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URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B188.html
Cite as: [2014] EWFC B188
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WEST LONDON FAMILY COURT
JUDGMENT: 27.11.14 – HHJ Corbett
IMPORTANT NOTICE 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 child and members of his 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.
Representation:
Ms Mitchell – counsel for the LA instructed by the Local Authority solicitor
Mr Butterfield – counsel for the M instructed by Edward Hayes LLP
Mr Love – counsel for the F instructed by TV Edwards LLP
Ms Venters QC – counsel for the Guardian, Venters solicitors
1. I am concerned with the welfare of a child D born in April 2014. I have conducted a fact finding hearing from November 7th to 21st. The matter comes before the court to determine the non accidental and perpetrator issues; his 2 parents being in the pool of potential perpetrators. The LA has filed a schedule of findings which they seek to establish relating to head injuries suffered by D. The parents deny inflicting any injury upon D and further deny any knowledge of the other injuring D. The Guardian states in her Counsel’s position statement that she takes a neutral position. In her final submissions she invites me to make the findings sought by the LA.
2. THE LAW
In Re JS [2012] EWHC 1370 (Fam), Baker J summarised the current case law as follows:
(a) In determining the issues at this fact-finding hearing I apply the following principles. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them.
(b) Secondly, the standard of proof is the balance of probabilities (Re B [2008] UKHL 35). If the local authority proves on the balance of probabilities that J has sustained non-accidental injuries inflicted by one of his parents, this court will treat that fact as established and all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that J was injured by one of his parents, the court will disregard the allegation completely. As Lord Hoffmann observed in Re B:
i. "If a legal rule requires the facts to be proved (a 'fact in issue') 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 0 and 1."
(c) Third, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12:
i. "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."
(d) Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:
i. "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."
(e) Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.
(f) Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S [2009] EWHC 2115 Fam).
(i) Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam:
i. "There has to be factored into every case which concerns a disputed 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."
ii. The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.
(j) Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).
In Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384 Hedley J also said the following:
‘In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.’
The frontiers of medical science are always expanding. As Professor Luthert was quoted in R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980 para [135]:
‘There are areas of ignorance. It is very easy to try and fill those areas of ignorance with what we know but I think that it very important to accept that we do not necessarily have a sufficient understanding to explain every case’.
It is the task of the court is to decide on all of the evidence before it and it can depart from the view of expert evidence provided sound reasons are given for doing so (Re B (Care: Expert Witnesses) [1996] 1 FLR 667 at 670 per Ward LJ.
When considering the medical evidence the LA reminded the court of the following comments of Bracewell J in Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200:
'[24] …Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened.'
As Counsel for the LA rightly submits, a non-accidental injury can range from a lack of care on one end of the scale to deliberate infliction at the other end of the scale.
3. Determining the facts is a difficult task which must be performed without prejudice or pre conceived ideas. The court is guided by many things including the inherent probabilities, any contemporaneous records, any circumstantial evidence tending to support one account rather than the other and the overall impression of the characters and motivations of the witnesses. (Re B per Baroness Hale)
4. It is very important to guard against a reversal of the burden of proof as occurred in Re M 2012 EWCA Civ 1580 where the Judge had found that absent a parental explanation there was no satisfactory benign explanation ergo there must be a malevolent explanation. Ward LJ stated that this conclusion did not necessarily follow unless wrongly the burden of proof had been reversed.
5. When confronted with cases which turn almost exclusively upon expert medical evidence is helpful to have in mind the comments of Butler-Sloss P in Re LU & LB 2FLR 263 when the Court of Appeal chose to provide guidelines in particular in consequence of the case of R v Cannings [2004] EWCA Crim 1 :
a. The cause of an injury or an episode that cannot be
explained scientifically remains equivocal.
b. Recurrence is not in itself probative.
c. Particular caution is necessary in any case where the medical experts
disagree, one opinion declining to exclude a reasonable possibility of natural
cause.
d. The court must always be on guard against the over-dogmatic expert, the
expert whose reputation or amour propre is at stake, or the expert who has
developed a scientific prejudice.
e. 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 will throw light into corners that are at present dark.
6. In Re W (Children) [2009] EWCA Civ 59 Wilson L.J. said:
"The moral which I draw from this case and will never forget is that an hypothesis in relation to the causation of a child's injuries must not be dismissed only because such causation would be highly unusual…”
7. As the F and the M are not native English speakers the comments from Moor J in Swansea County Council v MB & Ors [2014] EWHC 2842 (Fam) are relevant and apposite when assessing in particular their evidence
[21] The parents
are both Polish. English is not therefore their first language. The majority of
their evidence was given to me and to the Police in Polish and translated into
English by interpreters. I accept that this means I must take great care in
assessing their evidence, given that processing information provided in a
foreign language may put the participant at a disadvantage. I must guard
against the very real possibility that questions or answers or both are
misunderstood or at the least nuances and shades of different meaning are lost
in the process. I also accept the submissions of Mr Jones (for the Father) that
answers may be repeated by the interpreter in a dispassionate/neutral manner
whereas the original response may have been loaded with relevant emotion. I
have taken all this into account in assessing the evidence of both parents.
8. Care proceedings were issued on 26.6.14. D is currently placed in foster care. Contact to his parents is supervised.
9. I have heard oral evidence from the following witnesses, as well as considering the trial bundle in its entirety.
Clinical:
Dr SB - Consultant paediatrician
Dr J - Consultant paediatrician
Dr WH - Consultant paediatrician
Nurse ER - GP Practice nurse
Nurse P - hospital nurse
Independent medical experts:
Dr C
Mr R
Mr N
Mr W
Both Parents
4 housemates of the parents.
10. Background
The M was born in 1994 in Romania and came to the UK in 2013 after finishing her education there. I have seen a copy of her Romanian IB certificate; in the UK she was studying for an HND in business management at the London School of Science and Technology before she had D.
11. Her first language is Romanian. She has had an interpreter throughout these proceedings; she gave her evidence through an interpreter.
12. The F was born in 1990 in Romania and came to the UK in April 2011 working ever since as a plasterer 6 days per week, taking a few days off after D was born. He also gave evidence through an interpreter.
13. The parents have been a couple for a number of years. The F came to the UK in 2011 and was joined by the M in 2013 once she was 18 and had completed her education in Romania. They live together; at relevant time in May 2014 this was in a rented property in the LA, another 6 adults shared the property. The parents and D had one bedroom and shared the rest of the house. The parents moved out of that property in October 2014 due to the fact that the lead tenant needed their room for his own family. The housemates are also Romanian, none of them knew the parents before sharing the house with them ie they had no pre-existing friendships.
14. The parents had wanted to have a baby but upon learning that she was pregnant M went to her GP in September 2013 when the possibility of a termination was discussed. The parents made a decision to keep the baby. These events are not mentioned in the parents’ statements.
15. D was born at the N hospital at 37 weeks after an unremarkable pregnancy and delivery. At birth he weighed 3.06kg, with Apgar scores of 10 at 1minute and 5 minutes. He was discharged home with his mother the day after his birth. Initial midwife and HV records show no concerns at all.
16. On 19.4.14 D was taken to the N hospital by his M because of her concern that he was suffering from diarrhoea that was getting worse. The F joined the M there when he had finished at work. D was kept in overnight and discharged when clinically well.
17. On 13.5.14 D was seen for his 6 week check and no abnormalities recorded.
18. On 18.5.14 D was taken to Accident and Emergency at the N Hospital by his parents at 8.59am. They were driven there by their house mate Mr CV in his car. The Triage notes refer to the fact he was brought in by his parents, “came running into resus saying the baby stopped breathing for a few minutes no change of colour, was fine yesterday”. He was reportedly crying on arrival ie breathing. The receptionist put out a call to the crash team, Dr B attended.
19. No CT or other scan was carried out, on examination D was found to have lactic acidosis and he underwent a full septic screen and placed on 7 day course of antibiotics. He was discharged on 20.5.14, and booked to return to out-patients for EEG and MRI scans.
20. On 30.5.14 M went to her GP surgery where D had his routine immunizations. I heard evidence from Nurse ER who administered those. Her evidence is important since she was the last professional to have seen D prior to his admission to A+E later that day. She has confirmed that the appointment was in the morning just after 10am. He was well at that point during the appointment, lasting about 20 minutes.
21. Later that day D suffered a collapse at home with his parents. Members of the house called 999 but the parents became so anxious that they decided to take D to hospital by car, driven by Mr GP. He arrived at 20.12h, where he was said to be in a state of near death, making minimal respiratory effort and no signs of life. Resuscitation was commenced immediately and respiration re-established but with multiple episodes of apnoeas and slow respiration. Dr WH was the consultant paediatrician responsible for D’s care from arrival.
22. The initial CT scan dated 30.5.14 showed “four foci of hyperdense material suggestive of acute haemorrhage above the tentorium and overlying the right temporal lobe inferiorly, the right temporal lobe laterally and a subtle but larger linear focus overlying the posterior aspect of the temporal lobe. All three appeared extra axial”.
23. D was admitted to the N hospital then transferred to the S hospital where he was placed in ICU. He was neuroprotected until day 3 and on artificial ventilation until day 5. A blood transfusion was given on June 1st.
24. Another CT scan was performed on 1.6.14 showing extra axial and cerebrellar haemhorrages and several bleeds to the brain. D was admitted to the S hospital.
25. On 4.6.14 a MRI scan showed bilateral convexity CSF subdural hygromas, a very small volume of subdural blood in the posterior fossa and a trace of subarachnoid blood with probable parenchymal micro haemorrhages towards the vertex.
26. A Skeletal survey revealed no fractures.
27. On 4.6.14 Ophthalmological assessment revealed extensive widespread haemhorrages retinal and pre-retinal and subhyloid obscuring both maculae.
28. On 5.6.14 D was transferred back to the N hospital and next day to GOSH to manage his condition and relieve brain pressure. He underwent procedures to drain the subdural.
29. On 11.6.14 a further ophthalmology examination was carried out. The appearances in both eyes were similar with more haemorrhage on the right than left, multilayer haemorrhage throughout 360 degrees all 4 quadrants from the optic discs towards the peripheral retina. There were pre retinal haemorrhages obscuring both maculae.
30. On 13.6.14 following a strategy meeting the parents agreed s20 accommodation. D was discharged back to the N hospital from where he was discharged on 16.6.14 to foster care.
31. Following issue of the s31 application the case was allocated to me for case management. I determined that it was necessary for 4 independent medical experts to be instructed, the Guardian’s solicitor acting as lead solicitor. They each provided reports and attended an experts’ meeting by telephone on 30.10.14. There is no schedule of dis/agreement. I heard oral evidence from each of the experts.
32. Dr C
This expert provided a paediatric overview of D’s injuries. Dr C gave oral evidence before Mr R or Mr N. He sets out the potential causes for the injuries and their likely timing. In the experts meeting Dr C was inclined towards a second episode on 30th May as well as the 18th May.
By that time he gave his oral evidence, he had not heard Mr R inform the court of his opinion that there was little if any acute blood on the scans and that there was no hypoxic-ischemic injury.
33. Chronic Subdural haematoma or acute traumatic effusion?
Rightly Dr C defers to the consultant paediatric neurosurgeon Mr R when it comes to the interpretation of scans. However as a consultant paediatrician he has a great deal of experience in this field.
He accepts that Mr R is very experienced, that he has seen the scans and accepts that if Mr R says it was chronic it is chronic and there is no reason to disbelieve him.
34. Was there a second event on 30.5.14?
In the experts’ meeting Dr C stated:
“Because of what Mr N has found in respect of retinal haemorrhage and to a lesser extent the acute blood being probably less than 10 days old and the grey-white matter differentiation abnormality probably being relatively recent, I am including [sic] to this that there’s been a second episode on the 30th as well as the first episode on 18th May.”
However, in cross-examination when it was put to him that there was no mention in Mr R’s report of any hypoxic-ischemic injury he stated as follows:
Q: I don’t see in Mr R’s reports any radiological evidence for ischemic injury
A: Somebody said there was an ischemic injury. I don’t want to hang on too much to this I accept what Mr R said that images are result of child who has nasty seizures then I let that go.
Dr C accepted that it is rare for there to be a shaking injury causing retinal but not subdural bleeding and he accepted it was extremely unlikely that there was a trauma on 30th May sufficient to cause retinal bleeding but only very small fresh subdural bleeding. In his subsequent oral evidence, Mr R was of the view that there was none at all.
35. D’s collapse on 30.5.14
The treating clinicians state in the medical notes that the findings on the scans could not explain D’s presentation on 30.5.14.
Dr C considered the possibility of D having had a fit. He stated:
“A fit wouldn’t be something that goes through my mind in that situation. Because it is sudden stopping moving stopping breathing, going very pale then breathing again – there is no jerking. You can have unusual fits in small children without jerking, though they’re unusual. You usually have something else happening as well.”
In cross examination, Dr C stated that he could not exclude the possibility of a seizure causing D’s collapse on 30th May. He confirmed that while D’s presentation was unusual for a seizure it was not unknown.
36. D’s collapse on 18.5.14
Dr C said that where a baby transiently stops breathing it is nearly always because milk has gone down the wrong way. He also said any reflux or choking was frequently not obvious.
He did not think a seizure was likely as D did not have a fit. Subsequently Mr R told the court that “sometimes eye flickering tells you that there is a seizure going on”.
D had been prescribed Gaviscon for reflux when in hospital 18th-20th May.
Dr B, one of the treating doctors on 18.5.14, said that if a baby stopped breathing if milk goes down the wrong way that could be short lived or more prolonged.
37. Causation of Subdural haematoma and Retinal Haemhorrage
Dr C, like Dr R, subsequently accepted that a single movement could be enough to cause D’s injuries. When the scenario of the F running 140 metres with D in his arms was put to him he gave it careful consideration. He accepted that the F running with D as demonstrated in court could generate the pivoting and rotating forces necessary to cause both Subdural haematoma and Retinal Haemhorrage. “ I am starting to be persuaded that the subdural bleeding and retinal haemorrhages, if Mr N can be stretched that far back, could be sustained during that run to the hospital”.
38. He accepted that given D had a cold on 18.5.14, if a lot of mucus was around his voice box, it could give the impression of him struggling to breathe. He was clearly troubled by the duration of the parents’ panic before leaving the house if in fact this collapse was due to a reflux, but did accept that it was not unusual for parents to panic out of proportion to what was happening to their baby. Mr R in a similar vein said that what might appear relatively mild to him would be immensely worrying to a non-medically qualified parent.
39. Taking everything into account, Dr C accepted that the account given by the parents was medically plausible.
“I think that if we knew for certain that what this child had was something that would cause a panic reaction in parents, something going the wrong way down or whatever and then they continued to panic because of what they had seen – baby may be improving but still panic and wanted to get to A&E as quickly as possible – ran with baby holding him away from chest a lot of head movement – if I saw it on video I would not stand back and think there must be something else going on with this baby. Even though it’s rather unusual it’s not so unusual as not to be medically implausible.”
His answer to the final question asked on behalf of the M was as follows:
Q: taking it all of that into account the parents’ account could explain medical scenario ?
A: yes
39. Timing
Dr C defers to Mr R and Mr N in relation to timing of the Subdural haematoma and Retinal Haemhorrage.
40. Degree of Force
Given the absence of external signs of injury or other injuries, Dr C said that the degree of force was at the lower to moderate end of the range.
41. Mr R
Mr R is a Consultant paediatric neurosurgeon. His evidence is of particular importance in relation to timing of D’s injuries.
In his written evidence and at the experts’ meeting he was of the view that there was undoubtedly one episode of trauma and possibly two. By the time he gave his oral evidence he had the opportunity to see a CT scan which he had not previously seen.
42. 30.5.14 – acute or chronic head injury?
To answer this Mr R considered whether there was any fresh blood present on the scans on or around 30.5.14 and also whether what was seen on the scans was acute traumatic effusion or chronic subdural haematoma.
In his written report Mr R considered it likely that the dark fluid in the subdural space was more likely to represent a chronic subdural haematoma rather than an acute traumatic effusion.
In cross examination he accepted that what was seen on the CT scans and MRI was “very likely” to be chronic subdural haematoma rather than acute traumatic effusion.
He explained that fresh blood appears white on the scans, in these scans it was black. He said in examination in chief “ none of the scans identified significant amounts of fresh blood”.
“On the three images that we have, the two CT scans and the MRI scan, there is no significant volume of acute subdural haemorrhage on any of them. There are some little flecks of fresh blood but you can see those in chronic subdurals as well. There is no significant amount of blood which would usually be expected following a recent significant shaking injury on any of the scans.”
Mr R went on:
“Again, looking at this scan in front of me, 1st June - I can bring up 30th as well - I am not convinced there is any clear-cut visible light blood there at all. The 1st June one was a scan with contrast, which can make some of the other vessels look a bit whiter and that could be interpreted as blood, but I am not convinced that there is any fresh acute blood there on these scans at all. If we look at volumes, as I have said, chronic subdural haematomas do have a tendency to ooze little bits of blood into the subdural space spontaneously, so, if there are any little flecks of fresh blood, that could be as a result of spontaneous little re-bleeds.”
Mr R confirmed that what was seen on the scans was not acute blood mixed with older blood so as to disguise the fact that there could have been an acute bleed. Had there been fresh blood mixed with a chronic subdural, the scans would show grey fluid, rather than the black fluid present on D’s images.
Looking at the scan dated 1st June which he had not seen before the trial began, Mr R again confirmed that “there is no acute blood”.
43. What was seen on the scans? Acute traumatic effusion or chronic subdural haematoma?
Mr R was of the opinion that they were chronic subdural haematoma because the collections appeared black on the scans, D’s head circumference enlarged across the centiles from birth 1.4.14 to 30.5.14, consistent with raised intra cranial pressure over an extended period and the fact that his skull sutures were separated – in oral evidence he described this as “impressive”, this would not happen with acute effusion.
“As I said earlier, they [chronic subdural haematoma and acute traumatic effusion] look the same on scanning, but a chronic subdural haematoma being abnormal fluid that should not be in an infant would be expected to expand the skull to accommodate it. You expand the skull by separating the joints of the skull with sutures and that takes a bit of time. It does not happen immediately. In this case, by the time David had his first scan on 30th, within a very short period of time, a matter of hours of the acute collapse, the sutures were quite significantly separated…. That leaves me to consider that we are dealing here with a pre-existing chronic subdural haematoma and not an acute traumatic effusion. If it was an acute traumatic effusion and the sutures had separated quite widely very quickly, I would be extremely surprised. I cannot say that 100 per cent but, looking at it, there is quite impressive separation with the sutures, I think that this had developed over a period of time much greater than a few hours between the acute collapse on the 30th and the CT scan.”
Mr R further indicated that the appearance of the widened sutures on the scan was entirely consistent with D’s injury having occurred on 18th May and refused to accept at all the sutures widening to the extent visible here over a period of a few hours:
“The sutures would have widened in response to this extra fluid accumulating….And the period between the 18th and 30th, in terms of the scan appearances, is quite, you know, not surprising - the sutures widening over a period of a week to ten days, yes, you could accept that. I would not accept the sutures widening to this extent over a period of two or three hours.”
He rejected the notion put to him by Counsel for the LA that a second shaking injury on 30th May could have widened the sutures further.
Q: All right. Would a second shake cause the sutures to widen?
A: No. They are quite sticky and, whereas the fontanelle can change from moment to moment, the sutures do not tend to widen from moment to moment.[1]
In summary, the widening of the sutures cannot be as a result of an acute bleed or an acute traumatic effusion caused on 30th May.
a. Copper-beating (indentations on the inside of the skull) were visible on the scans. Mr R indicated that while copper beating was not diagnostic of a chronic subdural haematoma, it is consistent with it as it is consistent with raised intra-cranial pressure over an extended period of time.
b. The possibility of a membrane showing on the scan of 1st June 2014.
Mr Richards concluded that it is “very likely” that what he saw on the scans was chronic subdural haematoma. I accept his professional opinion.
44. Was there any brain damage apparent on the scans?
The first CT scan reports this as a possibility. The treating consultant who viewed this initially asked for an MRI scan which was carried out on 4.6.14. In his report Mr R does not deal with whether there is a sign of hypoxic ischemic brain damage. Dr C takes the possibility of this into account at the experts’ meeting.
In his oral evidence Mr R was very clear that the later scan showed no brain damage at all “on the much more sensitive MRI scan there is no evidence of it at all”.
“ we have got absence of hypoxic-ischemic change in the brain and absence of acute subdural haematoma in the brain”
Mr R is the expert in this field. I find that there was no hypoxic ischemic brain damage on 30.5.14.
45. Was there a second injury on 30.5.14?
In his report Mr R said he would consider it unlikely that D suffered a shaking injury on the evening of 30.5.14. This was explored with him in great detail in evidence.
He explained the reasons for his view
a. There is no evidence on the scans of any significant acute subdural bleeding on 30th May.
b. There was no evidence of any brain injury and no hypoxic-ischemic damage to D’s brain.
c. D already had a chronic subdural haematoma.
I am grateful to Counsel for the Mother for his detailed analysis of Dr R’ s evidence here set out below.
Q Would you agree that even though the scans may not have identified a large volume that that does not necessarily mean that D did not suffer approximate to 30th May a serious head injury?
A I do not say that he did not, that is correct. The point that I would make is that, given we know that acute subdural bleeding can occur spontaneously in chronic subdural haematomas - for example, acute traumatic effusions normally occur with significant amounts of subdural bleeding - we do not have any evidence of acute subdural bleeding in significant amounts in any of the scans, so, for the scenario you are suggesting, and I am not saying that it is impossible, but it would be very unusual.
“There is no clear evidence of any acute subdural blood or contusions in the brain or acute bleeding in the brain visible on the scans that day. I find it very difficult to say that there was a significant acute traumatic event on that day that did not leave any trace of acute blood on the scans. It has to be (inaudible). I cannot say that it is impossible, but very, very unusual. Normally, you diagnose these things by seeing acute blood quite clearly, you know, shortly after an acute event. Here we have an acute event with no acute blood.”[2]
“The only thing that I find strange is that, if there was a non-accidental shaking injury that evening [30th May], sufficient to cause retinal haemorrhages, as Dr. N has suggested, why was there not more significant fresh blood on the scan taken that evening. That is something I find very difficult to reconcile.”[3]
“But, if you consider that in the presence of chronic subdural haematoma fresh acute subdural bleeding can occur spontaneously or can occur with normal handling, it would be incredibly unusual for a forceful shake sufficient to cause retinal haemorrhaging to not cause significant visible acute subdural haematoma. That is the point that I find difficult to reconcile.”[4]
“There is no clear evidence of acute subdural blood or acute damage in the brain visible on the scans that day. I find it very difficult to say that there was an acute significant traumatic event on that day that does not cause acute subdurals. I can’t say impossible but it would be very very unusual. You usually diagnose these things by seeing acute blood very clearly. Here we have acute event but not acute blood.”
“But if you consider that in the presence of chronic subdural haematoma, fresh bleeding can occur spontaneously or with normal handling, it would be incredibly unusual for a forceful shake sufficient to cause retinal haemorrhaging not to cause acute subdurals.”
Mr R gave similar answers in response to questions from Counsel for the LA:
“Given that in the presence of chronic subdural haematomas, normal handling can cause significant fresh subdural bleeding, a spontaneous event can cause significant fresh subdural bleeding. But in a child who is shaken very forcibly, so as they had a severe encephalopathy and retinal haemorrhages caused, why was there not a lot of fresh subdural bleeding visible on the scan? That just does not add up to me. It may be that D had been extremely unusual or it may be that the collapse for whatever reason was not because of a traumatic shaking of the head that day.”[5]
“We know from other cases where children completely normal, who had a shaking injury, who collapsed, who had retinal haemorrhages, and the key point that is seen on the CT scans is that there is very clearly visible acute subdural bleeding. Now, why did that not happen on this occasion, particularly as the whole presence of the chronic subdural blood would make that more easily visible, yet it was not. I just cannot come to terms with that.”[6]
In answer to questions from Counsel for the LA he stated:
“As we’ve discussed it may be possible that the retinal haemorrhages occurred on 30th, but I find it difficult to understand why if a child was shaken with sufficient force to cause retinal haemorrhaging who already had chronic subdural haematoma, why they did not get a lot more fresh subdural blood from the same event”[7]
In reply to cross-examination on behalf of the M, he stated
“If there was a traumatic shake on 30th, given that there is chronic subdural there, I still find it amazing that there is no significant acute subdural blood there on a scan taken very shortly after the acute collapse.”[8]
In cross-examination, Mr R confirmed that this went beyond being simply a case that was unusual and that he could not understand how there could possibly have been a traumatic episode on 30th May:
Q: Just dealing with that, there are some cases which are unusual and cause a bit of surprise, but it sounds as though you are going beyond that. You are really struggling to understand how there could possibly be a traumatic episode on that day that leads to the results of the scans that we have dealt with. Is that right?
A Yes. In a circumstance where it is expected that either spontaneously or normal handling can cause significant bleeding when there is chronic subdural haematoma, how a much firmer harder, you know, handling, shake, whatever, did not cause it, I just find it so difficult to understand.[9]
Mr R confirmed that not only did it go beyond the unusual but it was not something he had ever come across before.
Counsel for the LA put several times to Mr R that perhaps he was seeing less blood on the scans as a result of the high standard of the resuscitation performed by Dr WH and his team. This did not alter shift Mr R from his concern about the lack of acute subdural haemorrhages on 30th May:
“I would think he [Dr WH] did his job well. From a difficult situation D was resuscitated well and recovered well. It’s nothing to do with brain damage that I find difficult. It is the fact that if there was a significant shaking event, so the head moved very forcibly which would cause acute retinal haemorrhages and can cause an encephalopathy which seems quite profound, given that in the presence of chronic subdural haematoma, normal handling can cause fresh subdural bleeding, or even spontaneously, if the child was shaken so forcefully, why wasn’t there anything visible on the first scan? It just doesn’t add up to me. It may be that D is just unusual or the collapse was not from a traumatic shaking injury that day. I just don’t know the answer to that. We know from other cases where children are completely normally who have a shaking injury who are brought in collapsed, who have retinal haemorrhages, the key point on the scan is the thin film very clearly visible, acute subdural bleeding. Why did that not happen on this occasion particularly given the presence of chronic subdural blood, would make that more easily visible? Yet it wasn’t. I just can’t come to terms with that.[10]
Mr R rejected out of hand the suggestion from Counsel for the LA that the quality of the resuscitation might have reduced the appearance of acute blood:
Q: Can I ask a final question? If there was an incident and the child collapses and arrives at hospital very very quickly indeed and is treated very carefully but well by the resuscitation team, would that have an effect on the amount of acute blood?
A: No. The acute blood happens at the point of injury and happens very quickly and stops quickly. If not things get worse.
The LA submit at paragraph 70 of their submissions “Mr R agreed that he could not rule out the possibility of an acute traumatic effusion showing on the scan”. The quotation is not completed, Mr R went on “I cannot rule it out but all the other pointers including the separation of the sutures the dark appearance of it with…..meaty subdural blood, the possibility that a membrane had been shown on the MRI, though it is not a clear one, it all points against it”.
46. Why did D collapse on 30.5.14?
The LA seeks to prove that on 30.5.14 D collapsed due to being injured by one of his parents. If I am not satisfied about that I need consider the matter no further, but I have heard evidence in an attempt to explain the collapse on that day. Mr R could not rule out the possibility of a seizure having occurred as a result of D’s chronic subdural haematoma, his immunisations on 30.5.14 or a combination of both. He said in oral evidence that a seizure would be consistent with D’s relatively rapid recovery. When it was put to him that a seizure is the best explanation we have for the event on 30.5.14, he said “it would seem to fit more than an acute shake that did not cause any subdural bleeding”.
47. Timing of the chronic subdural haematoma
On the scan dated 1.6.14 the fluid is black so the subdural haematoma is older than 10 days as at 1.6.14 and is likely to be older than 2 or 3 weeks. Mr R agreed that it was a real possibility that birth was the cause. He also said that the intra cranial changes could originate from the 18th, could be longer, and that would be at the edge of Mr N’s timing.
48. Degree of force necessary to cause subdural haematoma
In his report Mr R repeated what is often said that the exact force cannot be known scientifically, such a pattern of injury does not tend to occur in normal circumstances from normal handling or domestic accidents.
In oral evidence he said he certainly agreed with Dr C that it was likely that any force was at the lower to moderate end of the range.
49. Causation
In his report, Mr R states that:
“In the absence of a known medical condition capable of causing fresh subdural bleeding, the remaining known cause is following an episode of injury. This injury can be as a result of birth, as a result of an accidental injury or as a result of a non-accidental injury of the type discussed above where a child is forcibly shaken.”
In oral evidence he said that birth trauma was a real possibility.
He was asked in oral evidence to consider the scenario of the F running with D from the car to A+E across a piece of woodland. He accepted that running, particularly at some speed with the head unsupported at D’s age, the head could be flopping all over the place and theoretically that could exceed the injury threshold and cause subdural bleeding. He said that he personally accepted that a single event, a shake that exceeds the injury threshold can lead to subdural bleeding. He went on the accept that a fairly short run with the head moving a smaller number of times would be sufficient, or a particularly forceful step that just crossed the threshold. In terms of the description given to him he agreed with Dr C that it was plausible. He went on to say that given the F thought the baby was dying he would be running fast and “I can see it as a plausible possibility”.
At the end of lengthy re-examination Mr R was asked whether his view in the experts meeting was still the same ie that there was undoubtedly one episode of trauma and possibly two. He said that it was. In evaluating his evidence however I must consider it as a whole, I have the advantage of a transcript of his oral evidence.
50. Mr N
Mr N is a Consultant ophthalmologist.
In his report Dr N states that the eye findings must be viewed together with the clinical history/findings and not alone, as the mere presence of retinal haemhorrages whilst always abnormal does not give rise to a diagnosis but a need to investigate looking for a cause of which head injury may be one.
His written opinion was that the retinal haemorrhages occurred whatever the cause in the 17 days preceding the ocular examination on 11.6.14 (ie on or after 24.5.14) and are consistent with having occurred at or around the time that D became unwell on 30.5.14.
In oral evidence he said it is more likely than not the retinal haemhorrages occurred at or around the time that D was unwell on 30th May but he could not absolutely exclude the possibility that they were generated on 18th May.
51. As to the force required
Mr N said “If it is an inflicted injury, it is likely to be a shaking injury that to any external observer would be actions that were dangerous and inappropriate.” He confirmed that the level of trauma necessary to cause retinal haemorrhages is unknown and a short period of shaking may be sufficient to retinal haemorrhages. He confirmed that, “The head would need some force to beyond the midline and then back towards the chest”, stating that he is not an expert in neonatal biomechanics and that the paediatric expert should be asked. Mr N confirmed that the quantity of retinal haemorrhages did not relate to the degree of trauma.
52. Causation
When the parents’ account of the run to A+E was put to him he said
“If the court is of the view that if he is carried and running like that, head moved backwards and forwards, that would be sufficient to cause retinal haemorrhages, if you are saying shaking happened because of the running, that could cause it.”
53. Dr W
Dr W is a Consultant Haematologist.
Although it was necessary for him to be instructed in these proceedings, Dr W’s evidence is now of limited relevance in the exercise I am conducting. D’s blood was re-tested during the trial as to the Factor XI levels. No bleeding disorder has been identified. Dr W confirmed that there is still a lot to learn about coagulation disorders and that there are patients who have bleeding disorders where despite extensive investigation no abnormality in clotting can be found.
54. Dr WH
Dr WH is a Consultant Paediatrician at the N hospital; he was the treating clinician who treated D on 30.5.14. Dr WH is clearly hugely experienced in the field of resuscitation. He gave evidence as such, not as an independent expert witness. As a witness he was very impressive. He had not seen the other independent medical reports and medical notes relating to other admissions and periods of time; Mr R has the advantage of having see all the papers and documents filed.
Dr WH’s opinion was that D had suffered a short hypoxic event, this is not in dispute. He ventilated D until D woke up and he oversaw the resuscitation. He said that D had suffered a terminal apnoea which is frequently after a significant hypoxia. D was making no respiratory effort and exhibiting symptoms following resuscitation of cerebral irritation. His strong opinion was that his intervention had improved the situation for D.
Mr R had an agreed note of part of this evidence and had seen Dr WH’s medical report in the medical notes bundle. Mr R said:
“I agree that he [D] was encephalopathic, I agree that the initial presentation was very suggestive that there was some significant brain problem, but it reversed fairly rapidly and had not left any trace on the MRI scan. For example, he does say that it was suggestive of diffuse brain injury but there is not any diffuse brain injury on the subsequent MRI scan. Whatever we are dealing with here, and I have no doubt it is real, it was a reversible transient event.”
Mr R took the view that at the time Dr WH would have been negligent not to have considered child protection measures, but that subsequent developments have changed things:
“I would not have any criticism or question of what [the N hospital did], or at the time that this letter was written, of the worries and conclusions that they were drawing. Subsequent events have changed things, in my view, but, given the circumstances, I would consider it negligent not to consider child protection measures.”
55 Discussion
I must pay appropriate attention to the opinion of medical experts, especially where they are experts of eminence and great experience as in this case. I must also be mindful of the evidence given by other medical and professional witnesses who treated D. The medical evidence is one part of the evidence which I must consider in the context of the all of the other evidence.
56. Conclusions in relation to the medical evidence when taken as a whole
D’s scans taken between 30.5.14 and 4.6.14 show minimal if any acute bleeding
D suffered no hypoxic ischemic brain injury
The scans show chronic subdural haematoma; the evidence of Mr R accepted by Dr C is very clear about this.
The prognosis for D is good according to Mr R
57. Was there a 2nd traumatic incident on 30.5.14?
Giving his evidence prior to Mr R, Dr C thought it extremely unlikely that on 30.5.14 there was trauma sufficient to cause retinal haemhorrages but only very small fresh subdural bleeding. Mr R later said that there was no fresh blood at all.
Mr R “found it very difficult to say that there was a significant traumatic acute event on 30.5.14 that did not leave any trace of blood on the scans, “it would be incredibly unusual for a forceful shake sufficient to cause retinal haemhorrages to not cause significant visible acute subdural haematoma”. He put it clearly and effectively “it is a possibility that the profound presentation at the N hospital was because there had been a recent injury, but I still find it unusual that there was not shed loads of fresh blood, if there was that. So this is a case that does not quite fit the pattern for lots of things which makes it difficult for us”
I must take account of the fact that Dr N was of the opinion that the most likely timing for the retinal haemhorrages is about the time of D’s collapse on 30.5.14 although he could not exclude the possibility that they were caused on 18.5.14.
Dr WH considered that D had suffered a hypoxic event, a lack of oxygen. He described D’s serious condition upon admission. He has not seen D’s scans carried out after his involvement. He has not had the overview of all of the papers which Mr R has.
Mr R had all the advantages of seeing all of the documents filed in the court bundle; in my judgment he appeared to have thought very carefully about the evidence including that of Dr WH. Mr R is a leading expert in this field of neurosurgery. He gave measured thoughtful evidence when explaining why it was extremely unlikely that D suffered a second traumatic injury on 30.5.14. I accept the reasons Mr R gave for his opinion that it was unlikely that there was a second traumatic injury on 30.5.14. He was cross examined thoroughly about this, as can be seen in the analysis extract above.
Taking this as a whole, I am simply not at all satisfied that there was a shaking injury on 30.5.14.
58. How were the retinal haemorrhages caused?
If caused on 30.5.14, as Mr N feels is the most likely, something caused them without causing any acute subdural bleeding or acute brain damage, given Mr R’s evidence which I accept. He said it would be incredibly unusual for a forceful shake sufficient to cause retinal haemhorrages not to cause acute subdurals. Yet he was clear that there was no acute subdural blood. I cannot be satisfied that the retinal haemhorrages, if caused on 30.5.14, were caused by an inflicted injury rather than an unknown cause.
59. How was the subdural haematoma caused?
According to Mr R, when looking at the intra cranial findings only, there is a real possibility that that the subdural haematoma is birth related. It is also consistent with a shaking type injury even if done with a momentary loss of control.
60. Could the retinal haemhorrages and chronic subdural haematoma both be caused on 18.5.14 in the same event?
Dr N’s view is that the most likely time for the retinal haemorrhages is 30.5.14, the time of D’s collapse. Looking at the eye examination on 11.6.14 he explains why he would not go back earlier than 17 days ie before 24.5.14. The LA seeks a finding that the retinal haemorrhages were most likely to have been caused no later than 17 days before 11.6.14. The LA does not appear to seek any finding that they were caused on 18.5.14.
60 Mr R felt that the subdural haematoma was consistent with an event on 18.5.14. He said “There was an acute event, an acute change on the 18th. The intracranial changes could originate from the 18th. It could be longer, but could originate from the 18th, and, yes, Mr. N did seem prepared to stretch the retinal haemorrhages out that long. So, yes, it is all coming together, so it does seem to be - you know, from what he said, at least from my interpretation of what he said - at the edge of Mr. N’s timing”.
Mr R further expressed the view that subdural haematoma and retinal haemorrhages do tend to occur at the same time “as the forces that we believe cause retinal haemorrhages and subdural haemorrhages can all be replicated by one event”
The timings set out by Dr N for the retinal haemorrhages above do not sit easily with this. Mr R puts the subdural haematoma caused on 18.5.14 at the upper end.
61. Dr C, Mr R and Mr N all accepted it was medically plausible for the run from the car to A+E on 18.5.14 to have caused D’s retinal haemhorrages and subdural haematoma.
Why did he collapse in the first place on 18.5.14? He can be heard crying during the 999 calls. He was clinically well fairly soon after arrival at hospital.
One possibility is a seizure, or reflux, or unknown cause? I have read unchallenged evidence that the mother and grandmother suffered episodes where they stopped breathing when children.
Or did one of the parents shake him causing his injuries as the LA submits? The lay evidence and the “Wider Canvas” matters are of great importance in answering this.
62. What caused D’s collapse on 30.5.14?
I have said that I do not find that there was any inflicted injury on 30.5.14. Given that, the parents do not have to provide an explanation for D’s collapse. Nonetheless I note that Mr R stated that it is well recognised that with chronic subdural haematomas, seizures can occur.
“[a seizure] would seem to fit more than an acute shake that did not cause any subdural bleeding. I must admit that is in my mind”
Dr C thought a seizure less likely given that there was no jerking in D, but accepted that it is not unknown. In answer to my question as to their relevant expertise in this field, Mr R confirmed that they both had experience of treating children with seizures but that Dr C as a specialist in neonates may see babies who have seizures due to prematurity whereas he has patients who have seizures with injuries, tumours “all kinds of things”. D had his inoculations earlier that day.
Try as I might I am unable come to a conclusion as to the cause of D’s collapse on 30.5.14. The cause is unknown.
Wider Canvas evidence
63. The wider canvas evidence is of great importance in this case. The parents albeit young have been in a loving mutually supportive relationship for over 5 years.
This is a case where there is no concerning evidence of neglect, domestic violence, substance misuse, alcohol abuse, unemployment, financial or housing difficulties. There are no mental health difficulties. There was no involvement with Social Services or the police whatsoever prior to D’s collapse on 30.5.14. The parents are of good character. There is a complete absence of negative social factors.
64. Their 4 housemates spoke positively of the parents as individuals, in terms of their relationship and in their interaction with D. None of them had experienced or witnessed any tension or arguments between the parents. This was a shared house, the housemates sharing the living facilities and having individual bedrooms. In my judgment any stress or strain between the parents or with D would have been clearly apparent.
65. Importantly in my opinion there is no evidence of incessant crying by D leading to either parent being frustrated. To the contrary the house mates spoke positively about the parents.
The unchallenged evidence of the family’s house mates was that the M was a very good mother.
66. When D collapsed on 18th and on 30th May the parents were in the house with D (in their room); several other of the housemates were present and came running to assist. This is not the case of an isolated parent/couple with no-one to turn to.
67. There were no concerns noted by the medical professionals during the ante-natal period, after birth and during the admission in April and May.
There is no issue but that the couple engaged appropriately with health professionals prior to D’s birth. The Health Visitor’s report was extremely positive as to M’s care of her baby. D was seen regularly by health professionals, eg when he had diarrhoea aged 2 weeks M took him to the N hospital, and eg when he had a cold she took him to the pharmacist.
68. There are no reported bruises upon D, and no skeletal injuries, no bruising and no hypoxic- ischemic brain damage.
69. The contact notes in section G filed by the LA paint a picture of a loving and attentive M, who was consistently gentle and appropriate with D, as was the F. The parents’ interactions with each other are similarly reported positively. Neither the LA nor the Guardian drew my attention to any negative remark in the notes. F works 6 days per week and was able only to have contact on average once each week. I find that the contact records portray months of contact of excellent quality.
70. This is a very positive picture which in my judgment provides a highly relevant context to the determination I have to make.
71. The parents were D’s only carers and were both with him on May 18th and 30th when he collapsed in their bedroom. On both occasions they say he stopped breathing and went stiff. The F said in oral evidence that D had also gone floppy like a jelly. The M told the hospital on 18.5.14 that D gave a high pitched scream. F heard this on 30th May. They both say they panicked. F carried D out of the bedroom on both occasions following his collapse. Mr CV drove them to the N hospital on 18.5.14 and Mr GP on 30.5.14. On both occasions the F carried D out of the house into the car.
72. On 18.5.14 when Mr CV was parked at the traffic lights near to the hospital, to avoid delay the parents got out of the car with D, and that F in bare feet had run to the A+E holding D intermittently at arms length and against his chest/shoulder. The M said she couldn’t see D as the F was running ahead of her.
73. In their statements and oral evidence the parents say they were together on 18.5.14 and 30.5.14 when D collapsed. It is suggested that this is contradicted by the F’s account to the police “wife went to make milk she told me to stay with baby…child fainted from too much crying”. I do not accept this is necessarily a contradiction. The police do not ask, ‘had M come back by the time he fainted’, or ‘were you alone when he fainted’.
74. On 18.5.14 the M describes that she fed D his first bottle in her bed and then he fell asleep. The F made up the second bottle at about 7.30am. He was crying in her arms then started crying harder and harder. Both she and F were in the bedroom. She passed him to F and he suddenly stopped breathing, he went white and had a pale face. In her 3rd statement the M says that when crying D went red/purple and when he stopped crying a lump of “dry pale-coloured snot” came out of his nose. The hospital notes (and Dr J) record the parents saying he turned blue. He went stiff and floppy. She and F were very scared and went downstairs to get help, she shouting for an ambulance. The emergency services were called, but they decided to go in Mr CV’s car to A+E.
75. The F sets out in his statement that when he got home from work on 30.5.14 D was crying more than usual, he would not take his milk, F took him from M to see if he could settle him. When M was holding D he went stiff. They then went downstairs and asked someone to call and ambulance.
F told the police that D that D fainted because of too much crying.
76. M in oral evidence said that he stopped crying and went pale and stopped breathing. F said that suddenly he went floppy stiff like a rock and then like jelly.
77. Who was holding D when he collapsed on 18.5.14?
Both parents say F was. The police account is that F said he was holding D (on the 1st time) when D “started having cramps”
78. As to 30.5.14, F’s statement and both parents’ oral evidence set out that M was holding D when he went stiff.
79. According to the police record the F was asked
Q: when baby couldn’t get air yesterday and before who was holding him
A: Me
Q: On both times?
A: First time with Adriana and second with me”
(there is a real disparity in the answers apparently given, yet there was no attempt to clarify by the officer)
80. In the police notes of the M’s account to them it is said:
Firstly in the handwritten notes “only me with D when stopped breath (sic)”; this becomes in the typed notes “Who was holding D this time when he stopped breathing
A: my husband”
This is a shocking disparity in the police handwritten and typed notes.
81. Did F give mouth to mouth to D on 18.5.14 on the living room sofa? He says in his statement that he did. No housemate was asked about this or volunteered it. In oral evidence he said that he went into the garden with D to get some air and blew into his mouth. He demonstrated in the witness box how he did this. The Guardian submits that this demonstrated the F’s instinctive method of holding a baby by protecting his head. I consider that there is a huge difference to how he might demonstrate this in the witness box to a Judge, and how he might hold his child when running barefoot in haste and panic to A+E.
82. How did F carry D on the way to hospital on 18.5.14?
During cross examination of Dr C on the second day of evidence the F demonstrated how he had carried D holding him under his armpits on 18.5.14 while he ran to the hospital, intermittently holding him to his shoulder. Dr C accepted that if the court accepted the account it was possible for this to be the cause. A question had been asked about this of the experts in their meeting. Both parents told the court that they got out of the car at the traffic lights on the side of the traffic and ran, F in bare feet to the hospital with the F holding D under his arm pits. They said that the M ran behind. When asked about D’s head she said that she hadn’t been able to see anything, and also said that D’s head was to the side.
83. The M gave oral evidence through an interpreter. The F describes her as a calm person. That was how she appeared in evidence, at no time showing frustration or anger, only quiet tears at times.
84. I have had to consider whether the M’s language difficulties account for any differences in her accounts. The LA say that she is falling back on an alleged inability to speak English in order to avoid helping the court discover what happened to D.
85. M’s IB certificate sets out that her oral interaction in English is limited. She was undertaking an HND in Business Management. This is conducted in English. She told me that she used dictionaries and on line resources.
86. The midwife at the booking visit records in the notes that the M required an interpreter. I consider that if the midwife considered one was needed for the happy circumstances of pregnancy and birth, then it is likely one would have been of assistance when the M was being questioned by the police following her baby’s collapse on 30th May.
87. The clinicians who treated D on 18th and 30th May confirmed the M’s limited English. Dr B said that she could communicate with M on only a “relatively basic level” and that she had difficulty in taking as full a picture as she would have liked. It is likely in my judgment that the M does require an interpreter and the lack of one would have hampered her ability to explain herself and to understand others.
88. The M was accused by the LA Counsel of making up a lie in the witness box to explain an apparent inconsistency in a police record. She remained calm. In fact the following day it was noted that the police handwritten note and typed note of the same conversation with the M was in fact different. None of the advocates nor I had noticed this before then. I was impressed by the M’s ability to remain calm and measured throughout her oral evidence over several hours.
89. Neither the LA nor the Guardian cross examined the parents as to any stressors in their home eg finances, money, parental relationship as so often the court hears about in such cases. There are no indicators of any such stressors.
90. The parents had discussed terminating the pregnancy as set out earlier. In her statement M says she and F were very happy when they found out she was pregnant. Neither mentions the fact that she went to the GP and discussed a termination. It is submitted by the CG that the M is concealing the truth and rhetorically asks for what purpose?
91. I am not at all concerned about this omission from the M’s evidence. Apart from this initial visit to the GP all other ante-natal and health visitor records report the M’s positive approach to her baby. I can well understand why it would not occur to her to mention it in her statement in these proceedings.
92. For the avoidance of doubt I consider it irrelevant and I accept that the M and F were shocked to find that she was pregnant after only a few weeks of her being in England and upon further consideration decided to continue with the pregnancy. There is no connection, in my judgment, between that discussion with the GP in the first few weeks of pregnancy and D’s injuries.
93. The parents gave an account of their getting out of Mr CV’s car at the traffic lights on 18.5.14 and running 140 metres to A+E, F carrying D. This was not contained in their written evidence or earlier accounts at all. Have the parents fabricated this in an attempt to provide an explanation for D’s injuries?
94. This account was given fairly late, however I bear in mind that it is not contrary to their written statements, it just provides more detail about how they got from home to A+E. In addition I fully accept the submission made by Counsel for the M that initial enquiries would have naturally focussed on the events prior to his collapse, rather than afterwards. The parents say they ran from the traffic lights to the entrance of A+E, having seen a map of the area I am of the view that it is logical that they may not want to remain in the car as it had to drive on up the road, go round a roundabout and back again.
95. The triage nurse states that the parents “came running into resus” providing independent evidence that they ran in.
96. Mr CV’s statement does not refer to the parents leaving his car at the lights and then running to A+E. In oral evidence however he confirmed that they did get out at the lights. It was not suggested to him that he was lying about this to support the parents.
97. One of the housemates said that F was carefully cradling D in a blanket as he left the house. The LA draws this to my attention in an attempt to highlight an inconsistency with the F’s account that he ran from the car holding D under his armpits. I do not see that this follows. I can well imagine how the parents were getting more and more anxious as they were trying to get to hospital.
98. 4 of the parents’ housemates filed statements and attended court to give evidence. They prepared statements in September several months after the events of May 2014.
99. It is suggested by the Guardian that Mr CV was selectively evasive and less credible than the other 3. He told the court he could not say how the F carried D from the car on 18.5.14, although that was when he noticed the F was not wearing shoes or socks. Another house mate Mrs H told the court that Mr CV had told her that he drove the parents to the front door of the hospital. This contradicts the parents and Mr CV’s evidence that the parents got out at the traffic lights and went on foot to the entrance of A+E. I did not consider him to be evasive in evidence. He was being asked detail of events some months ago, through an interpreter. If he had described the F carrying D as the F had described no doubt it would have been suggested that they colluded. There will always be some inconsistencies when a number of lay people recount the same events from months earlier.
100. On 18.5.14 all of the residents except Mr GP were in the house. The first they knew anything was wrong was when the M was calling them to get an ambulance for D.
101. Mrs H told the court that on 30.5.14 she heard D crying in his room, and saw M come out looking calm and went downstairs’ to make a bottle. After about 5 minutes she heard M shout that D could not breathe.
102. They all described their real concern for D and his presentation. I thought they were all respectful of the court process and tried to assist the court.
103. Credibility of the parents
These parents first language is Romanian. The M has limited English. This is borne out by her IB certificate. She moved to the UK only last summer. The course she is undertaking is in English but I accept that she can access it with online resources. In any event communication about her baby’s collapse and detailed descriptions of his appearance and behaviour and her understanding of medical issues are quite a different thing. Even the midwife at her booking appointment thought she needed an interpreter, and the anticipated medical matters would have been much less complicated at that point.
The F also gave evidence through an interpreter. His English is more limited than the M’s.
The Police transcript of their first accounts has inaccurate typing up of notes, no interpreter for the M, use of the language line for the F, and no signature on the notes by F as to their accuracy. It is confusing as to which events are being raised by the officer at different times.
Their accounts in their first statements in the care proceedings were not thorough and more information and detail came out in oral evidence. This is not unusual in such cases as the forensic process moves on and does not lead necessarily to a conclusion of lying or collusion.
The account of the run from the car on 18.5.14 was raised as a question posed in the experts’ meeting, not in any earlier statements. I can fully appreciate that the parents had been concentrating on giving accounts of events prior to the collapses rather than after. The triage nurse provides corroboration when recording that they “came running into resus”.
Mr CV does not mention the parents getting out at the traffic lights. Nonetheless in evidence he agreed that they did. This supports their account.
The fact that the parents got out of the car makes sense on my consideration of a local map. The car would have had to take a lengthy detour and go round a roundabout or drive the wrong way down a one way street to the A+E entrance.
An extended shaking is not required according to the medical opinion. It is perfectly plausible that the M running behind the F, in a panic, wanting to get to A+E as quickly as possible did not see how D’s head was moving.
The parents were cross examined in some detail and at length by experienced advocates. I was left with the distinct impression that they were doing their very best to answer truthfully and helpfully. I have had the enormous advantage of observing the parents in court for 10 days, and in oral evidence for a day each.
The parents’ accounts were remarkably consistent in my judgment.
I must consider all of the evidence before me. The wider canvas evidence is hugely important as the reported authorities from higher courts set out repeatedly.
Mr R said, “so this is a case that does not quite fit the pattern for lots of things which makes it difficult for us”. I have the advantage of hearing all of the evidence and I have tried to reach conclusions on as many issues as I felt the evidence permitted me to.
I have considered all of the evidence with great care.
I am satisfied that both parents were telling the truth in the witness box. I did not find either to be evasive. They both remain composed for many days in court and during a whole day each in the witness box. Given that they are in a foreign country, in proceedings conducted in a language which is not their first, through interpreters, in proceedings which might have a devastating effect on their family, separated from their baby I found them to have quiet dignity, rather than their being “blank” as the LA submits.
There are no negative indicators in this couple’s background. I must ask myself how likely it is that this devoted couple would shake their baby, or know the other has, and lie about it. This is a cautious mother who took her baby to A+E for diarrhoea symptoms. Nothing that I have heard or read about either parent gives me any cause to question their account. I conclude it is not at all likely that either of them shook D.
I accept the parents’ evidence that they have not shaken their son, and that they are not covering up for the other. I believed their account that they ran to hospital on 18.5.14, with the F holding D under his armpits and at times closer to his own body. I find that this was done in panic and in a real genuine effort to seek urgent medical attention. I find it likely that this caused the subdural haematoma on that day.
104. Conclusion
Having regard to the totality of the evidence and the legal principles set out earlier in this judgment, I find:
a. There was minimal (if any) acute subdural bleeding on the scans taken 30.5.14 - 4.6.14
b. D suffered no brain injury
c. The scans show chronic subdural haematoma.
d. The cause of D’s collapse on 30.5.14 is unknown. There was no traumatic injury on 30.5.14.
e. The subdural haematoma was caused on 18.5.14 in the arms of F when running to A+E. The cause of D’s collapse on 18.5.14 is unknown.
f. The cause of the retinal haemhorrages is unknown
g. D’s collapse on 18.5.14 and on 30.5.14 was not caused by either of the parents.
h. I totally exonerate the parents
105. No criticism can or should be levelled at the LA for issuing care proceedings in order to try to safeguard D’s welfare.
MC