England and Wales Family Court Decisions (other Judges)

Case No: WR14C00169

N THE WORCESTER FAMILY COURT

Friday, 11^th December 2015

Before:

HIS HONOUR JUDGE RUNDELL

In the matter of:

RE: F (A CHILD) &

  J (A CHILD)

_____________

Counsel for the Local Authority:                                                          MR JAMES SHAW

Counsel for the Respondent Mother:                                                 MR DORIAN DAY   

Counsel for the Father:                                                                       MR FRANK FREEHAN QC and CHRIST BUTTERFIELD

Counsel for the children:                                                                      MR LAWRENCE MESSLING

_____________

JUDGMENT APPROVED BY THE COURT

1.      In the afternoon of Thursday 4 December 2014 F was taken by ambulance to the Worcestershire Royal Hospital. He was just 43 days old, having been born, by caesarean section, three weeks premature, on 22 October. The next day he was transferred to the Birmingham Children's Hospital. He was later returned to Worcester and was discharged later in the month. Whilst in hospital he was subjected to extensive tests and investigations. These disclosed a number of serious conditions; he had suffered bilateral subdural haemorrhage, a number of bilateral free retinal and intra-retinal bleeds and two fractures, a metaphyseal fracture of the left femur and an undisplaced transverse fracture of the right ulna. It is these which were the focus of the hearing which began as long ago as 27 July 2015.

2.      The local authority's case, in these public law proceedings, which were issued, almost a year ago, on 17 December 2014, in relation to F, and his elder brother J (born on 7 May 2013), was set out in a document dated 15 December 2014 but later amended on 22 June 2015; it is that F's injuries were inflicted and not accidentally caused, nor were they the consequence of some medical condition or conditions. The authority alleged that the injuries were inflicted by his mother, S, or his father, C, or, possibly, both of them, and that, if one parent inflicted the injuries, the other failed to protect the baby. There was also a discrete allegation in respect of one incident of domestic violence between the parents, in November 2014, in the presence of F.

3.      At  the  conclusion  of  the  evidence  the  schedule  of  findings was revised.  The final  version  is dated  4 December  2015;  in  it  the  local  authority  no  longer seeks a  finding  that  the  injuries were  caused by mother,  but  alleges  that  she

failed to protect F and has failed to disclose all that she knows or suspects in respect of his injuries. The domestic violence allegation remained and a second incident, occurring on 15 May 2015, was added.

4.      It is, of course for the local authority to prove the case that it puts forward, on the balance of probability. It is not for either parent to prove anything.

5.      There was general agreement (with the exception of one matter which I consider below) between the advocates in relation to the legal principles I have to apply to the facts of this case. I gratefully adopt  the extensive summary  of the law  undertaken  by Baker J in Devon CC v EB [2013] EWHC 968 (Fam), paragraphs  53 to 64 inclusive (which were helpfully  set out by Mr Day, acting on behalf of mother, in his closing submissions); they are well known  and  it  is unnecessary  to repeat  them  herein.

6.      In relation to allegations that a witness may have lied, I also gratefully adopt the observations of Peter Jackson J in Lancashire CC v M & F [2014} EWHC 3 (Fam) where he said, ''I would only add that in cases where repeated accounts arc given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural - a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith."

7.      In relation to the burden of proof it is important that it is not subconsciously reversed. In Re M [2012] EWCA Civ 1580, Ward U said, "that, too, was the effect of the judge's view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has

been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury."

8.   The only possible area of disagreement between the advocates was, unusually, in relation to the standard of proof. Mr  Feehan QC, on behalf  of father, appeared to attempt to resurrect  the notion (firmly rejected by  the House of Lords in Re  B [2008] UKHL 35) that the more serious the allegation, the more stronger or cogent the evidence must be to satisfy the standard of  proof. I reject any such suggestion. It was not for nothing that, in that case, Lady Hale said. "the standard of proof in finding the facts necessary to establish the threshold under s31 (2) or the welfare considerations in s1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."

9.   Of   course, where the allegation is one of non-accidental injury, the stakes could not be higher; the consequences of a finding against the parents may be very grave indeed. Nevertheless, that, in my judgment, does not affect the standard of proof, which is not a matter of "discretion" but one for judicial determination. In Re S-B [2009} UKSC 17, Lady Hale said, "the court subjects the evidence of the local authority to critical scrutiny, finds what the facts are, makes predictions based upon the facts, and balances a range of considerations in deciding what will be best for the child. We should no more expect every case which a local authority brings court to result in an order than we should expect every prosecution brought by the CPS to result in a conviction. The standard of proof may be different, but the roles of the social workers and the prosecutors are similar. They bring to court those cases where there is a good case to answer. It is for the court to decide whether the case is made out. If every child protection case were to result in an order, it would mean either that local authorities were not bringing enough cases to court or that the courts were not subjecting those cases to a sufficiently rigorous scrutiny."

10. In relation to the discrete allegations of domestic violence, I respectfully adopt the observations made by the President in ReA (A Child) [2015] EWFC 1 t, at paragraphs 14 to 17 inclusive, which were also helpfully included in Mr Day's closing submissions.

11. The parents present as a couple; each denies causing any injury to their baby, and contends that they could not contemplate the possibility of the other doing so either. However, in May 2015, after an incident of violence between them, they separated, but were subsequently reconciled. The future of their relationship is likely to depend, at least in part, on the outcome of these proceedings, and, in particular, the result of this fact-finding exercise.  In any event having seen them  give evidence, and  having observed  them over the course of  10 days in court, I am far from convinced  that this is a relationship which is bound  to endure  in the long term; I hope, for the children's sake, that I   am  wrong  in that  respect.

12. Although F's maternal grandmother, A V, spent a very short time alone with F in the second week of November 2014, no one suggests that she might be responsible for his condition. If the injuries referred to above were inflicted, it is common ground that the only two possible perpetrators were F's parents. It must follow therefore, if these injuries were accepted, or found to be, the result of inflicted trauma, then, if one parent says he or she has not done anything to cause those injuries to his or her baby, the only logical consequence must be that he or she effectively blames the other parent.

13. In the circumstances which arose in December 2014 it was inevitable that both Children's Services and the police were informed and became involved.

During the course of their enquiries the police instructed Dr Alan Sprigg, a consultant paediatric radiologist; his report, dated 24 July 2015, was, in due course, disclosed into these proceedings.

14. Since F's injuries came to light his parents have given detailed accounts of his care leading up to his presentation at hospital on 4 December. They were first spoken to, separately, by police and social workers at Birmingham

Children's Hospital in the afternoon of 5 December. Later that same day they were each formally interviewed at the police station. Further lengthy interviews (in excess of five hours) were undertaken by the police on 17 and 18 December.

15. The circumstances of those later interviews were the subject of some, albeit, restrained, adverse criticism. I am conscious that I have not heard from the police in relation to this aspect of the case, but it does seem to me, at first sight at any rate, that the criticism may be justified. The parents were arrested at home at about 4.30 in the morning by a number of police officers (mother said six in all) and  taken to the police station where they were placed in cells until interviewed that day (in mother's case later in the morning, in father's case, in the afternoon) and the following day. The police had considerable material to put to them but, again, at first sight. The overall length of each interview appears to be somewhat excessive.

16. On the other hand, neither parent was fully frank and forthcoming in interview; that was likely to extend the time necessary for the police to

undertake their investigation. Further, each was legally represented throughout the course of the lengthy interviews.

17.  Notwithstanding that, no doubt, from the point of view of the police, this is by no means a straightforward case, it is disappointing to hear that no charging decision  has yet been made and that the parents, who remain on bail, are due to return to the police station later this month. In the circumstances, I very much doubt whether any decision will have been made by the police by that time; the parents will therefore face yet further uncertainty well into 2016.

18.  Once the investigation began, J went to live with his paternal grandparents, T and J; he was joined there by F on his discharge from hospital on 19 December. The boys have lived with them ever since, under a Child Arrangements Order made on 19 December 2014, pending resolution of these proceedings. In the meantime the parents had been able to have regular

contact with the children, initially supervised by the local authority, at first separate from one another, due to bail restrictions, but later together.

19. During the course of these proceedings both parents provided a detailed narrative statement in January 2015. They have not been able to identify any incident which it could be confidently said is the likely cause of these injuries. They do, however, refer to three occasions which have required scrutiny during these proceedings.

20. The most significant event, in the context of this case, was said to have occurred on 20 November. Father, in his narrative statement, said that he was carrying F, in the crook of his left arm, and tripped over a toy when he moved swiftly to prevent J from climbing up by the window. He fell flat on the floor but did not know whether F also hit the floor, as the child was still cradled in his arm. F cried for a few minutes. No marks were apparent and he went to sleep not long after this. Father phoned mother, who was visiting the doctor; she returned home shortly thereafter. He explained to her what had happened and she also checked him over and changed him. She, too, found nothing apparently amiss. She did not gain the impression that F had actually come into contact with the floor.

21. During the course of his oral evidence father sought to demonstrate how he had fallen. He explained that his right foot slipped sideways causing him to fall face down onto the floor. Although he said that F was underneath his body when he fell, he could not say whether the child came into contact with the floor; his arm probably cushioned the fall. He must, however, have fallen with some force, if this explanation is correct. He has apparently subsequently developed a Baker's cyst behind his right knee which he attributes to this incident.

22. The following day F's health visitor made a routine call to the home. She was not told anything to suggest that there had been a recent accident

involving F. Father denied that there had been any discussion between the parents about keeping quiet in respect of the accident but (according to a note

made, presumably by a nurse at BCH) he apparently told his mother that the parents were concerned that the children might be removed if it was disclosed.

23.  During the evening of 30 November, when J was at his maternal grandmother's house, father was again caring for F, whilst mother slept upstairs. In the early hours of the morning he picked F up after changing him. The child's right arm caught in a throw which was on the sofa and father claims to have heard a "click". The throw was a thick blanket of some weight and the hypothesis is that, somehow, the elbow over extended. F cried out loudly, his mother came downstairs and checked him over; he did not appear to be in any discomfort and soon stopped crying.

24.  Later, still in the early hours of the morning, F took his milk very quickly and then brought most of it back up. After father changed him and offered him the remainder of the bottle the child went "floppy'' in his arms. F went

"yellow pale" colour and father took him upstairs and woke mother. They telephoned  111 but  when  the ambulance  arrived  the paramedics  thought  that F  was all right;  the parents accepted  that  advice. Father  could not remember  whether  he  told  the  paramedics  about the  elbow  clicking;  no such information  appears  in  their report.  In the circumstances, it is likely that he did not do so.

25.  Father accepts that, probably after the events of that day, he researched Shaken Baby Syndrome on the Internet. He said, in his oral evidence, that he was looking for possible causes of F's extreme vomiting and shaken baby syndrome came up on that search. He accepted, however, that mother had mentioned "shaken babies" in the context of his handling of F, and he had seen it referred to in newspaper articles. Mr Shaw, on behalf of the local authority, submits that this is an indication that there may have been a shaking and that father was checking to see whether the symptoms matched the information he found on the Internet.

26.  In the early hours of the morning of 3 December mother again telephoned 111.

F had been sick most of the night. She (father had already left for work)

was eventually told to take the child to hospital; she did and saw the out of hours GP. F was admitted for observation and, later the same day, was discharged, the doctors saying that they thought that he was being overfed.

27. The next day the F continued to vomit after feeding. The parents  were very  tired  and,  during the  afternoon,  they  exchanged  some  angry  words  about unwashed  clothes.  They were very concerned for the child's welfare. Eventually, with the help of a neighbour, S, they rang 999. Ms M,  who gave oral evidence,  confirms  that  the  parents  were  genuinely concerned, but  not  panicking,  and  acted  appropriately  throughout   this  incident. The paramedics checked F over and were reluctant to take him to hospital but the parents insisted that they did. He was taken to Worcestershire Royal Hospital but later transferred to Birmingham   Children's Hospital.  Later  that day,  after  initial  investigations  had been  carried  out, both  the police  and children's  services  were  notified.

28.  The following day, at Birmingham, the parents were interviewed by police and a social worker, Ms Baker. Mother was interviewed first at 2.00pm; she briefly explained the events of the preceding two days. She did not volunteer any significant incident which might have caused or contributed to F's condition; she was, however, not specifically asked whether any such incident had occurred.

29. Immediately thereafter, at 2.23pm, father was interviewed. He explained what had happened on 30 November (F becoming "floppy") and, when asked whether there was anything he could think of, like a "bump", explained his fall earlier the previous month and said that he had told mother about it.

30.  Some time that afternoon mother realised that she had not mentioned the events of 20 November and asked a nurse to tell the police and social worker about them; hospital records suggest that when that was done the nurse was told that father had already referred to the incident.

31.                   A strategy meeting was then held and Ms Baker informed the parents of

the result, which was that the children were to be removed from their care. She told me that, at that stage, mother sought to blame father for F's condition and wanted him removed from the hospital. Ms Baker said that father, in return, blamed mother; "it was two-way traffic". Neither parent had any memory of such argument; each denied that it had taken place. There was no reference to it in the hospital records. However, mother, in her narrative statement, accepts that she said to father that he had been too rough with F and "now look what had happened". Ms Baker was clear that such an argument did occur and, in the circumstances, I am minded to accept her evidence on this point. In view of the immense strain on these young parents at the time (F was about to undergo neurosurgery and, at one stage, they were told he was unlikely to survive) I do not, however, place any great significance on such incident.

32.  Later that day the parents were interviewed, under caution, in the police station, each for about an hour. Two weeks later they were arrested and questioned at length, mother for 4 hours 25 minutes, father for 5 hours 25 minutes. I have already made comment in relation to the circumstances and length of those interviews.

33. This young couple had been together since summer 2012. There had been no local authority intervention in their lives until December 2015. J was a premature and demanding baby, born in May 2013, and they coped well with him; his health visitor, Ms Slater, in her oral evidence, said that she found the parents' relationship to be entirely appropriate and the home conditions conducive to the care of children. Mother clearly had the welfare of her child in mind and engaged well with him. She described mother as "very loving" she had no concerns for the child.

34.  When F was born, also premature, J was only 17 months old. Caring for the two children was a demanding task and would have taxed many parents. F's health visitor, Ms Morgan, who also gave oral evidence, considered the parents' relationship to be stable and the state of the house to be good.

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She had no concern in relation to either attachment or bonding, and said that they provided very good care, notwithstanding that F was not very well. Mother engaged well despite her obvious depression and low mood: she was open and receptive to advice.

35.  Although both of these parents had some mental health difficulties in the past, they had sought appropriate intervention. There are no issues of drug or alcohol misuse and there is no suggestion that either child had been neglected. The maternal grandparents referred to the parents as "first-class parents"; similar praise came from T and J. They moved home shortly before F was born and their neighbour, Ms M expressed no concern in respect of their care of him or his elder brother.

36.  The parenting assessment, undertaken by the allocated social worker, Ms Finch, was generally positive and concluded that, in the event that no findings were made against the parents, the children could return home, albeit that F's return should be phased over a 7 to 10 day period.

37.   Set against that positive picture there are two domestic violence incidents which need to be considered. The first occurred on 11 November 2014 and is the one referred to in the local authority's June threshold statement. In her narrative statement, mother said that she was in the bedroom and had discovered that her partner had been looking at pornographic sites on their

IPad. She was angry and threw the device on the floor, breaking it. She said that at the time she was suffering from low mood and was emotional. She went towards the bathroom, fearing that he might be angry. She was correct.

38. Father, who was downstairs, came upstairs holding F (aged about three weeks) in his arm. He saw the IPad on the floor and went for her, grabbing her round the throat. She hit him and he let go; she took F off him and went into the bedroom. She asked him to leave the house; he did so but, at her later request, returned in the evening, having in the meantime apologised by text.

39. She was, perhaps understandably, less than forthcoming about this incident when she was interviewed by the police. She initially denied any violence between them, saying "we just bicker", denied that he was involved in accessing pornography and lied about F's whereabouts during the incident, saying that he was on the bed. The interviewing officer's comment to her that "we've had to pull that out of you, haven't we?" was entirely appropriate, as she accepted at the time.

40.   In his narrative statement, father was also less than frank. He said that she hit him first and all he did was to push her away. He accepted that the boys were in the room at the time, but did not disclose that F was in his arms. He, too, lied to the police in relation to this incident, saying that the IPad was smashed before F was born. When he gave oral evidence he confirmed that what mother said was correct. Mr Shaw, in his closing submissions, accuses father of "falling into line" with mother's explanation. Although I understand the basis on which the submission is made, I do not accept it. I consider that father's earlier explanation, which was patently untrue, was an attempt to minimise his responsibility. Mother's lies to the police were made at a time when her primary focus must have been to secure a return to her care of the children; minimising domestic violence was, whilst inappropriate, entirely understandable.

41.   During the course of his police interview Father told them that this incident was an isolated event and would not happen again; sadly, that prediction proved false. In May 2015 there was a second incident; this is now contained in the local authority's revised threshold schedule.

42.  In her statement, made in July 2015, mother refers to the incident which occurred on 15 May. She said that they were arguing, although she could not remember what about, and father kicked her in the groin. As a result she decided she would separate from him and in due course he left the home. In her oral evidence she repeated the suggestion that she could not remember why they were arguing although, during appropriately sympathetic cross-

examination by Mr Messling, on the half of the children, she conceded that it might have been about the medical evidence in this case.

43.   Father, in his statement, made on 16 November, shortly before the resumed hearing, also appeared not to recall what the argument was about, although he accepted that he kicked her in the groin. In his oral evidence, which he gave on 1 December, he apparently then remembered that it was about the medical evidence. He said that he had not managed to remember that a fortnight earlier, when he made his statement. Mr Shaw, again, accuses the parents of seeking to align their evidence in respect of this incident. I do not accept that that is the case.

44.  It was perfectly clear to me that both parents knew full well exactly what they were arguing about on this occasion. I doubt whether a day has passed since the children were removed from their care that they have not thought and

talked about this case; I suspect they have spoken about precious little else. By May the medical evidence appeared clear cut; it suggested, at the time, that there was no possible medical cause for F's injuries. In such circumstances if, as she has always maintained, mother was blameless, she could be forgiven for, at the very least, suspecting, if not actually believing, that her partner was responsible. That there was only one argument, leading to violence, might therefore be thought surprising. In my judgment their final evidence ("the final version") is overwhelmingly the truth; earlier attempts to evade the inevitable, whilst, again, inappropriate, should not be given undue weight against them.

45.  Although Father did leave, and remain away for some days, he eventually returned. The parents now present as a couple, both denying that they have deliberately caused F's injuries.

46.   I have referred to the fact that it is for the local authority to prove the case alleged against the parents; they need prove nothing.  In considering whether the authority has succeeded in doing so must, of course, have regard to the entirety of the evidence, including that of the parents and the wider family. I

must not fall into the trap of concentrating exclusively on the expert medical evidence, however compelling it might, at first sight, appear.

47.  In preparation for this hearing, reports were commissioned from a number of jointly instructed experts; they were, as usual, totally independent of the clinical team treating F and, of course, quite independent of the local authority.

48.   Reports were obtained from Dr Andrew Watt, a consultant paediatric radiologist, Mr William Newman, a consultant ophthalmologist, Mr Peter Richards, a consultant paediatric neurosurgeon, Dr Raina Liesner, a consultant paediatric haematologist, Dr Anand Kumar Saggar, a consultant in clinical genetics, and Dr Patrick Cartlidge, a consultant paediatrician. The reason why it was necessary to instruct no less than six experts was to ensure that all possible medical causes were considered in this case, it being suggested that there might be a family history of blood disorder or genetic irregularity which might be relevant to the injuries sustained by this little baby.

49.   Of the six jointly instructed experts, I heard oral evidence from all save Dr Liesner, whose report (confirming that there was no significant abnormality found in relation to F's blood) was not challenged. In addition, Dr Sprigg also gave oral evidence. All of these experts arc well-qualified and highly experienced in their respective fields; they are all regularly instructed in matters such as the present case and are all well acquainted with the relevant research in this field.

50.  This case was originally listed, with a time estimate of 8 days, on 13 May. Due to legal aid difficulties in relation to some of the experts it was not possible for the  hearing to take place at that time and it was therefore relisted, with a 10

day Lime estimate, on 27 July. Shortly before that date, Dr Saggar saw F (on 21 July) and provided a short additional report. He concluded that F did suffer from a connective tissue disorder ("CTD") and felt that might provide an explanation for his injuries. He strongly recommended a gene panel test.

51.   When he gave evidence on 28 July Dr Saggar said that he was confident that F had CTD (his initial report had suggested that there was only an "extremely small" prospect of that) and that such condition might explain the subdural haemorrhage and the fractures. He repeated his strong recommendation in respect of genetic testing. He told me that genetics had now completely revolutionised the approach to these matters. I agreed to adjourn the matter, yet again, to allow for such testing; no party objected to such a course.

52. Dr Saggar produced a further report dated 5 October. The test identified a variant change in a gene called MYH11; the change was classified as "unknown significance". He summarised his conclusion in this way, "the testing has identified a variant of unknown significance which requires further work by looking at the parents. However, in my opinion this variant change may not be clinically significant and even if it significant (sic) that it would

not cause an increased propensity to fractures as the gene controls smooth muscle filament formation." He stressed that he did not believe that this change in the gene would be a cause of or lead to an increased propensity to fracture.

53.  In a letter dated 11 November Dr Saggar explained why he thought this gene mutation was of no significance; it had not been previously reported in the literature as being pathological, and computer programs did not predict it to be so. He said, "The clinical features do not match the problem that would be expected to occur within this gene, although admittedly this child is very young."

54.  The hearing then resumed on 25 November. Mr Feehan QC, who had not previously been instructed, joined Mr Butterfield on behalf of father. All the experts, with the exception of Dr Liesner, gave evidence; Drs Saggar and Cartlidge making their second appearance in this case.

55.         The jointly  instructed experts, in their reports, had all, speaking as experts in their respective specialties, concluded that F's presentation on 4 December was, on the balance of probability, the result of some trauma, either  accidental or inflicted, and that nothing that the parents had offered by way of explanation could account for his injuries. It followed that they were unable to find any medical explanation for either the head injury or the fractures. Dr Sprigg came to a similar conclusion. Dr Cartlidge, presented the paediatric overview and agreed; he summarised the position in this way, "ln my professional opinion the intracranial injuries and the retinal haemorrhages were caused non accidentally and most probably by shaking. I think that the fractures were also caused non-accidentally."

56.  Following the mutual distribution of the various reports between the experts, Mr Richards, in a letter dated 3 June, had written, "We appear to be in agreement with regards to nature, causation and presentation of injury. Timing remains an unclear issue in terms of the exact timing of the injury. Discussion amongst the experts may help to narrow the window of timing for the court to consider, but is unlikely to be able to pinpoint the exact moment of injury."

57.  In his report, dated 16 March, Mr Richards was unable to say, with any certainty, whether the fluid seen in the scans represented a chronic subdural haemorrhage or an acute traumatic effusion; there were indications either way. Dr Cartlidge, during the course of his oral evidence on 27 July, discussed this issue and inclined towards concluding that the bleeding was either "sub-acute or possibly chronic''. He reached that conclusion particularly in the light of the significant and abnormal increase in F's head circumference during the weeks preceding his final hospitalisation. He said that, if this was a chronic bleed, he could not rule out it being a birth related injury. He accepted that, if this was a chronic bleed, the events of 20 November might cause a further bleed, but would be unlikely to cause retinal haemorrhages.

58.   Dr Cartlidge felt that, in the event that this was not a case of a chronic subdural, it was unlikely that the fall on 20 November caused an acute event

unless F's head had actually hit the floor, something that father had never actually suggested. He conceded, however, that this might be possible in the event that F was found to suffer a CTD.

59.  Dr Sprigg's report reviewed both the CT scan and the MRI results. The former showed subdural collections which, in his view, could be up to 10 days old. The latter disclosed no identifiable membranes (an indication, had they been present, of a chronic condition, but not necessarily determinative of the opposite conclusion), evidence of recent bleeding and an apparent increase in the size of the fluid collection. This indicated to him that the bleeding was likely to be no more than three days old. He concluded, therefore, that this was consistent with acute subdural haemorrhage and acute traumatic effusion (one event), rather than suggesting any prior bleeding weeks previously followed

by a more recent bleed.

60.  In his oral evidence he maintained his preference towards the subdural collections being the result of acute traumatic effusion although he accepted that there was room for doubt and scope for reasonable disagreement on this aspect. He placed the event which caused the subdural haemorrhage at 3 to 7 days prior to the scan taken on 5 December.

61.  Dr Watt was not instructed to consider the timing of the head injury in his report and, quite understandably, did not feel comfortable to do so during the course of his oral evidence.

62.   During the course of his oral evidence Mr Richards considered Dr Sprigg's reasoning and conclusion; be said he did not disagree with either but, nevertheless, still appeared to be open to the possibility of there having been a chronic subdural, possibly even the result of birth trauma, which might have developed a re-bleed  after an event such as the one father alleged to have occurred on 20 November ("I can't say that wouldn't have done so").

63.   In respect of the ageing of the fractures, there was general agreement between Drs Watt and Sprigg in relation to the ulna; Dr Watt said it was no more than

11 days old at the time of the x-ray on 8 December, Dr Sprigg said, no more than   10 days old. They therefore agreed that it could not have occurred earlier than 26 November.

64.  They disagreed in relation to the ageing of the metaphyseal fracture of the femur. Dr Watt said it was 4 weeks old (not earlier than 10 November) but Dr Sprigg was more precise and said that it would have occurred between 2 to 4 weeks prior to the x-ray (between 10 and 24 November); in his oral evidence he said that he thought the fracture was 2 to 3 weeks old (17 to 24 November). It followed  therefore that whilst Dr Watt could accept that the two fractures occurred at the same time (although involving different mechanisms), Dr Sprigg could not.

65.   Dr Sprigg relied on a consideration of both the 8 December x-ray and the follow-up taken on 22 December; the latter showed complete healing by that time and the former showed crisp edges to the fracture. He accepted, however, that Dr Watt's view was not unreasonable. Dr Watt, in turn, recognised Dr Sprigg's explanation but was unable to change his opinion. He pointed out that there will always be a degree of variation in the healing process and an element of subjectivity in the interpretation of the x-rays; in the final analysis he did not feel the same certainty as Dr Sprigg and maintained that the two fractures could have occurred at the same time, albeit with different mechanisms. I note that Dr Johnson, the consultant paediatric radiologist at Birmingham Children's Hospital, who did not give evidence, apparently said that this fracture was "less than two weeks old" on the 8 December x-ray.

66.  In the circumstances of the case it is not crucial to resolve this difference of professional opinion. Whilst, of course, it is not for the parents to advance a case, their explanation for the fractures involves two completely separate occasions. Dr Walt accepted that it was possible either for the fractures to have occurred at the same time or on separate occasions; in so far as it is necessary to indicate a preference, I am inclined, on balance, to prefer his evidence on this aspect of the case to that of Dr Sprigg.

67.  All the medical evidence must be considered in the light of the results of Dr Saggar's recent investigation into F's genetic condition. He confirmed that F had a connective tissue disorder and the latest genetic testing had identified a variant change in a gene called MYHll, classified as having unknown  significance.

68.         At the resumed hearing Dr Saggar gave his oral evidence on 26 November, after Mr Newman and Dr Sprigg, but before Dr Watt, Mr Richards and Dr Cartlidge (who gave oral evidence, for the second time, on 30 November). By that time he had seen JH's statement which described, in considerable detail, a variety of unusual physical features apparent in members of this family; her evidence was unchallenged. Dr Saggar explained that genetics is an evolving area and practitioners in the field need to learn more about MYHll: there was, he said, very much an element of the unknown here.

69.  He concluded that F did suffer from CTD, most probably Ehlers-Danlos syndrome, hypermobility type III ("EDS Ill"). This would result in fragility of the capillaries which might make him more vulnerable to bleeding and, possibly fractures, although the literature did not support the suggestion in relation to fractures and he was more cautious in this respect.

70.  So far as bleeding was concerned he was clear that F might have a greater vulnerability to bleeding, including retinal haemorrhages. This was due to the increased propensity to stretching and tearing of the blood vessels in a person with his condition. Patients with EDS III do have a propensity to bruise and bleed and, although he does not, in his many clinics, where he sees children with hypermobility, see cases of subdural haemorrhages, he could not exclude the possibility in F's case. He was, however, confident that although there would be a susceptibility to bleeding, this would not occur spontaneously;

there would need to be an event, albeit one involving lesser force than necessary to cause bleeding in a normal child.

71.  He was more cautious, however, when asked whether the same principle applied to fractures; he said this was much more difficult. He accepted that

EDS  Ill  might  have  an effect  on bone  density  but  there  was no evidence  in  this respect  in  relation  to young children.  He  was,  therefore,  unable  to say whether F's  genetic  condition  affected  his  bones,  but  he  could  not  exclude  the possibility   although,  again,  he  was  of  the  opinion  that  a  spontaneous  fracture would   be  very  unusual;  there  would  need  to  be  a memorable  event. If there

was some bone demineralisation it might have been present from birth.

72. As a matter of logic therefore, Dr Saggar felt that F might have a heightened vulnerability which could be relevant to his suffering subdural haemorrhages and retinal haemorrhages; although this was not within his clinical experience, he could understand the logic of such possibility. He was, however, less persuaded in respect of vulnerability to fractures.

73.  In the light of that evidence, Dr Watt was not unwilling to extrapolate the known research in relation to adults to apply to non-mobile infants; he could see no logical reason not to do so. If F did have lower bone density, fracturing would be easier and would require a lesser than normal trauma to cause such injury to his limbs. If the fractures were undisplaced and no bruises were apparent, it would be very difficult, at least for non-experts, to identify such a fracture in a young baby. He did not consider that father's explanation

of the events of 20 November adequately explained the fractures, although it was still possible.

74.  Mr Richards was "uneasy". A child, like F, with CTD could be abnormally vulnerable to bleeding. He also had regard to the recent MRI follow-up which suggested unusual venous draining within the brain. That

"rang alarm bells"; it could cause increased pressure within the skull and could also contribute to a susceptibility to intracranial bleeding. In the circumstances he wondered whether the doctors had been "fooled" by the clinical presentation.

75.  In relation to father's explanation of the events of 20 November, if there had been a fall, and if F did suffer some vascular fragility, it was plausible that this could be sufficient to cause the subdural haemorrhage. F's

progressive deterioration thereafter supported that thesis. If F had been suffering a chronic structural haemorrhage at the time of the fall, that fall might have caused a re-bleed; Mr Richards could not say that this would not have occurred: this might have accounted for the fresh blood seen in the scan taken on 5 December.

76.  Dr Cartlidge, presenting a paediatric overview, was, conveniently, the last of the medical experts to give oral evidence. In relation to the head injury, he felt uneasy about it being acute, particularly having regard to F's increasing head circumference over the weeks prior to his presentation at hospital. Although he understood why Dr Sprigg concluded that this was likely to be an acute injury that did not explain the head size. In the circumstances he

inclined towards a chronic condition with a more recent bleed, probably happening over two weeks, although he did not exclude a shorter period.

77. He found the implications of F having EDS III "really difficult".

Although there was no sufficient evidence base, he felt that medical logic drove him to the conclusion that if the baby had a collagen disorder his blood vessels would be more fragile. He, too, preferred to focus on F's vulnerability to trauma rather than to consider spontaneity.

78. Dr Cartlidge said that, in relation to the head injury, but for the retinal haemorrhages and the fractures, he would not exclude a birth related subdural haemorrhage; this was a real possibility in this case. He was equally comfortable with an event occurring some two weeks prior to F's final presentation at hospital. In the circumstances, the events of 20 November (as explained by father), which involved an angular acceleration/deceleration fall, even if F's head had not hit the floor, could provide an explanation. If the child was already suffering a chronic subdural haemorrhage and had somewhat fragile veins, the fall could be enough to cause a fresh bleed and the consequences that were thereafter apparent on clinical observation.

79. The presence of retinal haemorrhages clearly troubled Dr Cartlidge; if they were pivotal to the case (he did not appear to think that they were) he said that

he would need to have a lively debate with Mr Newman. Notwithstanding that reservation, he said that he was really uncomfortable" in relation to the head injury in this case. He felt that father's account (if accepted) would be an adequate explanation for the head injury if there had been a birth related subdural haemorrhage, and probably an explanation even in the absence of such a condition if, as is the case, the child suffered EDS III. If however F's head injury was an exacerbation of a birth related condition, it could have occurred even in the absence of his suffering EDS III.

80. In relation to the fractures, Dr Cartlidge had difficulty understanding the mechanism for each injury if father's explanation was accepted, although. In respect of the ulnar fracture, if F's hand had been anchored in the throw, picking him up swiftly might be sufficient to cause the injury.

81. He confirmed that the child would have cried for about 5 to 10 minutes immediately upon suffering each fracture but, if he was already crying, as father contends in relation to the events of 30 November, a carer might not realise the injury had been sustained. A carer not present at the time of the injury would not be likely to realise it had occurred.

82. In his report Mr Richards drew attention to an important feature of cases such as these. He said, "The majority of patients present in a similar way to F, with features of head injury, possibly associated with some extra cranial injuries but not severe life-threatening ones, and it is these patients who are thought likely to have been injured during a momentary loss of control on the part of a stressed carer who had not planned to injure a child." That accords with my experience over a number of years trying these cases. Mr Richards continues, quite properly, with the observation that individual circumstances must be determined by the court.