England and Wales County Court (Family)

 

Case No: UW13C00070

 

IN THE SWINDON COUNTY COURT

 

IN THE MATTER OF [THE CHILDREN ACT 1989]

 

AND IN THE MATTER OF [G AND H] (CHILDREN)

 

Date: 4 March 2014

 

Before :

 

Her Honour Judge Katharine Marshall

 

 

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Between :

 

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Mr Kambiz Moradifar (instructed by Wiltshire Council) for the Local Authority

Miss Louise O’Neill (instructed by Bevirs) for the Mother

Miss Maria Gallagher (instructed by Lemon and Co) for the Father

Mr John Ker-Reid (instructed by Jeary and Lewis) for the Intervener

Miss Katharine Skellorn (instructed by Withy King) for the Children’s Guardian

 

 

Hearing dates: 10, 17 - 19, 20, 24 - 25, 27 - 28 February and 4 March 2014

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APPROVED JUDGMENT

 

 

 

Her Honour Judge Katharine Marshall :

 

1.      This is a fact-finding hearing in care proceedings concerning K, a little boy born on 11 July 2012, now aged 19 months.  His mother is (M) and his father (F).  Both parents are parties to the proceedings.

 

2.      M lives with the maternal great grandparents (MGGP) who have played a significant role in her life, at times as her main carer.  The maternal grandmother is (MGM).  F lives with his mother (PGM).  

 

3.      M and F were in a relationship but separated very soon after K was born.  They did not plan to have a child together, indeed M was not aware she was pregnant for the first 3 months.  K was born prematurely, at 29 weeks gestation.  He weighed 1.12kg at birth, and spent 7 weeks in the special care baby unit.  He was discharged on 26 August 2012, having nearly doubled his birth weight.

 

4.      Following his discharge from hospital, K had regular follow up visits from the health visitor and nursery nurse.  He was also seen on 3 occasions in the neonatal clinic at Cirencester Hospital including on 21 March 2013.  On that day, K presented at clinic as well with no concerns noted.  The consultant paediatrician felt that K was making good progress; weight and development were appropriate.  It is important to record that there have been no concerns raised by any of the agencies about the care K was receiving throughout this period. 

 

5.      In February 2013, M began a relationship with R.  R lives with his mother.  M, at 24 years old, is some 5½ years older than R who turned 19 earlier this month.  M already knew R as he had been going out with F’s sister.  In December 2012, they began to spend more time together.  Their friendship developed to the point where F asked M to be his girlfriend in early to mid February 2013.  The relationship ended as a result of these proceedings.  M told the court that she had accepted the social worker’s advice that it would be better if they were no longer together.  R had agreed.  Neither she nor R saw the relationship being rekindled in the future.

 

6.      R has been given permission to intervene in the fact-finding hearing.  He is diagnosed as having ADHD and a psychological assessment has provided helpful recommendations and guidance in working with him.  Permission was given for R to be assisted by an intermediary provided by Communicourt.  The intermediary has worked extremely hard to explain this very complex case to R.  I am told she has formed the essential trusting rapport that has enabled him to participate fairly and follow the issues in the trial, process information and provide instructions.  She has also provided her expertise and advice to the advocates and the court as to how best to meet R’s needs within these proceedings, for which I am most grateful.

 

The precipitating events

 

7.      On 21 March 2013, after K’s clinic visit, MGGM left the home to join MGGF in Scotland for two weeks.  M had been anxious not to be on her own throughout that period, and had asked F if he would like to spend time at MGGP’s home, keeping her company and helping her with K.  It is not in dispute that F had previously stayed with M when the MGGP’s were away at the end of November 2012.  When F declined, M invited R instead.  R stayed with M and K at MGGP’s house from 21 March until 7 April, with the exception of a few days when they were all together at R’s home between 27-30 March and 2-3 April.  There was an earlier period in 2013 when the MGGP’s were away, between 17 February and 4 March 2013, when R may have spent some time with M and K at the MGGP’s, possibly including overnight.  This is a matter the court may need to determine.

 

8.      On 22 March, K was irritable and unsettled and failed to finish his feed.  He was seen at Cirencester Hospital and M was advised he may have a viral infection and to keep him hydrated.  The following day, K continued to cry more than usual, did not want to be put down and was still not feeding well.  M was concerned and took K back to the hospital.   The diagnosis was a possible tummy bug, virus, or teething.  It was noted that K had a high temperature and again the advice was to keep K hydrated and administer calpol or ibuprofen.  M gave K calpol.

 

9.      Over the next two days, K was not seen to improve much, except briefly after being given calpol, which seemed to make him sleepy.  On 26 March, K was still no better, and M took him to her GP.  The GP suggested K might have gastroenteritis and recommended ibuprofen rather than calpol.  M followed this advice and K seemed better that night and the following day.  By 30 March, M was no longer giving K ibuprofen.

 

10.  K remained improved, albeit not completely back to his usual self, until overnight between 2 and 3 April when K was crying and his condition appeared to have deteriorated.  K was taken to be seen by the out of hours duty doctor, who checked him over and indicated that K was fine.  At this visit, M mentioned that K had been ‘rolling his eyes’ in the previous week, something that he had not done previously.  However, there is mention in the evidence that the MGGM had also seen this, which suggests K may have been doing this before 22 March.  The doctor did not consider this unusual.

 

11.  K was not presented again to any health professionals until 7 April.  On this day, K was at home with M and R.  The MGGP’s were due to return from Scotland, having been away, and M was tidying the house.  R was looking after K in another room while M was busy with the housework, including hoovering.  At about midday, R brought K to her, saying that there was something wrong with him.  M described K as having turned grey, his hands were cold and he was floppy.  Although he was looking at her, he seemed unable to focus.  M rang family members for advice and help, and as K was still not responding, an ambulance was called.

 

12.  K was taken to Great Western hospital in Swindon.  The paediatricians were ready to meet him as the paramedics considered him sufficiently unwell to require a ‘pre-alert’. 

 

13.  On admission to Great Western hospital, K was described as looking very unwell.  His temperature, heart and breathing rate were all found to be low, his hands and feet felt cool and he looked pale.  He was floppy, unresponsive and showed a reduced level of consciousness.  Dr Bates considered him to be ‘encephalopathic’, exhibiting brain dysfunction.  He was given fluids and warmed, but although his temperature improved, his heart rate remained low.   He was also given antibiotics and antiviral drugs in view of his presentation.  His neurological status briefly improved.  However, this was short-lived and his condition continued to be of concern. 

 

14.  A CT scan of K’s head was carried out and revealed several areas of bleeding into and around the brain.  K’s blood clotting profile was immediately checked but the tests were normal.  K was given anti-convulsant medication in case the staring episodes were seizure activity.

 

15.  Due to K having a significant brain injury, arrangements were made for him to be transferred to the John Radcliffe hospital in Oxford into the care of the Oxford Neurosurgical and Paediatric Intensive Care Team.  K arrived there in the early hours of 8 April 2013.  The referral letter was written by Dr Mullett and noted findings of the CT scan being “in keeping with acute on chronic subdural haemorrhages”. A non-accidental injury was being considered within the range possible causes.

 

16.  I pause at this stage to record my understanding from the medical evidence of what is meant by acute and chronic subdural haematomas.  An ‘acute’ subdural haematoma occurs when there is fresh bleeding into the subdural spaces in the brain. The blood is normally reabsorbed and disappears without trace. However, in some cases the acute blood breaks down and becomes more watery, exciting an inflammatory response within the subdural space which leads to the development of fragile subdural membranes. Instead of the blood disappearing the subdural space fills up with progressively more watery fluid.  There may be episodes of spontaneous re-bleeding which may lead to the volume of fluid in the subdural space becoming greater over time. This ‘chronic’ subdural haematoma develops over a period of at least two weeks.  An ‘acute on chronic’ haematoma indicates the presence of both fresh and old blood.

 

17.  On arrival at the John Radcliffe hospital, K was noted to be alert with normal muscle tone, and reacting appropriately.  K was reviewed by the paediatric neurosurgical team later in the morning and his presentation remained good.  Ophthalmological examination revealed no abnormalities.  An MRI scan reported on by Dr Küker confirmed the presence of bilateral subdural fluid collections, the right side showing imaging characteristics that could indicate both acute and chronic components.

 

18.  Unfortunately, K’s condition deteriorated overnight, he was drowsier, his heart rate was dipping and he had vomited repeatedly.  The treating neurosurgeon, Dr Gatscher, was concerned that K was suffering from raised intracranial pressure and decided to operate to drain the fluid from the right side.  The operation took place later that day and involved making a small hole in K’s skull.  Dr Gatscher described how a medium sized solid blood clot evacuated itself, under moderate to high pressure, followed by what she later described as “chronic subdural fluid of engine oil colour”.  She irrigated the subdural space until the fluid was clearer.  Following his operation, K recovered quickly and by the next morning was feeding well, reacting and moving his limbs appropriately.

 

19.  A sample of cerebrospinal fluid was sent for examination for pathogens, but nothing was detected.  No pictures were taken or tests were requested or carried out to confirm the presence or absence of chronic blood.

 

20.  While K remained in hospital, a sample of urine was analysed to check for glutaric aciduria, and a full skeletal survey was carried out.  No abnormalities were found.

 

21.  M and R were both interviewed by the police on 11 April, but criminal proceedings were not pursued.

 

The proceedings and this hearing

 

22.  Wiltshire Council (LA) commenced care proceedings in relation to K on 14 June 2013, over 2 months after they became involved.  It has taken some 8 months to get this matter to a fact-finding hearing, two previous listings having been vacated due to the complexity of the evidence and a need for additional expert evidence.  As a result, the court is hearing evidence in relation to matters that occurred nearly a year ago.

 

23.  This hearing is to determine the most likely cause of the bleeding in K’s brain.  The LA has set out the factual findings it seeks in its amended threshold statement, a copy of which accompanies this judgment.

 

24.  In summary, the issues for determination are:

 

a.       The nature and extent of injuries sustained by K;

b.      Whether the injuries, or any of them, were inflicted non-accidentally;

c.       If so, whether there was one or more than one incident of inflicted non-accidental injury;

d.      Whether it is possible to identify the perpetrator(s) of any inflicted injury or injuries;

e.       Failing identification of perpetrator(s), the pool of potential perpetrators of any inflicted injury or injuries;

f.       Consequential consideration of threshold criteria.

25.  The respondent parties leave it to the court to determine the exact nature of the injuries to K, and their likely cause.  Both M and R deny having caused K any harm and M does not accept that she failed to protect K.  F has no real active part to play in this hearing but hopes that the court will provide some answers as to how his son came to suffer the injuries he did.  He does not take any position. The Children’s Guardian’s role at this stage remains active exploration of the evidence and the questioning of any anomalies or ambiguities within it.

 

The medical evidence

 

26.  In this case I have been assisted by a number of expert witnesses covering a range of disciplines; Dr Sprigg (Consultant Paediatric Radiologist), Mr Richards (Consultant Paediatric Neurosurgeon), Dr Ward (Consultant Paediatrician) and Dr Stoodley (Consultant Neuroradiologist).  They are all experienced practitioners in their particular fields and seasoned expert witnesses in this type of case.  I have also been provided with statements from treating clinicians including Dr Bates (Specialist Registrar in Paediatrics), Dr Imam (Consultant Radiologist), Dr Küker (Consultant Neuroradiologist), Miss Gatscher (Consultant Paediatric Neurosurgeon).  With the exception of Dr Imam, I heard oral evidence from all of these witnesses.

 

27.  In addition I heard from Dr Mullett, who was a Registrar in his 5^th year of training in paediatrics at the time of K’s admission.  His evidence was required to ascertain the origin of information in a note he had made on 7 April.  Having heard his evidence, I am not sure why it was necessary to call this young man as a witness. In future, this sort of issue should be resolved by way of correspondence.

 

28.  There have been two experts meetings in this case, and a document setting out areas of agreement and disagreement was prepared following the second meeting and appears in the bundle at E297. 

 

29.  Dr Sprigg was instructed at the outset as a paediatric radiologist to report on the CT and MRI imaging.  He has a special interest in paediatric neuro and skeletal imaging.  When Dr Sprigg first reported on 26 August 2013, he identified recent bleeding and fluid collections in the subdural area.  The recent or ‘acute’ blood was on both sides, but dominant on the right.  He also identified a small volume of acute subarachnoid blood present on the right side.  He specifically stated that there is no posterior fossa or spinal blood.

 

30.  He advised that the bilateral fluid collections could be either acute traumatic effusions or chronic subdural haematomas; imaging alone is unable to differentiate between the two.  He observed that there were no positive imaging features to confirm a chronic subdural haemorrhage.  There was no discernable change in the size of the fluid space between CT and MRI scans, which is what usually confirms an acute effusion.

 

31.  He confirmed that even if the acute subdural blood might be due to a re-bleed from pre-existing chronic subdural haemorrhages, which he doubted due to the amount and distribution, this cannot apply to the subarachnoid blood. The presence of subarachnoid blood indicated that there must have been a recent traumatic event.  He noted that all the imaging findings can be explained as the result of a single recent forceful event. 

 

32.  Dr Sprigg had been able to review the ultrasound scans taken of K’s head at Gloucester Royal Infirmary in July 2012 following his birth.  There was no evidence of acute bleeding at that time that might have later presented as a chronic subdural haematoma.

 

33.  At the second experts meeting in January 2014, a note of which appears in the bundle at E274 and having had the benefit of reading Dr Stoodley’s report, Dr Sprigg amended his opinion, accepting Dr Stoodley’s conclusions in relation to the presence of acute subdural bleeding in the posterior fossa, and also in the area of the spine.  He was less convinced about some other areas of subarachnoid bleeding that Dr Stoodley had identified including on the side of K’s head, but they were both in agreement about the areas at the top of K’s head.  It was put to Dr Sprigg in cross-examination that he had done a ‘volte-face’ in his evidence about bleeding over the posterior fossa and spine.  Dr Sprigg accepted that he had changed his opinion, but said the evidence in relation to the spinal imaging was “subtle but there”.

 

34.  Dr Sprigg maintained his view that K’s injuries could be explained as originating from just one recent event, but he could not exclude there having been two.  He was willing to defer to the neuro-surgical team in relation to the identification of the chronic subdural haematoma.  

 

35.  Mr Richards also reported on 26 August 2013.  Mr Richards is currently employed by the Oxford University Hospitals Trust, and unusually for an expert witness, had some limited involvement in K’s care while in the John Radcliffe.  It seems inevitable that this will happen from time to time, given the speciality and the shortage of available expert witnesses.  K’s treatment was carried out under the main supervision of another paediatric neurosurgeon but Mr Richards would have seen K during routine ward rounds as part of the team.  He told the court he has no specific memory of K.

 

36.  Mr Richards reviewed the CT and MRI scans taken in April 2013, and the medical notes of K’s treatment at both hospitals. In his report he noted that the fluid removed during the operation was confirmed to be partially fresh blood, but that it was unclear whether what had been seen on the scans was an acute traumatic effusion or a chronic subdural haematoma.  He made no reference to the potential relevance of any direct surgical observation of the fluid in resolving this issue.  I anticipate that was because there was nothing recorded in the notes to assist.  He observed that clinically there had been no increase in K’s head circumference, or separated sutures, pointing more towards an acute effusion.  Radiologically, it was his opinion that the fresh blood seemed to be encapsulated by membranes which would favour chronic subdural haematoma, and ‘on balance’ he favoured that conclusion.

 

37.  If correct, the presence of a chronic subdural haematoma indicated that there must have been a previous acute subdural bleed.  Studies suggested that non-accidental injury was by far the most common cause.  However, a chronic subdural haematoma with acute blood present did not necessarily indicate more than one occasion of trauma as the acute blood might be the result of a re-bleed.  Such bleeding can be spontaneous.  However, if the fluid is an acute traumatic effusion, this would indicate a recent injury.

 

38.  The trauma required to cause bleeding is unknown, but clinical experience suggests it is more than that normally encountered by an immobile infant, including during normal handling.  Any incident would be likely memorable to a competent carer.

 

39.  Mr Richards noted there were no other features of injury identified in K’s case and reminded the court that one study had been unable to identify a cause of subdural haematoma in 9% of cases.

 

40.  Mr Richards was of the view it would not be possible to date the chronic subdural collections.  The degree of change seen in a child following injury will depend on the severity of the injury, and can range from catastrophic collapse to mild irritation and a period of being unsettled.  He was unable to identify from K’s past history any period when K was extremely unwell as might be expected following a violent assault.  The possibility that K had been shaken could not be excluded, but there was no positive evidence that this was the cause of the chronic subdural haematoma.  He therefore described the cause at that time as ‘unknown’.

 

41.  Mr Richards’s conclusion was based on his opinion that the collections were chronic subdural haematoma rather than acute effusions.  He did not identify or refer to any other areas of acute subdural haemorrhage or subarachnoid bleeding.  At the time he reported, he would not have had the benefit of Dr Sprigg’s report.

 

42.  In evidence Mr Richards observed how the case had become increasingly complex with the “increased radiological opinions”.  He acknowledged that his initial report had been written on the basis that he had concluded that there was old blood from an event some weeks before, causing pressure over the surface of K’s brain.  The operation was to relieve that pressure.  Although Dr Sprigg had identified possible recent subarachnoid blood, he pointed out that this had not been raised by the treating team.  He told the court that he had asked two colleagues to look at the scans and only one thought there was fresh subarachnoid blood.  (I anticipate that he had not received the Court’s instruction that he should not do that, but that an independent expert would be appointed to assist on this issue).  The fact that Dr Stoodley then identified subarachnoid blood, and more areas of recent bleeding not seen by Dr Sprigg which he now agrees are there led him to describe the radiology as ‘confusing’.

 

43.  Mr Richards reminded the court that the one person who had seen the fluid was Dr Gatscher.  He said he had “questioned her on a number of occasions” and that she was emphatic that she saw old blood.  As a neurosurgeon, he said it was obvious to the naked eye whether blood was old or new and he would attach great weight to what she had seen.  He described such observation as a ‘diagnostic feature’ and said that a laboratory test would not help.

 

44.  Mr Richards accepted the subdural abnormalities now identified by Dr Stoodley, but was not convinced that he could agree that the areas of new blood identified by Dr Stoodley were purely new blood, as it was possible they could be mixed with some old.  He advocated caution in any event as old blood was more liquid and could move from one part of the brain to another, possibly including down the spine.  He was aware that he and Dr Stoodley did not agree on this issue. 

     

45.  Mr Richards was asked about the lack of retinal haemorrhages and agreed that it was not necessary for all three features of the ‘triad’ to be present, but it was still unusual not to find retinal haemorrhages.  In his own experience he could not recall a clear case of non-accidental injury where retinal haemorrhages were absent but the injury was fresh.  If what was being looked at was an older injury, such signs could have completely resolved, or it could represent an injury at the lower end of the scale.

 

46.  Mr Richard’s did not adhere to the concept of K having a catastrophic collapse.  He described him as a baby gradually coming more unwell due to the pressure in his head as a result of an earlier incident that was probably at least two weeks prior to K’s admission, possibly some weeks before.  His symptoms from 22 March could be due to the pressure building, or the earlier event itself.  He explained that a shaken baby could present at the time as asymptomatic, or stunned, or sleepy, or really unwell, or with catastrophic collapse.  This was a feature of the complexity of the case.

 

47.  Dr Ward was instructed to provide a paediatric overview.  She filed a very comprehensive report, having reviewed all of the records and papers.  She noted that clinically K showed no abnormal neurological behaviour in the new born period.  He was a small for gestational age infant, with a small head circumference.  However, using the appropriate centile charts, he had remained consistently on the 9^th centile, with a slight tail off in his weight and head circumference before he was admitted to hospital.  This was not a ‘failure to thrive’ case.

 

48.  Having reviewed the clinical history, she concluded that it does not assist greatly in resolving the issue of acute versus chronic subdural haematoma.  There was no evidence of any sudden increase in head circumference at any time which might be expected in a child with a chronic subdural haematoma, on the other hand, the absence of such an effect did not exclude it being present.  She noted that K was a healthy child until around 22 March.  It is possible that the symptoms of lethargy, fever and poor feeding that appeared at that time marked the onset of development of a chronic subdural haematoma.  However, Dr Ward could not exclude the possibility of a coincidental viral or bacterial infection causing these symptoms.  Dr Ward reminded the court that babies with subdural haematoma’s can present very differently.

 

49.  K becoming acutely ill on 7 April could represent an acute event such as shaking causing an acute subdural bleed.  The child’s symptoms would more likely be immediately apparent.  However an alternative explanation could be an increasing intracranial pressure due to pre-existing chronic subdural haematoma leading to acute deterioration.  In such a case, the symptoms would be obvious to a carer, but not necessarily the cause.

 

50.  Dr Ward confirmed in evidence that she did not doubt that there had been an acute event on or around 7 April that had led to K’s collapse and the acute findings.  She did not believe that a chronic bleed could be responsible for the sudden change in K’s condition, absent some other reason such as a seizure.  K’s behaviour was not consistent with that.  She found K’s symptoms on admission as described by Dr Bates to be in keeping with disturbed brain function, or encephalopathy.  

 

51.  Dr Ward comprehensively considered possible causes of subdural haematoma in infants, and concluded that K was carefully investigated and no evidence of any underlying haematological metabolic or other medical condition has emerged to explain his clinical presentation and the neuro-imaging.  Like Mr Richards, she notes that statistically trauma is the most likely cause in children of this age, although there is no clear history of trauma in this case.  The absence of retinal haemorrhages, often associated with subdural haematoma and encephalopathy, does not exclude a non-accidental injury, but makes analysis of the case more difficult.  She agreed with Mr Richards that it is possible that K was subject to a shaking type injury, although the possibility of some other cause cannot be ruled out.

 

52.  In her evidence, Dr Ward referred to the Hobbs study that had looked at causes of subdural haematoma’s in the under 2’s, leading to the statistic quoted by Mr Richards that 9% of cases had an ‘unknown’ cause.  She sounded a note of caution in reading into this that trauma had been ruled out in all of these cases.  Some may have had little information or inadequate investigation and had that not been the case, the cause when known might yet be trauma.

 

53.  It was at the first experts meeting on 1 November 2013 that Mr Richards contributed information not contained in his report to the effect that ‘anecdotally’ the surgeon who did the operation was of the opinion that the fluid removed was chronic subdural fluid into which there had been an acute bleed.  He said “unfortunately that was not written in the operative notes”.  This was considered by all experts to be important information that had the potential to resolve the issue.

 

54.  Further discussion at that meeting had focused on the subarachnoid haemorrhage that Dr Sprigg had identified in his report.  Mr Richards indicated that this had not been picked up by the Oxford radiologists, nor had he picked it up, and he would want to look at the scans again and seek the views of colleagues.  Dr Sprigg was gently but appropriately pressing for this to be dealt with through properly instructed independent opinion.  I have already recorded that in the event, Neil Stoodley was instructed by the court to give an opinion on this issue.

 

55.  Dr Stoodley’s report came in on 17 December 2013.  He explains how fluid over the surface of the brain lies in compartments separated by membranes.  Fluid in the subarachnoid space is normal and entirely innocent.  Fluid in the subdural space is always due to a pathological cause, such as infection or trauma.  The appearance of blood on CT and MRI scans depends on many factors, but particularly the length of time between the episode of bleeding and the scan being performed.  Relatively fresh blood appears brighter than the underlying brain on CT scans.  As the blood ages, it becomes progressively less bright, and over a variable period of between 1 – 3 weeks, becomes the same attenuation as the brain, before becoming darker.  The appearance of blood on MRI scans is more complex, depending upon the time since the bleed and the specific scan sequence used.  Other factors may also affect interpretation, such as the dilution of the blood into a pre-existing fluid collection, or cerebrospinal fluid leaking into the subdural space if the subarachnoid membrane is torn. 

 

56.  Dr Stoodley examined both the CT scans and the MRI scans, cross-referencing images to inform his conclusions as follows.

 

“The CT scan shows evidence of acute subdural haemorrhages at several different sites, small amounts of acute subarachnoid haemorrhage and probable acute traumatic effusions with no definite evidence of brain injury.  The MRI scan confirms the findings on the CT scan in terms of the distribution of acute subdural blood and probable effusions and also confirms the presence of subarachnoid bleeding.  Imaging of the spine also demonstrates evidence of subdural blood in the spinal canal.”

 

57.  Dr Stoodley could not exclude the possibility that there was a chronic subdural haematoma present, but noted, as Dr Sprigg had in his report, that all of the injuries could be explained from a single episode of recent injury if the fluid collection was in fact an acute effusion.  He explained in his evidence how acute effusions can be routinely mistaken for chronic subdural haemorrhage.  He could not absolutely differentiate between acute traumatic effusion and chronic subdural haemorrhage on imaging, but identified that there were no positive imaging features that would positively identify a chronic collection.   He also explained his view that Mr Richards had ‘misread’ the normal cerebral membrane anatomy as loculation.  Even if a chronic subdural bleed was present, the distribution of the unequivocally acute recent blood, was not explained by a re-bleed which would be expected to occur at the site of the original bleed and as a lump, not spread out.  Dr Stoodley had identified on the scans small but subtle areas of bright, fresh subdural blood which were not associated with darker areas of old blood.

 

58.  In cross-examination Dr Stoodley was reminded about Dr Gastcher’s report, which had been filed on 4 December 2013, where she described the fluid as ‘engine oil’.  He commented on the subjectivity of such an assessment, and told the court ‘anecdotally’ of a case where such an assessment had been made, but when lab tested, the contents were found to be only acute.   

 

59.  Dr Stoodley identified two clinical situations where small amounts of acute subarachnoid blood are seen over the peripheral aspects of the infant brain, either extensive hypoxic-ischaemic brain injury, not seen in K, or trauma.  Birth related bleeding is excluded for an acute subarachnoid bleed.

 

60.  The presence of the spinal sub-dural haemorrhage Dr Stoodley found to be unequivocal and very significant in terms of causation.  He described how such scanning is now routine in many units in suspected non-accidental injury cases.  His own unit also scan the spine in accidental head injury cases where an MRI has been requested of the head.  The experience to date is that spinal subdurals are seen in 50% of cases of alleged non-accidental injury, but are very unusual in accidental injury cases where there has been no direct trauma to the spine.  This particular research has not yet been published, but correlates with other recently published studies.  Dr Stoodley was asked further about this in his oral evidence.  He described it as an emerging area of study, but one that he felt confident enough about to discuss in court.  He identified as a possible mechanism bleeding caused by shearing of blood vessels around the base of the spine.  He postulated that this area might be more likely to move if a child was gripped around the upper body and shaken and that it could be considered as a marker of mechanism of injury.  

 

61.  The type of trauma likely necessary to account for the totality of the bleeding seen in K could be an impact event involving a very significant degree of impact, but unlikely against a hard surface given the absence of any visible impact injury.  However, an impact injury is not required.  Dr Stoodley identified that this pattern of acute subdural bleeds at several different sites is very commonly seen in (but not pathognomonic for) non-accidental head injury involving a shaking mechanism.  Subarachnoid bleeding is also very commonly found in cases of shaking but is not always visible on scans and persists for much shorter periods.

 

62.  Dr Stoodley reminded the court that there is a range of expert opinion about what action would be required to cause such injuries.  At the one end are those who believe it requires a very violent act, at the other those who do not accept this can occur by shaking alone.  He placed himself in the middle, with the majority opinion.  He would place the overall severity of injury in this case towards the lower end of the scale.

 

63.  In terms of timing, he would assess from the MRI scans that the unequivocally acute blood was no older than 2-3 days.  He indicated that the causative event is likely to have occurred after the last time that the court is able to find as a fact that K was behaving ‘neurologically’ normally as there is likely to have been a change in his neurological state at the time of the causative event.

 

The factual evidence

 

64.  The court bundle contains a number of statements and other documents providing factual information in relation to the case.   It was only necessary for me to hear from a few of the treating clinicians.  I have already dealt with Dr Mullett’s evidence.

 

65.  Dr Bates attended to give evidence about K’s initial admission at Great Western.  She had been working together with a junior colleague that day and they had met K together on his arrival.  She confirmed that from the descriptions M and R had given, although K had been unwell for a few days, the first ‘neurological’ symptoms had appeared earlier that day.  He was not unconscious or in need of resuscitation, but she was satisfied that he was encephalopathic with a reduced level of consciousness and responsiveness.  She described how he had a brief period of recovery following him being given fluids and warmed up, but then reverted to being drowsy, floppy and difficult to wake up.  The fact that he did not pick up as much as expected she now considered was probably due to the neurological symptoms, although at the time other possibilities, including infection, were being considered.  Although there had been no definite evidence that K was fitting, they had administered anti-convulsant drugs as a precaution.

66.  I heard from Ms Gatscher who operated on K.  The important part of her evidence was in relation to what she had observed when evacuating the fluid from K’s brain.  In the operation note made at the time, she simply recorded ‘haematoma and fluid draining under pressure’.  In a note made on K’s record on 9 April at 11am, she records ‘drainage of acute subdural discussed with Mum’.  There is no description or reference to the likely nature of the fluid extracted.

67.  In evidence she accepted that she had made no descriptive note, had not photographed the fluid or asked for it to be examined to determine its content.  She explained that these were not things she would normally do as they were not relevant to her treatment of K, but she might consider doing so in future.  The operation was to remove the acute blood clot which was thought to be causing K’s symptoms.  She noted that he improved clinically, following the operation. 

68.  In her report written for these proceedings in December, she records “Intraoperatively, a medium sized solid blood clot evacuated itself under moderate to high pressure followed by chronic subdural fluid of engine oil colour.” This appears to be the first time Ms Gatscher used the description ‘engine oil’ which she agreed is a common term among neurosurgeons.   She did, apparently, use that description when discussing matters with Mr Richards.

69.  Ms Gatscher confirmed that there would have been discussion among the neurosurgeon team after the operation or the following morning.  Aside from this, she could only recall one conversation with Mr Richards on this issue, around August/ September 2013 when he had told her that he had been asked to write a report and could she remember her findings.  I anticipate that is the conversation that Mr Richards referred to at the experts meeting in November. 

70.  Under cross-examination, Ms Gatscher was able to explain to the court why she is confident and really had no doubt that the fluid she saw contained old chronic blood, which she now described from memory as a brownish reddish dark colour and more liquid than the fresh blood clot that first evacuated through the burr hole.  She told the court that the notes remind her that she irrigated the space until the fluid was clear.  As a surgical procedure, this would only need to be done if the fluid suggested the presence of old blood.  In other words, if at the time, she had not observed what she now describes as ‘engine oil’, she would not have taken the decision to irrigate.

 

71.  Dr Küker’s evidence was brief but helpful.  He confirmed that he had reported on MRI scans and identified two components in the subdural collection which ‘could’ indicate a different time of occurrence.  In evidence he said that he had chosen his words carefully.  Dr Küker was entirely accepting that a radiologist of Dr Stoodley’s expertise in his capacity as an expert reporting in the proceedings may well have found subtle changes on the scans that he would not have picked up in an emergency situation providing on-call scans to help the immediate management of K’s clinical case. 

 

72.  It was only necessary to hear evidence from both M and R about the events leading up to K’s admission.  A statement had been prepared by R’s mother, which has now been filed and provides useful background information about her contact with K.  It was not necessary to hear from her.

 

73.  M told the court that K is the most important thing in her life, and she just wants him home.   She described him as a very easy baby to care for, who hardly ever cries, which had surprised her.  She told the court how well K is developing, having now caught up his milestones. He is walking, trying to run, eating well, laughs, and beginning to string words together  She told the court about how carefully K had needed handling when he was first born.  M told the court how she is close to and supported by MGGP’s to whom she would turn for advice about K, as well as her mother and other family members.  On Wednesdays and Saturdays MGGP’s would care for K to allow her to spend time socialising with friends, and to see R.

 

74.  She was asked by her counsel about the time when R was staying with her and K from 21 March.  Her evidence was that this would have been the first time that R had spent any significant time with K, including overnight.  M could not think of an occasion that she had left K alone with R at any time before then.

 

75.  Although by this time their relationship had developed into a sexual one, it was M’s evidence that they did not have sex during this period.  She moved into the MGGP’s room, which had the double bed, taking K’s cot with her, and R slept in the single bed in her room.  During the day, K would sleep in a cot downstairs in the living room, until the last feed late evening, after which he would be taken upstairs to the cot in the bedroom.  M would also go to bed at this time.  If K woke in the night, M would wake R and he would help by getting K’s bottle warmed while M changed K’s nappy.  She described how sometimes, R would sit with her in bed as she fed K, and occasionally fall asleep there.  R was keen and willing to help with K’s care, and M had shown him how to make up bottles and feed K, and to change his nappy.  However, M said she did not expect R to care for K, which she said was her role, and that even at this time she would not leave K alone with R for anything but short periods of a few minutes, for example while she went to the lavatory.  

 

76.  M described how K became unwell.  It had started on 22 March, the day after the MGGP’s had left.  She recalled K had woken up after a sleep crying.  M said she had not heard K cry like this before.  She thought he was hot.  K settled after a while, but M phoned the MGGM who advised that she should take K to hospital if he had a high temperature. Over the next few days, M had sought help and been given various explanations for what might be wrong with K, including a virus, gastroenteritis, or teething.  She had found that he improved slightly when she gave him ibuprofen, but there was a limit on this medication of 48 hours at a time.  Throughout this period, K’s condition varied, and M described how he would be better at some times than others.  He was not finishing his bottles, and was sleepy for most of the time, difficult to put down and wanting to be cuddled. 

 

77.  They spent 27 – 30 March at R’s house, where R’s mother was able to help with K’s care.  K was not 100%, but better than he had been.  They returned to MGGP’s house and on 1 April, as M was unable to settle K, MGM was called in after midnight, and stayed overnight to assist.  MGM stayed in M’s room with K, and R joined M in MGGP’s room.  I note that in her statement, M did not recall K being unwell, but just difficult to settle.  The next morning she described him as ‘bright and happy’.

 

78.  On 3 April, M again sought medical advice but was reassured.  They went to R’s house on afternoon of 3 April and stayed there until 5 April. 

     

79.  On the evening of 6 April, M recalled that K had only drunk about half of his bottle, and she thought he might well wake in the night.  She says, in fact he slept until about 9 am.  The following morning, M confirmed it was R who took K downstairs to prepare his bottle while she put on some clothes.  When she came down, she found them asleep on the sofa, K lying on R’s chest.  K was then placed in his cot where he slept for a while.  M accepted that she must have been upstairs long enough for R to have fed and changed K, before they then fell asleep together.

 

80.  As MGGP’s were due home that day, M was busy with housework.  She told the court that K had just woken up, and as she was about to start hoovering, she asked R to look after K in another room as he dislikes the noise.  R and K moved into the smaller living room, and M described how she had handed K to R so that he was sat on his lap, carefully held around his middle, as they watched television.  She shut the doors, so that K would not hear the noise of the hoover, and accepted that as a result she probably would not have heard K cry.  M continued with the hoovering until R appeared with K.  She described how R passed K to her saying “something is not right, K’s not right”.  She took K and spoke to him.  He felt limp rather than floppy and was not moving his limbs.  She raised one of his arms but there was not much response.  She described K as looking vacant.  He felt quite cold, and she noticed a grey tinge around his mouth, eyes and face.  M described how she felt worried, and confirmed that she had not seen K look like this before.

 

81.  Her immediate response was to call family members.  Her aunt and uncle quickly came to assist.  An ambulance was called and K taken to hospital.

 

82.  I note that the account she gave in her oral evidence of the events leading up to K’s collapse on 7 April was broadly consistent with what is recorded in her police interview, although it is not entirely clear whether K was sleeping in the same room that night.  She said “He slept completely straight through until about nine o’clock.  R woke up with him.  I woke up with him, because I went in and looked and he was smiling at me”.  She described how K was in bed with her for a morning cuddle.  He was getting a bit stroppy so R took him downstairs to change and feed him.  When she came down they were quite happily asleep on the sofa.  “So I kind of nudged R as if to say, you know, “Hello”; put K in his cot”.  He didn’t sleep for long.  He played in his cot.”  She went on to describe how she had to tidy and clean, and so asked R to take K into the little room.  She left them there watching television.  In terms of timeframe, M says she had been hoovering for 10 minutes or so, not long, before R brought K to her.

 

83.  M was unable to think of any incident that might have caused K to sustain a head injury.  She described an earlier incident when R had slipped coming downstairs with K in his arms.  She had just seen his foot slip from where she was sitting in the living room.  She thought R had gone upstairs to get nappies for K.  She did not think it had resulted in any injury to K.  She had checked K and there were no marks on him.  K had cried, but quickly settled.  When asked about the timing of this incident, she could not remember, and wondered if it was before the MGGP’s first visit to Scotland.

 

84.  Again, this evidence is consistent with what she had told the police.  When asked in interview if there had been any incidents that might have injured K’s head, she said “I know R said .. actually I think I forgot to mention to you, he was coming down the stairs with him and I think he might’ve slipped up a step.  He didn’t fall over, but K didn’t bang himself.  That’s what he told me”.  A little bit later she added “And as he came downstairs I heard a bit of a stumble and I was like “Oh are you alright?” I heard K cry so I obviously turned around, was like, “Is he alright?” He was like, “No, no, no, I hit my elbow against the wall”.  After some further discussion M was asked if she saw R fall and stumble and said “I saw his foot because the door was open.  I saw his foot go, but I didn’t see anything else, just his foot.” 

 

85.  M denied having caused injury to K herself.  When it was put to her that if she had not caused the injury, then inevitably it must be R, M understood the point being made, but did not think that R could have done something to K.  She became visibly upset at having to consider what might have happened to K and found it too difficult to contemplate. I note that she started her police interview by saying how it upset her hearing that someone might have hurt K.  She told the officer how protective she was of K and that she would not let him go near anybody she did not trust.  Later when asked how she would feel if it transpired that someone was responsible for K’s injuries, she said “It would kill me” before becoming upset.  She went on to say “Because I’ve trusted someone who I thought I could trust with my son.  He means everything to me, and if they’ve turned around and done that I wouldn’t even be able to look at them, I couldn’t”.

 

86.  M told the court that she was aware that R had ADHD and that the relationship between him and his mother could be difficult at times.  She had been present together with a friend of R’s when R had become angry with the friend and used a kitchen knife to stab at some drawers in his room.  She had told him, in no uncertain terms, to stop.  M confirmed that she was shocked but not scared and thought R had overreacted, but she could not say why he had done this. Her initial evidence was that she thought the friend had possibly wound R up.  It was later put to her that R was angry that the friend had sat next to her on the bed and that she had failed to give the court the full picture.  M denied misleading the court, saying she had not been able to remember the reason.  M said that she had only seen R get angry like this with his mother.  She did not believe that R would behave like that around K.  Indeed, it was her evidence that R behaved very differently at her house, where he was calm and happy and there had been no problems.  She could not recall that they had any arguments during the two weeks when R stayed.

 

87.  M had been asked in her interview about R and she said she knew he’d had problems and was “troublesome” “I knew that, but I make kind of my own judgement.  I don’t try and judge people knowing that”.  After some further discussion she volunteered “I like to fix people, I suppose”.

 

88.  M had agreed with the social worker that there was little point in continuing the relationship with R.  She said it had been hard to split up, but they remained on friendly terms.  She saw no role for R in K’s life in future.

 

89.  I turn next to R’s evidence.  In his statement, he starts by stating that he has not hurt K on purpose, nor has he seen anyone else do that.  He maintained this position when giving his evidence, confirming that he had not shaken, dropped, hit or done anything to K to harm him.

 

90.  R confirmed M’s account of the occasion when he slipped on the stairs with K.  He described how as he slipped, he held K to his chest to protect him, and that K seemed OK.  He gives a detailed account of this incident in his police interview, again reiterating that K did not hit anything, but was crying.  He added “but he was crying, so we was worried for a while after that”…. “I was shaken, ‘cause for a few hours after that I couldn’t hold him because I was scared: obviously ‘cause I slipped down the stairs.  I was scared to hold him for a while, but then afterwards I managed to like hold him again and feed him, but it was a bit hard.  It did shake me up, as well as him”.  When asked if he thought this might be what had happened to K, he said “…he didn’t hit his head on anything, but it might’ve just been from where I slipped down the step.  Its like a bit of a bump so it might’ve like juddered him a bit”.

  

91.  In his statement, he describes how although K was not his son, he loved and treated him as if he were and was always calm and gentle with him.   R acknowledged that his ADHD and problems with his temper might lead to people thinking that he had hurt K, but he described how different he was when with M and K.  When giving evidence, he acknowledged that he has a difficult relationship with his mother, that they argue a lot and that he would “get in her face”.  He accepted that the police had been called once or twice.   He confirmed that M knew about his relationship with his mother.  He told the court that he had conversations with both M and MGGM in which he was told that he must not get angry and hit stuff if he was going to stay.  He also told the court that MGGM knew about him self-harming by cutting his arm as they had a conversation about it not long after the event.  He thought this was the first time he had met her.

 

92.  R was able to recall the period when K was poorly for several days and not sleeping well.  He agreed that as a result, he and M had been tired.  He tried to help during the night to take the pressure off M, and may have fallen asleep on a couple of occasions when feeding K, but he denied having dropped K.  Both he and M were worried about K, and he said neither of them lost their temper with him, but remained gentle.  He accepted that K was a little bit harder to look after when he was unwell, crying more than usual.  However, he described K as being alright in the two nights before he went into hospital.  He was going to sleep better, and sleeping longer.

 

93.  The days they spent at his mother’s house during that period, gave them both some rest as R’s mother helped with feeding and nappy changing.

 

94.  R was asked in his oral evidence to give an account of the events leading up to K being taken to hospital.  He would not recall who had fed K on the Saturday evening, but thought it might have been him.  They went to bed, but he was not sure where he slept.  Later in cross examination he said he had been in M’s room and had slept through because he was tired as K had been waking up at night.  He thought K was in MGGP’s room.  He remembered waking the next morning and said that M came in and woke him up. K needed feeding, so he took him downstairs to change and warm K’s bottle.  He was asked if this was the first time he had done that much caring for K, and thought it was, but then said possibly there had been occasions before when he had taken K downstairs while M got dressed.  He gave an account of rather efficiently putting on the kettle to heat the bottle while he changed the nappy, which might suggest he had done this routine before. 

 

95.   He confirmed that he and K had fallen asleep on the sofa after K had finished his feed, and that M came down and woke him, and K was put in his cot.  R then went outside for a cigarette.  He was not sure if K was asleep or playing in the cot.  He thought he had sat and watched TV for a while.  He recalled M asking him to take K into the front room while she got on with the hoovering.  He gave a similar account to M of being sat on the sofa with K securely held while they watched TV.  He said variously that K was happy, had been playing with his teething toy, and also that K had started to whine, so he walked around the room to try to settle him.  At this time, R described how K was moving, kicking his legs and swinging his arms.  He said that K started to go quiet, “went funny on me, all floppy and really pale, I had not seen K like that before”.  He denied doing anything to cause K to go floppy. 

 

96.  R was interviewed by the police on 11 April 2013.  He had been offered but declined a solicitor, and had no-one to assist him in the way he has been assisted in these proceedings.  He confirmed in his oral evidence that what he had said in his police interview was true.

 

97.  He gave an account in that interview, fairly consistent with his oral evidence, of how he had care of K while M was hoovering.  He said that K had just woken up, but had milk before, so M asked him to take K into the front room away from the noise.  In the course of the interview, R gave descriptions of what happened while he was looking after K in the front room:

 

“And I was just like holding him and then he started to cry so I – I was holding him and started to walk around the room with him because he likes being walked around …. And then he went quiet.  I looked at him and then he was just all of a sudden he just went all floppy, and I didn’t know what to do so I ran in”…”I looked at him and like his eyes were closed, but then I went “K” and he opened them, but he was like eye rolling to the back of his head”…”that’s not him, he doesn’t do that” “as soon as I seen he was all floppy I was just scared, and I was just “what the f… am I going to do?” “I was walking around, cause he likes it,…and he normally settles, but I wasn’t like rocking him in my arm”.  “There’s nothing that happened that could have done anything to him.  It just happened so randomly I was like “What’s going on”, cause it wasn’t him, and he completely fine like two minutes before he started crying, and he was playing with his toy”.

98.  In the course of his evidence, I invited R to demonstrate how he was holding K as he walked around, and contrary to what he said in his interview, he said that he was gently rocking him, and showed me how he moved his arms up and down. 

99.  R sent his mother a text asking what he should do, and she replied to call 999.  When the ambulance arrived, R said he had to walk out because it was all ‘too much’.  He clearly found it stressful.

100.     R was asked about when he might have stayed with M and K before the 2 week period at the end of March.  Initially, he thought he had been there once before when the MGGP’s had been away for 5 days, but he could not remember exactly.  He thought it was in the same month that K became ill.  He said he had not done much looking after K during that period, changed his nappy and fed him perhaps once.  He denied having looked after K at night.  When cross-examined on behalf of M, he was unsure about the timing he had given, and said it was possible that he had only stayed one night, or even that he had gone home and not stayed.  He said “Her memory is much better than mine”.  I note in his police interview he said “I see him (K) quite a bit, but I only like go over when her granny goes to Scotland …. To help her out and be company for her .. and that’s only for like two weeks at a time… every now and then when her granny goes away”.  Later on, when recalling the occasion when he slipped coming downstairs he said “but not this time when I was at her granny’s, but like I think I had two week – I went back home for two weeks, and then her granny went away again this time”.

101.     In evidence, R was asked about how much time he had spent with K, and said that when he and M were just friends, he did not go to her house, she would come to visit him, but not with K.  He also said at one point that he thought the first time he had met K was when the MGGP’s were away.  He has a picture of the first time he met K, which when asked about, he thought was taken at MGGP’s house.   However, he also confirmed that there was a time when M had come to his house with K and stayed overnight, following an argument with MGGP’s.  He then thought that might have been the first time he met K.  He said that there were occasions when M would bring K to the house and catch up on sleep while he and his mother looked after K.  He denied that he had been left alone looking after K at this time.   I note that in his statement R makes a general comment that he did a lot of the care of K, including night feeds and changing nappies.

102.     He was asked in cross examination about the incident at his house when he had stabbed the drawers in his bedroom with a kitchen knife, causing damage.  This had been in December, before he and M were going out as boyfriend and girlfriend.  He confirmed it was a case of jealousy.  He remembered M had got annoyed with him and told him to shut up and sit down.

103.     He was also asked about an incident in January when he had cut his arms after he and M had ‘argued’ in a text conversation and had been taken to hospital.  On this occasion, it had been M getting jealous about him talking to other girls.  R said things were not right at home at this time and he had been depressed.  He said that M had thought he was attention seeking.

104.     It was put to R that he had previously smoked a lot of cannabis, which he accepted.  However, he told the court that he had not smoked around M and K, or at MGGP’s, and not at all in the 2 weeks when he was staying with M.  He said he did not notice any affect due to not smoking as K kept him happy and busy and he did not think about it.

105.     R described M as coping very well with K.  He said “she loves him, he’s her world completely”.  He had accepted that the relationship should end.  Like M, he did not think that they would get back together in the future.

 

Applicable legal principles

 

106.     I have reminded myself of the relevant legal principles that apply when making factual findings in cases such as this, which I summarise as follows.

 

a)      First, the burden of proof lies at all times with the local authority.

 

b)      Secondly, the standard of proof is the balance of probabilities

 

‘In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue. The party with the burden of showing that something took place will not have satisfied him that it did, but generally speaking, a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof.'

 

c)      Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. Judges are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses."Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities"

 

d)     Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.

 

e)      Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence.  It is the judge who makes the final decision.

 

f)       Sixth, cases involving an allegation of non-accidental injury often involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others. It is also important that experts indicate where their opinion may be new, not mainstream, or not subject to peer reviewed research.

 

g)      Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.  Indeed this applies to all such assessments of factual testimony. ‘The assessment of credibility generally involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance;’

 

h)      Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

 

i)        Ninth, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. 

(1) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

      (2) Recurrence is not in itself probative.

      (3) Particular caution is necessary in any case where the medical experts        disagree, one opinion declined to exclude a reasonable possibility of natural       cause.

      (4) The court must always be on the guard against the over-dogmatic expert, the expert whose reputation is at stake or the expert who has developed a scientific prejudice.

      (5) The judge in care proceedings must never forget that today's medical         certainty may be discarded by the next generation of experts or that scientific     research would throw a light into corners that are at present dark.

 

"What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge." 

“Even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."

“There has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown.  That affects neither the burden nor the standard of proof.  It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."

 

j)        Tenth, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator.  In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so

 

k)      Finally, when considering the issue of whether the threshold is met, I remind myself that the elements required to be proved are that the child has suffered significant harm attributable to the care given to the children not being what it would be reasonable to expect a parent to give. As per Ryder LJ in : Re S (A Child) [2014] EWCA Civ 25 at para 20 – 22;

“The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation.  The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way.  Just as non-accidental injury is a tautology, 'accidental injury' is an oxymoron that is unhelpful as a description.  If, as is often the case when a clinical expert describes harm as being a 'non-accidental injury', there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm”. 

“The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided.  The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.”

 

“..all that is required in a case of this kind is for the court, legal practitioners and experts to have regard to the statutory formulation with which the court is concerned.  If other terminology is used in evidence its meaning should be precisely ascertained so that the court knows what is being alleged and advised.”

 

107.     I have applied these principles, as I have considered the evidence in relation to the factual findings sought. 

 

Analysis of the evidence

 

108.     The experts are all agreed that this is a complex and unusual case which requires very careful analysis of all of the evidence.  It is a case that rests to a large extent on interpretation of the neuroradiology in relation to identifying K’s injuries, but I remind myself that the court must take into account all of the evidence when considering the various possibilities.

 

109.     I start by considering the medical evidence and the issues that are agreed, as well as those not agreed by the experts.

 

110.     The experts agree that scans show evidence of fluid collections on both sides of the head and recent bleeding in the subdural and subarachnoid space close to the fluid collections.  The experts are not in agreement as to whether the bleeding or some of it could be a case of re-bleeding.

 

111.     All experts agree that a re-bleed into a pre-existing chronic subdural haemorrhage can occur ‘apparently spontaneously’, i.e. it can be due to an event that is so minor that it goes unnoticed or is not memorable.  It is not agreed that this could apply in K’s case given the dramatic way K presented. 

 

112.     The experts are not in agreement as to whether there has been chronic subdural haematoma.  The radiologists both agree that it is not possible to differentiate between acute traumatic effusion and chronic subdural haematoma from imaging, but that it is possible to explain all of K’s injuries from one recent incident if the fluid is acute traumatic effusion.

 

113.     It is agreed that there has been recent bleeding in the subdural area of the posterior fossa and the spine.  This therefore points towards there being an acute event at the time of the K’s presentation, regardless of whether a chronic subdural haemorrhage is present or not.

 

114.     The radiologists are agreed that there has been an acute bleed in the subarachnoid space.  Dr Ward accepts their interpretation on this issue.  Mr Richards is of the opinion that there might or might not have been such a bleed.  He takes this position as a result of the inconsistencies in the radiological reports he has seen.

 

115.     It is agreed that K did not suffer from retinal haemorrhage.  If there was a retinal haemorrhage present with an earlier event, it might have resolved by the time of a later re-bleed. 

 

116.     Depending on whether the Court finds that the subdural and subarachnoid blood to be acute, chronic or a mixture of both, the experts agree the court will be able to establish whether the causative event was a single incident or a number of successive incidents.  The experts are in agreement that there might have been more than one injury, but certainly one of the potential injuries must have been non-accidental.

 

117.     As to the nature of the causative event, it was agreed that statistically the commonest cause of this type of symptoms is a shaking injury.  Other causes are possible but none was identified as present in K’s case.  Although the minimum force required to cause an acute subdural is not known, clinical experience would suggest that it has to be at a level higher than encountered in normal everyday life and would normally only be expected as a result of events memorable to parents.  In this case, it is agreed that excessive / inappropriate handling must have occurred and that it most likely led to a shaking injury.  It is unclear in this case if the incident included a ‘throw-down’ component, but that is largely irrelevant. 

 

118.     All experts are also in agreement as to the absence of other injuries.  This, however, does not assist in determining whether the injuries are accidental or otherwise.  It is well recognised that shaking injuries can present without retinal haemorrhage. 

 

119.     The experts agree that there are no organic underlying causes for the bleeding (e.g. factor protein deficiencies, Menkes disease). 

 

120.     There is agreement between the experts that the child suffered from encephalopathy.  However, encephalopathy is a very broad term implying disturbance in the brain function; it is not a specific condition.  All the experts agree that there must have been a change in the neurological state of the child at the time of the causative event. 

 

121.     I turn next to consider the factual evidence, and I start with the evidence about K’s admission and treatment.

 

122.     Dr Bates descriptions of K at the time of admission and her assessment of K as being encephalopathic is not in dispute.

 

123.     The radiologists were asked to report on scans performed at both Great Western and John Radcliffe hospitals.  Dr Imam at Great Western, a District General Radiologist without paediatric or neuro-radiological specialism, identified acute on chronic collections from the CT scans.  Dr Küker carefully worded his report on the MRI scans.  Both were looking at different sets of scans.  Their primary purpose was to assist and inform the treating clinicians, not to carry out a detailed forensic analysis at that time. 

 

124.     Dr Gatscher’s evidence was of great assistance, particularly given the difficulty posed in this case by the inability of imaging to differentiate between chronic subdural haematoma and acute effusion.  What Ms Gatscher was able to observe was the actual fluid present in K’s head, that created the imaging seen by the radiologists.  I am persuaded that observations of what was drained from K’s skull during the operation are likely to be the most probative evidence in relation to this issue, which is something that Mr Richards appears to have realised early on in this case.  The significance it has now acquired is a fact she will have been aware of when she came to give her evidence.

 

125.     Dr Gatscher was really in no doubt that what she saw, in addition to the recent clot, was fluid containing old blood.  However, this evidence is given from her memory of an operation conducted in April 2013, nearly a year ago and the notes she made at the time provide no description of the fluid to assist in refreshing that memory.  I remind myself that Ms Gatscher’s role was to treat K by performing an operation considered necessary to relieve pressure on his brain and no doubt that was her primary focus.  It is only later, as a result of these proceedings that the issue of the nature of the fluid has become important.

 

126.     A further complicating factor is that Mr Richards has questioned Ms Gatscher specifically on this issue; in his evidence he said he had asked her ‘on a number of occasions’.  Dr Gatscher thought that they had only discussed it once, last year.  When told that Mr Richards had referred to discussions on a number of occasions, she confirmed that she was ‘asked several times’.  Indeed, Mr Richards when asked to set out who he has discussed this case with, and the nature of those discussions, confirms that he had several discussions with Ms Gatscher, both pre and post-dating his instruction in the case, concerning the nature of the fluid “being aware of its importance to the case”.  It appears that one of these conversations took place after Ms Gatscher had written her report in which she referred to engine oil, the purpose of which was to specifically ask if she was referring to new engine oil or old engine oil.

 

127.     In the light of this, I do have to take into account that Mr Richards has conducted conversations with Ms Gatscher, an important witness of fact, that are unrecorded, and what impact that may or may not have on the weight that I can ascribe to her evidence.  I make it absolutely clear that I am not suggesting any deliberate interference, but concerned about that which can naturally arise when a witness is questioned, particularly if it is several times, about matters of recollection.

 

128.     I have no doubt that it is the fact that Mr Richards and Ms Gatscher are part of the same neurosurgical team and Mr Richards’ realisation that this is a pivotal piece of evidence that would assist the court that led to Mr Richards approaching her directly.  It is not an issue that such a conversation might already have taken place at the time of K’s operation within the reviewing team of which Mr Richards would have been a member.  However, once Mr Richards had accepted an instruction as an expert witness reporting to the court on these issues, he should have been alive to the need to adhere to the usual proprieties about obtaining important factual evidence from a witness for the expert to comment on.  It would have been helpful if he had raised this issue in his report and suggested that a report or statement be obtained from Ms Gatscher, which I could have directed be done at an earlier stage.  Once that report had been obtained, if further questions needed to be asked of Ms Gatscher, again that could have been done through the appropriate processes.   

 

129.     In the circumstances, were it not for Ms Gatscher’s evidence that she would not have irrigated K’s brain had she not formed a view at the time that this was chronic blood, I would have been very cautious in relying upon Ms Gatscher’s recollection now of what she saw in April 2013.  The evidence about irrigation is clearly documented at the time, I can be certain is unaffected by Mr Richards involvement, is a clinical procedure that would not otherwise have been carried out.  In the circumstances, I can accept Ms Gatscher’s evidence in so far as it confirms her subjective assessment of the nature of the fluid.

 

130.     I turn next to consider the evidence of M and R.  Both are young, R only just 19.  Both are aware of the significance of these proceedings, not just for K, but for themselves in the future. They are no longer in a relationship, but remain friends.  R still has pictures of K at home.  I could not help but notice M’s expression as R was giving evidence, which appeared to me to demonstrate a high level of residual affection for him.  Neither has specifically blamed the other, although each is aware of the implication of being in a pool of perpetrators that contains only them.

 

131.     Neither is able to given an account of any incident that, in the light of the expert evidence, could account for the significant and sudden deterioration in K’s presentation on 7 April.  Other than the remembered slip down the stairs on an earlier occasion, there is no history of a fall, or of K being dropped which could account for his injuries.

 

132.     M came across as engaging, likeable and warm.  Her love for and commitment to K was evident as she spoke about him.  By April 2013 she had been caring for K for 8 months, a baby that needed special care which the evidence suggests she was providing.  I accept her evidence, confirmed by R, that K was an easy baby to care for and that she was in her eyes ‘protective’ of him.  In her police interview she talked about only letting him near people that she trusted.  She also found caring for K tiring at times, as might any mother in her situation, and relied upon the support of MGGP’s, and in their absence, invited others to help her, including R.

 

133.     However, as I listened to her evidence, I became less convinced that she was giving a wholly truthful account.  There were points where her evidence was inconsistent and at other times evasive.  It is often the case that witnesses in M’s position will try to play down the less favourable evidence, and seek to portray themselves in the most positive way.  M’s evidence was exactly that in relation to what she knew about R, the incident with the knife and the episode of self-harming.  The more honest account on those issues is in her police interview.  That is something that has to be factored in when considering M’s credibility.  However, I remind myself that it does not follow that because she has been economical with the truth about some matters that she is lying about the most important issue, what happened to K.

 

134.     I found R, for all his acknowledged difficulties, to have presented his evidence in a straight-forward manner, by and large answering the questions put to him to the best of his ability with the outward intention of providing a full and honest account.  I take into account his police interview, that was given without assistance and which he was able now to confirm was accurate.  He is aware of his memory problems and the limitations that brings to his ability to accurately date or sequence events. It also became evident that he could easily be persuaded to amend his evidence in circumstances where it was suggested that he might be mistaken and others to have a better recall.  It is submitted on his behalf that this is clear evidence of the Communicourt and psychological assessment being accurate of his memory and processing problems, rather than contrived evidence.  I was concerned that there was an element of R seeking to say what he thought M was wanting him to say, but having said that, on other occasions he gave a different, possibly more accurate picture than M.  Generally, I found him to be doing his best.

 

135.     M and R’s evidence about the level of his involvement with K, and if and when he might have had sole care of K was unclear and confused.  I am satisfied that M did spend time at R’s mother’s house and took K there on occasions, including on one occasion, staying overnight.  R’s mother would assist in caring for K, including looking after him either with R, or on her own.  This evidence was confirmed by R’s mother in her statement, and R.

 

136.     By the end of the period when R was staying with M in March/April, the evidence from both M and R is that he was undertaking feeding and nappy changing to support M, including at night.  On the morning of 7 April, he was doing this downstairs while M was upstairs, probably for some considerable time.  I have already observed that it is likely this was not the first time that he managed these tasks. 

 

137.     I have considered the evidence about the earlier occasion when the MGGP’s were away.  R’s evidence initially was that he had stayed, he thought for about 5 days.  He then pulled back from that, became unsure if he had stayed at all and deferring to M’s recollection.  Considered in the light of the accounts given by both M and R in their police interviews, I think there is little doubt that R had previously stayed, and that would have been earlier in February/March as the MGGM has now confirmed, at a point when their relationship as boyfriend/girlfriend was very new.  That was R’s clear evidence in his police interview, and he was able to be pretty accurate about the timing. I am also satisfied that it is during this period that the incident of R falling on the stairs while holding K occurred.  I have considered why it would be that R, who had apparently had little contact with or care of K before this time would be taking him upstairs to collect nappies?  Whatever the reason, this evidence supports a conclusion that contrary to what she has said, M was allowing R to be more significantly involved in the care of K early on in their relationship and that there may well have been short periods when R was left alone with K unsupervised.

 

138.     By the time R came to stay for the second time, the evidence suggests that he had an even greater role.  I am satisfied that M particularly, and R to a lesser extent, have deliberately downplayed their accounts on the issue of R’s involvement in the care of K.

 

139.     I have gone over their accounts of the events of the morning of 7 April.  It is important that neither of them has described any concerns about K that morning when he woke up, apart from being a little grouchy as he was hungry.  Both said that K’s condition had improved and he had appeared to be nearly back to his normal happy self in the last couple of days.  There is no reason to doubt that evidence.

 

140.     I have already identified that R had the early care of K in the absence of M.  It is not clear how long she was upstairs or what she was doing before she came down, but long enough for K to have been fed, changed and for both to have fallen back to sleep.  Both agree that when she did come down and wake up R, K was returned to his cot and they went outside for a cigarette.  What happens next is unclear.  In their accounts to the police, and their evidence in these proceedings, neither M nor R has been clear about what K was doing, or indeed what they were doing, between K being returned to his cot and being taken into the front room. At first glance, there appears to be a considerable period of time unaccounted for.  I have considered whether it is possible that in fact there isn’t a missing period.  I was not convinced by M’s evidence that she was only upstairs for a few minutes.  It may well have been much longer than that.  There is no evidence about how long R had been asleep downstairs with K.  

 

141.     Even allowing for the need to treat R’s evidence with some care, his accounts in evidence and in his police interview of how K was in the morning and how K became while they were in the front room has been reasonably consistent.  If M and R are telling the truth about these events, then the change he saw in K happened while K was in his care, and M was elsewhere.  It suggests a pretty swift change in K that, taken with Dr Bates assessment, was likely in his neurological functioning.  However, R has told the court that nothing happened to K that could explain this.  On his account, it appears that K had been playing with a toy minutes before he went quiet and floppy.  This is at odds with the medical evidence, particularly that of Dr Ward, that there must have been an acute event at or shortly before K went limp, and the agreed expert view that the event involved a significant trauma.  I have to consider whether the medical evidence is so convincing that R must be lying and concealing the true picture, or whether R’s account is sufficiently convincing that it should be accepted and the medical evidence rejected.

 

142.     There is nothing in R’s evidence that suggests he has deliberately lied, except in so far as I found him to be amenable to supporting M’s preferred accounts.  On the other hand, had something happened to K that inflicted a head injury, with all the consequent events, there is a strong motive for someone in R’s position not to tell the truth about it.  It does not necessarily mean that K has been deliberately injured, although that might be the case.  It is also possible that injuries to K might have been the result of what might be described as negligent accident, something that should not have happened if the child had been handled appropriately.  The experts agree that the injuries are at the less serious end of the scale.

 

143.     I take into account that for a significant proportion of the two weeks preceding 7 April, K had been unwell and causing both M and R to be concerned, to suffer poor sleep and tiredness while at the same time needing to deliver to him a higher level of care and attention than normal.  That they were finding this a struggle is a reasonable inference to be drawn not only from their seeking support from others in caring for K, including MGM and R’s mother, but also that they made several visits to seek medical advice. 

 

Findings

 

144.     I turn finally to my findings.  At the close of proceedings, I identify the issues that require determination are as follows:

 

a.       Does the court accept the agreed expert opinion about the injuries that K has suffered?

         I can find no reason not to accept the agreed expert opinion in relation to K’s injuries.  All the experts have in mind the possibility that there are cases where the cause of injuries such as that suffered by K remain an unspecified cause, but I am satisfied in this case the evidence is not such as to support a finding that this is one of them.   I also bear in mind the limitations of the study: the retrospective analysis, the omission of radiological images, the absence of universal classification criteria and relative absence of data in ‘undetermined cases’ are all issues properly highlighted by the authors in the context of their analysis.   

b.      Is the court able to make a finding that there was or was not recent bleeding in the subarachnoid space?

 

145.          I accept the opinion of Dr Stoodley with regard to the presence of fresh subarachnoid blood.  This evidence is entirely dependent upon the interpretation of scans, and the skill and experience of the experts in doing so.  Paediatric neuroradiology is the pure discipline for reading such imaging. Dr Stoodley has immense medico-legal experience.  His evidence was clear and helpful and far from dogmatic.  Dr Stoodley had carried out a careful forensic analysis of the scans.  Dr Sprigg, a highly respected paediatric radiologist with extensive neuro imaging experience, was himself able to concede that Dr Stoodley’s assessment of the images was more complete than his own had been.  Having had time to reconsider, he accepts that he missed these small but subtle changes as he concentrated on the more obvious areas.  I note that Mr Richards does not actually disagree with this opinion. I find that in so far as he was concerned that there were other, inconsistent reports, it is understandable that the radiologists reporting in relation to K’s treatment would not necessarily have been expected to pick this up.  As Dr Sprigg accepted, and Dr Küker confirmed, a failure to notice the more subtle changes in imaging does not necessarily mean that they are not there.  Nor does it create what was at times in danger of being treated as a ‘difference’ in radiological opinion. Their evidence in these proceedings is part of the factual background.  I make the obvious point that any expert opinions to be taken into account should be from experts properly instructed within the proceedings and subjected to test and questioning before the court.

 

146.    I find that the bleeding in the sub-arachnoid spaces is more likely than not the result of trauma.

 

c)       Is the court able to make a finding as to the presence or absence of old blood in the subdural fluid collections?

 

147.      I have considered Dr Stoodley’s comment that all of the imaging abnormalities are explicable on the basis of a single recent incident, which Dr Sprigg also included in his first report.  However, this is an area where radiology cannot resolve the issue, being unable to differentiate absolutely between an old bleed and a recent traumatic effusion.  I rely on Dr Gatscher’s evidence which is the most probative evidence on this issue.  Although she makes a subjective assessment based on what she saw, she is an experienced neurosurgeon and no doubt skilled at making that judgment.  It directed her clinical decision to irrigate K’s brain.  I find that it is more likely than not that K had a chronic subdural haematoma in addition to the acute bleeding.  The presence of this chronic subdural haematoma is sufficient evidence to make a further finding that K must have suffered an earlier trauma at least two weeks prior to 7 April 2013, being the event which cause the chronic subdural haematoma.

 

d)      If the court finds that old blood was present, is the court able to make a finding as to whether the recent bleeding is a case of re-bleeding?

 

148.     There is clear evidence both from the radiologists and the neurosurgeons that the main site of the subdural haematoma and the fluid collection which required treatment contained acute bleeding. While it is possible that some of the recent bleeding seen on the scans in that area could be as the result of recent re-bleeding from a chronic subdural haematoma, and that may also explain K’s variable presentation over the period prior to 7 April, I accept the evidence that there are areas of fresh acute blood that are not associated with any chronic subdural haematomas. This includes areas of acute blood in the posterior fossa and the spine which Dr Stoodley was able to describe as ‘unequivocal’ in terms of their presence.  I find that there is fresh blood present in those areas that is not the result of a re-bleed.  I prefer the radiologists’ opinion, agreed by Dr Ward, that this is likely due to recent trauma.  I have considered but rejected Mr Richards caution in relation to the origin of this blood, including that it could be the result of ‘tracking down’, taking into account my finding that it is fresh blood, and not the more liquid chronic blood that Mr Richards referred to as more mobile.  If, as I have found, there has been an incident of recent trauma sufficient to cause recent bleeding, I find it more likely than not, that this is the origin of the acute blood seen in the area of the chronic subdural haematoma, rather than re-bleeding.  This finding is consistent with Dr Sprigg’s opinion that the amount of acute blood seen is too great to be explained by a spontaneous re-bleed.

 

e)       Is the court able to determine whether there has been a single incident leading to K’s injuries, or more than one incident?

 

149.     The experts are agreed that if fresh blood is present and not from a re-bleed, then there must have been a separate and recent injury to K, in addition to an earlier injury that gave rise to the chronic subdural haematoma.  I find that K has experienced at least two incidents of trauma to his brain.

 

f)       Is the court able to identify the likely timing of an incident or incidents?

 

150.     There is little doubt that an acute event occurred on the morning of 7th April morning. I rely on the experts’ opinion that the recent injury to K is likely to have happened shortly before his admission to hospital, and at the point when the court can say that he was last behaving ‘neurologically’ normally.  From the evidence of M, but particularly R, this would have been during the time R was caring for K in the front room, shortly before noon on 7 April 2014.  Before he went floppy, K was happy and playing with a toy and watching TV, then became whiny but was moving all of his limbs.     

 

151.     The timing of the earlier injury is much more difficult to identify.  There is no reliable narrative about when such an event might have happened.  It is not clear that K would have sustained the same level of encephalopathy, or indeed shown any significant symptoms at the time or following.  The expert evidence is that this incident is likely to have occurred more than two weeks before the incident on 7 April.  It is therefore possible that it occurred right at the beginning of the period when K became unwell, after 21 March.  It may well predate that period.  K’s symptoms are not inconsistent with a developing subdural haematoma following the earlier injury, however it is also possible that they are due to normal childhood infection.  On this evidence it is not possible for the court to make a clear finding in relation to this issue.

 

g)      Does the court accept the expert opinion as to likely causation of K’s injuries in the light of all the evidence?

 

152.     I accept the expert opinion that it is more likely than not that K’s injuries, including the incidence of encephalopathy, are as a result of his brain having been shaken, which may or may not have included an element of impact. I find that although the degree of force required to inflict such injuries is not quantifiable, it is greater than would be expected during reasonable handling.  Given his age, a carer should be able to tell the court about any accident, such as being dropped, that might be relevant.  The only incident described is the fall on the stairs, which if it happened as described, the experts do not consider a likely cause.  The absence of other injuries leads the experts to postulate that this case falls into the lower end of the spectrum of force.  There were no bruises or grip marks, no skull or rib fractures, no swelling to the head; no signs of ischaemic or hypoxic damage.  I find it unlikely that K has been violently attacked. 

 

153.     I have considered that it is unfortunate and unusual that K appears to have suffered two similar injuries to his brain, and while it is certainly possible that there have been two separate and unrelated incidents, I find it is far more likely than not that this is a ‘repeat event’ and that both injuries have been caused by the same action and by the same perpetrator.

 

154.     In relation to the earlier incident, it is possible that while it should be obvious to a carer at the time that their handling was inappropriate, K’s response may have been such that they did not realise that they had caused significant harm to the child.  Anyone not witnessing the event would not be expected to be aware that K had been injured.  In relation to the more recent incident, the change in K’s functioning would have made that immediately apparent.

 

155.     It follows that whatever happened to K, the perpetrator has been unwilling to admit it and give the court a true and full account.  In the absence of such an explanation, the court is in difficulty in being able to reach a conclusion about exactly what happened to K to cause the shaking to his brain.  There are a number of possibilities considered by the experts, including shaking, throwing down, or dropping K onto a soft surface.  I am cautious about accepting at this stage the emerging evidence that a spinal bleed indicates a shaking mechanism.  It may do, but further research and testing of this hypothesis is needed.

 

h)      If the court finds that the injuries are likely to have been caused by an adult carer, is the court able to identify the perpetrator

 

156.     No party is seeking to suggest that any other person could or would be responsible for K's injuries other than M and R.  

 

157.     All the evidence suggests that it was R who had the main care of K on the morning of 7 April and particularly at around the time that I have identified K suffered the profound change in his neurological state that I am satisfied was an encephalopathy resulting from trauma to his brain.  He has been unable to provide any explanation as to why or how that occurred.

 

158.     I am asked to take into account that there is no evidence, anecdotally from any person of R having ever mistreated or neglected K.  However, I observe that there will have been limited opportunity for observation of this by anyone other than M and possibly R’s mother.  

159.     R was, during that period, abstinent his regular use of cannabis which would likely have affected his concentration, mood and sleep; this in addition to the increased difficulty they must both have had in caring for K during this period that I have already referred to.

160.     I find it significant that there were no concerns about M’s care of K prior to R becoming involved in their lives.  In contrast to R, there is ample evidence to support a finding that she was a good and devoted mother, caring well for K, a child with a particular need for gentle careful handling.  This is not a child who was hidden from professionals.  M acted entirely appropriately in relation to her concerns about K during the period between 22 March and 7 April, ensuring that he had medical attention and following the advice given.    My assessment, having heard M give her evidence, is that however economical she may have been with the truth on other matters, that she would do anything herself to harm K.  She found it hard to have to consider what might have happened to K, and could not bring herself to believe that anyone would have harmed him, which in itself raises concerns that I will come on to.

 

161.     I find the evidence clear in supporting a finding that it is more likely than not R who is responsible for the acute injuries sustained by K on 7 April.  In view of my conclusion that it is more likely than not that there is only one perpetrator of K’s injuries, I am satisfied that I can safely make a finding that R is responsible for both incidents.  I am satisfied that there is evidence that he would have had opportunity in relation to an earlier event in the light of my findings that M has not given a truthful account about the level of R’s involvement in K’s care, not only during the two weeks preceding 7 April, but also including during the earlier absence of the MGGP’s.  I am satisfied that there are likely to have been times in both periods when R was alone and unobserved with K.

 

162.     That M is a rather naïve and trusting individual stands out from the evidence.  It is clear from her police interview that she was aware of R’s difficulties and his relationship with his mother.  She knew he used to smoke a lot of cannabis.  She was present when he attacked his furniture with a knife, and it is likely she knew that R had self-harmed, he describing her reaction to it as him being “attention-seeking”.

 

163.     I have noted that in her interview she told the police how she does not judge people on what she is told, but makes up her own mind.  She also said she likes to ‘fix’ people.  She appears to have felt able to control the situation in R’s bedroom by shouting at him to stop.  She told the court how different R was with her and K, he too confirming how much calmer he felt when at M’s house.  There is also evidence that M is vulnerable in terms of her own past parenting and experiences, including having been in a relationship where she experience domestic abuse.

 

164.     I find M to have had an over-trusting and over-optimistic approach to R.  She was insufficiently cautious given what she knew about him.  R seems to have rapidly been accepted into the group of people that M felt able to trust with K.  More worrying was her avoidance of implicating R directly herself in these proceedings, however many times she was invited to follow the logic of her own position.  She appeared to be unable to or unwilling to draw her own conclusion, saying – I will accept the Court saying it was him.  I have to consider why this might be, when she is no longer in a relationship with R, nor intending to be.  I find it is likely this is through some misplaced sense of ‘loyalty’ and possibly as a result of how she still feels about R.  This evidence supports a finding that M failed to protect K.

 

165.     Finally, turning to consider the threshold criteria under s.31(2) Children Act 1989, I find that they are met on the basis of the findings, as recorded in the attached threshold document.

 

166.     I make these findings having given the matter a great deal of thought, and I make my findings on the balance of probabilities as I am required to do.  I reiterate, as I have said several times during this hearing, that it is an enquiry into what has happened to K, within proceedings brought to ensure that K’s welfare is met and that he is protected from harm.  No individual is on trial here, although it is necessary that I make findings about what people have done, or how I have found them.  For the future, particularly for R, it is important that I record that I have not found that K was subject to a deliberate violent attack, and that his injuries are likely to represent an event towards the lower end of the scale of force used, or trauma inflicted.  Unfortunately, without a full account of what R did, to go any further would be speculation.  This court will not need to assess R’s ability to provide care for a child in future, and while my findings raise issues with regard to the potential for future risk, they do not in any way represent a conclusion that R should be ruled out as a future carer of children without such an assessment being done.