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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> LB Hounslow v M and F [2015] EWFC B214 (17 December 2015)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B214.html
Cite as: [2015] EWFC B214
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WEST LONDON FAMILY COURT
LB HOUNSLOW V M and F
JUDGMENT: 17 th DECEMBER 2015 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.
1. Relevant people/bodies named in this judgement
(abbreviations are used throughout the judgment as set out here)
LA - London Borough of Hounslow
B - a child aged 8
A - a child aged 1
M - A's mother
F - A's father
S - B's father living in Angola
PGM - A's paternal grandmother
C - A's paternal uncle
D - A's paternal uncle
E - A's paternal aunt
2. Representation:
Mr Archer - counsel for the LA
Ms Walker - counsel for the M
Ms Storey-Rea - counsel for the F
Mr Jagutpal - counsel for the paternal uncle
Ms Howarth - counsel for paternal grandmother of A
Mrs Ancliffe - counsel for the Guardian
3. INTRODUCTION
I am concerned with the welfare of a child A now aged almost 17 months and of his half sister B aged 8 years. I have conducted a fact finding and Threshold Criteria hearing sitting on November 27 and 30 th, December 1, 2, 3, 4, 7, 8, 9, 10 and today to hand down the judgment.
4. M, aged 27 years is the mother of both children. She lives in rented accommodation in London with B. B's father is S who was deported to Angola in 2012 having overstayed his visa. He has not engaged in these proceedings despite the efforts of the LA.
5. F, aged 20 years, is registered as A's father and holds parental responsibility for him. The parents have separated during the currency of this case; they love each other and would like to be together, if possible.
6. I will refer in this judgment to M and F as 'the parents'. Neither parent is employed.
7. The M is 9 weeks pregnant, she having become pregnant by the F in early October. She has considered a termination but decided against it.
8. A was born 10 days before his due date, had been in general good health since his birth; he crawled at 7.5 months and started pulling to stand up about 2-3 weeks prior to 16.5.15.
9. PGM is A's paternal grandmother aged 42 years. She lives with her family namely her husband, C, aged almost 18y (the second Intervener), D, aged 10 and E, aged 7. PGM calls A by his 'church' name of S. In this judgment I shall refer to him as A.
10. Prior to 16.5.15 the LA had been involved historically with this family at what the SW describes as a 'low level'. In 2013 B's school made a referral about her problematic behaviour. Education welfare was involved but M did not engage. She was responsive to and engaged well with a family support worker. By the time of A's injuries B's school attendance was 88%. The records show that A attended all medical and health visitor appointments.
11. On 16.5.15 at 20.27h a 999 call was made by the M from PGM's address. A was taken to St Mary's Hospital by ambulance arriving at 22.12h.
12. The LA has filed an amended schedule of Threshold findings dated 30.11.15 and they invite me at this stage to make findings set out therein apart from paragraph 8.
13. On 16.5.15 A sustained the following injuries:
a. subdural bleeding overlying the right half of the brain as well as between the 2 halves of his brain
b. The bleeding caused compression of the brain and raised intracranial pressure
c. Localised cerebral infarction over the right cerebral hemisphere
d. Extensive retinal and pre-retinal haemorrhages in both eyes
e. As a result of those injuries A lost consciousness and suffered seizures
The parents and interveners accept that the medical experts have identified these injuries.
14. The LA contends that these injuries were caused A being shaken or shaken with an impact and that this was caused by either M, F, PGM or C and further that the non-inflicting parties have colluded to mislead professionals as to the cause of the injuries.
15. The LA does not accept the history given by the adults in the family in respect of A's injuries and submit that it is relevant for the court to consider some of the contextual Threshold matters.
16. The parents and the 2 interveners deny inflicting any injury upon A and deny knowledge of anyone injuring A. The parents submit that the matters pleaded by the LA under the heading 'other matters' do not cross the Threshold.
17. The Guardian takes a neutral position in relation to the injuries suffered by A on 16.5.15, and considers that the court will no doubt consider very carefully whether the LA has proved its case. The CG notes her concern about the parental relationship and the impact this may have on the children and she awaits the parenting assessment which is due next month. The CG submits that the Threshold is met in relation to the parents' volatile relationship.
18. Care proceedings were issued on 17.6.15. A is currently placed in foster care subject to a section 20 agreement. Contact to his parents is supervised 3 times a week. B has always remained at home with her M subject to an interim supervision order.
19. I have been responsible for case managing this case since issue. C and PGM intervened in the proceedings on 30.7.15 and have been legally represented since.
20. I determined that it was necessary for 5 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 6.11.15.
Dr McClintock was instructed to prepare adult psychiatric assessment of both parents; the F did not comply, although the M did. The LA sought to call Dr McClintock as a witness at this Threshold hearing which I refused.
21. ADDITIONAL BACKGROUND MATTERS NOT IN ISSUE
The M volunteered in her first statement that A fell from a sofa around 14.5.15. She denies that he was inadequately supervised and says that medical attention was not sought as it was not needed. In their submissions the LA seek to suggest that this event is a fabrication, whilst also inviting the court to make a finding that there was a fall on that day. I deal with this is paragraph 69 below.
22. The M has a history of depressive illness and low mood . She has a history of alcohol misuse, which has on occasion resulted in her being embroiled in violent altercations. The M accepts the dates set out in the draft Threshold document, the most recent of which is November 2013.
23. The children have been exposed to the F's anxiety and stress in early 2015. B was present in the house when he attempted to jump out of the window, and she was taken to see him in hospital on 27.8.15.
24. The children have been exposed to domestic violence and discord between the parents. The F received a caution for common assault on 3.3.15. I set out more about this at paragraphs 84 onwards.
25. WITNESSES
I have heard oral evidence from the following witnesses, as well as considering the trial bundle in its entirety. I have listened to the recording of the 999 call.
Mr Richards, Mr Newman, Dr Cartlidge, Dr Stivaros, Katie Dangerfield (the allocated Social Worker until late June 2015), DC Stewart (Child Abuse Investigation Team), both parents and both interveners.
There was no application to call either of the children who were present when A was injured, namely D aged 10 and E aged 7.
26. THE LAW
There is no issue as to the relevant law.
A: 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:
"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. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.'
i. 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 ) .
B: In the context of the requirements of the Children Act 1989, section 31(2), the threshold criteria is not concerned with intent or blame but rather with an objective standard of care. Ryder LJ in the case of Re S (A Child) [2014] 1 FLR 1421 highlighted that term 'non-accidental' ' is a catch-all for everything which is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction.' [19]. In this case, ' the medical expert had left open the possibility of an accidental cause, albeit it was unlikely and in that circumstance anything between accident and deliberate infliction must also have been possible.' [23]. The Court of Appeal in Re S made clear the bounds of fact finding hearings are confined to discrete (medical) issues and not for matters appropriate for trial in the social and welfare context [32].
C. 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.
D: 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)
E: As Mrs Justice Bracewell said 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.'
F: When confronted with cases which turn almost exclusively upon expert medical evidence it 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.
G: 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..."
H: 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.
Whilst it is not for the parents to provide an explanation as to the possible causes of any injuries, there are situations in which the medical and other evidence points to the fact that the absence of any explanation is of significance. Re BR (Proof of Facts) 2015 EWFC 41; Jackson J
"It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof.......... Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge."
I: Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Jackson J: Re BR (Proof of Facts)[2015] EWFC 41
" It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities."
J: Although the head injury cases might to the casual observer suggest that all children fit in a particular mould and can be expected to react in the same way to a given trauma or set of natural circumstances, that is simply not so . Mr Justice Charles in Lancashire v D & E in the same manner as Mr Justice Mostyn in Lancashire v R [2013] EWHC 3064 (Fam) drew up a list of anomalous features particular to the case before them which encouraged them away from the Local Authority's assertion that in each of those cases the cause of the child's injuries had a non-accidental etiology.
A: The assessment of credibility generally involves wider problems than mere "demeanor" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance. Lancashire v R [2013] EWHC 3064 (Fam) . Propensity evidence must be treated with great care in family law ( Re CB & JB (Care proceedings: Guidelines) [1998] 2 FLR 211. Character is admissible only in relation to credit.
L: When considering the LA's Threshold allegations the court must apply the principles emphasised by the President in Re A (A Child) [2015] EWFC 11 and by the Court of Appeal in Re J [2015] EWCA Civ 222. In short;
- the local authority must first establish the facts of each and every allegation, including how the parenting has fallen below the standard of a reasonable parent;
- there must then be an evidential link to how those facts have either placed the child at risk of harm or to have suffered harm;
- the harm must be significant;
- all parents will be imperfect in one way or another. The court must guard against social engineering.
27. 16.5.15: the day of A's injury
There were 6 people in the house on 16.5.15, apart from 35 week old A, namely four adults and 2 children. The LA submits that the 4 adults were either the perpetrator or have colluded to mislead professionals.
28. On 16.5.15 M and F set off with A for PGM's house. PGM called them and met them in her car taking them back to her house. PGM went out to see a client for whom she acts as a carer. C was in the house. Shortly after he went out to collect D and E. When they had all returned they had dinner and were all sitting in the living room, ie A, D, E, M, F, C and PGM.
29. M placed a laundry basket full of dry clean washing in front of the hoover to prevent A playing with the lead. The M says she saw A pull himself up to standing holding on to the basket. D was rolling a ball to A. M then says within a split second of her turning to watch a film that she saw A lying on his back with the basket on his chest. He was not crying just looking at her from the floor, when she went to move the basket he began to cry. She handed him to F and within seconds he went quiet and his eyes flickered and he looked as if he was going to sleep. He had gone lifeless it seemed to M. She rang 999 at 20.27h, the call lasted 13 minutes.
30. Other accounts of the fall
a. the Father gave a detailed account of how A fell from a seated position to DC Sutcliffe and in interview but then states that he didn't actually see the fall
b. C said in interview that he didn't see the fall, but turned round and saw the basket on top of A In his statement, he stated that the basket was either on top of him or had rolled off. In evidence, he stated that he couldn't remember whether he had seen the basket on A because it was so long ago although this is likely to have been a memorable incident, given what followed. There were other inconsistencies in C's evidence about where A was when he stopped crying and whether or not he had turned away again
c. PGM recalled the mother saying either "A is falling," or "A has fallen." The mother denies both
d. The mother states that D said "oops, fell down". No one else says this. D in interview said that he didn't see the fall and was retrieving a ball at the time
e. E gives an account of how A fell, this is also an account of a sitting fall.
f. Nobody in the room appears to have seen the fall.
31. The M called 999 at 20.27h; the call lasted 13 minutes. The transcripts show a frantic distressed household, especially the M, as the caller. The first ambulance arrived at 20.41h, the second at 20.46, the air ambulance at 20.59h. A was observed to have seizures and was given rectal diazepam and oxygen. He was taken to hospital in the regular ambulance arriving at St Mary's Hospital at 22.12h.
32. A had a CT scan at 23.00, then transferred to Great Ormond Street Hospital where he underwent a craniotomy. At 13.30h a limited eye examination was carried out by a non-specialist.
33. Subsequently both eyes were reviewed separately.
On 20.5.15 a further CT scan took place and on 23.5.15 an MRI scan. On 27.5.15 a skeletal survey found no fractures.
34. MEDICAL EVIDENCE
All of the 4 doctors who gave oral evidence agreed that the medical opinion must be considered in the light of all of the other evidence. I found all of the experts to be of great assistance.
Mrs Ancliffe Counsel for the CG has prepared a helpful summary of the expert evidence which I adopt and set out below.
1. Mr. Richards' relevant evidence
He identified a right sided subdural hematoma, subdural bleeding between the two hemispheres, he considered it was in one compartment. There was ischemic brain injury of the right posterior cerebral artery and right anterior cerebral artery as well as global cerebral oedema. He thought the hypoxic ischemic injury was very localised. There was no skull fracture, no scalp bruising or swelling. There was no blood in the spinal canal.
His opinion in relation to the timeline of the injury was that it was likely to have occurred shortly before the ambulance were summoned [NB -this was the opinion of all of the experts]. In his opinion the hypoxic ischemic changes were not the classic shaking type. He considered that they had arisen as a result of vascular compromise.
The options as to how the injury had been sustained were a) an accident and the child was unlucky, b) inflicted by shaking, c) inflicted by impact, d) inflicted by a combination of shaking an impact.
His view was that the history given by the parents of events was quite critical [this opinion was shared by all the experts]. The account given to the professionals of A crying and then fairly quickly falling unconscious was consistent with his interpretation of the medical evidence. In his report at E67, and in his oral evidence Mr. Richards remained of the view that A presentation and clinical findings led him to believe that the history was correct and he was unfortunate in suffering a significant injury from an event that would not normally cause significant injury. "I do not know," was the conclusion of his written report and his oral evidence.
Mr. Newman's relevant evidence :
2. Mr. Newman clarified that with regards to the ophthalmological examination undertaken by Dr. Quereshi on the night of 16 th/17th May, in his opinion the pupils would not have been dilated therefore the retinal hemorrhages is would not have been observed.
It was only when Mr. Bowman undertook this examination on the 18 th and 19th dilating the pupils later that the hemorrhages were identified. There were widespread bilateral retinal hemorrhages [RH]. He considered that the pattern of RH seen in A was seen in severe crush injuries, close suture aneurysm or bleeding, abnormal vascular bleeding. He did not discount the A's case could be an outlier. His opinion was that the injury had been caused on the balance of probability by shaking. However he was clear, as were all the experts that the court's role of forensic analysis of the facts and the evidence may conclude differently. He appeared to have no difficulty with this indicating, "my evidence does not trump any ones." He was also clear that the ophthalmic evidence must be seen in the context of the medical evidence as a whole. He could not rule out the possibility of the eye injuries being caused by the events described by the parents on the 16 th of May.
Dr. Cartlidge's relevant evidence:
3. He was of the clear opinion that A's injuries were as a result of an accident. He thought it was likely that A had fallen straight backwards and is likely that he would sit down first. However he considered the fact that E had given an account which indicated that A had sat down first before falling backwards. His opinion did not change as to this being an accident but he did indicates that it would cause him to lessen the confidence with which he gave his opinion that it was an accident. He indicated that he would be more confident in his analysis if A had fallen from a standing position and that his confidence is reduced if the court finds that he fell to his bottom first. Dr. Cartlidge had the benefit of hearing the in 999 call. In evidence he expressed the opinion that given the timeline, ie the injury was likely to have occurred very shortly before the ambulance was summoned, that there would have been little time for the parents and family members to concoct an account. [Counsel submit that it is difficult to draw any firm conclusions about E's account of seeing A fall to his bottom first given the limitations surrounding E's account which is untested in evidence; I agree].
Whilst he did accept the injury could have been caused by shaking he made it clear that this was not his opinion. He accepted the rarity of such injuries. In cross examination he expressed the view that if Mr. Richards agreed with Dr. Stivaros that parts of the subdural were not in continuity and the subdural bleeding was more than one isolated compartment which cannot be in continuity with the others, by definition multi-compartmental, if it was a multi-compartmental then there is likely to be have rotational element and it is hard to envisage that was by way of a fall backwards. He went on to say that he would find it difficult to balance that and say that it overturns the history that he had heard from a lot of people. If the judge finds that history is consistent, it is given within a few moments of the child becoming are well, I would favour that history rather than a multi-compartmental bleed indicating shaking. In medicine where things don't fit, if there is a history you can rely on then you defer to that.
Dr. Stivaros' relevant evidence :
4. In his written report he was of the view that from a radiological perspective the injury to the brain was more likely to be as a result of shaking type injury with or without impact against a soft surface. By the time of the experts meeting he said " given that Mr. Richards is happy that the global cerebral oedema was as a result of expanding extradural then I think that it could be an unlucky low level fall, but on the balance of probabilities I am still concerned that they could have been a shaking but I can't differentiate between the two as [Mr Richards] can't."
In his report Dr Stivaros had not identified any blood on the left side. Prior to giving oral evidence he had however gone back to the original pre-operative CT scan following experts meeting and re-examined them. The radiological evidence that he found supported multi compartmental bleeding on the left and right of the brain. In his view this was not in continuity, and two different spaces from a radiological perspective.
He accepted however that from a radiological perspective he was not able to track the flow of blood inside the head and couldn't say if the blood was from the subdural on the right that had passed through to the left. This was a matter for Mr. Richards.
At the conclusion of his evidence his view still remained that the totality of the radiological evidence indicated on the balance of probability that the injury was more likely to be non-accidental and inflicted. However he was clear that the evidence needed to be looked at in totality and in particular deferred to Mr. Richards in respect of the flow of blood inside the head, and deferring to both Mr. Richards and Dr. Cartlidge in respect of the absence of swelling, bruising and fracture
35. Following Dr. Stivaros' evidence the three other experts were asked to clarify whether Dr.Stivaros' review of the original CT scan, identifying bleeding on the scan in the left and right hemispheres changed their opinion. Each of them responded in writing. Critically Mr. Richards' view remained unaltered.
36. In circumstances where the expert evidence is not united court must take great care in reaching its conclusions were they to be adverse to the parents.
37. Discussion as to the expert evidence:
Dr Stivaros: I was left quite puzzled about the fact that he had not included any mention of blood in the left hemisphere in his report. The experts in their reports, their meeting and oral evidence discuss the question of multi site/multi compartment and continuity of spaces.
Multi-compartment bleeding is more consistent with shaking than a fall, so if a child presents with multi-compartment bleeding that can have some significance, but in order to establish true multi- compartment bleeding it must first be established that the blood did not arrive there by leakage from elsewhere. Dr Stivaros accepted that there was no way to establish that the small amount of blood seen on the left had not leaked from the falx and from the right.
Upon receipt of Dr Stivaros' email to the experts on 10.11.15 Mr Richards replied that it does not really change his opinion. This email communication was not known to the court or advocates until Dr Stivaros' oral evidence on 4.12.15. I do not know why the parties' solicitors had not informed their Counsel. The LA sought to recall the 3 experts who had given evidence thus far. I refused that but directed written replies from all 3.
38. Mr Richards was asked to give reasons in writing as to why he said that his opinion had not changed following Dr Stivaros having looked again at the CT scans. Mr Richards confirmed that he had considered the possibility and significance of multi compartment subdural haemorrhages when formulating his opinion at para 2.14, and that Dr Stivaros' findings did not alter Mr Richards' uncertainty as expressed in that paragraph.
I disagree with the LA that Mr Richards' email reply seems at odds with his other evidence. Mr Richards is an eminent neurosurgeon who demonstrated in evidence his detailed knowledge of this case and of its issues and I see no reason not to accept his expressed view that he had considered the possibility and significance of multi-compartment subdural haemorrhage when reaching his opinion, and that Dr Stivaros' email did not change his opinion.
Dr Cartlidge: In his latter email Dr Cartlidge states that multi-compartment bleeding is more likely if there has been a rotational element to the sudden acceleration/deceleration forced that are thought necessary to cause many cases of subdural bleeding, this increases the possibility of a shaking mechanism. Yet he also says he has reviewed the radiological findings in 2 other cases in which has been involved medico legally and multi compartment bleeding and bilateral retinal haemorrhages had been known to result from falls.
The LA submits that Dr Cartlidge has given significant weight to the family accounts and to his own medico-legal experience. In that the LA is really suggesting too much weight. I disagree. It was found to be necessary to instruct a consultant paediatrician to give an overview. A paediatrician is used to considering histories from carers and fitting that into the medical and clinical findings. That is the role Dr Cartlidge has performed here, whilst stating, as did all of the experts, that the credibility of the family was a matter for the court. I gained the impression from Dr Cartlidge's evidence that he considered the medical research, literature and reported case law with some care, and that in order to carry out his task as instructed his professional opinion was informed by all of that. Dr Cartlidge was very clear that the 'core of what went on in the room' was important, and accepting that there were limitations on assessing the veracity of the family's accounts from the papers, he went on 'if the validity of the accounts is less than I perceive then I am likely to change my opinion'.
All the experts agreed that the medical opinion should be considered in light of the factual matrix. I have to consider the history and accounts given by the people who were there as to how the injuries happened and consider the medical evidence alongside.
There was not a collective view from the medical experts as to whether the injuries were more likely to be inflicted or not. Each one of the experts to a varying degree accepted that the explanation given by the family of a fall could not be ruled out as a cause of A's injuries and if that explanation was found to be truthful can explain A's presentation.
Mr. Newman and Dr Stivaros took the view that it was more likely than not that the injuries to A were inflicted.
Mr. Richards was unsure and his view was that some of the facts given by the parents following the injury fitted with medical evidence and was more suggestive of an accident.
Dr. Cartlidge was of the opinion that it was an accident.
39. THE NON MEDICAL EVIDENCE
Counsel for the LA has filed detailed written submissions setting out their case that there are inconsistencies in the family accounts, inherent improbabilities and opportunities for collusion. I have considered that, as all the submissions with great care.
The Father was interviewed on 17 th May at 13.45
The Mother was interviewed on 17 th May at 14.25
The paternal grandmother PGM was interviewed on 17 th May at 18.40
D was interviewed on 17 th May at 19.20
C was interviewed on 19 th May at 13.30 (the interview having been arranged at 11am
E was interviewed on 20 th May at 18.00
40. Was there a conspiracy between the 6 people who were in the house that day?
There is no evidence of any conspiracy. I go onto consider whether a conspiracy could have existed.
The first mention of the basket falling on A's head is at 1m 43s during the 999 call, when the M says that a washing basket with loads of clothes in has landed on his chest. The evidence of Dr Cartlidge and Mr Richards was that they would expect that A would lose consciousness about 2 minutes after the index event. If the M was at that early stage trying to conceal a head injury caused by her or anyone in the room, I fail to see why she would mention something falling on A's chest in the 999 call. I have listened to the recording of that call. In my judgment it depicts a distressed household, especially shown by the M and PGM. The sheer panic that can be heard does not sit with a suggestion that a lie is being concocted.
The fact that during the phone call there is mention of the basket falling on A and the obvious distress heard, fits in with a timeline identified by the experts as have only very recently occurred.
41. C took over the call in order to give the postcode. He asked those in the room 'what happened'. There is nothing sinister in this at all, it is consistent with his evidence that he himself did not see the fall and that noone really knew why A had become so unwell and so suddenly.
There is no evidence to suggest that there was time or opportunity to concoct a serious lie in the few minutes before the 999 call was made.
42. The M's accounts to ambulance staff and medical professional, police and in evidence have been consistent with no exaggeration.
43. There is some force in M's Counsel's submission that if the basket story is a concoction then it is a remarkable coincidence that this has subsequently been accepted by the experts (to a greater or less degree) as being capable of causing A's injuries.
44. There was extensive cross-examination of the family by the LA about their understanding of why the police were involved at all. The Police arrived to assist the helicopter emergency service and they remained on the scene leaving an officer to protect a 'crime scene'. The police conveyed A to St Mary's Hospital and then to Great Ormond Street Hospital where they remained in the paediatric intensive care unit for 48 hours.
45. The parents say they did not know that they were suspected of shaking A until this was explained on 20.5.15 in a meeting with a Great Ormond Street Hospital social worker and a consultant. I was not convinced by the parents about this. Nor do I accept that the parents and PGM had no discussions at all about the ongoing police presence and investigation.
46. I make 2 observations about this. Firstly that although in my judgment it is implausible that they (M, F and PGM in particular) had no discussions about the police, I consider that this does not detract from the overall credibility of their evidence. Importantly, and moreover, if the parents and adults knew they were under suspicion as the LA asserts, it did not lead to any change in their accounts of what had happened to A. Knowledge of a police investigation is not evidence of a motivation to lie. I note that the account given by PGM at 6.38h on 17.5.15, prior to a police officer being posted at PGM's home, accorded with the parents' accounts. It did not change once she knew her living room was being treated as a crime scene.
47. Prior to and during the interview of PGM and D the M was in hospital with A. The only contact she had with PGM was via a telephone provided to her by the police. I fail to see how the M had the opportunity to conspire with PGM and her children in order to try to affect their accounts to police and professionals. I note PGM's denials that she has discussed the events with C, D and E. It is inherently improbable that there was sufficient time for M to telephone PGM from Great Ormond Street Hospital to brief her and for PGM to brief 10-year-old D prior to his interview on Monday 17 th after school at 19.20h, and for D to give the detail he does in interview.
48. All of the 4 family adults who gave evidence were very clear that they would not lie to cover up for each other.
49. D, aged 10 years old, was interviewed at the police station at 19.20h on 17.5.15. E, aged 7 years old, was interviewed at her home by DC Honey and with the SW present. The LA has not applied to call either child to give oral evidence. I have to consider what those professionals, who were involved with these 2 children, made of their accounts.
50. D: DC Stewart from CAIT did not interview D herself, but did tell the court that it was her professional opinion that all of the family members were telling the truth about what had happened to A. D gave an account of A playing with him and with the basket, and a ball, and A falling over, the basket on his chest. He started crying for about 2 minutes and then started to close his eyes, his M lifted the basket off him and carried him and gave him to his dad. He said that PGM was helping his brother on the laptop because they wanted to write something.
51. E: The SW described E as comfortable and co-operative, and an honest and genuine witness. PGM had cooperated with the interview arrangements. The SW recalled F getting off the bed to show what had happened to A, the basket falling onto A. She crouched down as if he was sitting on his bottom then fell backwards. E said that 'he was trying to stand up straight, I was playing with a ball and my brother was. I saw A trying to stand up by using the basket to lift himself up, A fell backwards landing on his bottom and fell backwards and hit his head on the floor and the basket fell on his chest. I saw it happen. His eyes opened a little then he closed them'. There is no video interview with E, nor have I seen her give oral evidence so it is difficult to know exactly what she meant by her demonstration, The relevance of this is that if A fell to the floor via sitting on his bottom rather than a matchstick fall then Dr Cartlidge's confidence is reduced.
52. These accounts are very similar. They are given by children aged 7 and 10. Some details are noteworthy eg their description of his eyes, and his M going to him to pick him up.
53. INCONSISTENCIES?
The potential relevance of considering inconsistent accounts is whether a person is internally inconsistent in their own accounts, and whether there are any relevant differences between people's accounts, and if so whether this shows a conspiracy to deceive.
54. A great deal of court time has been spent on this matter, and the LA has provided detailed submissions as to the inconsistencies it says are apparent.
55. There are some differences in the accounts of the family members as the LA sets out in its submissions. I set out a number of these below. However I am not at all satisfied that any or all of these are of such significance taken as a whole as against the rest of the evidence so as to undermine the core evidence of the family that A fell, and was not shaken or harmed by any one of them.
56. The plan
At my suggestion a plan was agreed between Counsel and drawn up by Mr Jagutpal. This was simply to assist the court in having the witnesses point out seating/standing positions. The LA regard this as one of the more troubling aspects of the family's evidence. I disagree. The photos and the plan show the TV and shelving unit situated the opposite way round. The M and F said the plan is correct. PGM said the photograph is correct and the plan is wrong, saying she told her Counsel and F that the plan was wrong.
57. The adults have all said since the event that they did not see A fall. The plan is not relevant to that. This room is not large and there were 7 people in it. Whether an adult was looking towards a TV in the middle of a wall or a TV on the same wall but in the corner of the room a couple of feet or so to the left, I do not think assists me a great deal. I consider that when the plan was agreed, the family made a genuine mistake as to the position of 2 items the TV and shelf unit.
58. Simultaneous broadcasts
The LA assert that there was a good deal of inconsistency in the accounts of what was being watched in the room that day, which the LA says is evidence of untruth. Similarly they assert that the family give differing accounts of how much and when C was using the computer. What is clear reading their accounts and hearing their evidence is that this was a fairly crowded room of adults and children, with a variety of activities going on. As Mostyn J says in the case of Lancashire v E and D, 'with every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited'. There are indeed differing accounts of who was watching the TV, who watching the computer and for how long. Looking at that in the round, I am simply not satisfied that this is evidence of a conspiracy or deceit, but is the family's best efforts to set out who was doing what. Also one person's perception of what another adult is watching may not be accurate.
59. A Crying
In interview the M said that A cried but all of a sudden it stopped. She was not asked how long the cry was. In oral evidence she suggested 2-3 minutes. In interview the F stated A cried for a couple of seconds, maintained in written and oral evidence. He also said in interview 'I didn't see him cry, M saw him cry'.
60. In interview PGM said he cried for about seconds, maybe 2 minutes, 2 seconds less than a minute. In her statement she said a short period and in evidence said a minute or two. D said A cried for 2 minutes.
61. C in interview said A crying for 2 minutes, in his statement he said 30 seconds.
62. The length of a cry is always different to recall in my experience. The family agrees he cried. If anything these accounts show some consistency in that A cried just for a short time.
63. Katie Dangerfield : social worker
This social worker was allocated as the children's social worker following A's injury until early June. She prepared a s47 report and recommended holding a child protection case conference, not the issue of court proceedings. She had no concerns about the presentation of either parent, saying M was open and co-operative, suffering stress and anxiety at A's injuries and being physically upset. B is attached to M. She told the court that at one point the M was walking for an hour to A in hospital. She saw no inconsistency in the family accounts that caused her concern. She said that the family was interviewed after the incident so in her opinion collusion is unlikely.
64. Her view at that point in June was that A had had an accident and the other information known about the family did not justify issuing proceedings. The decision to issue care proceedings was that of the Head of Service upon legal advice. The social worker agreed that in her statement dated 12.6.15 she says it is concerning that the accounts are consistent, adding in oral evidence 'I would probably change the wording now'. 'From my investigations and interviews I felt that the family being consistent was a positive factor'.
65. DC Stewart
This police officer has been in the CAIT for the last 5.5y, 13 years in total as a police officer. This experienced professional also considered that the family was telling the truth and that A's injuries were an unfortunate accident.
66. Neither of these witnesses' evidence is binding upon the court but it is of note that the social worker and police professionals who were on the scene at the time hold the view that the family was being truthful. Social workers are rightly regarded as experts in their social work field. In this case the LA management took a different view of the case from the social worker who prepared the s47 report. It is to the credit of this social worker that she was frank and open in her evidence about the events and about her engagement with the family. She did not seek to hide behind the body of the LA by whom she is in fact no longer employed. Her evidence was fair and measured.
Like the social worker, DC Stewart was helpful fair and measured in her evidence. She did not shy from giving her professional opinion as a police officer that this injury to A had been an accident.
67. THE MOTHER
This mother presented as loving and caring. She has made concessions as to many of the facts pleaded by the LA in relation to other findings. She accepted the facts as to her alcohol use in the past and said she was disgusted by her behaviour. The SW told the court that the M had expressed insight and remorse into the alcohol related convictions in the past. It was not suggested to the m at this hearing that this is a current problem.
The M is 9 weeks pregnant. She did not tell the LA about this immediately that she found out as she was undecided as to what steps to take.
68. I found the M a compelling witness; she was generally polite and measured even when asked probing questions during her lengthy evidence. At the point in her evidence when she recalled A on the floor and 'twitching' she appeared genuinely distressed.
69. The M volunteered in her first statement that on 14.5.15 A had fallen from the sofa. The LA seeks a finding that this occurred, whilst also asserting that this fall may be an invention. I accept her account that A was unharmed and fine a few minutes later. She said in her statement that he had a little bump to the head. In oral evidence she said he had no injury, confirmed in cross- examination, then when the inconsistency was put to her said she could not remember. If she has made this up in her statement, to somehow deflect attention from 16.5.15, I find it odd that she puts herself (as opposed to anyone else) on the scene of a fall by A on 14.5.15. There is nothing sinister in this event, which I accept occurred.
70. THE FATHER
This F was calm, quiet and measured in his evidence. He has gone through a great deal in his life and is still only 20 years old. His wish to be employed and provide for his family was very clear. He clearly felt real despair when he attempted to take his own life in August 2015. At that time he had lost his job and his home and was separated from A and B whom he thinks of as his own child. For the avoidance of any doubt, it was not put to him by the LA, that the attempt on his life was due to the fact he had injured his son.
71. C
Like his mother PGM, he is in the pool of potential perpetrators as he was in the home at the time of the event involving A.
C appeared to me to be a delightful and helpful young man. He was trying his best to remember events and be accurate. He agreed that his accounts given to the police on 19.5.15 were more likely to be accurate.
72. I thought his oral evidence describing how much he loved A, 'why would I hurt my nephew, I love him' was moving and persuasive. No family member, nor indeed anyone, has expressed any concern at all about C and his handling of A or any child. He assists his mother with his younger siblings.
73. C did not hide the fact that he was holding A and playing with him on the day of his accident, he was not distancing himself at all from A in the light of A's injuries.
74. C has been consistent in saying that he turned around upon hearing A cry. C can be heard on the 999 transcript asking 'what happened?' Clearly by the fact he asked this question he was not trying to follow a concocted story. He was trying to obtain information as he did not see the events.
75. Further he volunteered in evidence that when the M came to his home in March 2015 and an argument had developed with F he showed protective instincts by shutting the door to prevent the younger children from hearing the argument. This demonstrates how child-centred and kind he is, and how he did not hide the fact of the parental argument from the court.
His evidence was of great importance. I am satisfied he was giving an honest account of the events.
76. PGM
The LA assert that A's paternal grandmother injured A or is colluding to hide the truth from the authorities. Her determined opposition to this view was very clear to see. She did appear affronted when this was put to her by the LA; this is consistent with a grandmother who cannot understand why her family is being accused in this way. She too was cross-examined at length by the LA and she responded in a firm and direct manner.
77. She has given consistent accounts from the time the police were on the scene that she did not see the fall. She like others heard A cry after he fell. Whether this was for minutes or seconds, she is referring to a short cry. It is unlikely that she knew the significance of a short cry prior to receipt of the expert evidence.
78. The parents agree PGM is a loving and protective grandmother who would prioritize A's welfare over that of protecting a perpetrator. M wanted her to look after B when M was in hospital with A. B stays regularly with PGM overnight. I agree with Counsel for M that these are not the actions of a mother who believes PGM injured A or is involved in a cover-up.
Her evidence about the parental relationship, I deal with separately.
79. I do consider it implausible that PGM, F and M did not discuss the fact that the police were involved. I think it would have been natural to do so. This does not detract from PGM's powerfully delivered evidence about A's injury otherwise. Nor does it detract from my assessment of F and M as largely truthful witnesses.
80. MY OVERALL CONCLUSION: INJURIES
The parents and interveners 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 them in court for 10 days, and in oral evidence for several hours each.
81. I must consider all of the evidence before me with great care. The wider-canvas evidence is hugely important as the reported authorities from higher courts set out repeatedly. 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.
82. 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. Those experts all emphasised that medical evidence is one part of the evidence which I must consider in the context of the all of the other evidence.
83. Each one of the experts to a varying degree accepted that the explanation given by the family of a fall could not be ruled out as a cause of A's injuries and if that explanation was found to be truthful it can explain A's presentation. My conclusion is that the family members are telling the truth about A having accidentally fallen on 16.5.15. There is a great deal of consistency in their core accounts of the event. I reject wholly the notion of a conspiracy and I simply do not understand how it can be said that E and D were involved in or affected by that. The SW was present at E's interview, she gave evidence, called on behalf of the LA, that she found E an honest and genuine witness, a witness who had given an account of a fall by A and the basket fell on his chest 'I saw it happen'.
84. OTHER THRESHOLD MATTERS
THE PARENTS' RELATIONSHIP
The police were called by M to the parents' home on 18.11.14 after a verbal argument. Both children were in the home. F left without difficulty.
On 3.3.15 the M was fed up of the F's laziness around the house and she wanted him to take B to school. A was in the house. M kicked F; he grabbed her around the neck. She smashed his X-box and he smashed the TV. F was cautioned for common assault.
On or about 8.3.15 M disclosed another incident to the school, namely that she had arranged to take the children to see F but he was not at PGM's as he had agreed. The parents agree that M was angry with him and there was a verbal disagreement. C shut the door so that the children would not hear the arguing.
M accepts that on three occasions she has shoved F, and instigated verbal aggression towards him and the children have been exposed to some of these incidents directly and to their consequences.
On 2.8.15 the police were called to facilitate F's departure from M's home. The F left without any difficulty.
On 27.8.15 F took an overdose, on 31 st August he was again unwell and tried to climb out of a 4 th floor window at M's home. B was at the home. He attended hospital following a panic attack and attempted suicide.
Following this attempt on his own life M allowed him to stay at her home. M informed the LA about F's actions. The London Ambulance Service records show that F said he was living with the M, and that M said they had only split up because the LA forced them to. PGM believed that F was living with M when he took the overdose.
M is pregnant with F's child.
M accepts that she struggles at times with F as she considers he does not do enough around the home. F has suffered from depression as a result of his disappointment at not being able to work and provide for his family.
85. PGM said that she had seen M be violent to F once by slapping and kicking him. In her earlier statement she said this was twice. She said that M would pack F's bags once or twice a month and ask her to collect F and that she would mediate between them. In her statement she said that M had a temper and when she got annoyed she got really annoyed. She described M twice as 'boiling'.
PGM said that M had sent her offensive messages; M agreed that she had called PGM and screamed and shouted at her due to frustration. Similarly she had done the same to the paternal grandfather as she thought he had lied to her about F having a girlfriend.
86. Whether M hit F once or twice in PGM's presence may not matter, the fact is that PGM tried to mediate between the two of them on a number of occasions, and that things were so bad at times that M packed F's bags which were left in the hallway for days. M said in evidence that B did not ask about this.
I accept that at times M appeared very annoyed to PGM.
87. B told the SW that she is happy and has no concerns and that her mum and dad got on well. B told CG that the arguing was hardly ever and that she would go to her room when it happened. In addition she said she was at home when the TV was broken. It seems that B was either at home or aware of the TV being broken during an argument.
88. These parents are not a couple at the moment, but they clearly love each other and would like to be a couple. M said they need time to sort their lives out. She has sought couple counselling.
89. I have thought very carefully about whether these facts above cross the Threshold. I note the parents' submissions citing the case of Re A 2015 in particular. I agree that arguments are not enough to pass the Threshold test for state intervention, but this couple have been involved in far far more than arguments.
90. The parental relationship was considered by the SW when preparing her s47 report and she did not recommend starting care proceedings. I have more information now than she had. In less than a year the police have been called 4-5 times to the M's home. Even if the F may leave quietly after the police arrival, the fact that they need to be called is disruptive and unacceptable for the children.
91. M and F accept a great deal of the violence in their relationship as asserted which is to their credit, but that does not take away the likelihood of the children suffering significant harm as a result of it.
92. The children were exposed to F's anxiety and stress in early 2015 and B was present in the home when F threatened to jump out of the window. If his emotional or mental health problems are untreated it is likely that the children would suffer significant harm. He has agreed to under a psychiatric assessment now.
93. I am satisfied that the children are likely to suffer significant emotional harm and physical harm as a result of exposure to the parents' domestic violence and discord.
94. Other matters in the draft schedule of findings
• 6 and 7: There is no evidence that A was inadequately supervised on 14.5.15. M told the court that A had a bump and was fine 5 minutes later. I accept her account.
• 8: This is not pursued at present.
• 11: There is absolutely no evidence that M is still affected by alcohol issues as she was in 2013. M was not cross examined about this.
• 12: I do not accept that M has failed to be open and honest with the LA. SW confirmed M's honesty and co-operation up to the point when she left in June. If there is criticism of M for not assuming that the ambulance service would inform the LA of F's overdose, it is unjustified in the circumstances of this case where M's experience of the events of 16.5.15 was that the medical services did inform the LA of events. In any event I do not accept that any delay in M telling the LA herself has given rise to the risk of B being exposed to emotional harm.
• There is no evidence that M broke any working agreement with the LA regarding contact between B and F. I accept from her that she did not tell the LA immediately about the pregnancy, but I do not accept that has given rise to a risk of emotional harm to B.
95. CONCLUSION
• A sustained head injuries on 16.5.15 as a result of an unlucky accidental fall. Neither M or F nor his uncle or grandmother injured him nor have they conspired or colluded to hide the truth from professionals.
• Both children are likely to suffer significant emotional harm and physical harm as a result of exposure to the parents' domestic violence and discord. The Threshold Criteria is satisfied to this extent.
• F agrees to undertake a psychiatric assessment.
• The parenting assessment needs to be concluded now in the light of this judgment.
• The IRH needs to be listed.
• I will hear submissions tomorrow about any interim matters pending the IRH.
MC