England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: G (CHILDREN)

		The Law Courts The Quayside Newcastle-Upon-Tyne NE1 3LA
		17th June 2016

JUDGMENT

HER HONOUR JUDGE MOIR:

1. I am concerned with the welfare of two boys:

A, who was born on 16^th November 2014, so 1 year 7 months; and

B, born on 20^th November 2015, so nearly 7 months of age.

2. They are both the children of M and F. The children have been living with the maternal grandmother pursuant to an interim care order granted on 21^st January 2016. They have extensive supervised contact with both their parents. This matter came before me on 6^th June 2016 for a fact finding hearing following upon B being taken to hospital with twitching episodes. The CT scan which was undertaken on 5^th January 2016 revealed subdural haemorrhages. The MRI scan which was undertaken on 8^th January confirmed subdural haematoma at multiple sites over the right and left side of the brain.
3. The local authority issued proceedings on 20^th January 2016 whereupon the court directed expert reports from Mr Richards, consultant paediatric neurosurgeon, Dr Stivaros, consultant paediatric radiologist, and Professor Wyatt, consultant neonatologist. The parents were interviewed by the police on 8^th January 2016. Prior to these events there had been no concerns expressed about the care provided to the children by the parents and there had been no involvement with Children's Services.
4. The local authority seek findings which are amended findings in respect of the injuries which B sustained. The original schedule of findings was amended on 9^th June 2016 following upon the medical experts giving evidence to the court. The parents gave evidence to the court first and both gave detailed accounts of B's health and presentation in the days preceding B's admission to hospital. The oral and written accounts that they each gave to the court were consistent with the accounts which they had given to the police in January.
5. The parents seek the return of both children to their joint care. They both deny being responsible for causing injury to B and maintain their account that they do not know how the injuries were sustained. It is the local authority who bring this case and the burden of proof lies with the local authority. They must prove the allegations which they make. The burden includes disproving possible reasonable explanations for injury, whether accidental or congenital. They must establish that on the balance of probabilities the whole of the evidence leads to the conclusion that the injuries were non-accidental rather than simply incapable of being explained otherwise and there must be recognition that the truth may be that it is not possible to say.
6. The standard of proof is the balance of probabilities as set out in Re B [2008] UKHL 35. If the local authority proves on the balance of probabilities the findings which they seek or each or any of them which are contained in the schedule of findings, the court will treat that fact as established and all future decisions concerning the future of these two children will be based upon that finding.
7. As Lord Hoffmann observed in Re B:

"If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury 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."

8. Findings of fact must be based on the evidence. As Munby LJ, as he was then, observed in Re A (A Child) (Fact Finding Hearing Speculation) (No 2) [2011] EWCA Civ 12:

"It is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation."

9. When considering cases of suspected abuse, the court must take into account all of the evidence and furthermore, consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, President, observed in LU (A Child) v LB (A Child) [2004] EWCA Civ 567[?] the court invariably surveys a wide canvas. In Re T [2004] 2 FLR 838 she added:

"Evidence cannot be evaluated and assessed separately 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."

10. It is important that the court considers these authorities in this particular case because the court is being asked to look at the whole circumstances, not just one piece of evidence, but all of the evidence before it to enable a conclusion as to the future of these children to be reached. The evidence of the parents is of the upmost importance. It is essential that the court is able to form a view, a clear assessment of their reliability and credibility. The court places considerable weight on the evidence of the parents and the impression it forms of them. That is underlined by the case of Re W & Anor (Non-Accidental Injury) [2003] FCR 346.
11. It does not need me to emphasise that the court appreciates the difficulties involved in giving evidence in a case of this nature. It is difficult enough in any event giving evidence, let alone when it concerns the child of the witness and the emotional circumstances surrounding it. I bear in mind the wise words of Lady Justice Macur in the case of Re M (Children) [2013] EWCA Civ 1147.
12. I have to guard against the insidious reversal of the burden of proof as described in Re C [2011] 1 FLR 990 and I remind myself because of course, in this case, it is relevant that it is not for the parents to prove anything, it is for the local authority. In that case, His Honour Judge Bellamy said:

"There is in my judgment an obvious disadvantage to parents in an approach which requires that they provide an explanation for even the smallest bruise failing which there will be an automatic presumption that that bruise must have been an inflicted injury. Such an approach subtly changes the burden of proof and puts the onus on the parents to provide a credible explanation. As a matter of law, it is not for the parents to disprove the suggestion that the general bruising is non-accidental but for the local authority to prove that it is".

13. The court, as I have indicated, must weigh up all the evidence and that is all the evidence whether given by an expert or by a lay witness. The authorities make it clear that 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 while also having regard to the quote:

"Today's medical certainty may be discarded by the next generation of experts or that scientific research may throw a light into corners that are at present dark".

14. In A Local Authority v K, D and L [2005] EWHC 144 (Fam), Charles J set out that it is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up all the expert evidence against its findings on the other evidence. The judge must always remember that he or she is a person who makes the final decision.
15. The court has to act on evidence, not speculation or assumption. It acts on facts, not worries or concerns. Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial. The burden of proving it rests on the person who asserts it. The court takes account of any inherent probability or improbability of an event having occurred as part of the natural process of reasoning, but the fact that an event is a very common one does not lower the standard to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
16. Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:

"Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely, things do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low."

17. When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of the process of elimination. Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is a result of a condition that has not yet been discovered.
18. These possibilities must be held in line to whatever extent is appropriate in the individual case and I bear that in mind in that in this particular case, it is the medical evidence which very much forms the basis of the case and the findings which the local authority ask me to make.
19. Turning then to the evidence, an unusual course of action was taken, namely that M and F gave their evidence prior to the expert evidence being put before the court. The reason for this approach being adopted was to enable the experts to consider whether the clinical picture added anything to or altered in any way their conclusions. Each parent was examined and cross-examined; mother being in the witness box, I think, for approximately two hours and F for approximately 90 minutes. It is clear that they were asked and cross-examined in great detail about B's presentation in the days prior to the injury being observed. The detailed evidence which they gave was then distilled into an agreed note which was emailed to the experts.
20. Rather than going through my notes of the detail, it is preferable in my view to read the findings in respect of B's presentation which was the agreed document which was sent to the experts:

i) Prior to January 2016, B had not displayed any significant illness other than minor symptoms associated with a common cold.

ii) At approximately 6.30 to 7.00am on Friday, 1^st January 2016, B was found to have sustained bruising underneath both eyes, a tiny bruise to his lip and a bruise to the bridge of his nose. Thereafter B was a little whingy, sore, a little different to normal, he was not as hungry, not having his full bottles. Overnight B seemed a bit more crying and whingy although he was up for his bottle as normal. B would ordinarily drink up to five ounces, but the amounts he took were variable.

iii) On Saturday, 2^nd January B was unsettled and a little bit more whingy but overall okay. He was off his milk wanting three or four ounces of formula rather than the five ounces he would normally have. He did not seem as happy as he had been and did not appear himself. The bruising was still present but not as obvious as before.

iv) On Sunday 3^rd January 2016, B was a bit more whingy and did not seem to want his food. He was sleeping mostly and looking for cuddles but he was okay. B was noted to usually sleep during the day in any event. B was sick a few times, positing. He was not normally a sickly baby but had posited sometimes. At approximately 8.00pm, B was observed to twitch to his right harm having been brought into the living room in order to be given a bottle. At approximately midnight B was observed to twitch his right arm and leg whilst being fed. This could be felt through B's sleeping bag and the parents' duvet. At approximately 3.00am B was observed to twitch his right arm and leg and possibly his right chest. This coincided with the father turning on the lights in B's bedroom. Overnight B was up quite a lot crying in between, and possibly sick.

v) On Monday, 4^th January 2016 the bruising was no longer present. B was observed to twitch including one of his eyes flickering. He was a little bit quieter, not crying as much, a bit whinging still. B was taking less than the five ounces. Overnight B would not settle. He was up quite a lot making whinging noises and crying a little. His dummy was not effective. The parents put him in his swing to settle him and he seemed to settle better in the parents' room. B brought up small amounts of milk positing once before he went to bed, once when being burped and once during a night-time feed.

vi) On Tuesday, 5^th January 2016 B was observed to twitch on three occasions, first at approximately 6.45am, then 7.58am and then shortly thereafter. Not long after B was sick vomiting, B was later observed to twitch on various occasions at the hospital.

vii) There were no incidents of twitching observed prior to 8.00pm on 3^rd January 2016, nor were there any symptoms suggestive of such activity such as staring unusually, fixating or being floppy or unresponsive in any way. The episodes of twitching were intermittent.

viii) The deterioration in his presentation after 1^st January was subtle and was not noted by the parents as being significant at that time.

21. The experts gave their evidence over video link with Dr Stivaros first, Mr Richards second and Professor Wyatt last. Thus, the evidence presented by Dr Stivaros was available to be used in questioning Mr Richards and indeed, the evidence of both available when Professor Wyatt was questioned by the advocates. This case has truly been a single issue case. There has been no criticism or concern over the day to day care provided to A and B by their parents. It is also noteworthy that throughout the progress of these proceedings, each parent has been completely cooperative with all the professionals.
22. A number of possible causes of the identified injuries had been suggested by the parents. They were rejected as a plausible explanation for the injuries by the experts. I make it clear that I fully appreciate that parents who do not know how an injury was caused will cast around to try and find an explanation. It is a perfectly natural and ordinary thing to do. The fact that such explanations are rejected by the medical experts does not in itself have any negative connotations. As I have indicated in any event, the burden is upon the local authority to prove their case, not for the parents to disprove it.
23. The parents when they gave evidence before me gave accounts consistent with each other and consistent with the facts they recounted within their police interviews. I approved the content of the note to which I have referred as an accurate representation of the evidence I had heard from the parents. It was then emailed to the experts. Each of the experts had already provided written reports to the court and they had already taken part in an experts' meeting on 16^th May 2016 which was recorded and transcribed.
24. Dr Stivaros confirmed in oral evidence that there was no skull fracture or soft tissue injury which would suggest direct trauma. He described subdural haemorrhage overlying the right and left side of the brain as well as between the two halves of his brain in the tentorium and in the posterior fossa. In his report, he deals with the possibility of birth related trauma and I read from his report at E38 within the bundle:

"Subdural bleeding over the brain is recognised to occur in association with delivery at the time of birth in normal infants. Published studies in the literature have shown that this issue resolves within six weeks of delivery, so in normal children I would not expect birth related subdural bleeding to be seen at six weeks of age.

Secondly, subdural bleeding related to birth is usually low volume bleeding over the posterior of the brain alone as opposed to the multi-location of bleeding seen here. Thirdly, this bleeding would not be expected to be bright on a CT scan six weeks after birth. It would have come dark.

Finally, I cannot reconcile this bleeding as being birth related as I would not have expected B to have been well immediately following and in the weeks after his birth had his index injury occurred at that time then to suddenly develop birth related seizures and subdural haemorrhage at six weeks of age.

In summary therefore, the combination of the appearance, the timing of both the bleeding and clinical presentation or imaging in this case militate against the findings seen here being birth related. I do not think that the imaging appearances are in keeping with birth related trauma."

25. Dr Stivaros also in addition to subdural bleeding, noted elements of bleeding that he said may well be in the subarachnoid space overlying the surface of the brain. He confirmed his view that subarachnoid bleeding was present in discussion with three of his colleagues who agreed with his finding. He said in oral evidence that subarachnoid blood is very different to a subdural bleed and is very rarely seen outside trauma. A subarachnoid bleed militates against it being birth related.
26. The investigation undertaken by the hospital showed no abnormality of the brain, no evidence of infection and no evidence of either a bleeding or metabolic abnormality. Thus, the remaining possible causes identified by the experts were accidental injury or undisclosed injury. The parents gave an account of a bottle containing five ounces of milk being dropped onto B's nose on 1^st January 2016 and an occasion when A may have slapped B. The experts all ruled out these explanations as possible causes.
27. Dr Stivaros said that in the literature, multi-location subdural haematoma is not associated with traumatic impact and that it would be usual to get subdural haematoma underpinning the site of the trauma. He told me that he has scanned, as he put it, an awful lot of children where the impact was far more severe and he did not see subarachnoid or subdural bleeding in those children. Mr Richards agreed with Dr Stivaros that the accidental causes suggested by the parents were probably not sufficient and represented low energy domestic trauma which was unlikely to be the cause.
28. Professor Wyatt told me that the general opinion was that it was very unlikely that the kind of trivial accident described by parents would lead to intracranial bleeding. The dropping of the bottle might just conceivably be a cause if greater force was generated than one would have anticipated and a freak accident occurred but he said it was very unlikely. Professor Wyatt also described that the medical profession now know that subdural haemorrhages may occur in up to 50 percent of normal deliveries but would normally disappear by six weeks. His clinical experience pointed to four weeks but he said he would not be dogmatic and it could be up to eight weeks.
29. However, he opined that in B's case a birth related injury could not explain the presence of the subarachnoid bleed that Dr Stivaros identified as present. The consensus therefore of the medical opinion was that accidental trauma or birth related injury were unlikely to explain the medical findings in respect of B. The court therefore is left to consider undisclosed non-accidental injury or some other unknown cause.
30. In a non-accidental injury of this sort, one would normally expect to see a constellation of injury, retinal haemorrhaging, obvious encephalopathy, bruising, fractures and concerns about delayed presentation. Professor Wyatt pointed out that we did not have any of these things present in B's case. He told me:

"That is why I find it difficult to say the probability is that it is non-accidental injury. If it was, it must be at the lowest end of the spectrum. One baby may be more vulnerable than another. We believe it is possible to cause shaking non-accidental injury from momentary loss of control just above the threshold which can lead to multiple injury and lifelong consequences".

31. I note that thankfully, as far as B is concerned, the medical follow up has not revealed any continuing cause for concern. Professor Wyatt commented upon a significant feature in this case as he saw it. On Monday, B was due to be taken to the general practitioner for his six week check. It was purely coincidental that the check was to take place on that critical day. The six week check would usually involve careful examination.
32. Professor Wyatt told me that if the GP had done the assessment carefully and came to the conclusion that B was completely normal, it makes it very unlikely that there was a significant neurological disturbance going on at that time yet we know that B had already demonstrated the twitching movements and M at the time of the six week assessment told the doctor about them. There was an additional reason for the general practitioner to take extra special care.
33. Even on 5^th January when the mother returned to the general practitioner, there were no concerns raised as to the presentation by the general practitioner. There were no obvious neurological signs visible at the time. It was the viewing of the recording which the mother had made on her phone which led the general practitioner to contact the paediatric department of Hospital A.
34. Mr Richards told me that the radiology was very compatible with a shaking event but other factors were absent. As Mr Richards graphically explained, it could be a shaking event with a low level of force just going over the injury threshold. There was nothing, he said, to suggest that B had been beaten up. I have noted he said:

"Normal handling would not normally lead to this finding. It could be a greater intensity of normal handling. Many young people are unaware of how fragile new-borns were. Effectively the kind of injury in B is above but not greatly above normal handling. Sometimes the way a parent is playing with a baby causes concern but it is not the kind of thing a loving parent would realise causes harm. There are no features here that someone really wanted to hurt him. There is nothing to suggest him being beaten up or a parent being nasty over a period of time.

B was a well-cared for child who caused concern by demonstrating funny movement and the parents behaved appropriately in seeking medical assistance. Maybe a parent had been clumsy, maybe been frustrated, no one know but normal life does not seem to cause these problems.

Maybe he was handled excessively but not grossly excessively. It is an informed speculation. It is just over the threshold. A parent might not have recognised he had injured him. If there was no major change at the point of injury, a carer might not appreciate he or she had caused a problem".

35. I find it notable that the GP did not recognise any problem other than the twitching. There might not have been anything obvious. The experts entered into discussion in evidence as to the cause of the twitching and queried if the twitching was linked to the subdural haemorrhages and the subarachnoid haemorrhage or whether it was a red herring. Professor Wyatt said he would have embarked upon an investigation of epilepsy. He said it was a natural assumption that the seizures were in relation to what was found on the scan but he said it is hard to relate the focal seizures to abnormalities on the CT and MRI scan. He said it raises the possibility the two processes were unrelated.
36. It is unnecessary for me to consider or determine the cause of the twitching. Mr Richards described the shake as excessive, not nasty. He said when cross-examined about an unknown cause, he said it was possible but unlikely on the current knowledge. Professor Wyatt said the shake, if it was a shake, was not very greatly above the threshold. Maybe it was very close to normal. He gave examples of parents throwing babies in the air, playing helicopters. He told me:

"My own opinion is that parents may not be aware. There is no intention to cause harm. They may do something very unwise to which the reaction is, 'Good grief, do not do that'. If no one else saw it, the other parent might not be aware the balance had been exceeded."

37. The medical evidence before me was very detailed and the experts from whom I heard are some of the most experienced experts in their field within the United Kingdom. Upon the conclusion of the evidence Mr Donnelly prepared an amended schedule threshold of findings which the local authority sought. The advocates on behalf of the parents did not raise any argument against those findings being made and those are the findings which the local authority now seek.
38. I am satisfied that the findings that the local authority do now seek reflect the evidence which I have heard and read, both from the parents and from the medical experts, and represent the findings that I make upon the basis of my analysis of all the evidence. The local authority behaved absolutely appropriately in taking steps to safeguard these children when the medical findings were unexplained. They had a responsibility to protect A and B until assessments and medical opinions were available.
39. When it became apparent that the medical evidence, when examined thoroughly, revealed a probable scenario that the injuries were not deliberately inflicted, reckless rather than intentional, then the local authority immediately amended their schedule and proposed a plan of rapid rehabilitation. The local authority discharged their statutory responsibility in respect of these children efficiently and effectively.
40. As I deliver this judgment, my understanding is that B and A will have returned to the care of their parents. I make the following findings upon the conclusion of the fact finding hearing and I read from the amended schedule that Mr Donnelly has provided. The local authority asserts that at the time it instigated protective measures, namely 20^th January 2016, the child, A, born on 16^th November 2014 and B, born on 20^th November 2015 had suffered or were likely to suffer significant harm and that the harm or likelihood of harm was attributable to the care likely to be given to the children if an order were not made, not being what it would be reasonable to expect a parent to give them.
41. The local authority relies upon the following in satisfaction of the threshold criteria:

i) On 5^th January 2016 B was presented to Accident & Emergency at Hospital A where he was found to have suffered:

a. Subdural haemorrhage at multiple sites over the right and left sides of his brain as well as between the two halves of his brain in the tentorium and posterior fossa; and

b. Bleeding in the subarachnoid space overlying the surface of the brain.

ii) The injuries are not birth related;

iii) The injuries are not as a result of an underlying medical cause such as infection, bleeding disorder or metabolic abnormality;

iv) No appropriate accidental history has been disclosed to account for the injuries;

v) The most likely cause of the injuries is a non-accidental injury attributable to B being handled in a manner that was reckless in that it was of greater intensity to that which is normal in respect of a fragile and vulnerable baby and was therefore excessive in the circumstances, albeit not grossly excessive.

vi) The injuries were not deliberately inflicted;

vii) The injuries occurred at a time when B was being cared for by M and F and were caused by M or F;

viii) The injuries were such that M and F might not appreciate that they had caused injury and the carer not present at the time the injury was caused, might not appreciate that B was injured.

42. Thus, I make those findings as the local authority ask me to do.
[Judgment ends]