture for several days until the fracture starts to heal’.
105. In my judgment, that is of particular relevance, notwithstanding that none of the clinicians were pressed on this point, possibly because the lay evidence came after they had presented their reports to the court. Some considerable attention was paid by the advocates to V not settling as well as he had done hitherto in the two weeks leading up to the admission. It may be that initially and until the experts had comprehensively dismissed the assertion, that it was thought by one or more advocates that a latent brain injury and consequent irritation was the cause. I have already found that that was not the case. N asserted it was more likely to have been colic and in that she was supported at least by A and her sister and K. For my part, having carefully considered the lay responses and there being no direct medical evidence on the point, I consider that it is entirely likely that V was suffering from colic, but that the distress from that discomfort was combining with discomfort from the three fracture sites each time that he was moved about. It does not surprise me at all that ‘jiggling’ the child on K’s knee for example would have not been calming for the child but uncomfortable, explaining why his efforts to console the child were unsuccessful. Whereas the expert analysis of the fractures accepted that the mechanism of a yank or a twist might be replicated by a child being pulled up from his cot by an arm, it was also accepted that even the perpetrator might not recognise immediately that he or she had caused an injury. It was also plain from the expert evidence that the leg – that is to the knee and thigh – injuries would not have occurred on the same occasion as the shoulder injury, let alone on the same occasion as the head injury; so also the bruise cannot relate to the same occasion as the metaphyseal fractures.
106. The local authority in its final submissions properly identifies the possibility of both occupants of the pool being responsible for V’s injuries, which of course would require one of them to be responsible for the head injury and probably also the bruise while the other would have caused the metaphyseal fractures. I regard that, as both the local authority and the other parties now concede, as being inherently improbable. As I have said, the local authority now concludes that the perpetrator of both injuries was G. Both G and N did have opportunity to cause the fractures, but given that I had already found that G was the perpetrator of the injury to V’s brain and given that in so doing I recorded my anxiety about G’s lack of control, it appears to be inherently improbable that V has been the victim of assaults by both of the adults closest to him and that the perpetrator is likely to be the same in respect of both sets of injury. There is no doubt but that G has had the opportunity and in particular had the opportunity for example on 27th August when AG arrived in his doorway and observed that he had just completed the task of changing the baby. According to AG, the baby was presenting normally. Given the medical evidence which I have heard it is possible that, firstly, the injuries could well have occurred at around that date and, secondly, that after initial severe discomfort the child would settle and, as a result, not only would the perpetrator possibly be not aware of the insult, but an uninformed bystander equally would not be aware that anything was amiss.
107. I cannot be certain that any of the fractures were inflicted on 27th August, but on the balance of probability I am satisfied that the perpetrator was not N.
108. Therefore, in summary I accede to and record the local authority’s submission that K could not be identified as a perpetrator of any of V’s injuries, nor did she fail to protect the child from the hands of the perpetrator. I also accept the local authority’s submission that N was not the perpetrator. I find that the local authority has made out its case to the required standard that the perpetrator was G.
109. I therefore have to move on to the closing submission of the local authority that N failed to protect her child from the risk of harm presented by G. I consider that this can be dealt with shortly. I have not been invited by the local authority to consider the parenting assessment undertaken by Alison Johnson and therefore at this stage I am unaware of the strength or contents of that untested assessment. However, it was put to N compellingly that she has a blind spot when it comes to relationships. With that assertion I agree. The fact of the matter is that she was and remains a vulnerable young woman. She has had the grave misfortune to have been abused horribly by the baby’s father, but she, like he, has candidly accepted that she should have parted from him earlier than she did. Nonetheless it must be accepted that she did part from him and indeed that she ejected him from her accommodation. She should, however, have been more alert to G’s behaviour. It was, as ST said in her evidence, controlling. K also recognised that, as did the family nurse, but N, while seeing the signals, did not read them. She did not recognise just how unhealthy were the obsessive demands of G or how troubling were his headlong attempts to secure her within a tight family unit. At the stand, in her words, she accepted that she should have run for the hills. However, she did not. What was it that she could identify? Certainly G’s obsessive behaviour was unhealthy and was increasingly uncomfortable. Nonetheless she was carrying through her intention to move to Valley House. Also from the medical evidence it was plain that she might not have known about the fractures to her child’s limbs and indeed in my judgment she did not since I have found that she was not the perpetrator. I am quite satisfied that had she seen G behaving inappropriately she would have acted immediately. Naturally, as soon as the baby went to hospital she knew or ought to have known that the child had suffered a calamity and it should not have taken her very long to conclude that by a process of elimination the perpetrator had to be G, but on objective analysis, she did not thereafter fail to protect her baby since he had, from his arrival in hospital, not been in her care.
110. Therefore, I am a little troubled at the suggestion that I should find that she has actively failed to protect the baby despite her unwise continuation of her relationship with G for a matter of some days after the hospital admission is made out. Whether or not she should be forgiven for not realising what was in fact inevitable until the passage of the following weeks rather than the hours following the admission to hospital, there is little doubt that at the very least she does require assistance and education to avoid a similar calamity occurring in the future. However, as this case proceeds and as the local authority offers the assistance which N clearly does need, I doubt that she should be parted from her baby during that exercise.
End of judgment.