England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT AT MANCHESTER
IN THE MATTER OF s31 THE CHILDREN ACT 1989
IN THE MATTER OF "L" (Born 29th September 2014) & "K" (Born 8th October 2015)
(By their children's guardian)
AND IN THE MATTER OF "J" (Born 2nd June 2015)
(By her children's guardian)
AND IN THE MATTER OF J (An Infant)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/02/2016

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. No. 1

The Honourable Ms Justice Russell DBE:

Introduction

1. This is the fact finding judgment in this public law proceedings concerning three infants who are each the subject of care proceedings brought by Stockport MBC; L J and K. Although there are three infants of two separate but related families the principal facts which this court is being asked to find concern the brain injuries sustained by L (born on 29^th September 2014; the son of AM and DT) which led to his admission to hospital on the 2^nd January 2015. Fortunately, although L needed surgical intervention shortly after his admission he is recovering well and has been released from hospital and was placed in the care of his mother's step-mother who is caring for him and his younger sister K, born on 8^th October 2015 after the original care proceedings began and now the subject of care proceedings herself. The third subject baby is J (born in June 2015; the daughter of SM and LS interveners in the case of L & K). Following agreed arrangement with the local authority she has remained at home with her mother and father.
2. On reaching a decision about the causation of L's injuries and who was responsible for their perpetration the court will then be in a position to decide in whose care the children's welfare is best met by applying the welfare checklist set out in s 1 of the Children Act 1989. The welfare decisions in respect of L and K will be dealt with in a separate judgment along with other case management issues that have arisen in the currency of these proceedings. It is abundantly clear that the local authority and the parties must be given time to assimilate the decision of the court in order to put in place the best possible care plans for these two very young children. Indeed the social worker makes allusion in her written evidence to the difficulty that she found herself in in trying to plan before the court had made its decision for this is a case where there was no evidence of other indicators of abuse or neglect in respect of L, a fact referred to by the expert witnesses and others.

Parties and interveners

3. There are two families involved in these proceedings which are being heard together. The mother (AM) of L and K is the niece of SM, who is the mother of J. SM is also the mother of T and E who are interveners in this case as L was in the care of SM in her family home twice during the fortnight before he was admitted to hospital. SM in an intervener in the case of L & K and, as a result of which proceedings were brought in respect of her youngest child J, she is a respondent in that case. J is a healthy baby who is cared for by her mother and by SM's partner LS who, under the agreement entered into with the local authority after J's birth, has as to be present whenever J is with her mother (SM). LS was present for some of the time that L was in SM's care. Shortly after his admission to hospital on the 2^nd January 2015 concerns were raised by the medical staff that the bleeding seen in L's brain and eyes came about as the result of an inflicted injury, in the absence of any infection or an explanation of an accidental injury or injuries. L, a baby of less than three months, was observed to have a bruise on his cheek. Child protection agencies were alerted and there was a police investigation.
4. The 1^st and 2^nd respondents to the proceedings brought by Stockport MBC in respect of L and K, are their mother AM (aged just over 21) and their father DT (aged 22). AM and DT separated in April 2015 following an incident of domestic abuse and violence. SM and LS are interveners in the case concerning L and K and respondents in the proceedings concerning J. SM's daughters T (who is a vulnerable young adult of just 20 with learning difficulties; born in 1995), R (who was born in 2001 is 14 and lives with her father as well as spending time with her mother SM) and E (was born in 2005 and is a child of ten who lives with her mother). The police interviewed SM and her children during their investigations. T, R and E all described playing with and handling the baby when he stayed overnight on the 20^th/21^st December and again on New Year's Eve.
5. AM and DT both denied causing their son any harm and in the absence of any identifiable medical condition or explanation of an accident they have raised questions about what might have occurred when he stayed over-night at SM's home and whether LS, SM, or one of her children may have injured him. Although they did not suggest that anyone had ever maliciously or deliberately inflicted an injury on the baby it was evident from the outset of the proceedings as they had not reported a collapse of the baby (prior to his admission to hospital after his parent's had taken him to an out of hours GP service) that the questions raised on behalf of AM and DT pointed towards a pool of possible perpetrators included those who had cared for L in the two weeks prior to his admission. Indeed as the medical evidence of chronic as well as acute haemorrhages, the lack of evidence from AM and DT about the baby when and how L became ill and the absence of other injuries such as an impact injury, neglect or previous physical injuries led to the difficulties the expert witnesses had in narrowing the timing of a possible insult to the brain. In these circumstances it was obvious from the way the case was put on behalf of AM and DT that the possible perpetrators included two children and a vulnerable young woman with learning difficulties; who by the time this trial started was due to give birth herself in a matter of days and did indeed have her baby during the trial.

Intervener and case management

6. The need for case management to be taken at the earliest possible opportunity to avoid delay was, unfortunately, well- illustrated in this case. As the expert opinion and evidence regarding timing included people who had cared for L other than his parents there were legitimate questions raised about the actions of those people when L was with them in the few weeks before his admission to hospital. The need to join them as interveners and to provide for their representation and evidence was not properly dealt with at an early stage.
7. The trial was delayed and provision had to be made for the two children (R and E) to be represented and their evidence given, along with that of the vulnerable witness T. In the event and with the co-operation and agreement of all parties R did not remain an intervener and the evidence and questioning of E and T was pre-recorded. This judgment will deal with the discrete issue of the finding of facts in relation to L's brain injuries and the two bruises observed on his face. The issues of case management and the interveners along with the welfare decisions to be made in respect of L and K will be found in due course in my second judgment Stockport MBC v M and Others (Care proceedings: Infant with head injury; welfare stage) (Vulnerable witnesses & interveners) (No. 2) [2016]
8. I have directed that all parties including all the interveners are to submit any additional submissions which they may be advised to make about the case management of this case in general and the management of the evidence of the child and vulnerable witness interveners prior to judgement being given. The parties who remain in the case will, of course, be making submissions about the welfare decisions to be made by this court about L and K.

Medical evidence and opinion

9. L was born prematurely at 35 weeks and spent less than a week in hospital before he went home with his mother. This period is of relevance only in that he was observed over that time by nursing and medical staff and no issues were raised or recorded regarding possible injury at birth. He was well and appeared to be so when he was seen by the Health Visitor and his GP in the few months prior to his admission to hospital; he had gained weight and there were no concerns recorded about his general health or development. The only matter of note was that on the 1^st December 2014 the GP records finding a purple, bluish bruise on L's left cheek which (as AM demonstrated in her oral evidence) was on the soft part of his cheek near his mouth.
10. This case is not before me to decide the current state of the medical debate about the mechanism or causation of what has sometimes been known as "shaken baby syndrome"; that is not the subject matter of this trial. This court is familiar with the controversy regarding brain injuries in infants and this judgment will confine itself to the medical evidence and expert opinion which was before it pertaining to this infant. As all the experts who gave evidence are careful to point out it is not possible to carry out experiments with infants by shaking them or otherwise reproducing the acceleration/deceleration mechanism to measure the forces necessary to cause bleeding within the head and brain such as is observed in such cases.
11. Mr Storey QC in his closing submissions made on behalf of AM made reference to the case of Re JS [2012] EWHC 1370 and sought to rely on the judgment of Baker J and findings that he had made in a case which included evidence from "two eminent surgeons named as Mr C and Mr R". I am asked to take into account both the findings of Baker J and the evidence of the two surgeons. I cannot accede to such a request, the decision that I make must be based on the evidence before me and which I have heard in respect to this particular infant. I have not heard from either Mr C or Mr R; they have not been instructed in this case nor has any application ever been made to instruct them; their evidence in another case about another child cannot have any weight in these proceedings.
12. The medical evidence in this case is limited to the observations and opinion about L and no other child and it would be wrong in law for me to take into account any other evidence. I shall base my decision only on the medical and other evidence before me in respect of L; this will include the opinion of experts who have been instructed to provide that opinion on the basis of the medical records, imaging, and observations of treating clinicians and nursing staff who cared for L. Their opinion is based in part on the relevant medical and research literature it is also based on their own clinical experience which they have brought to bear on the medical records of this individual child. I shall consider each expert's evidence separately, but ultimately the evidence both from treating physicians and expert opinion forms part of the whole along with the evidence of the parties and interveners in respect of this infant and it is on that evidence that I shall base my decision. I have reminded myself that each expert witnesses has his own discipline and opinion within that discipline; their evidence forms part of the evidence before the court and the medical evidence as a whole does not acquire greater weight than those of other witnesses by virtue of their expertise and experience.
13. I shall review the medical evidence along with the evidence given by the lay witnesses and consider all the evidence before reaching any conclusions. Any medical observations of the features regarding the bleeding in L's brain and eyes which is in the opinion of the experts congruent with "shaking" and is to be viewed in the context of all the evidence before the court. As Mr Richards said in his report, and he did not depart from this in his oral evidence, if a time can be established by the court when he was behaving completely normally and feeding normally he would not have been injured. By the time he was not well and not feeding normally he had been injured; the point of injury is somewhere between those two; there was no departure from this approach in any of evidence given by the experts and it must be a matter of logical analysis to accept this approach as the correct one.

Admission to hospital 2^nd January 2015

14. The precipitating event, which led to the proceedings in respect of L and, eventually, to the subsequent proceedings in respect of J and K took place on the 2^nd January 2015. On that evening AM made two distressed phone calls to services provided by the NHS. On each occasion L could be heard screaming inconsolably in the background; he sounded as if he was in pain. The recordings of the call were played in court and it was quite obvious that a frightening and distressing event for AM, and for DT, who was holding the baby so that she could speak to the person trying to help her at the other end of the phone.
15. AM was told to take the baby to the out of hours emergency GP and did so; the GP, without delay, phoned for an ambulance to take L to hospital. According to the records he arrived at SHH at 21:31and was first see in A & E with his parents present; he was admitted at 21:55 on 2^nd January 2015 when the first history was taken from his mother by Dr F, a specialist registrar in Paediatrics. The records read that he was screaming +++ on Thursday night, felt floppy, sweaty but cold; reduced feeds – normally he took 5 – 9ozs, today had 2oz and was not taking his bottles and had been unsettled all day. The record reads that it was reported that he had vomited x2 today, white milk vomit. His fontanelle was recorded as being full even when he was not crying and he was pink with mottled legs. Dr F noted a 1cm bruise on his right cheek – pale purple in colour - about 1.5cm near to the mouth.; that is to say on the soft part of his check not near to the cheek bone. The possibility of bacterial sepsis (infection) was considered and it was for that that he was initially treated. He was admitted to the Paediatric ward for observation overnight.
16. Due to the presence of the bruise it was considered necessary for a clotting test to be carried out prior to any lumbar puncture. According to the notes when this was explained his mother said that L pinched his own face. L was admitted to the ward via ED at which point he was cannulated and various bloods were taken for screening and analysis. He was given paracetamol (Calpol) after which he vomited and was not fed again to let him rest awhile. He did not have a temperature and was mottled when the cannula was inserted. DT is recorded as asking if two parents could remain on the ward and was told that he could stay, but only until the results were available. This record was taken at 00:45 on the 3^rd January 2015. He was placed on continuous monitoring.
17. At 05:40 the records show that he was seen by the registrar who attempted 1x lumber puncture; frank blood was produced and therefore it was not attempted again. L remained unsettled; his Glasgow Coma Score (GCS) was rated a 14 as he was crying/irritable. It was recorded that AM had him in the camp bed earlier but that the nurse had explained the risks and it was tried to settle him in the car seat. At 06:00 Dr F had another attempt at a lumber puncture, the result of the tap was blood stained. It was noted that he was still irritable at times but was currently settled; he was recorded as being alert in his mother's arms, looking around, fixing and following, his pupils equal and reactive. He had vomited diaralyte. Dr F noted that it was needed to check if there was HSV exposure from his family; that he should be given IV fluids if vomiting; that a CT scan would need to be considered in the morning; and a call to the duty team to see if he was known to services.
18. At 07:45 the nurse recorded that L remained unsettled; he did stop crying when cuddled by mum. His cannula was removed as it "tissued" when an attempt was made to give antibiotics by IV. His GCS remained at 14 as he was irritable; L's fontanelle remained bulging and tense even when settled. The nurse had a phone call from the duty social worker whilst writing. The hospital was told that L was known from a Sure Start referral sent on 23^rd December 2014. A case would now be opened due to the bruise which had been observed. At 08:05 another nurse took over and L had been sleeping since he was re-cannulated and given IV medication and treatment in the treatment room to allow AM to sleep. At 10:30 a social worker attended the ward.
19. L was later reviewed by Dr IKM (consultant paediatrician) and notes added to his hospital record at 11:30 on 3^rd January 2015. The consultant later produced a report dated 7^th January 2015. Dr IMK examined L and found him to be very clearly irritable with a full and very tense anterior fontanelle. He had a head circumference of 42.7 (97^th centile). As set out in his report his examination of the bruise on L's face was initially equivocal and the doctor's initial impression was that the discolouration on his cheek was not a bruise. The notes on the hospital record note that it could be sepsis but that as L was afebrile that was "UNLIKELY" and that the alternative was an IC bleed as there was clear evidence of raised OFC and raised ICP (inter-cranial pressure) with tense AF; subdural haemorrhage (SDH) needs exclusion. Dr IKM arranged a CT scan which was reported by Dr L (consultant radiologist) as being abnormal and likely to show SDH.
20. Dr IKM reviewed L again at 15.55 (according to the hospital records) which note that Dr L feels that there is evidence of multi-focal fresh blood in the subdural space and acute traumatic effusion. Dr IKM recorded that L needed transfer for neurosurgical review. He discussed the case with the team at RMCH and arranged for L's transfer. A referral was made to the emergency social worker. Dr IKM spoke to the parents again, he told them of the findings of SDH and of potential causes including trauma and the need to exclude rare medical conditions such as blood clotting disorders.
21. Dr IKM reviewed the history with L's parents and he asked if they recalled an incident when L had fallen or been dropped. They could recall no such incident. He noted "mother says baby fine." She told him that on New Year's Eve (NYE) he went to stay with aunt (SM) and was well then, stayed with her until about 20:00 on the 1^st (January) when he came back home; he was said to have been well and fed. "Mother says that he was well, smiley and happy in her care until 22:30 when he became ill/screaming. Since then he has not been right." AM became very upset and tearful, she left the room feeling sick. DT was very calm and not angry or upset at that time.
22. Before L was transferred Dr IKM made another examination of the baby's face. The appearance of the mark had changed slightly and he reported that it did look like bruising at that stage; there was a blue tinge to it and it did not blanch on pressure. L's mother had reported that he pinched himself which Dr IKM thought unlikely at that age (3 months). Dr IKM's said in his report, which was written within a few days of his examination of the baby, that the most likely cause of what appeared to be multi-focal SDH and extensive retinal haemorrhaging (the results of the ophthalmic examination) was non-accidental head injuries in the absence any episode of accidental trauma, and no accidental trauma had been reported by his parents.
23. On L transfer to RMCH further history was taken from his mother. L was admitted to a ward under the care of Mr B, Consultant Paediatric Neurosurgeon. On arrival L was found to have a full, tense fontanelle and a history of arching his back and irritability. The note made at 20:20 reads "worse in the past 24 hours". The examination of L recorded that he was intermittently irritable, had a full, tense fontanelle, no sun setting (of his eyes); he had a good tone in his limbs. L had an MRI scan which again showed bilateral subdural haemorrhages.
24. A report was prepared by Dr S (consultant paediatrician with an interest in safeguarding) dated 7^th January 2015. L had had a needle aspiration performed on him through the anterior fontanelle and heavily blood stained fluid was withdrawn. The hospital records time this as having taken place at 22: 51 on 3^rd January 2015. A butterfly needle was inserted into the right lateral aspect of the anterior fontanelle; 26 ml of heavily blood stained fluid was aspirated easily and stopped when it became difficult. After this procedure L's fontanelle was soft and he settled.
25. At 09.45 on the 4^th January 2015 AM gave a history to Dr H (under the supervision of Dr D a consultant paediatrician). L had been feeding better since the ventricular tap and there were no concerns about AM's care of him while on the ward. AM told Dr H that she had noticed his soft spot had been "swollen" since 27^th December 2014 while bathing him but he was well in himself. She said the hat he had been given on Christmas Day seemed tighter the next day. On New Year's day L was crying more than usual, seemed in pain and 'stretching himself out'. AM rang her mother who said he may have a sore belly or was teething, and advised AM to go to her house. She arrived there at 10pm and was given Calpol. L was whimpering that night and "didn't seem with it", not making eye contact with her. The next day (2/1/15) AM gave him Calpol again and he seemed asleep and settled. AM put him in the car seat and they went to S for shopping. At about 17:30, he started screaming and crying again. He was vomiting and not feeding as well as in the past 24 hours. He seemed floppier than usual and AM decided to call the GP and was put through to the emergency phone line and they booked an appointment for 19:40.
26. It was then recorded that AM said L's maternal aunty (SM) looked after him on NYE for the whole night. AM "said that [L] was fine until 2hrs after – [SM] dropped him off the next day. Denies any chance of anyone shaking L. L was in the care of SM for [around] 24 hours."
27. AM was observed to be caring, co-operative and appropriate with L. A bruise was visible on his right cheek which was described by Dr S about 0.5 cm in diameter and brown in colour when she examined L on the 6^th January at 09:30. No other external injuries observed except those which had arisen from medical procedures. His chronological age was 14 weeks which paediatrician would correct to 9 weeks because of his prematurity.
28. In Dr S's report she records that the blood tests results were normal. Ophthalmological examinations were carried out on L by Dr C on 5^th January 2015 at 19:00 and by Miss A (consultant paediatric ophthalmologist) at 15:00 on the 6^th January 2015 both documented that they found retinal haemorrhages in both eyes. Miss A reported that in his right eye he had slightly blurred disk margins and scattered blot intra-retinal haemorrhages in the mid periphery and posterior pole. In the left eye he had a small macular haemorrhage, likely elevated optic nerve and disk haemorrhage and multiple posterior pole and mid peripheral haemorrhages.
29. The MRI scan carried out on 3^rd January 2015 showed bilateral mixed density subdural haemorrhage but no parenchymal damage (to the substance of the brain itself). The skeletal survey caused concern about a possible periosteal reaction to L's right femur, but a follow up survey on 15^th January 2015 showed it to be physiological (that is due to his age and growth) since it had not changed in appearance.
30. Regarding the bruise of L's right cheek Dr S said that bruising on non-mobile babies is very concerning. Dr S reported that certainly young babies can scratch themselves but that she did not expect a bruise to be self-inflicted at this age; therefore she thought it was most likely to be a non-accidental injury. She noted the bruise seen on L's left cheek about the time of his eight week check and that it was unlikely to be self-inflicted and raised a concern about a possible non-accidental injury having happened at an earlier date. Dr S was of the opinion, in the absence of any other external injury to the head, or history of a significant traumatic event, shaking had inflicted the subdural haemorrhages.
31. Dr S described the subdural bleeding as occurring into the potential space between the thin arachnoid membrane, which intimately covers the brain, and the thicker dural membrane, which lies between the brain and the skull. She said (as was repeated by the expert witnesses in their reports and evidence) that subdural bleeding is caused by trauma and that rotational forces such as those generated by shaking with or without impact are significant factors in generating subdural bleeding. She noted that there was no history of a traumatic event and that the majority of children found to have non-accidental or inflicted injury also have retinal haemorrhaging. The fresh blood seen on the scan and on being aspirated along with and fresh blood being found in the lumber puncture fluid at SH meant that the neurosurgeons were of the opinion that bleeding around L's brain had occurred within the last seven days.
32. Dr S went on, from the appearances on the scan it is possible that there could have been a previous episode of trauma predating that period but that it was also possible that those same appearances could all be from a recent single episode. The history reported by the family sounded as if L had developed symptoms on the evening of New Year's Day as after that he was reported to have been crying excessively, not feeding and vomiting. It was difficult to precisely time events but evidence suggests that after subdural haemorrhage due to shaking babies do not act normally, therefore it was most likely that the event occurred close to presentation; however, it was possible it could have happened a few days previously.
33. Dr S's second report dated the 21^st January 2015 followed a child protection radiology meeting about L's case and the scans which took place on 15^th January 2015. The meeting involved a discussion with a consultant Neuroradiologist and other radiology consultants; having looked at the MRI scans the general consensus was that the appearances could all be due to a single recent event but, on balance, it was felt that there had been more than one event i.e. a recent event and an older event. The main reason being the presence of septations or membranes which form within areas of subdural bleeding once they have been present for some time and the blood products break down. Septations suggested chronic subdural which means bleeding that happened more than two weeks prior to scanning
34. Therefore in conclusion, Dr S reported, as L presented with subdural haemorrhage, retinal haemorrhage and facial bruising and the clinicians concerned had not found any evidence of any medical condition that would pre-dispose him to such injuries, and, in the absence of a history being given of any serious accident these are likely to be non-accidental injuries inflicted by one of his carers. There was definitely an episode of trauma close to the time of presentation at SHH. On reviewing all the evidence it was possible there was just one episode of trauma but on balance it is more likely that there was more than one episode with one close in time to presentation and another several weeks earlier. The report also confirmed that the blood tests were normal and there was nothing noted which would account for L's injuries and that the later skeletal survey removed concern about the femur. Dr S thought that the good progress that L was making indicated that his prognosis was good as were the prospects for a full recovery.

Injuries found

35. During medical examinations, when admitted to hospital and subsequent reviews of the scans both MRI and CT by the experts instructed in the case and the treating neurosurgeon L was found to have:-

i) Multifocal acute subdural bleeds

ii) Acute subarachnoid haemorrhage (as observed by Dr Stoodley and Dr Stivaros)

iii) Acute traumatic effusions

iv) Previous subdural bleeds with some membrane formation

v) Bilateral multi layered retinal haemorrhages through 360 degrees

vi) A 7-10 mm pale purple bruise, 15 mm lateral to the angle of the mouth on the right cheek.

Family background and history prior to 2^nd January 2015

36. Both AM and DT are young parents each of whom has, as they explain in their statements, had difficulties during their childhood and adolescence. Some of their problems must still affect them, indeed it is obvious that they do and they have not always had the support that they needed to help them to overcome their difficult life experiences.
37. AM had a very troubled childhood and is now estranged from some members of her family as a result of these proceedings. AM's mother moved several times when AM lived with her as a child; her mother was involved in more than one abusive relationship and abused drugs and alcohol. AM spent many weekends with her maternal or paternal grandparents. She was sexually abused when she was about 5 years of age by the older son of one of her mother's partners. In 2000/1 her family returned to England from Wales and they did not move round for a period, but AM's mother continued to abuse alcohol, and she had difficulties in managing her son's behaviour resulting in local authority intervention. AM's behaviour in school deteriorated and she was sent to live with an uncle in S-shire until she began truanting. She was sent back to S in 2009, aged14. Her relationship with her mother was strained and she lived with her maternal grandfather's wife (her step-grandmother).
38. Already vulnerable and the victim of sexual predation from an early age AM was groomed by a gang of older young men and boys from her return in 2009. She was given alcohol and drugs, including ecstasy, cocaine, and cannabis and sexually exploited and abused along with other young girls. To her credit she had the courage to co-operate with the police in 2013 and a criminal trial took place against 5 men, arising out of a major police child sex exploitation operation, three of whom were convicted of a variety of sexual offences including rape. It would seem from AM's own evidence that she had little support from her mother and she told me she was angry with her until quite recently. AM looked to her mother and the rest of the family for support after she had had her baby L. Since she has separated from DT she has lived with her mother and her younger half-siblings.
39. Unsurprisingly, given the lack of intervention or support that she had received, AM's first serious relationship was with a man who was violent to her. He assaulted her and broke her cheekbone, and, after they had separated, he hit her with a spade. In both instances she pursued prosecutions and sought a restraining order which expires June 2016; again a testament to her courage. AM admits to using drugs again during 2014/15 (she was then eighteen) she says she stopped when she discovered she was pregnant with L.
40. Similarly DT's family moved about during his childhood and adolescence his family and for periods he lived in six separate towns in different parts of England. His older sister provided a lot of the care for DT and their other siblings. His parents had a violent, volatile relationship and, since their separation when DT was a small child, he has had little contact with his father. DT's mother abused alcohol and after her third husband committed suicide her abuse of alcohol intensified. Ultimately this led to illness and contributed to her sudden and early death in late 2014.
41. The records held by social services appear to indicate that DT and his brother were assessed in 2001 because of their behaviour at school, their exposure to domestic abuse and their mother's depression. The local authority have said that support for the children was offered but not taken up. By the time he was ten his behaviour in school led to him being excluded. It is his own evidence that by thirteen he had started using cannabis and that he continued to do so regularly. DT had also used cocaine on occasion and at times drank alcohol. It is cannabis that is his drug of choice and he told the court that he smoked it daily and that his use of it escalated after his mother died. He believes it has affected his memory by causing memory loss, and has affected his speech causing him to mumble and slur his words. These effects of his drug use become more apparent and intensify when he has been using.
42. DT has criminal cautions and convictions dating back to November 2006 for various offences including shoplifting, criminal damage and possession of cannabis. In November 2014 he was convicted for possession and supply of cannabis; he told the police he that had been engaged in such activity for about 8 months. On searching the house he shared with AM and L the police found a large amount of cannabis, £2,300 in cash, and drug dealing paraphernalia including a debtors list, digital scales and snap bags. When the police raided the property AM was there with the baby, L, and she was distressed and frightened.
43. This young couple began their relationship in about 2013 at the time AM previous boyfriend was in prison so when she discovered she was pregnant with L in February 2014 she was not sure who was the baby's father. They lived separately but close to each other until October 2014 when AM moved into DT's home after his mother died.
44. DT had been registered as his mother's carer and he has always worked (and is working still). He worked throughout their relationship. DT was, as he told me, badly affected by his mother's death and grieved for her. He accepted that he used cannabis more frequently than before and would leave AM at home alone with the baby while he went to his friends for hours at a time smoking cannabis and watching videos. He said, and I accept, that he did not smoke in the house, but when he was at home would go out and smoke in the car or smoke outside.
45. The relationship between AM and DT has had further difficulties; on the 12^th December 2014 they went out in town with friends and had both been drinking. The got into conflict and AM called the police, abandoning her 999 call. In evidence they both accepted that they had been physically fighting and assaulted each other, which confirms what is recorded in the police report. In August 2015 it was reported by a neighbour that they had been seen arguing. I did not hear evidence about this incident nor about another argument reported to have taken place in October of 2015.
46. I did, however, hear about the incident on 21^st April 2015 which they both say led to their separation and which had happened when they had visited the town of B and DT had used cocaine. They had a vicious argument during which AM took cash which DT had put aside to pay the rent and started to tear it. He attempted to take the money from her by force and grabbed her by the back of the neck. I accept, as AM said in her oral evidence, that he took hold of her hair at the same time. He accepted that he "pushed her face" onto a sofa but says it was only once; she said in evidence he banged her head several times. AM said that she accused him of causing L's injuries and that he had accused her of the same thing. This DT denied, he said that she had accused him but that he had never accused AM of causing L's injuries.
47. They both say that have not resumed their relationship since then. They asked to attend contacts together in August but said again they had not resumed their relationship. They have been seen to be in contact with each other by social media and to have seen each other. The local authority and the social work team question the true state of their relationship. AM told this court that he is the only person she can talk to about the case because he is the one person who understands and who does not get fed up with her talking about it. Whatever the truth is about their relationship they admit to being in contact with each other and obviously provide some support for each other in these proceedings and like most relationships it will have its own complexities that are not easily definable.
48. To return to the earlier background L was born at 35 weeks gestation on 29^th September 2014 by normal vaginal delivery and the records show he was in good condition. He and his mother were discharged from hospital on 3^rd October 2014, after five days. AM lived in her own flat with the baby and there is no dispute that she undertook the greatest part of L's care with DT playing a peripheral role. She said she was overprotective of L. DT was working and living with his mother as her registered carer, although he told me that his mum would not allow him to do much for her. AM had had help getting her flat ready from members of her family including SM. Her mother would come round to help her but she did not like her friends whose children were older to come to visit as she did not like the children around L. Her own mother would visit after she had dropped her son off at nursery.
49. Whatever the reasons given by AM for her lack of visitors when she was visited by the Health Visitor (HV) in November 2014 when she had moved to DT's mother's home, after his mother died, the HV considered that she was isolated and lacking support. The HV gave oral evidence, and I have no reason to doubt what she told me, which was that she had visited mother and baby at home on 8^th October 2014 on a pre-arranged visit. She discussed with AM and completed the Red Book checklist. Her next visit was on 16^th October 2014 and on both occasions she had no concerns about the baby. She had seen a well child with a lovely bond with his mother he was growing well and putting on weight.
50. She was due to visit on 26^th November 2014 which was the 6-8 week visit, but found no-one there, and so called again on 27^th November when AM was not expecting her and obviously did not really want her to be there; however AM co-operated with her mental health assessment (the Edinburgh post-natal questionnaire). From their discussion the HV recorded that AM felt isolated. The HV told me she had discussed crying babies with AM and spoken to her, specifically, about shaken babies and how to put the baby down, have a break and try again later. The HV told the court that they always discuss shaken babies and about consoling and stopping a baby from crying. The HV did not see L again apart from a chance meeting in the car park at the surgery on 28^th November 2014. Of course the HV was unaware that the house had just been raided by the police and AM was anxious about that and to tidy up for the simple reason that AM did not tell her.
51. AM told the court in her oral evidence that she was angry about the police raiding the house; when it happened L was in bed and the police were yelling –"Open it up or we'll smash it" – and then she was holding DTs dog back (he has a large dog) and L and it was horrible. She repeated that she was angry and felt she had given up her home and felt it was a mistake moving. AM said that she disapproved of DT smoking cannabis and felt that he should have the same feelings as her and give it up as she had done when she got pregnant. She did not like the way he got his money through drug dealing, and that he'd go out to his friends and smoke. She described them having arguments about that and other things, and that DT would bang things about in the house when that happened. She said that DT had withdrawn when his mother died and that he did not really want to hold L after that; but also said that there were times when she did not like him to hold the baby and would take him away, such as when he'd been smoking and his eyes were half shut.
52. For his part DT quite frankly said in his oral evidence that he had been smoking heavily when AM and L moved in to live with him. He also accepted that he had not played an active role in caring for L and said, more than once, that since he has been having contact in these proceedings he has regretted what he has missed out on with L. DT told me that he relied on AM to tell him what to do with L and to tell him if anything was wrong. From his evidence it was clear that he had rarely changed a nappy or fed L and was not intimately involved in L's care leaving most of it to AM. AM accepted that she did not involve DT much and that there were times when she would take L from DT if he picked him up.
53. On 1^st December 2014 AM took him for his 8 week check with the GP. It was on that occasion that a bruise was seen on his left cheek. AM and L had missed an earlier appointment because the correspondence about it had been sent to her old address.
54. On the 12^th December 2014 L was left with DT's sister while they went out with friends. This was the occasion on which AM abandoned a 999 call. They had both been drinking and had argued as a result.
55. On 20^th December 2014 AM joined SM and other members of her family for a family dinner in an Italian restaurant. The children of the family were there as well as partners and friends. It was the first time that some of the family had seen L and he was one of the centres of attention with many people holding him and, no doubt, making a fuss of the new baby. AM exhibited in her evidence a mobile phone picture of a young woman member of the party hold L up in front of her; she was holding him upright under his armpits facing out so he could have his picture taken on his mother's phone. His head was not supported by her hands by as his shoulders were hunched up it was not likely to flop about. SM's daughters were obviously greatly taken with the baby and asked if he could come to stay the night. SM agreed as long as AM did too; there was talk of AM being able to have a rest and a night's sleep.
56. After they left the restaurant L went home with his mother who got a bag ready for him to go to stay with SM. She told the court that she had said "OK take him for a night because I am tired." L was fine when he arrived at SM's house; she, in turn, said that they enjoyed having him and that he was a happy baby. The girls T, R and E were all keen to play with him and look after him. One of the reasons that she wanted to have L there was to show the girls how to look after a baby as she was pregnant herself. She did not know what happened when E lifted L up passing him to her sister R as she had left the room to put the kettle on in the kitchen although she was able to hear what was going on in the living room.
57. From E's ABE interview and from her later video-recorded questioning by counsel E described sitting on the sofa with L and handling him by cradling him in her arms and then lifting him up to give to her sister R who was standing in front of her. She demonstrated holding him facing out towards R. She showed that she had held him by holding his body under his arms and demonstrated that she had not handed him straight to her sister but had moved him in a curving motion to her sister. She said that his arms moved about but that his head had not; indeed her description of the way she held the baby mirrors very closely the picture that was taken in the restaurant, by his mother, some few hours previously.
58. E referred to this "game" that she had played with the baby as both the airplane and the rocket. In her ABE interview with the police which took place on 8^th January 2015 the movement that she physically demonstrated was not forceful and covered a very short distance to her sister standing in front of her. At the time she was nine years old and R was thirteen. Dr Cartlidge the consultant paediatrician instructed to provide this court with a paediatric overview in his report dated 3^rd June 2014 described the incident as follows (after watching the ABE interview) " During a brief period of reduced supervision, [E] lifted [L] into the air like a rocket. In my opinion this event did not cause the intracranial injuries for the following reasons: - there was no history of an accident at this time:-[L] had no adverse symptoms and yet he would have been unwell immediately after the event that caused the subdural bleeding and retinal haemorrhages."
59. When E was interviewed she said that her sister R had said that she should not have done that with the baby. She said that L himself was happy and laughing when she did it. R told her mother what E had done when she returned to the living room very shortly afterwards. SM's evidence is that she was not worried about L as he seemed fine at the time, but that she had told E not to do it. She said that the girls liked to tell tales on each other and that she was in no doubt that if E had done anything really harmful to the baby R would have exaggerated or dramatized the event. L was fine, she had watched him all evening; as he was watching the Christmas lights.
60. SM gave oral evidence and was asked about L presentation during the night and went in to detail about it. She made up a 9oz bottle to feed him as needed during the night and put him down to sleep in the carry cot that she had in anticipation of the birth of J. SM was (and is) an experienced mother and her evidence was of someone who is confident in caring for a very young baby. She described L as being wakeful during the night; he did not cry or seem distressed but was vocal making "baby noises" and this, in turn, kept her awake as she was aware of his presence and that he would need feeding at some point so she took him in bed with her and fed him during the night; L was well and fed without difficulty.
61. In the morning she got up and took him downstairs with what was left of his bottle. Later that day she had been in contact by text with AM who told him that L was still asleep and she had said "Little Monkey!" as she was still tired from feeding the baby throughout the night.
62. Also present in SM's home was her partner LS (the father of J) whose own father lives next door. At the time LS kept some of his clothes and belongings next door and sometimes slept there. That night he had been watching films with R and both of them had gone to sleep on the sofa; this was not an unusual occurrence; as he told me he likes to watch old films and the TV sends him to sleep. T was staying with her boyfriend and had not been there since about 7:30 pm the previous day; E had slept upstairs in her own bed. LS did not hear the baby during the night.
63. In her ABE interview E said that the baby had been grumbly and fidgety during the night, but she also said that she did not hear anything as she was asleep. The evidence of both LS and SM is that she went up to bed before her mother and slept through until morning; I surmise that what she said to the police was her interpretation of what she had over-heard her mother saying about looking after L that night.
64. When SM came downstairs in the early morning LS was still on the sofa and E had come down stairs, R joined them later. SM was, naturally tired as she had a disturbed night caring for the baby. She left L with LS and went back up to bed (a routine that is familiar to any couple when one has taken the responsibility of night feeding). In cross-examination LS said that he had gradually woken up, had been drifting in and out, and watching over L.
65. LS said that nothing untoward happened and that he had no concerns about L. The two girls who were playing with him as well as watching DVDs and playing with their own electronic devices. E did not pick L up during the time that she was there in the room (she went out with her mother mid-morning). L was on the sofa with LS who then placed him on a blanket on the floor where the girls played with him or as he put in his statement "were fussing over him". L was fine and needed little care although LS did change his nappy. When SM came downstairs sometime after 10:30 and she and E left to visit SM's father's grave. She contacted AM who said she would be there to collect L in about ten minutes. LS and R stayed on in the room with the baby and watched a DVD; L went to sleep in his car seat.
66. AM took much longer to come to collect L than she had indicated so as the baby was still asleep LS went next door to change and have a quick shower in his father's house. When he returned in a matter of about 15 minutes he saw AM leaving with L. He did not see L again until NYE when the baby stayed overnight with SM again so that his parents could go out to celebrate the New Year.
67. R was interviewed by the police at school on 30^th March 2015. She could not recall anything of concern happening on the night of 20^th /21^st December 2014. There is no evidence that she had mishandled L at any time and she was not there on NYE. It has been submitted that what R had witnessed E doing with L on the 20^th December was sufficient to cause her concern such as has been described by the expert witnesses when they are themselves describing the amount of force necessary to cause the haemorrhages observed in an infant's brain, however, this submission is undermined by the fact that R retained no memory of what had happened. Had what her sister had done caused R concern it is most unlikely that she would have forgotten about it.
68. R filed a statement with the court in December 2015, in which she said that she was sure if she had seen E doing anything that was unsafe with L she would have stopped her and told her mother. "I do not think that something like that would happen and I have forgotten it. I am sure that E believes she may have done something inappropriate to L but I am clear that nothing that I saw that evening caused me any concern in relation to how E played with L."
69. LS has now moved into SM's house to supervise since J was born, in line with the agreement reached by SM, LS and the local authority. He describes E as being really good with baby J, always loving and always picking her up. He had no concerns about E and thought her very good [with the baby] for her age. LS was very clear in his evidence that he had not discussed the case with SM or about E, T and R with her. He explained, and I accept, that it says at the top of all the bundles and documents that it is confidential and he had not spoken about E or T and had not discussed the case in depth with anyone. He says that he found it really trying to read through all the bundles; "it is all new to me, all this information you get, I can't process it all".
70. AM and DT both accept that L was fine after he returned on the 21^st December 2014. He was sleeping for most of the day; and it is of note they had him only in the afternoon and evening of that day after he had been collected. In chief AM said that L was very sleepy when he came back and she thought he was tired because it was something he was not used to; "nothing stood out in the way he was acting that day it was just that he slept a lot." In cross-examination AM said that from the 21^st December he returned to his routine and everything was normal. Neither AM or DT describe L as having difficultly feeding or any untoward signs of distress on the 21^st. The evidence is that what AM told the hospital, the police and others after the 2^nd January 2015 when L was admitted to hospital was that L was fine after he returned from staying overnight with SM and her family. DT to me in his oral evidence that on the 21^st December L was "a bit more sleepy, just a bit more" and that he was still fine. He said that AM expressed no concerns after the 21^st except about once about L's soft spot [on his head] and his hat but he could not remember when she had said these things.
71. According to both his parents L continued to be well, feeding normally and with no signs of distress, irritability or vomiting (other than the normal regurgitation of very young babies). In her oral evidence in chief AM said that she observed that a hat he was given on Christmas day which was at first falling into his eyes was not too baggy on Boxing Day and when she put it on "it fitted better, it wasn't baggy anymore." This evidence that she gave, in answer to her own counsel, contradicts her written evidence (3^rd statement) in which she had said that the hat did not fit.
72. On the 27^th December 2014, AM said in her oral evidence in chief, she had noticed that L's fontanelle looked fuller; "it didn't feel hard – it doesn't look hard it just looked fuller. I can't remember if it was different from the 26^th… On Christmas Day and on Boxing Day he was fine, smiling and happy and he was fine. He was fine on 27^th December we went shopping and nothing stuck out." The evidence of both AM and DT was that L was well and feeding normally until the New Year. DT said as they had no concerns about him after he had stayed with SM the decision was made for L to go and stay with SM again on NYE. As SM was pregnant she was not going to be drinking or going out and she agreed to look after L. There is no evidence that L was displaying any of the signs of having been shaken and suffering the effects of SDH on or between the 20^th December and when he went to stay with SM on the evening of the 31^st.
73. AM and DT clearly had no concern about L staying with SM, indeed AM was keen for him to stay with SM later on New Year's Day but SM could not keep him as she was going out for a meal with her family. SM's evidence was that L was awake and smiling when he arrived at her home on NYE. She noticed that he had grown and said so to AM saying that he had "gone huge – even his head's gone huge." She said that it was she who looked after the baby, although LS and B (T's boyfriend) had popped in to see her and E and L a few times. She had the carry cot but made him up a nest in her bed. SM took a 9oz bottle to bed to feed him and fed him from it through the night. He was fine and she played him his music in bed.
74. It had been just her and E downstairs; L was smiling and happy. She showed E how to change him. E was playing on her new lap-top. During the afternoon, when she was upstairs, T had changed L's nappy and E came up to "grass" on her big sister saying that she had not held him "right". SM went straight down and L was fine, he was normal and happy. In cross-examination as in her statement SM was consistent in her evidence that L had not vomited when he was with her, despite what E said to the police; her mother told the court that E had a child's tendency to exaggerate. L may have regurgitated some milk which she wiped up in E's presence but she was certain that he did not vomit. He did not cry when he was with them but made baby noises when he wanted his bottle.
75. Nothing of note happened the next day and the baby was fine and well. SM says that he was awake when she and E took him back in the car at about 2: 15 – 2:30 pm. L was awake in the car and did not cry on the journey. When he was carried in to his parents' house he was awake. SM recalled that E was allowed to take the baby out of his car seat. DT came in to the room and gave L a kiss and AM a kiss he then went out. SM thought that DT had been smoking cannabis outside before he came into the room as she could smell it on him. DT did not deny this in his oral evidence as he said that he smoked a lot at the time. He then when out to his friends and stayed there until he came home that night to find L screaming. DT told me that it was still light when L was brought home and he went out. As it was mid-winter this is most likely to have been before four o'clock in the afternoon. In her oral evidence AM says that she had thought it was about 5pm when L was brought home but accepted from the evidence of the text messages on her phone that it must have been earlier.
76. AM and DT were out all night on NYE. From their evidence and text messages sent by AM it would seem that they returned home at about 6 am. On their own admission they had both been drinking AM said that she was drunk and thought that DT was; he had been smoking cannabis and people were smoking and using cocaine. AM told the court that she had the shakes when she got up and "felt rough". She sent a text to a friend at after 3 pm (so just before L arrived home) saying she had the shakes. AM said she had had something to eat just before SM brought him home and had felt better but accepted that she would have been upset about DT going out.
77. In all her accounts given at hospital AM has said that L started to scream and show distress at after ten at night. DT says when he arrived home the baby was already screaming. AM has always agreed that this was the case. It would seem, therefore, on their evidence that DT was absent for over six hours.
78. In her oral evidence to this court AM said that when SM and E returned L he was asleep and she thought he was sleeping until woke up and started crying. This differs considerably from her account to the consultant at hospital. She said that she had said without thinking that he was smiling, well and happy. "I think I just said it. I said yes fine when they asked me at hospital – I was not really thinking, because at the time I did not know I was being blamed. I cannot remember how it was. I didn't know what the doctor was saying." This response is illuminating as it begs the question what AM would have said instead had she "known" that she might be said to be responsible.
79. Later, in cross-examination by Ms Heaton QC for the local authority, AM said "I can't remember whether he was smiling –I think he was sleeping and woke up and started crying. I can't remember when he was crying. I try and think every night- I can't remember giving him a bottle at 6 o'clock. I just remember giving him to DT saying he's not feeding." She said she could not remember when DT returned but it is common ground and undisputed that when he returned the baby was crying and AM handed him to DT and asked him to feed the baby. AM was consistent in all her early accounts that the baby started crying around or after ten at night.
80. AM said that the baby was not feeding and that he was crying, or screaming in a way that he had never done before; and that was a change in his behaviour. L was stretching out when held and was red in colour; he had never been like that before. He was unable to feed, he was vomiting. She called her mother who told her not to worry and that it might be a stomach bug; her mother told her to come and get some Calpol. They drove to her mother's although DT had been smoking and he stayed in the car with the baby while AM went in to get the medicine. Her mother did not come out and did not see the baby. AM said that she held the baby all night which was something she had never had to do before and that he was cold and sweating during the night, he would only takes sips of water. He did not keep any milk in; she had never seen him do any of this before.
81. DT gave oral evidence about L's appearance when he got home which added to the evidence in his statement and the accounts he had given to the police. The notes taken by counsel for E concur with my notes. DT told me the following much of it in chief. "When I returned on New Year's Day after being out…. he was crying loudly, I had never heard anything like it. She asked me to hold him. He was not concentrating. The baby's eyes were rolling back in his head, he was stretching out but not stiff. His eyes rolling back. Not feeding. Stretched out. He was tense. I should have noticed something was wrong with him I should have taken him to the hospital I regret it and I was high at the time. AM just wanted to ring her mother she was crying too"
82. He continued "A little later on he looked floppy to me different from how he usually looked…I didn't hear anything in the night as I was conked out. I didn't hear him cry. The next day we went out shopping He was just asleep all day basically, not feeding. Might have taken a bit of bottle down then thrown up. [When we] got home he started crying –exactly the same cry. He looked more stressed and tense. I didn't see the spots in his eyes I seen [sic] when she pointed it out. He was tense. He wouldn't be like that normally. He was proper tense. " I accept DT's evidence about the appearance of his baby on the 1^st and 2^nd of January 2015.
83. It was then that AM called the out of hours service, and I have previously made reference to the recording with the baby screaming in the background. She and the baby were taken to hospital by ambulance and the ambulance crew records based on her account read "since 7pm last had been unwell/episodes of vomiting, not taking fluids properly. Also stretching out and going floppy. Episodes of wanting to cry but not making sounds. Unusual behaviour…" It is noteworthy that not only was L described as floppy then and to Dr F on admission but that AM subsequently sought to withdraw that description saying in response to Mr Feehan QC (for SM) "Floppy? Not until went to hospital. He was not floppy at home. That is what made me say it…I mean he was floppy when sedated at hospital". It is of note, too, that AM apparently said he had been ill since 7pm last to the ambulance crew as she was very vague about his 6pm feed on the 1^st January 2015.
84. These are the facts based on the evidence of his parents that led to L's hospital admission. It is their evidence that L was well until the evening/night of the 1^st January 2015 and that the marked change in him and the sudden onset of the symptoms they described, as set out above were very different from anything they had seen or experienced before then; neither of them has offered any explanation of how or why that change may have come about.

Evidence

85. I have already made reference to some of the evidence contained in the trial bundles when I set out the chronology of events as they have emerged from the contemporaneous medical evidence and records (paragraphs 14 to 35 of this judgement). I have read the evidence filed by the parties and contained in the court bundle prepared by the local authority; this included expert medical reports from witness in respect of L; the evidence from the police investigation including transcripts of the interviews carried out by the police; the recorded evidence of E and T along with the transcripts of their evidence.
86. The following expert witnesses prepared reports and gave evidence and were cross-examined; Dr Cartlidge, Mr Richards, Mr Newman and Dr Stoodley. Dr Liesner, a consultant paediatric haematologist from GOSH prepared a report regarding the results of the investigation into possible blood disorders in L and concluded that there was no evidence of such a disorder she was not called to give evidence and her evidence remains unchallenged.
87. In addition I heard from the HV and the police officer in the case. I heard the oral evidence of AM, DT, SM and LS.

Expert evidence

88. In turning to the expert medical evidence I keep in mind that it is to be considered in the light of the evidence as a whole. None of the experts instructed saw or treated L and were dependent upon the evidence filed by the parties and the accounts they had given. They have not, as I have had, the opportunity of hearing the evidence and cross-examination of L's parents. As set out above it is clear that both AM and DT accept that L's appearance and presentation on the 1^st and 2^nd of January 2015 was a marked change from anything they had experienced before. DT's evidence is of a baby exhibiting many of the features of intracranial trauma. All of the treating clinicians and the medical experts instructed in the case agreed that the constellation of injuries observed in L were those caused by an inflicted injury. All of the experts agreed that a marked change in the baby from a well baby to a baby that was obviously ill would indicate the likely timing of any such inflicted injury.
89. Dr Cartlidge: paediatric overview In relation to the bruise seen on the left cheek on L on 1^st December 2014 Dr Cartlidge's evidence was that he would have been more concerned had he found it on the child and would have required a more plausible explanation than that given by AM that L had scratched himself. Dr Cartlidge said he would have been more concerned if the bruise had been on the fleshy part of the cheek as it would be easier to bruise a baby accidently on a cheek bone; he had experience of bruising to the soft part of the cheek as a result of babies being pinched to encourage feeding. Such pinching would have to be of sufficient force to cause bruising and would be as a result of trauma.
90. A second bruise was seen on the 2^nd January 2015 at hospital (referred to above). Although bruising is notoriously difficult to time and interpret in this instance there was a clear timeline for the development of the bruise highlighted within the written observations of Dr IKM and Dr S in hospital. The change of colour from a pale purplish mark to a darker blue changing to a brown colour and finally showing signs of a yellow hue are clearly reported. L was, obviously, immobile and too young to have caused the injury to himself.
91. Initially Dr Cartlidge considered that the mechanism of a pinch could be accidental, but on reflection in the witness box he reflected that the earlier bruise to the cheek was on the left cheek and the later bruise was on the right cheek. Therefore he concluded that it was more likely to be abusive in nature and non-accidental. In the absence of any other explanation I accept that he was right to have reached that conclusion. Dr Cartlidge said that the bruise was a matter in the equation for him to consider. On behalf of the children through their guardian it was submitted it was important factor to place within the equation of possible timing and overall care and that must be so.
92. Dr Cartlidge had read and seen the interviews of the interveners and he did not consider that the mechanisms described by any of them could have caused the injuries identified. He discounts the "airplane" or "rocket" game described by E and her version of events because he does not see "…the wobble effect on the child. What I see is no rapid movement and see no effect on the child save that L appeared to be happy." This coincides with what SM saw when she came into the room immediately after E had handed the baby up to her older sister R.
93. Dr Cartlidge was closely cross-examined by counsel regarding the timing of the acute SDH and said he would be looking for a "stepped change". He said that the scans were unhelpful in identifying the precise timing and that it would be the child's symptoms as found by the Court that would narrow the timeline. In relation to the changes in the child's presentation it would cause a reasonable person to be alarmed at the time but a non-perpetrator who came along 30 minutes or an hour later would not necessarily know there was something wrong save they might have seen a change of colour in the child. Such a scenario is congruent with the evidence of AM and DT about the events on the late evening of the 1^st January 2015.
94. While it is the case Dr C considered that the chronic SDH could have resulted in a re-bleed and caused the acute SDH, the evidence of Dr Stoodley had changed his mind because he was confident that the subarachnoid was a more recent event and could not have been due to a re-bleed; he deferred to Dr S in relation to the subarachnoid tear and the acute bleed in the posterior fossa. In addition the court has now had the benefit of the report from Dr Stivaros (who treated L in RMCH and reviewed the MRI scans for the court) dated 4^th February 2016 in which he said "on a balance of probabilities there is bleeding in the subarachnoid space overlying the back of the brain on the right side high up towards the midline, as well as slightly anteriorly (towards the front), again just to the right of the midline."
95. Dr Cartlidge's evidence was that trying to distinguish between a child becoming slowly unwell due to the chronic SDH and the onset of a more acute SDH would be difficult. This was because he could not distinguish a point when it could have been identified that the "stepped change" occurred.
96. I accept the submissions made on behalf of the children by Mr Singh Hayer that Dr Cartlidge did not have the advantage the Court has had in hearing all the medical evidence and hearing from the lay parties and conclude that it would be perverse to conclude otherwise than that their evidence described anything other than a very significant change in L on the 1^st of January 2015 when he had been in his mother's sole care before his father arrived home to find him in the state he told the court about in his evidence. I note too that although Dr Cartlidge was not prepared to go as far as saying that the history provided by AM on 2^nd January "was not a stepped change, as we know it," he did go further by saying 'this was however, a significant change."
97. In respect of the chronic SDH Dr Cartlidge gave evidence that was set about with caveats saying that if L had a birth related chronic SDH and SM cared for him on 20^th December then if there had been considerable wobbling around the head it could account for the chronic SDH rebleeding at this time. As he observed, however, there was no symptomology, save for the evidence of AM that his hat was tight on 27^th December that would make him say that the acute injury occurred at this stage. AM has since changed her evidence to say that the hat fitted better which could simply be evidence that it was placed on his head in a different way any is different, in any case, from saying it had become tight.
98. Again I accept the submissions made on behalf of the child that questions put to Dr Cartlidge, or any of the expert witnesses on a theoretical basis and hypothetical scenarios may be of some interest in this area and increase our general understanding but that the Court is bound to deal with the evidence before it on a balance of probabilities and not simple possibilities.
99. Dr Cartlidge agreed that in this case there were no other signs of abuse and of factors seen in such cases such as fractures to the limbs or to the ribs or signs of neglect and abuse. This is evidence which this court will keep in mind particularly when it comes to decisions regarding the placement of L and his long-term welfare.
100. In respect of L's handling by others, including E Dr Cartlidge reminded the Court that, although L was only 9 weeks of age, he would have some head control. In reply to questions put by Ms Crowley QC on behalf of E he said it depended on how he was held because his head was likely sink into his shoulders and be supported. I have already made reference to E's evidence about how she held him above and to the evidence that L was well, happy and content afterwards. Dr Cartlidge did not change his view substantially as to causation expressed in his report that shaking with or without impact against a semi-yielding object caused the subdural bleeding and the retinal haemorrhages; and that the bruising to the cheeks was caused non-accidentally.
101. Mr Richards, Consultant Paediatric Neurosurgeon Mr Richard reported that when L was admitted to SHH on 2^nd January 2015 he was in a mild state of encephalopathy with features of raised intracranial volume or pressure in that he had a bulging fontanelle. On reviewing the CT scan dated 3^rd January it was identified that L's head shape was normal, there was no abnormal scalp swelling or fracture and a normal brain structure; over the surface of the cerebral hemispheres and cerebellum (less so) a fluid of intermediate density within which there is fresh blood -acute subdural haematoma; fresh blood was also seen in the posterior fossa; a slightly bulging fontanelle.
102. On reviewing the MRI scan of 3^rd January Mr Richards noted that there was fluid in the subdural space of both cerebral hemispheres consisting of fluid that is of intermediate signal between the brain signal and the CSF as well as features of recent haemorrhage; recent haemorrhage in the posterior fossa where there is no intermediate fluid and that subdural membranes are visible.
103. Mr Richards discussed the intermediate fluid in his report and raises three possibilities; this may represent chronic subdural haematoma or, secondly acute traumatic effusions over both cerebral hemispheres. The features that suggest acute traumatic effusion are the fact that the aspirated fluid contained blood, but the subdural membranes seen on the imaging are a feature of chronic subdural haematoma. Thirdly, he said a mixture of both is possible, that is that the fluid was a mixture of acute traumatic effusion and chronic subdural haematoma. If the fluid was chronic subdural haematoma with membrane formation some of the fresh subdural blood could have formed as a result of a spontaneous re-bleed, but against that proposition are two facts, re-bleeds do not normally cause encephalopathy which L had on presentation in mild form, and secondly fresh blood was seen in the posterior fossa without any of the other fluid which means that this fresh blood could not be explained by a re-bleed into a pre-existing chronic subdural haematoma, therefore, it follows that the fresh blood was caused by a recent event.
104. Mr Richards reported that if some of the intermediate fluid was chronic subdural haematoma it may have been caused by an event some weeks previously, which at the time caused fresh subdural bleeding that then matured. He said determining the cause was difficult without any features such as healing fractures also associated with shaking type injuries; the presence of membranes in this intermediate fluid does not indicate with certainty an earlier injury occurred, but that it simply indicates some fresh blood has been in the subdural space at least two weeks before the imagining which showed them.
105. The features that were present in L's brain of encephalopathy, fresh subdural bleeding and retinal haemorrhaging, in the absence of any medical condition, can be explained by a recent head injury. As already alluded to in this judgment the timing of the injury is best determined by identifying the point when L was last well and behaving normally and the point when he became unwell. The injury occurred between those two points. Mr. Richards' opinion was that whatever happened before 31^st December/1^st January an acute event occurred on that day. The three features which suggest a recent head injury are; encephalopathy; fresh subdural bleeding; and retinal haemorrhages. The exact forces required to cause such injuries are unknown but they can be caused by a single forceful shake which would cause the movement of the head backwards and forwards, and which would be recognised by a mentally competent witness to be inappropriate handling of an infant. The absence of any features of significant impact means it was unlikely that striking L's head while being changed would have caused these injuries.
106. Mr Richards said in his oral evidence, when cross-examined by Mr Storey, the timing of the injury to the baby would be identified by L being at the point of normality, the change to an unwell child and that from the papers he had gained the impression that there was gradual appreciation that the child was unwell and was getting worse. This impression, however, does not accord with the evidence of AM, DT and the others who had actually been with L in the few weeks before he was taken to hospital by ambulance and therefore Mr Richard's evidence has had to be considered in the light of that evidence.
107. Mr Richards said in his oral evidence in chief that he had not been able to identify an event or accident with any certainty; when normal changed to abnormal. In respect of the evidence of Dr Stoodley he said he was not in great disagreement with him. He explained that CT scans often missed some more subtle signs such as sub arachnoid bleeding. He said that there were occasions when he would look at scans without consultation with a radiologist but he preferred to call it a collaborative approach rather than one individual taking the lead. Nevertheless he would defer to Dr S on the interpretation of the scans. While Mr Richards accepted that the chronic SDH could theoretically have been there since the birth of the child but said that the fresh blood seen on the scans was due to a fresh event and not related to the chronic SDH. He discounted that any subarachnoid susceptibility could lead to more bleeding or rebleeding, without a cause unlike the chronic.
108. The court cannot rely on theoretical possibilities and this evidence does not support the contention that the acute bleeding was caused by a minor event on the 1^st January or shortly before causing a rebleeding of a birth trauma leading to the baby suffering a life-threatening condition which required surgical intervention. There is no clinical or other evidence to support it; not least AM does not describe any incident or event which accounts for the change in her baby on the 1^st January 2015 which she, herself, described to me.
109. Mr Richards accepted that there had been intracranial pressure such that it alerted the clinicians to carry out a tap. He was asked to consider whether during a lumber puncture procedure it was possible to create images of SDH Mr R stated it was not impossible but unlikely to produce any SDH to affect the scans. His response was the same in relation to the subarachnoid haemorrhage.
110. Mr Richards initially he said that he could not see anything in the evidence available to him of a significant change in L (with reference to the signs of clinical change) but in his oral evidence he accepted a sudden change would narrow the event that triggered the acute SDH. If the court found L to be well on New Year's Eve and New Year's Day; feeding, happy and giggling and well until 10:30pm as described at hospital by his mother then crying +++, sweaty and floppy as she described him later that evening/night that that, in his view, was a significant change in the child.
111. It was Mr Richards' evidence that the growth in head circumference recorded in hospital, from 40cm to 40.7cm in just over 13 hours, when the normal growth rate would be about ½cm in a week at this age, then that was evidence of an evolving injury caused by the abusive event taking place shortly before admission to hospital.
112. Dr N Stoodley, consultant neuroradiologist Dr Stoodley gave characteristically confident evidence and explained that in his view the chronic SDH could not have re-bled and caused the acute SDH. He was confident of the films and resolutions he had seen and that the only conclusion to be reached was that the acute SDH was away from the site of the chronic sites.
113. The identified membrane formation made it his opinion that there must have been at least two SD bleeds. In timing the chronic SDH he stated that the earliest we see membrane scar tissue is from around 10-11 days but more likely to be 2-3 weeks old (11^th to 18^th December 2014). He saw the acute collections as probably being 7-10 days on appearance on the CT scans, but that time was much closer to 1-3 days when looking at the appearances on the MRI scans. He was looking at was the biological appearances and the breakdown of the blood and therefore the precise window was difficult to time and is a blur. He agreed that causation for the acute SDH could be dated as far back as 31^st December 2014
114. As to identifying when the episode that caused the acute injury took place he said "you need to look at the clinical presentation prior to admission when there was a change in the child. Therefore, when was the last time the Court can find the child presenting normally."
115. Regarding the clinical picture in respect of L the symptoms would all depend upon the extent of the brain injury; as in L's case he got better quickly the brain injury was at the lower end of the scale, but there must have been something there, because the child was presenting as unwell. I note too that the absence of any other injury or signs of abuse related to the brain injury would, as a matter of logic and common sense, indicate that the forces used to cause the injury were also at the lower end of the scale.
116. Dr Stoodley explained that blood could not easily flow from one headspace to another unless space had been created into which it could go. In this case he did not accept the proposition that there was flow of blood from the frontal hemispheres to the back of the head to the posterior fossa. Dr Stoodley's evidence was that, on a balance of probabilities, he would not agree that a birth related SDH at the front hemispheres would resolve or go away and then later develop bleeding in the back of the head. Dr Stoodley did not accept, that because Mr Richards and Dr Stivaros had not mentioned the sub-arachnoid bleed that the bleed was not there. He was instructed to interpret the images; Mr Richards was not a radiologist (and Mr Richards expressly deferred to Dr Stoodley on the interpretation of images) and Dr Stivaros was looking at the clinical picture, rather than carrying out the forensic process. He did not consider the absence of others not mentioning the arachnoid bleed in any way affected his findings.
117. In any event Dr Stivaros later identified some subarachnoid bleeding himself (see paragraph 94 above). As with the other experts Dr Stoodley had not identified any abnormalities that would have caused the SDH. It was his view that these injuries absent any explanation are strongly associated with abusive head trauma by way of shaking. The timing of the earlier bleed is difficult to ascertain but may be at least 2-3 weeks prior to the scan but could be much earlier.
118. Mr W Newman, Consultant Paediatric Ophthalmologist Mr Newman's evidence was that the retinal haemorrhages are extensive; they extended from the optic disc to the peripheral retinal throughout 360 degrees and are of differing morphology. The optic discs are mildly elevated consistent with intracranial pressure. These RH are most likely to have occurred within a 17 day period preceding the examination on 6^th January 2015 (21^st December 2014) and are consistent with having occurred around the time L became unwell. It was Mr Newman's opinion that the absence of an episode of major accidental trauma, or an underlying medical condition, the findings of extensive multilayer retinal haemorrhages throughout 360 degrees in both eyes remained unexplained and were consistent with a shaking type injury.
119. Mr Newman's opinion was that the retinal haemorrhages would have occurred nearer to the time of L's admission (as he had said in the second of the 2 experts meetings which took place) If the court found that L was unwell as at 31^st December 2014 that would fit with his findings of the retinal haemorrhages which would be consistent with the likely timing rather than an absolute date for the RH having occurred. The white spots he had observed were of significance in that they were of help in forming the view that RH are caused nearer to time of admission because they resolve quicker than the deeper RH.
120. On cross-examination Mr Newman accepted that there are a number of clinicians that agree that widespread retinal haemorrhages can be caused by an increase in venous pressure, indeed these were described in his main report, this, however, was not the mainstream thinking. When pressed in cross-examination as to whether surgery could have caused sufficient pressures to cause RH, Mr Newman responded that "Children are regularly seen pre and then post-surgery and we don't see retinal haemorrhages due to the rise in pressure during surgery. It is unlikely that the surgery caused the RH."
121. The differences in expert opinion about RH undoubtedly exists but the evidence here is of assistance only when considered with all of the evidence about L and his presentation and the change described by his mother and father on the 1^st January 2015 from a well and contented baby in mid-afternoon and early evening to a very, distressed, ill and screaming baby by ten o'clock at night.
122. Dr Raina Liesner, consultant paediatric haematologist Dr Liesner did not give evidence and her written evidence was not the subject of any challenge. She attend the 1^st experts meeting in June 2015. She reported that there were no records of any bleeding or bruising since L has not been in his parents' care. L has had the necessary investigations to exclude a severe bleeding disorder as the cause of his bleeding, and that there is no evidence of such a disorder in the tests performed. In her addendum report dated 26^th June 2015 and written in response to questions from DT's legal representatives Dr Liesner says that in her opinion conditions which may cause apparently 'spontaneous' bleeding have been excluded. A mild bleeding disorder would not be implicated in the causation of the bleeding, but in its severity that is to say there might be more extensive bleeding as a result of the mild disorder. She does not consider further tests to be necessary in respect of coagulation or platelet dysfunction was able to assist if the court considers them necessary. None of the parties sought any further testing.

Law

123. There has been little if any argument about the legal framework within which I must consider the evidence before the court and the law that I must apply when considering that evidence. It is the local authority's case that this one in which the principal finding of fact in dispute which the court is being asked to decide is the identity of the perpetrator of injuries to L. The local authority seek a finding that the brain injuries which L was found to have sustained were caused by his mother AM. AM's submission and DT's primary submissions at the end of this part of the trial was that L had not suffered an inflicted injury. I shall return to their submissions later. It is a matter of law that the local authority bring this case and it is for them to prove their case to the requisite standard.
124. The burden of proof lies with the Local Authority.  It is the Local Authority that brings the case and they have identified the findings they invite the court to make.  The burden of proving the allegations rests with them. Much of what they seek to prove, namely the nature of injuries to L identified by the treating clinicians and the medical experts are not challenged. Nor is the causal mechanism of the acute bleeding challenged. Where there is a factual dispute it remains for the local authority to discharge their burden of proof.
125. The standard of proof is the balance of probabilities, as set out by the House of Lords in Re B (Care Proceeding: Standard of Proof) [2008] 2 FLR 141. If I accept that the evidence relied on by the Local Authority proves on the balance of probabilities that L sustained non-accidental injuries inflicted by his mother, that fact will be established for the purpose of these proceedings and all future decisions concerning L's future will be based on that finding.  If the Local Authority fails to prove that AM was responsible for the injuries but that those injuries must have been caused by another party, in particular by the actions of E as is submitted on behalf of AM, then that may be found to have consequences not only for E but for SM but for her family.
126. I have reminded myself of the words of Lord Hoffman in Re B which apply to the identification of a perpetrator as they would to any finding of fact:

"If a legal rule requires facts to be proved, a judge must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are nought and one."

127. Any finding of fact in care proceedings, and indeed in all civil cases, must be based on evidence.  As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation".
128. I remind myself of these words not only in respect of the medical evidence and opinion but in respect of any lies that I find were told by the witnesses, in particular the parties themselves, as suspicion and speculation about such lies cannot and must not form part of my analysis and decision making. I refer to the direction that I must keep in mind from the Lucas case (R v Lucas [1981] QB 720) namely that people lie for a myriad of reasons, not all of which are easily discernible, and that the fact that they have lied does not mean that it follows that they are responsible for the act or acts alleged.
129. In this case I have taken into account all the evidence before me and consider each piece of evidence in context of all the other evidence as a whole.  As Dame Elizabeth Butler-Sloss, President observed in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567 the court "invariably surveys a wide canvas". A point further amplified by her in Re T [2004] 2 FLR 838 at paragraph [33]:

"Evidence cannot be evaluated and assessed in separate compartments.  A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof."

130. I have reviewed the medical evidence for, as observed by Dame Elizabeth Butler-Sloss, PFD in Re U, Re B [supra] "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 may throw a light into corners that are at present dark".  This principle drawn from the decision of the Court of Appeal (CD) in R v Cannings [2004] EWCA 1 Crim, an object lesson as to the effects of changing medical orthodoxy in which Lord Justice Judge (as he then was) said:

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

131. I have regard, because of this, to case law which has emphasised the importance of taking into account to an extent that is appropriate in any given case the possibility of the unknown cause and to the decision of  Lord Justice Moses in R v Henderson and Butler and others [2010] EWCA Crim. 126 [1]

"Where a prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."

132. Mr Justice Hedley, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point at [10] in Re R(Care Proceeding: Causation) [2011] EWHC Fam 1715

"A temptation there described is ever present in family proceedings too and in my judgment should be as firmly resisted there as the courts are required to resist it in criminal law.  In other words, 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."

133. When seeking to identify the perpetrator or perpetrators of non-accidental injuries, the test as to whether a person is in the pool of possible perpetrators is the likelihood or a real possibility that he or she was the perpetrator as set out in North Yorkshire County Council v SA [2003] 2 FLR 849; the need do so was emphasised by the Supreme Court in Re S-B (Children) [2010] 1 FLR 1161. The pool of perpetrators in this case was not agreed by all the parties to the proceedings; AM and DT included LS, SM and her three children T, R and E as possible perpetrators for they had all had at some point of the timings identified by the expert witnesses had participated in caring for L.
134. It is in the public interest that those who cause injuries should be identified (Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2005] 1 FLR 285). Plainly it is also in the interests of the child. If after considering all the evidence I remain uncertain and decide that it is clear that the perpetrator cannot be identified then I should say so and I should not "strain" on the evidence in this case which was put before me to identify a perpetrator on the simple balance of probabilities. The injuries that L has suffered would amount to significant harm in the context of s31 of CA 1989, but I decide that neither parent was responsible for his injuries the criteria in s31 would not be met.
135. The local authority and the children's representatives have both submitted that the perpetrator can be identified as AM. The credibility of the respondents and the intervener are ultimately a matter for the court, but the fact that they lied about one or more matters does not mean that they have lied about everything, specifically whether any one of them was responsible for the injuries caused to L. I shall consider their evidence in its totality within the context of all the evidence before this court.

Analysis and conclusions

136. I shall now consider the evidence of the parents. AM's evidence was at times inconsistent and contradicted her earlier accounts and evidence. In chief AM explained some of her own history, which must have compromised her own knowledge, experience and awareness of childcare. She may well rely on her mother now but from her own account her mother did little to protect her as a child and there is no evidence that she would have been able to pick up examples of good childcare while she was growing up in her own family.
137. AM and DT did not live together at first, after L was born. AM described how L did not like to be put down and wanted to be held and that she would not allow him to cry so she would pick him up and 'mard him.' At night he slept with her, despite advice from the HV not to do this.
138. When she had moved in with DT she found herself isolated and her mother stopped visiting as often due to DT's drug use, and his dog. She told me she was responsible for L's night time feeds and nappy changes and could not recall any time on which DT took over the night care of L. During the day DT was at work and she was clearly isolated in caring for L without the level of support from her mother she had previously. She told me did not invite her friends to the home. DT returned home from work expecting his washing done and evening meal prepared and on both their accounts would invariably leave to visit friends to either smoke and to deal cannabis. He appears have had very little interaction with L whether by choice or because AM did not let him; or a combination of both. It was reduced further after the death of his mother in October 2014. The only source of support was when she took L to her mother's and left him there for an hour or so in order to go back home to continue with her chores.
139. AM has said that she is not seeking to blame anyone else but for most of time that these proceedings have been taking place she has sought to cast blame implicitly, and at times explicitly, on SM's children and even SM herself. From the outset of the hearing it was said on their behalf that AM (and DT) did not seek a finding that E caused L's injuries; but her case and that of DT has been put in such a way that in order to exculpate themselves they have not only placed E in the pool of potential perpetrators, they have, despite their protestations to the contrary, sought to identify her as the likely perpetrator of L's injuries. Indeed AM expressly told me in her oral evidence that she was "hanging onto the possibility that E had caused the injuries".
140. The way she has hung on to that has been used to provide a distraction from the evidence, which points to AM herself as the most likely perpetrator. It seems that she had encouraged DT to think E must be responsible as he said to the police "her auntie's daughter's admitted to chucking him up in the air, spinning him around even thought [sic] he can't hold his own head so they've got to………go through court hearing to try and prove if it's her what's done it..."
141. While it is understandable, in very many ways, that AM does not want to be found to have been responsible, not least because the local authority's current plan is to permanently remove her two children, her persistence in pursuing a case against E (her cousin of 10 years) raises questions about her ability to protect children from stress and trauma as she must be aware of what she did to lead to L's injuries. Notwithstanding that lack of care for her aunt and her family and the lack of insight which it shows (for it will be difficult for cross-familial relationships to be repaired which will require a greater amount of maturity and compassion than she has shown herself) the plans as set out by the local authority do not encourage full and frank disclosure. This is something which I keep in mind when considering the future of the two children, L and K, and their vulnerable young parents.
142. AM denies causing any injury to her son and did so repeatedly in her oral evidence, but is clear that she has not be consistent in her evidence in other areas. AM has lied by omission and directly about the events on the 1^st and 2^nd of January 2015. In particular she has since L was taken to hospital sought to give an account which considerably reduced the time L was alone with her on his return home by several hours; she did so by saying he was brought home at 5 pm and that it was dark (she later had do concede that it was shortly after 3pm as a result of the her phone records obtained by the police). AM told the hospitals and the police that L was fine until after 10pm but later tried to imply that he was already unwell on his return home that afternoon.
143. Her apparent inability in evidence to recall details of this significant afternoon and evening was surprising. She often said "I can't remember" in answers to questions of detail which it is reasonable to suppose she would recall particularly as she told me that she had gone over that evening again and again; when confronted by the evidence from her phone, from other witnesses, including DT she said she did not remember what time L came back; she did not remember what time she fed him; she did not remember when DT arrived back; she could not remember whether L had a bottle in the night or the next morning. Her lack of recollection of that evening's feed is a particular matter of concern when it is a matter of unchallenged record that she told the ambulance crew that L had been unwell since 7pm last.
144. This apparent lack of ability to recall events goes to her credibility as she was able to remember without difficulty when asked in oral evidence who was at her house on 19^th December 2014 at 19:18 when she sent DT a text asking "Did you leave a bud baby". A change in a baby's feeding routine is a sign something is wrong, which is no doubt why AM contacted SM on her way to hospital to ask SM how he had fed when he was with her 19:52 "Hoya SM on way to hospital with L do u remember how many bottles and nappies he did x"
145. In her statement dated the 22^nd July 2015 she said "After L returned to our care on New Years [sic] Day he became unwell. He was asleep when he returned to us and although he woke up briefly, he went back to sleep. Overnight he was crying as if in pain and was sick which is why we sought medical help." Not only does this contradict what she said at hospital and to the police, it contradicts her own oral evidence. It implies that DT was there most of the time, but is now clear from his evidence that he was gone for six hours and probably did not get home until 10 pm or just after. I shall not carry out an exhaustive analysis of the entirety of her evidence but it is clear that she has not told the court the truth and she has still not said what actually happened to L on the 1^st of January which led to the change from a baby who was well to one that was seriously ill.
146. This statement which she signed as the truth implies that there was no delay in seeking medical attention. No understandable explanation has been given by AM as to why she did not seek medical attention sooner and waited until the next day, not even in her oral evidence. The fact that she took L to her mother's is undermined by the fact that she did not take L to be seen by her mother or, at the very least, have her mother come out to the car. The only likely explanation is that she did not want her mother to see the state of the baby.
147. The whole of that night AM says that L did not sleep or feed properly and the next day was the same with taking no more than a couple of ounces of milk which he then vomited up. He was sick, not feeding and asleep after being given Calpol; when not dosed with Calpol and she could give him no more he started crying and screaming as he had on the previous night. AM has not explained why she did not call for medical assistance for nearly 24 hours. I did not find AM to be a credible witness. Although it is to her credit that in the description that she eventually gave to the court she did not try to hide the changes in her child on the night of 1^st January 2015, I cannot put her lies and omissions to one side as they directly concern the events in question. Her repeated response that she could not remember the events of the evening and night of the 1^st/2^nd January 2015 can only have been as a result of avoiding the answers she should have given.
148. It has been submitted that DT was not the most reliable witness and a poor historian of fact, which was not surprising, given that he was constantly smoking cannabis. That must affect his ability to, as he said, remember times and dates but I gained the impression that he was trying his best to remember what had happened and he certainly did not attempt to present himself in a favourable light. He seemed, and I have no doubt that he was, regretful about not taking L to the hospital; he said so explicitly on more than one occasion during his evidence. His regret at what he has missed out with L when he was at home was heartfelt. I accept his evidence and where it differs from that of AM I prefer his except in one regard; I find that although he admitted assaulting AM in April of 2015 it is more likely that he hit her head on the sofa, rather than push it onto the sofa, and, that he did this more than once.
149. DT told me that he was overwhelmed and scared at the birth of L and that he did very little in the way of L's physical care. The situation got worse when his mother died; the time he did not spend at work and he wanted to be around his friends smoking cannabis. He spent about £30 everyday on cannabis. He gave AM and L very little support which he now regretted. I accept not only did he do very little child-care but that, as AM said, she often stopped him when he tried. I do not, therefore find it surprising that he accepted what she told him about the baby, including on the 1^st January 2015 when instead of seeking medical help they drove to her mother's. No doubt his disengagement from mother and child was exacerbated on this as on other occasions by his smoking cannabis over several hours prior to his return home.
150. As to his evidence DT accepted that his recollection of dates was poor because when smoking cannabis he would lose track of time but he said could picture the events as they unfolded in his mind. He accepted that he had lost track of time on the 1^st January and that he was away for hours. DT remembered a conversation with AM that L's hat would not fit, but there had no recollection that there was any concern about it.
151. DT did not get any text message from AM before he came home to say L was not well and there is no record of such a message on her phone. He admitted that he would not have known whether L cried during the night because he was "conked out from the cannabis". The following day they all went shopping and L was asleep in his pram. On their return home that L began to cry, he looked the same but more tense although his eyes did not roll to the back of his head. He knew that L had not been fed since the day before. He recalled being told that the bruise to L's cheek was as a result of L pinching himself which he accepted; he was an experienced father and had left the care of L almost entirely to AM.
152. I found SM to be a calm and an impressive witness, not least because despite the fact that she and her children had all been implicated in L's injuries she answered all the questions put to her and tried to assist the court. SM did not dissemble or avoid questions put to her, unlike AM. She is an experienced a mother of four children and that was apparent form her evidence about her own children as well as about L when she had looked after him. SM did not attempt to paint a picture of her children that was coloured by a desire to illustrate them in the best possible light. She described their sibling rivalries and the way the sisters would try to get each other in trouble in a way that would be familiar to anyone who has ever been a sibling themselves.
153. The local authority filed a statement from Rachel Thomas as to SM's abilities as a parent which not only raised no concerns but was glowing in the assessment of her parenting. She had retained empathy for AM's position which is greatly to her credit. I had no difficulty in accepting her evidence and where it differs from that of AM and DT I prefer her evidence. I have set out her evidence above and will not repeat it, however, in particular I accept that as she said L was awake and happy when he returned home on the 1^st January as she remembered. I accept that E helped to get L out of his car seat.
154. SM told the court that she had spoken to the Head Mistress at E's school about what was going on with L and shortly after she received a phone call saying the E had become upset in school and had kicked out at another child. She spoke to E and her behaviour and SM accepted that she reassured her daughter that she had not caused the injury. I do not think that there was anything sinister in her actions which were entirely appropriate and supportive of her child.
155. I have dealt with the evidence of LS above. He clearly found giving evidence difficult but was a calm, although nervous witness and did not avoid questions, obfuscate or deflect. I accept his evidence.
156. There is no evidence that E injured L when she lifted him up and handed him to her sister. This explanation was rejected by the expert witnesses and their opinion is confirmed by the complete lack of any ill effects on the child afterwards. He was well he had showed no signs of brain injury. I discount the fact that he slept a bit longer than usual on the afternoon of the 21^st December 2014 as explicable by the change in his routine as he had been in the habit of sleeping in his mother's bed with her; in any case he was still a very young baby and sleeping a great deal during the day is not a remarkable event in a child whose chronological age was about two months.
157. It should be made clear to E that there is no question that she hurt or injured L in any way when she lifted him up and handed him to her sister R and that in this judgement I expressly wish it to be understood that she was never responsible for any injury to L. He was well the whole time he was with E and her family and, according to both his parents, he was well he went home.
158. Similarly, and to make certain it is understood to be the case, there is no question that T injured L in any way when she changed his nappy at New Year. He returned to his parents from staying with SM on New Year's Day in good health and was not reported as becoming unwell until over six hours later. The baby's head falling back as he was changed was expressing discounted by Dr Cartlidge, as there would have needed to be signs of impact which there were not; and, L was fine and healthy afterwards, continuing to be so (according to his parents) until some 6 hours after he was safely delivered home.
159. As is set out above based on the evidence on his parents by the time DT returned home L was already unwell, screaming, tensed up and stretched out; he father observed his eyes rolling back in his head. He described him as being floppy. L would not feed and was vomiting.

Conclusions

160. All the experts were of the opinion that the most likely explanation for the injuries found on L were caused by someone shaking him. I have set their evidence out in detail above and I do not intend to repeat it here. Although they did not identify when the child became ill which would, in turn, identify when he was injured they, quite properly and carefully, left such findings to the court. The description given by AM and by DT in their oral evidence points disclosed the point at which L stopped being normal and became ill which was some hours after he returned home on the afternoon of 1^st January 2015. Their descriptions are of a baby that was clearly unwell and displaying the symptomology of an infant who has suffered trauma to his brain.
161. I conclude on the basis of the evidence in this case pertaining to this child that L was shaken by his mother shortly before his father returned to their home at 10 pm on the 1^st January 2015. I find that AM caused the acute subdural haemorrhages and other brain injury to her son by shaking him on the evening of 1^st January 2015. I do not know precisely how this happened but it is more likely than not that as she was tired and hung-over had been caring for the baby on her own for many hours had become frustrated when feeing him. This is conclusion is supported by the bruise on his cheek observed at hospital and mostly likely to be inflicted by AM when she pinched him while trying to feed him.
162. I conclude that the bruise observed by the GP on the 1^st December 2014 was more likely than not inflicted by AM pinching his cheek; probably when she was feeding him as was observed by Dr Cartlidge, based on his experience.
163. I have reviewed the expert and other medical evidence above and I am unable on the evidence before me to find that there has been a previous episode in which the baby was shaken in the absence of any other signs other those of chronic SHD seen on the scans, for as observed by Mr Richards, determining the cause is difficult without any features such as healing fractures also associated with shaking type injuries; and I accept his opinion that the presence of membranes in this intermediate fluid does not indicate with certainty an earlier injury occurred but simply indicates some fresh blood has been in the subdural space at least two weeks before the imagining which showed them.
164. Although I am unable to conclude what mechanism may have been the cause of the earlier chronic SDH and when it occurred I take into account the experts' view that chronic SDH may bring about a susceptibility to rebleeding, their opinion about that along with the lack of any other evidence of injury and neglect and the relatively rapid recovery of the baby, the nature of the injuries themselves, in addition to his positive prognosis have contributed to my finding, as I do, that the force used by AM when she shook her baby was more likely than not to have been as a result of a momentary loss of control and at the lower end of the scale of force necessary.
165. The loss of control however fleeting must have been sufficient to cause these injuries and while there may have been a contributing factor in some possible re-bleeding the effect on L was, on the evidence of his parents, rapidly apparent and I do not accept that AM would have been unaware of the connection between her own actions and the baby becoming seriously ill. She may have been frightened, shocked and even surprised at the effect on L but as she has offered no explanation and has sought to mislead about the events of that evening any attempted analysis of her response would be speculative. It was the evidence of both AM and DT that L was already in considerable distress (as described by DT and set out above) when he returned home. DT would not have been aware of what AM had done and she did not tell him.
166. The reasons for my conclusions are based only the evidence put before this court and my assessment of each witness.
167. This is my judgment.