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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> N (A Child: Low Level Falls), Re [2016] EWFC B29 (25 April 2016)
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Cite as: [2016] EWFC B29
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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[ren] and members of their [or his/her] 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.
Case No: PO15C00822
IN THE FAMILY COURT SITTING AT PORTSMOUTH
25 HIGH STREET
PORTSMOUTH
Date: 25 th April 2016
Before :
MR RECORDER HOWE QC
- - - - - - - - - - - - - - - - - - - - -
Re N (A Child: Low Level Falls)
Hearing dates: 12, 13, 14, 18, 20, 21, 25 April 2016
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
- - - - - - - - - - - - - - - - - - - - -
Ms Sarah Earley for the Local Authority (instructed by Portsmouth City Council)
Ms Lynn McFadyen for the Mother M (Instructed by Edward Hayes LLP)
Ms Gemma Taylor for the Father F (Instructed by Wannops LLP)
Ms Penny Howe for the Children N and S (Instructed by Biscoes Law Ltd)
CASE NO : PO15C00822
JUDGMENT
The Parties and Representation
1.
In these proceedings I am concerned with the welfare of 2 children. N, a boy, who was born in 2014 who is now aged 1 ½ years and S, a boy, who was born just 3 months ago during the course of these proceedings.
2.
The children's parents were born in an East African country that I shall, for the purpose of preserving anonymity call Country A. The children's mother [M] left Country A in 2007 and moved to live and work in Israel. The children's father [F] left Country A in 2005 and was granted permission to remain in the UK for a period of 5 years and in 2011 was granted indefinite leave to remain. F has 2 brothers who are also resident in the United Kingdom.
3.
M and F knew each other from Country A and began their relationship once M had moved to Israel. They married in Israel on 24
th July 2010. It then took some time for M to obtain a visa to join F in England but this was achieved and M joined F living in Portsmouth in August 2013. M has connections with Hampshire as she has a brother who resides in Southampton.
4.
During his time in England, F has studied and obtained a first class honors' degree in Engineering. The parents lived in Portsmouth until the summer of 2014, when they set up a business in Birmingham. The parents obtained a tenancy on a property from a private landlord and N was born just days after M arrived in Birmingham; F having moved up to the Midlands a few weeks earlier.
5.
F understands and uses English but has been assisted by an interpreter during the course of the hearing before me to ensure his full understanding. M has very limited understanding of English and an interpreter has also assisted her.
6.
All parties have been represented before me by experienced family law counsel. The local authority has been represented by Ms Sarah Earley. M by Ms Lynn McFadyen. F by Ms Gemma Taylor and the children, through their children's guardian, by Ms Penny Howe. I am grateful to the advocates for their diligence on behalf of their respective clients in seeking to bring clarity to the evidence when facing the challenges of non-functioning video links and, at times, extremely poor translation that required the court appointed interpreter to be discharged. Many of the questions asked and the answers given during the hearing had to be checked and re-checked with the interpreters present to ensure that all in court, most importantly the parents, were understanding accurately. Consequently, the hearing took more time than could have been anticipated, requiring late sittings and extra days to complete.
The Applications
7.
On 7
th October 2015, the local authority [LA] issued an application for a care order concerning N. A further application for a care order was issued following S's birth and both applications were consolidated.
The Events Leading to the Issue of Proceedings
8.
On 9
th August 2015, N was presented at Birmingham Children's Hospital. He was then 11 months old. The history given by the parents was that he was standing and had fallen backwards onto a laminate floor. It was said that he had been holding onto a chair when he fell backwards hitting the back of his head on the floor and this was an accident that had been witnessed by the family friend.
9.
N was a child who was known to Birmingham Children's Hospital as he was, in October 2014, diagnosed with a heart condition called ventricular septal defect. N was prescribed diuretics to reduce the build-up of fluid in his body, as this excess fluid caused him difficulty in breathing. The condition was discovered as N had failed to gain weight but following the discovery and treatment of this heart condition, his weight gain improved and by August 2015 he weighed 9.4 kgs.
10.
Prior to N being presented at the hospital, M and F had taken N to see their GP. The note at J119 read as follows:
"Dad brought him at 17.15 on walk in side (language barrier) according to Dad he fell backward on hard floor while standing on his feet 10 minutes ago. Soon after he became unsettled and drowsy. Brought him here straight away. Found unresponsive on reception desk. Called 999 straight away. Dr Shahzad and Mercy were called for help. On examination: Not moving his arms and legs. Unresponsive. Pupils narrow and fixed. Making grunting sounds. Shallow breathing. No obvious sign of bruise/swelling......irregular shallow breathing.....".
N was given oxygen by the GP and he partially regained consciousness 5 minutes later and was taken to hospital by paramedics.
11.
N was observed at the hospital for a period of 6 hours but his condition had rapidly improved and the record at J163 of the bundle records the diagnosis as "minor head injury with reflex anoxic seizure". When he gave his oral evidence Mr Richards, one of the experts instructed in the proceedings, described a reflex anoxic seizure as being a fainting event involving a child that holds his or her breath when startled by something. He told me that this can be extremely frightening for the carer present but the usual course is that the child is recovering quickly by the time they arrive at the accident and emergency department. On 9
th August 2015, N's presentation improved at the hospital and he was discharged home at 23.22 the same day.
12.
On 10
th August 2015, F went to work as normal but called M regularly during the day for updates about N. In her statement at C121, M describes N as not being himself during the morning and following a 3 hour nap in the afternoon he vomited. He vomited again later following a feed but did sleep soundly overnight. On 11
th August, N was again not himself and there were further episodes of vomiting so the parents decided to take N back to hospital, although did not do so until the afternoon.
13.
N arrived back at the Birmingham Children's Hospital at 14.34, was admitted and medical investigations began. At 15.08 on 11
th August 2015, a CT scan of N's skull was performed. N was found to have bleeding over the right and left sides of the brain towards the vertex. There was subdural fluid over both hemispheres. An MRI was undertaken on 14
th August 2015 as N continued to show symptoms of neurological injury. The MRI showed small posterior fossa subdural haemorrhages and a small amount of blood over the top of the head on the right and left sides. There were also small surface subdural fluid collections. There were no areas of focal brain injury but the imaging showed acute (recent) blood in several compartments. For the purposes of this judgment, I shall refer to these intracranial bleeds as the 'August Injury'.
14.
It is clear from the medical records produced in the court bundles that the treating paediatricians at the hospital were concerned as to how such injuries could have been caused by the low level fall from standing that had been described by the family. However, the account given was accepted as a credible explanation for the brain injuries seen on the scans. There were no soft tissue injuries found on the skull or elsewhere and no skeletal survey was undertaken given that the account of accidental head injury was accepted. An ophthalmic examination was attempted but not successful due to N's distress. N remained in hospital until 17
th August 2015 as he continued to have vacant episodes and a naso-gastric tube was inserted so that he could be fed safely. There was some concern expressed by the nursing staff that M fed N orally when she had been told not to do so but there is no evidence in the medical records that this caused N any harm and it is not a matter relied upon in the local authority's final threshold document.
15.
N was discharged home on 17
th August 2015. The medical records at J323 set out record that the Cardiology department would send the parents a letter with a new appointment for N as N should have been seen for a cardiology review on 11
th August but this did not take place due to his admission to hospital. There is a further note setting out that the hospital would fix an appointment for N in 6 weeks' time to review him as a result of the brain injury. I have a copy of the discharge letter sent by the hospital to the GP; a letter that was copied to the parents but it is a letter that they never received.
16.
By the time of N's admission to hospital, the business set up by the parents had failed and they had decided to move back to Portsmouth. The day following N's discharge from hospital (18
th August 2015), the family left Birmingham and presented in Portsmouth as homeless. There is some criticism made of the parents by the local authority for their lack of planning, the timing of the move, the manner in which it was effected and the failure by the parents to ensure that those providing treatment for N were made aware of the move so that arrangements could be made for N's condition to be reviewed in Portsmouth. I will return to these criticisms later in this judgment.
17.
Upon their arrival in Portsmouth, the family was provided with emergency accommodation at a bed and breakfast hostel. They remained so accommodated until they moved in with a relative on 15
th September 2015. F was not working in the period between arriving in Portsmouth and commencing employment on 16
th November 2016. However, he did not remain with M and N at all times as he returned to Birmingham on 5
th September to clean the flat they had vacated to ensure the return of the security deposit. In his oral evidence, I asked F why this was not done properly prior to 18
th August when the family moved to Portsmouth. He said that their plan had been to leave Birmingham on 15
th August but N's admission to hospital had required them to change that plan and be at the hospital with N, resulting in them having less time to make arrangements when he was discharged.
18.
Given that F returned to Birmingham, N was in the sole care of M from 5
th September to 8
th September 2015. On F's return to Portsmouth, it is his case that he would leave the hostel at 10am each day and not return until 4pm as he was searching for employment and looking for more suitable accommodation. When she gave her oral evidence, M said that when they lived in Birmingham, F would leave as late as 10am on some mornings and arrive home early. She did not agree with the account F gives in his written evidence that he was out of the home everyday for 12 hours. In his oral evidence F told me that he did not agree M's account of his hours of work and maintained that he was generally out of the home for most of each day, although there may have been days when the hours varied. It is accepted by both parents that F did not provide care for N alone after the family had moved to Portsmouth and the only time when F would have been present with N without M would be for brief periods when she was using the bathroom in the hostel.
19.
The cardiologist in Birmingham had prescribed N with 2 diuretic drugs (Frusemide and Spironolactone) that he was required to take twice per day. The parents accept that when they left Birmingham, they did not take N's supply of medication with them. On 1
st September 2015, some 13 days after arriving in Portsmouth, M registered with a GP at Southsea Medical Centre. On 2
nd September N was seen by Dr Warriner at the Child Assessment Unit of the Queen Alexandra Hospital. This appointment was made as N was described by his parents as having increased breathlessness and had not taken his medication for 2 weeks. N was discharged with a prescription for his medication but the prescribed medication was not collected until 14
th September 2015. The parents accept that in this 12 day period N was not provided with Furosemide and Spironolactone. The local authority are suspicious as to the timing for when the medication was collected, a matter I shall return to later.
20.
On Saturday 12
th September 2015, M and N travelled to Birmingham to attend the christening of a child of a family friend. I have seen photographs from this celebration within section C of the bundle. I am told that M and N arrived back at the hostel around 8pm on 13
th September. It is F's case that M and N seemed fine and N was put straight to bed given the time. On 14
th September 2015, the family say they woke around 7am and had their breakfast in the hostel dining room. About 10am, M and F were dressing N. F describes in his first statement at C49, that when putting a top over N, F noticed a swelling on the right side of N's head. F said he touched it. He describes that it was less than the size of a hen's egg and was soft to touch.
21.
F says in his statement that he asked M if she knew anything about the lump. She said she did not and was surprised to see it. N did not appear to be in pain from the lump on his head and the parents thought that it might be due to the head injury in suffered in August so, they say, they did not think there was any urgent need for medical attention. However, they later changed their minds and presented N at hospital around 6pm.
22.
The note from the triage nurse who saw N at 19.35 reports that N was happy and playing and that the lump was 'soft and non-tender'.
23.
It would appear from the report made by the parents at J41 that the lump had increased in size during the course of the day. In his oral evidence, F confirmed that he thought the size of the lump increased during the course of the day on 14
th September 2015 prior to N's admission to hospital. There is some evidence in the hospital notes that the swelling had continued to increase in size when N was at the hospital, although it is difficult for me to reach any firm conclusions as to its precise dimensions as Dr Cartlidge has told the court that different clinicians may be measuring the lump in different ways. At 2.30pm on 15
th September 2016, a skull x-ray was taken and this showed a 60mm linear right parietal fracture with overlying soft tissue swelling. A full skeletal survey was then undertaken that showed no other injuries. A CT scan taken at 4.12pm confirmed the presence of the skull fracture and the presence of subdural fluid collections over both cerebral hemispheres. An ophthalmology registrar saw N and found no retinal haemorrhages. For the purposes of this judgment I shall refer to the skull fracture and the associated bleeding as the 'September injury'.
24.
I have heard some differing expert opinion as to the identification of the type of swelling seen above the skull fracture site and its relevance as to when a carer might be reasonably expected to notice such a swelling. I will return to this issue later.
25.
The parents were unable to offer an explanation that accounted for the presence of the skull fracture and the hospital contacted the LA. Child protection procedures then commenced. It was not until 16
th September 2015 that M reported that N had, on 6
th September 2015, fallen over on the pavement and may have hit his head. M and F were interviewed by the police on 17
th September. M gave inconsistent accounts of the alleged events and the LA allege that M gave similarly inconsistent accounts to the social worker who was undertaking the initial child protection enquiries, a Mr Bowers. Care proceedings were issued and N was made the subject of an interim care order on 12
th October 2015.
The Findings Sought by the Local Authority
26.
The local authority allege that the intracranial injuries seen on the CT scan on 11
th August 2015 and the skull fracture seen on the CT scan taken on 15
th September 2015 were inflicted injuries caused by one or other of the parents. The local authority asserts that M was the most likely perpetrator of the 11
th August injuries but, if the court is not persuaded that the August event was an inflicted injury, the local authority submit that the Court cannot, as between M and F, identify who was responsible for the September injury. If I am able to find that M was the cause of the August injury, the local authority submit that she was then the most likely perpetrator of both sets of injuries. Further, the local authority alleges that the parent who was not physically responsible for these assaults has failed to protect N from harm caused by the other parent.
27.
The hearing before me commenced on 12
th April 2016 and it had been anticipated that my enquiry would be limited to whether the allegations in paragraph 26 above were proved. However, as the LA threshold document included 3 additional allegations, I widened the scope of this hearing to include determination of all threshold matters. The advocates were notified of this on the first day of the hearing and they have all been given such time as they requested to enable them to address the 3 additional threshold allegations. Following hearing oral evidence from the allocated social worker, Ms Coleman, the local authority pleaded its 3 additional threshold allegations in the following way:
On 30 October 2014 N was diagnosed with congenital heart disease, namely ventricular septal defect, which requires the administration of twice-daily medications. The parents neglected N's medical needs as follows:
- By 10 April 2015 the parents had not given N his medication for 3 weeks;
- Upon moving from Birmingham to Portsmouth on 18 August 2015 the parents failed to take the prescribed medications with them;
- The parents failed to obtain new prescriptions until 2 September 2015; that being the date upon which N was admitted to QA Hospital due to breathlessness caused by the lack of medication;
-
The parents thereafter failed to obtain the medications until 14 September 2015.
LIKELIHOOD OF SIGNIFICANT PHYSICAL HARM AND NEGLECT
By virtue of the matters set out in (i) - (iii) above and the following matters the LA also assert that there is a future likelihood of the children suffering significant physical harm and neglect
Following N's discharge from Birmingham Children's Hospital on 17 August 2015, and in knowledge of his traumatic head injury and congenital heart disorder which he was receiving treatment for at Birmingham Children's Hospital, the parents moved to Portsmouth on 18 August 2015 without having made any arrangements for accommodation for the family and presented as homeless.
Despite becoming pregnant in April / May 2015, the Mother failed to engage with any health professionals to ensure the health of unborn baby S, until 2 September 2015.
28.
During closing submissions Ms Earley, quite rightly in my judgment, abandoned the threshold finding relating to the lack of antenatal care.
29.
The parents deny that they caused injury to N or that the other did so. They do not accept that there has been any failure to protect.
30.
The parents do not accept they failed to give N his medication in April 2015 but they accept that they did not administer his medication between 18
th August and 14
th September 2015. In their oral and written evidence, whilst accepting that this was unwise, they gave accounts of practical difficulties as justification for their inability to provide the diuretics, thereby appearing to deny that any harm was attributable to their care. When we reached closing submissions, both parents conceded that the threshold criteria was crossed on the basis that their failure to administer N's medication resulted in him being likely to suffer significant physical harm although they do not accept that N suffered any actual harm.
31.
M and F have made additional threshold concessions following the hearing of the oral evidence. M accepts that threshold is crossed on basis of a risk of physical harm by way of her failure to seek medical attention for N on 6
th September 2015, a date when she alleges that he fell and hit his head on the pavement, and on 14
th September 2015, when F noticed a swelling on the back of N's head but failed to take him to the hospital until later that evening. F makes a similar concession but limited to the 14
th September as he was not present with M and N on 6
th September.
The Legal Principles to be Applied to the Court's Determination of these Allegations
32.
The advocates agreed a summary of the law that applies to the court's determination of the issues in these proceedings. I attach a copy of the agreed summary to this judgment and I take into account all of the principles contained therein.
33.
In addition to the authorities contained within the summary, my attention was drawn to the checklist set out at paragraph 36 onwards of the judgment of Baker J in the matter of Re JS ( A Minor) 2012 EWHC 1370 (Fam) and to paragraph [53] onwards of Devon v EB, WD [2013] EWHC 968). During their oral closing submissions, specific reference was made to the judgment of Peter Jackson J in Re BR (Proof of Facts) [2015] EWFC 41. I also have all these matters firmly in my mind and will address some of the issues raised in submissions later in this judgment.
The Evidence Presented at the Hearing
The Expert Evidence
34.
I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children's Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
35.
I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children's Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
36.
The 3 experts participated in an experts' meeting on 11
th February 2016 and the transcript of that meeting is found at E152 of the court bundle. The transcript records a very large measure of agreement between the experts that can be summarized in relatively short form. All 3 experts accepted that the fall described by the parents on 9
th August 2015 could cause the intracranial injuries discovered [the August injury], although such significant injury from a fall from standing would be very unusual. Mr Richards was of the opinion that the significant interference with the functioning of the brain was also very unusual from such a low fall. Despite the unusual features, the experts would accept the account given for the August injury to be a credible explanation.
37.
Concerning the September injury, the experts agreed that no convincing explanation had been given as to how N had suffered this fracture. They were all of the opinion that the explanations offered by the parents were very unlikely to cause a skull fracture and, in the absence of a credible explanation, this was likely to be an inflicted injury. They were all of the view that, as the September injury was more likely to have been non-accidental, when taken together with the unusual features of the August injury, this increased the likelihood of the August injury also being caused by an inflicted event.
38.
When giving their oral evidence, what had appeared to be a large measure of agreement between the experts did, due to the well targeted and effective questions put to them by all 4 advocates, fall away with respect to a number of important matters. This was not, in my judgment, wholly unsurprising given that each expert answered the questions from the perspective of their own particular specialisms and their own clinical and medico-legal experience. However, the divergence of views produced an additional element of complexity to the determination of the local authority's allegations against the parents in this already complex case.
Head Injuries Caused by Low Level Fall
39.
For the local authority to succeed on the primary threshold findings it seeks, it has to prove on the balance of probabilities that the explanations provided by the parents are not how these injuries were caused. It is not for the parents to prove that the injuries were caused by the low level falls that they have described.
40.
When he gave his oral evidence, Mr Richards said the following [my note]: "This is a debate [whether low level falls can cause intracranial injury] that is lively at the moment. I was recently in a telephone conference involving a number of experts. Dr Cartlidge was involved and making a point about these cases and there were some rather heated exchanges about the possibility of low level falls causing serious injury. The vast majority of low level falls are not imaged. Of those that are, neuro-radiologists will say that low level falls, of the type N had, cannot cause multi-compartment bleeding and, therefore, the story given by the parents must be untrue. I, like Dr Cartlidge, say 'can you say that on the data we have'? I say we don't know.
A decade ago, apart from the babies that died, it was said that birth did not cause subdural haemorrhages. 3 research projects have now demonstrated that it does and it is now universally accepted that birth causes subdural haemorrhages in about 50% of babies. The medical profession were wrong before. Low-level falls may be similar. We can't do routine MRI scans of children of this age as they have to be given anaesthetic to keep them still. The reason that these children are not imaged is because the majority just get up from a fall and have no injury. Very few have any disturbance for 1 or 2 days and even fewer for a longer period".
41.
At paragraph 23 of his report dated 16
th December 2015, Mr Richards said "patients with such low level falls are rarely imaged on the grounds that there is no neurological disturbance from such falls, so we do not really know the number of low level falls which do cause fresh subdural bleeding. In those that are imaged it is extremely rare to identify fresh subdural
bleeding."
42.
In his report to the court, Dr Cartlidge said, at page 19, "
It is
probably
very unusual
for
such
a
short-distance fall
to
cause
subdural bleeding,
although
I
agree
with
Mr
Richards
that
it
could
be
more
common than
currently
appreciated
since
neuro-imaging
might
not
be
undertaken
in such cases. I have professional experience of a similar low-distance fall causing subdural bleeding in two infants (findings of Family
Courts). Initial symptoms in my experience are often akin to those seen in reflex anoxic
episodes.
43.
When he gave his oral evidence, Dr Cartlidge said that children would usually stand with soft knees and if he did have that typical stance, and he had some saving reflexes, he would not perform what Dr Cartlidge described as a 'matchstick fall' (a straight fall backwards with a stiff body). Dr Cartlidge was of the opinion that by far the most likely response from a child of this age would be a bending of the knees and a fall onto his bottom. However, Dr Cartlidge went onto describe the circumstances of 3 cases he has encountered in his medico-legal work where the family court accepted that an injury had been caused by an accident or had not found the allegation of non-accidental injury to be proved. The detail given by Dr Cartlidge in his oral evidence was supplemented by a later e-mail that all advocates agreed I should consider. The details of the low-level fall cases referred to by Dr Cartlidge included the following:
1 case involved a 42-week old who fell about 65 cm from a bed. There was a brief acute encephalopathy (interference with the functioning of the brain), subdural bleeding over a cerebral hemisphere and in the posterior fossa (the part of the brain at the top of the brain stem underneath the cerebral hemispheres) and acute traumatic effusion (an acute effusion appears similar to chronic subdural haemorrhage on the initial CT scan (as black fluid) but is due to an acute tear/rent in the arachnoid membrane allowing normal cerebrospinal fluid (seen as black on CT scans) from the subarachnoid space to cross into the potential subdural space. This causes a black fluid collection of cerebrospinal fluid (CSF) in the subdural space due to recent trauma that mimics the appearance of an old subdural haemorrhage from a prior injury). There was subdural blood in the thoracic, lumbar and sacral spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.
A second case involved a 35-week old who fell from standing (about 70 cm). There was acute encephalopathy after initial crying for some 2 minutes and a large subdural haematoma (space-occupying). There were also retinal haemorrhages. The Family Court found the injuries to be accidental.
In the 3 rd case a 52-week old fell from standing (about 70-75 cm). There was mild or possibly absent acute encephalopathy. Subdural bleeding was present over a cerebral hemisphere and in the posterior fossa. Acute traumatic effusion was present. There was subdural blood in the lumbar spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.
44.
I must decide the facts in this case on the evidence that I have heard about this child and not be swayed by comparisons to other cases involving different children and different facts. However, Dr Cartlidge's purpose in highlighting these other cases was to provide clear examples to support his opinion that children can suffer what he described as 'nasty intracranial injuries' when falling from standing.
45.
At page 21 of his report, Dr Sprigg says
"Subdural haemorrhages may occur following a known traumatic event involving a significant impact, e.g. being dropped forcibly onto the baby's head from a significant height or hitting a hard object at speed. In older children they can occur during accidents
-eg
getting
knocked
over
by
a
car.
They
are
exceptionally
rare
from
low-level domestic falls in infants. The site of bleed in accidental injury is usually physically related to the site of impact over the cerebral hemisphere. Subdural bleeds in non-accidental injury are more often over both hemispheres and may also be seen in the posterior fossa near the cerebellum near to the craniocervical junction. This is a rare site for accidental trauma".
46.
At page 13 of his report, Dr Sprigg sets out "the finding of posterior fossa bleeding is more commonly seen in non-accidental head injury (NAHI) but it is recognised in significant accidental impact to the back of the head".
47.
In his oral evidence, Dr Sprigg told me that the bleeding seen on the scans was consistent with a shake or an acceleration/deceleration event. He said that there was bleeding over both sides of brain and at the base of the brain. His evidence was that this is a pattern that is commonly seen in shaking cases but it can also occur if there is a significant bang to the back of the head.
48.
It was Dr Sprigg's opinion that the bleeds found on 11
th August 2016 [the August injury] could have happened by a short fall but it would be uncommon. When cross-examined by Ms McFadyen, Dr Sprigg told me [my note]
"A fall to the floor as described is acknowledged as a mechanism that can cause this intracranial injury. Most children would not suffer any injury from such a fall. Some may suffer a skull fracture. It is uncommon to find bleeding over both hemispheres and at the cerebellum but it is possible. If the history had been that he fell on his forehead, I wouldn't agree that the explanation was consistent but as he fell onto the back of his head, where all the veins gather and is an area vulnerable to injury, it is a credible account. Had this occurred at our hospital, it would have been said that this was feasible".
49.
Having heard all 3 experts give their oral evidence, I formed the clear impression that they were each open to the real possibility of such low level falls, of the kind described by M and F as occurring on 9
th August 2015, causing the intracranial injuries seen on the 11
th August scans. Indeed, Mr Richards and Dr Cartlidge were more open to this kind of mechanism being an accurate account for the causation of such significant bleeding than they would have been in years past. There was no hint of dogmatism from any of the 3 experts; they were open to considering both the rare and the unusual.
50.
Mr Richards, Dr Cartlidge and Dr Sprigg carried this openness to considering the unusual and rare through to their consideration of the potential causes of the skull fracture discovered on 14
th September.
51.
In his report dated 24
th November 2015, Dr Sprigg provides a detailed account of the possible causes of skull fractures. He describes:
"A skull fracture is commonly due to a forceful impact. This may be due to the head hitting something hard, or a hard object hitting the head with significant force. An infant may have an accidental skull fracture but this depends on its level of mobility. For example, a two month old baby is not sufficiently mobile to self inflict a skull fracture, but a ten-month old that is crawling and falls downstairs might self inflict a skull fracture. An infant's skull is flexible and tends to bend rather than fracture. It takes significant force to fracture an infant's skull. As a generalisation under 1-2% of infants will sustain a skull fracture if they are dropped from below adult waist height. However, if the fall is from a greater height this is more likely to produce a fracture than a low level fall. When the fall is onto a hard surface (eg concrete or laminate flooring) versus a more compliant surface (eg carpet with under-felt over floorboards) then the harder surface increases the chance of fracture. A free fall (drop) involves less force of impact than if a baby is thrown down. Occasionally skull fractures occur related to birth. They are uncommon, but have a higher incidence in a difficult forceps delivery than ventouse or than in normal vaginal delivery of a normal sized baby".
52.
When he gave his oral evidence, Dr Sprigg was of the opinion that either fall described by M (from sitting or from standing) [the September injury] would be unlikely to cause this skull fracture but could not be excluded as impossible. When answering questions from Ms McFadyen, he told me "If this was an isolated event and the history was that he had fallen over to the right and had come straight into casualty, it would be accepted as an accidental event. There is a skull fracture rate of below 1 to 2 % if a fall is from below adult waist height but had he been presented quickly with a consistent history, the explanation might have been accepted".
53.
Mr Richards' mind was similarly open to the possibility of the fall as described by M being a possible cause of the skull fracture. He told me that a low level fall would be unusual for causing a skull fracture and a drop of about 82 cm is usually required to cause a fracture from research undertaken with deceased infants. However, he would not rule it out as impossible but it would be a very rare event.
54.
Similarly, Dr Cartlidge would not rule-out any event as being impossible but was more sceptical that the simple fall, of either type described by the mother, would cause a skull fracture. It was put to him that it may have been that N fell and hit his head on the kerb. When considering this scenario, Dr Cartlidge said [my note] "the right side of the head is the site of the fracture. The shoulder is in the way and for the shoulder not to be in the way, I struggle to see how the right side of head would bear the full brunt of the force of the fall but if you get over that and the head pivots over his neck and hits the edge of the kerb, that could cause the fracture". That was about as close as Dr Cartlidge would be drawn toward accepting that the fall described was, of itself, a possible mechanism.
55.
Having considered the fall proposed for the September injury in isolation, each expert relied on important contextual facts as indicating that the fall described on 6
th September 2015 would not have caused the fracture to N's skull.
56.
Establishing a timeframe for the causation of the skull fracture and identifying whether the evidence reasonably excludes the 6
th September, a date some 8 days before the fracture was discovered on the scans as a day within that timescale, is a crucial matter for the court to consider when determining whether the local authority has proved that this alleged fall was not responsible for the skull fracture.
57.
When looking at the timing of skull fractures, there was no dispute between the experts as to limits of radiological evidence. Dr Sprigg described in his oral evidence that once a skull fracture is present, it can be seen for 3 to 6 months on the x ray, as there is no healing periosteal reaction. He said that the fracture can only be said to be recent if there is swelling present over it and that swelling is present for around 7 to a maximum of 10 days. The identification of scalp swelling, what type of scalp swelling was present and how long a swelling would be present became an issue between the experts upon which they did not agree.
58.
In addition to the identification of swelling, all 3 experts agreed that the clinical presentation and the clinical history was crucial in identifying a reliable timescale for the causation of a skull fracture. The immediate pain reaction of a child was a matter upon which the experts agreed however, the duration of a visible pain reaction when touching the site of injury, and its relevance to the timeframe for the injury, was not a matter upon which Mr Richards and Dr Cartlidge agreed.
Scalp Swelling
59.
In the initial radiology report of the September CT scan provided by the consultant radiologists at the hospital in Portsmouth described the injury seen as "a linear right parietal skull fracture with tiny step, the width of 1.5mm, extending posteriorly from midway along the right coronal suture along the parietal bone and tapering posteriorly. 7 mm depth overlying scalp collection / cephalhaematoma bordered by sutures".
60.
When he gave his evidence in chief, Dr Cartlidge told the court that in reviewing the evidence again in preparation for giving his oral evidence, he had noted that the treating medics interpreted the CT scan in September as showing a cephalhaematoma [CH]. Dr Cartlidge described a CH being different to the scalp swelling described by Dr Sprigg and Mr Richards in their reports. Dr Cartlidge explained that a CH is a collection of blood trapped between the bone and the membrane on the bone. He said the blood strips the membrane off the bone and fills the space made. He said the presence of a CH made no difference in relation to the amount of force required to cause a skull fracture but, as a CH can increase in size over quite a few days if the swelling was a CH, it would effect when the swelling would be seen.
61.
Dr Cartlidge described that a CH contains fairly pure blood and has a higher pressure than the fluid around it, so it sucks fluid into itself and can expand over a period of several days rather than the usual type of swelling and bruising to the scalp that generally comes on more quickly. He advised that the court should take evidence from Dr Sprigg as to whether the swelling seen on the CT scan was a CH, as this would effect timing and the period when a swelling would become noticeable by a carer.
62.
N was examined by Dr Gonde, Consultant Community Paediatrician, on 5
th October 2015 for the purpose of an initial health assessment upon his receipt into local authority care. At this examination, Dr Gonde records [E192] that N "still has a swelling over the right parietal region which feels like a collection of fluid (presumably a resolving haematoma). He is not tender in this area; there is certainly no crepitus or movement within the scalp".
63.
Dr Cartlidge was of the opinion that the continued presence of the scalp swelling supported his view that it was likely to be a CH.
64.
When considering scalp swelling more generally, Dr Cartlidge was of the opinion that a lump on the scalp is unlikely to be only a few hours old if it had stopped growing. It was his view that a swelling is likely to stop growing in about 12 hours and then stay the same until it begins to reduce in size. He described that a simple scalp swelling will have reached its maximum size 24 to 48 hours after the causation of a fracture.
65.
When N had been admitted to hospital on 14
th September, Dr Cartlidge was of the opinion that, if the lump had increased in size over the day and medical staff measured it as growing, (if that was accurate) then it would be most in keeping with a causal event that was recent - within about 12 hours. He said that it is not easy to identify distinct margins of a swelling and different observers may measure it differently. Dr Cartlidge said that a CH is easier to measure as it is limited by the membrane at the margins being adhered to the bone. He said a CH could not extend beyond the margins of the parietal bone but a more generalised scalp swelling could.
66.
In his report at E25, Dr Sprigg says
"the CT scan of 15
th September 2015 shows a scalp swelling over the right sided fracture". He is not specific as to what type of swelling is seen. When asked about Dr Cartlidge's view that this was a CH and not a simple scalp swelling, Dr Sprigg said [my note]:
"What the 2 nd CT scan shows is bleeding over the Parietal bone at the site of the fracture. It is recent high-density blood and I would expect to see this from a recent skull fracture. I would not have used the phrase CH - as this is only seen in neonatal period. The swelling seen on the CT scan is purely related to the fracture and is consistent with a recent injury. It is a small area of bleeding over the fracture site. It doesn't matter what you call it; it is all related to the fracture.
There are multiple layers in the scalp. This bleed is between the bone and the periosteum and limited to the parietal bone so it is the same as a CH that you would see in the newborn period.
The skull fracture is due to impact. The fracture is in the bone. The impact was on the head and the tissues are bound to be damaged but in the scan I do not see swelling over the scalp but bleeding over the bone. The presence of this swelling means that the fracture is recent.
Dr Cartlidge does not see the level of trauma that I see. If there had been a history of this child being hit by a bus and this injury was seen, it would be consistent with recent injury. I draw no difference between the layer where the bleed appears. There are no studies about the rate of scalp swelling. We know it comes up quickly, in hours or a day, but it may take several days to go down. The most I have known is 10 days but that is very unusual".
67.
Later in his oral evidence Dr Sprigg described the swelling as a 'subperiostial haematoma confined by the sutures'. He said [my note]:
"I don't know where Dr Cartlidge gets his information from about CH - I suspect from his neonatal experience. CH is a birth related swelling. In that situation you do not normally get radiologically evident fractures. In this situation the swelling is over a long fracture. It is a big area of bone damage and bone bleeds. I don't think the same rules apply as apply to birth related newborn CH's.
Those that present with delayed swelling have a different reason entirely. When impact occurs the bone moves and can tear layers and allow fluid to leak out - that is the type that present up to 10 days later. It is very uncommon - at the 1% level - and the CT findings in this case show that there is blood in the layers of the scalp and is white on the scan. In the situation of a fluid leak, the fluid is black. This swelling is blood from the fracture site".
68.
It was put to Dr Sprigg that the continued presence of the swelling when N was seen by Dr Gonde in October 2015 and then also seen by the GP on 29
th December 2015 supported a conclusion that this swelling was unusual in its nature and the time of its appearance could not be relied upon as indicating when the fracture would have occurred. Dr Sprigg said that there might have been some late complication in the fracture such as a fluid leak across the fracture site. He maintained his opinion that the scan showed fresh blood from a recent bleed. He said [my note]
69.
"In this scan, there is a crack in the bone and I would expect bleeding to be quite brisk and something that would appear more quickly. There is a very obvious fracture with a slight step in it. Blood would not ooze out over a few days and blood escape would be maximum closest to the time of injury".
70.
Mr Richards was also asked to respond to Dr Cartlidge's suggestion that this swelling may be a CH but he felt the distinction to be unimportant. He described his understanding of a CH but went onto say that a swelling that is visible can come up immediately but it can accumulate over a couple of days and he never knows how long it has taken to reach the stage when it was noticeable.
71.
He said, in terms of timing, the swelling could be a couple of hours or it could be 10 days or up to 2 weeks old. He said in his work as a neurosurgeon he sees lots of children with fractured skulls and he himself fractures skulls to perform surgery and repair. He said some swellings come up very quickly and some may take 4 or 5 days to appear. He gave an example of a child admitted to his hospital the day before he gave his evidence. There was no swelling noticeable on the scan taken following the child's admission but by the following morning a significant swelling could be seen on visual examination. Whatever the time it might take for a swelling to appear and be seen by the naked eye, Mr Richards was of the opinion that the swelling that he saw in the scan of the September injury was at the beginning or the midpoint of its evolution as it contained fresh blood. He told the court that if the swelling was older and resolving, the fresh blood would not be seen on the scan.
72.
Concerning the continued presence of some swelling at the fracture site, Mr Richards agreed with Dr Sprigg that this was likely to be due to some complication that did not assist with identifying when the fracture was most likely to have occurred.
73.
Both Dr Cartlidge and Mr Richards gave evidence that scalp swellings can be easily missed by parents and a swelling may not be discovered until it is touched during the provision of care rather than being recognised by sight.
74.
All 3 experts were asked questions concerning the size of the swelling and whether it was growing or resolving. I have already outlined Dr Cartlidge's hesitation in accepting the measurements that appear in the medical records and those common sense answers lead me to be very cautious in placing any weight on those observations. F accepted in his oral evidence that he thought the swelling had increased in size during the day on 14
th September but I accept Ms Taylor's submission that this was just F's impression and not a reliable enough observation to place weight upon in trying to identify the most likely timescale for this injury.
Pain Reaction
75.
At page E33, Dr Sprigg describes the symptoms of a skull fracture as:
"At the time of impact I would have expected an infant to cry or scream for several minutes, such that the carer responsible for the infant would have realised that there had been a significant event that had caused pain, even if they did not witness what had caused it directly. This would be an easily memorable event. This is assuming the infant is conscious after the impact. An infant may then settle reasonably quickly with a cuddle. There may be very little in the way of subsequent outward symptoms in an uncomplicated head injury". He was not challenged about this opinion when he gave his oral evidence.
76.
In his report, at §2.10 on page E68, he says "
At
the
point of
skull
fracturing
there
is
pain
and
this
would
normally render an infant disturbed, particularly if the head was handled....... Pain lasts a variable amount of time, particularly if the head
is
handled, but clinical experience would suggest that a child can be disturbed by the head in the region of a fractured skull being handled for 48-72 hours, whilst if the head is not handled they can be disturbed in terms of irritability for 12-48 hours".
77.
In his oral evidence, Mr Richards said [my note] "if you fracture your skull it hurts. The blow will hurt. Based on the children that come into hospital with skull fractures - it will hurt for 24 or 48 hours if you handle the area. From a clinician's perspective - if it was recent I would have expected the baby to be unsettled and, if touching the swelling, I would expect a reaction from the baby. The medical records describe the baby as not being in pain. In my opinion, the baby's response is more helpful in dating the fracture as their baby was not reacting as expected".
78.
Mr Richards explained that if the injury had been recent, he would have expected that N would not have been smiling and would have been very upset. He said that there can be variations and more stoic children may show less pain but the description by the nursing staff, of N being relaxed when the swelling was touched, led him to conclude that the injury was not recent.
79.
When asked questions by Ms Howe, Mr Richards explained that any child who falls will often cry and will settle very quickly but if they hurt themselves so much as to cause a skull fracture, he was of the opinion that they would cry for a long period and if the carer brushed the site of the fracture the child would cry more loudly. He went onto explain that there would be a change in the child's behaviour that would be seen. He said that if the child had a skull fractured, the child would be very upset by the pain for up to 12, 24 or even up to 72 hours in some cases. He also explained that the children would appear most unsettled closest to the time of the injury and this will improve but the child would become unsettled again if the area is touched. That said, Mr Richards accepted that medical professionals can miss that a child is unsettled due to having a skull fracture.
80.
Dr Cartlidge gives his opinion as to the likely pain reaction to be seen following a skull fracture at §4.3.1 of his report at E105. He opines "
The fracture would have been very painful for about 10-15 minutes (unless N had been rendered unconscious). The pain would have
gradually
lessened,
but
the
fracture
site
would
have
been
tender
if
firmly pressed." At §4.3.5, Dr Cartlidge says "The fracture would have been painful. Someone witnessing the causal event would have realised that N had been hurt. The very likely persistence of his distress would have alerted a carer to the injury being nasty".
81.
In his oral evidence, Dr Cartlidge said that the lump not being painful did help in identifying when it was most likely to have been caused as he said it would not be painful if it was more than a couple of days old and would only be painful if pressed hard enough to move the fracture site. If the fracture had been less than a couple of days old, there would be tenderness as that tenderness comes from the fracture rather than the swelling and facture is most tender closer in time to when it is sustained.
82.
When cross-examined by Ms McFadyen, Dr Cartlidge said he was unable to date a fracture on the basis of a recording made by another clinician concerning the child's reaction when the lump was pressed, as he did not know how much forced was used.
The Evidence of Family Witnesses concerning the September 2015 Skull Fracture
83.
As set out above, the father noticed a swelling on N's skull when putting clothing over his head on the morning of 14
th September. N was not being bathed, having his hair washed or brushed but F's proximity to N that morning was sufficient for him to notice the swelling that he describes as being smaller than a hen's egg. Both parents agreed in their oral evidence that they did not think it necessary to take N to see a doctor as he did not appear to be in pain and was active.
84.
When asked questions by Ms Howe, M told me that she bathed N every other day and would towel dry his head after a bath but would not at that time have used a hair brush. She told me that she did bath N at home on 11
th September in preparation for the christening in Birmingham on 12
th September. She said at no time did N show discomfort from her touching his head. When first asked about the possible causes for the skull fracture, it is reported at F14 when the investigating social worker, Mr Bowers, asked the parents as to how N might have been injured, they said that N can be restless at night and could have bumped his head on the wall or that it could have occurred when M saw N bang his head when he pulled a drawer that was at the height of his head. During the course of the oral evidence it became clear that M was answering this question on the basis of what might have happened to N that day rather than any longer time period. Indeed, Mr Bowers accepted this in written answers to questions that were put to him
85.
During this conversation there was no interpreter present but F was translating for M. It was not reported to Mr Bowers that N had fallen on the road on 6
th September 2015 and it is F's case that M did not report this fall to him until the evening of 16
th September after they had left the hospital. It is common ground that F was unhappy that M had not told him about this event when it happened and he slept on the floor rather than share a bed with her that night.
86.
M had been asked at the hospital on 16
th September what might have happened to have caused the skull fracture. The recording of this is at J68, where it states "explained CT to dad. Shows new fracture with small bleed. History revisited. No clear history "awoke with a bruise". No history of trauma or episodes of him being unsettled. Seen to stand on own, walking with minimal support only". It was then explained that the hospital would be contacting the local authority due to M and F having no explanation for how N had suffered the fracture. Throughout this conversation, M's brother, FG, was present. He speaks fluent English and when he gave his oral evidence, he accepted that he translated what the doctor had said to M and he informed her that the doctor had asked if there was anything that had happened. He told me that he told M that there was a new fracture and asked whether there any new events.
87.
Throughout the course of the hearing of the oral evidence, I have been concerned by the quality of the translation by 2 of the 3 interpreters at court who expressed fluency in this language, that I shall not identify to preserve the anonymity of the family. I am told, and I accept, that the family language used
has far fewer words than English so it is not always possible to translate 'word for word'. I have taken into account, when assessing the evidence of the parents, how the difficulties with translation will have effected their understanding of the questions asked, not just within the court room but also when asked questions by doctors, social workers and police officers. The interpreter booked by M's solicitors was very obviously the most effective and it was by his preparedness to assist for hearing of the evidence from both parents that satisfied me that the hearing could be completed with the full participation of both parents. Consequently, I am entirely satisfied that M fully understood the questions put to her during the hearing and that I should rely upon the answers she gave.
88.
F speaks relatively good English. I have watched a video recording of the interview he gave to the police on 17
th September 2015. I agree with Ms Taylor that there were some more complex words that he did not understand but generally, his understanding was good and he asked for confirmation or explanation when a question was put that he did not understand. There were also occasions, such as on G29L, when it was clear to the officer that F did not understand so she simplified her language. Having watched the video recording, I am satisfied that F was able to understand well-enough to provide answers to the questions put to him and that I should place weight on the content of the police interview given that it was the account given by father closest in time to the events that I am considering. I also take into account that F studied a University degree in the English language, where all lectures and tutorials were undertaken in spoken English. When he gave his oral evidence, his interpreter was not as effective as M's and it was necessary for M's interpreter to participate by correcting any errors in the interpretation he heard. Partway through his oral evidence, F requested that M's interpreter joined him in the witness box in preference to his own. I granted this application and F's evidence was completed without further incident. Given F's own competence, as I find it , in the use of English that is more than at a basic level, and the input of the interpreters during the course of the hearing, I am satisfied that F has understood the questions put to him and that I should rely on his answers.
89.
My caution concerning the accuracy of translation during conversations with M does not, in my judgment, apply to discussions with M that are translated by FG as he is fluent in M's family language and fluent in English. I also have sufficient confidence in F's understanding of English to conclude that when he has translated for M in conversations with professionals, her answers should also to be taken as reliable. There is no suggestion in this case that either parent has sought to blame the other or that F would have deliberately mistranslated in an attempt to implicate M.
90.
Both M and F said to me in their oral evidence that when they were told by the doctor at the QA hospital that N had a skull fracture and that he did not ask them any questions as to how it might have happened. Given that the content of the recording at J68 is supported by the oral evidence of FG, I do not accept the parents account of this meeting with the doctor.
91.
The fall on 6
th September is the only event described by either parent that could, they say, have caused the September injury. M did not mention this incident to Dr Warriner and Dr Bray on 16
th September when asked what might have caused the skull fracture. F describes M telling him during a conversation at home that night after they had been told that N had to stay in hospital and after they were told that they would not be permitted to stay with N. F told me that when M told him that N had fallen over, he did not ask many questions of her as she was upset at being separated from N. He said when cross-examined by Ms Earley that M did not say if N had fallen from sitting or from standing. However, F was sufficiently upset by M not telling him of the fall that he slept on the floor rather than sharing a bed with her. In his statement at C51 §53, he says "it was only then that M mentioned to me that N had fallen onto the pavement and hit his head on the kerb which had been outside the Guest House when she had been walking with him and N had been holding her hand".
92.
F was asked by Ms Earley why he had not given this level of detail to the police when interviewed on 17
th September. F's response was that he did not have an interpreter at the interview. There has been some complaint by FG that translators have not properly explained the difference between road, pavement and kerb, and I accept that this may have an impact on how M may respond to questions but F, in his own statement, says that M told him that N hit his head on 'the kerb', so he had an understanding of his own from M when she relayed that account to him. He did not then pass on that explanation to the police and at G29ak only gives the police a very vague account of what M told him.
93.
At G29ao, F tells the police that M told him of this fall around 10pm at night after they left the hospital. It is clear from the medical records at J72 that F made telephone calls to the hospital at 10.00pm and 11.45pm, so at least 1 telephone call was after this conversation with M but he did not inform the hospital of what he had been told. F also phones on 2 occasions the following morning. The parents were then arrested at 10.45 on 17
th September so it was the police who were first informed of the fall on 6
th September.
94.
I do not accept F's account that there was very little discussion about this fall when at home on the evening of 16
th September. There must have been sufficient discussion for M to explain about the fall on the kerb or F made this up for the purpose of his statement. F told me that he did not ask M for detail as she was upset at not being with N but then says that he was upset enough with her to sleep on the floor. I find his answer of not wanting to upset her as inconsistent with his account of sleeping on the floor.
95.
I agree with Ms Earley's submission that, as time has past, this fall has been presented by the family as the most likely explanation with increasing vigour. When M first describes this fall in her police interview [G45x] she initially describes that N wanted her to swing him around. The translation given is that she says "he was wanting me to take him round and around" but having watched the video recording, what she was describing, in my judgment, is swinging or spinning N around. She says that she was about to lift him but she put him down to place her phone in her pocket and he then fell down onto his side. She then goes on to say that she thinks that the injury may have been caused at this time but she also thinks that it wasn't as it was a week before and she had not seen any distress in N.
96.
She described this event to Mr Bowers on 18
th September 2015 with the assistance of an interpreter. Mr Bowers reports [F14] that M told him of N falling and hitting his head on the pavement a week before he was admitted to hospital. The recording states "she was holding N's hand as they walked on a pavement near the hostel they were living in. M said that when she tried to change the hand with which she was holding hands with N and placing her mobile in her bag, N pulled away from her and attempted to walk forward on his own. M said that N fell sideways on the pavement hitting the side of his head on the edge of the pavement". Mr Bowers questioned this account with M as he had observed N being unable to walk unaided and M then changed her account and said that when she needed to place her phone in her bag "she sat N down on the pavement and he grabbed at an object to his side and he suddenly fell to the right side hitting his head on the pavement".
97.
When cross-examined about this account, M said that she did not have a handbag with her. She accepted that she had a mobile phone but denied that she had put N down to sit on the pavement and said she had lied about this as she was scared due to Mr Bowers, she says, voicing his opinion that she had neglected N by not giving him his medication. M told me that she gave an untruthful account as she was in "extreme fear". She said she didn't understand what she was saying and she was afraid of telling them that he slipped from her hand as she was afraid that they would say that she was neglecting him.
98.
When I heard oral evidence from M's brother, FG, he expressed his dissatisfaction with the accuracy of the interpretation at the meeting on 18
th September and was especially unhappy about translation of the word pavement. FG did confirm, when I asked him, that he would have noticed if the words for sitting and standing had not been properly translated. He sought to deny that he had heard M say that N had fallen from a seated position even though M accepts in her statements and in her oral evidence that she did make such a report. I was not much impressed with FG's evidence. He was quick to give explanations for his sister and brother-in-law rather than answer the questions put to him and in my judgment, his failure to accept that his sister had given different accounts to Mr Bowers in the meeting on 18
th September, that he would have heard as it forms such a large part of the content of that meeting, greatly undermines the reliability of his evidence.
99.
Whether M was carrying a bag or was not carrying a bag does not, in my judgment, matter greatly. In her police interview she demonstrates putting her phone in her trouser pocket so it may be an error in the translation of the word for pocket or handbag. In her statement at C81, M describes that she had the phone in her left hand when N slipped from her hand and mentions neither a bag nor her pocket thereby providing a 3
rd account of the same event.
100.
M's conversation with Mr Bowers was on 18
th September but, as already outlined, she had by then been interviewed by the police over a 2-hour period between 23.30 on 17
th September 2015 and 01.27 on 18
th September. She had been arrested in the morning around 10.30am and then kept in police custody for the whole day prior to her interview. I do not doubt that this was a difficult and frightening experience for her. She was assisted in the interview by a solicitor and an interpreter. At page G45x, M is asked by the officer "is there anything that you can think of, any accidents, any falls that might have caused his fractured skull?". M replies "No. He didn't have any fall". The officer asks again, saying "Even within the last few weeks, is there anything that you can think of that might have caused it?" and M goes on to say "It was a Sunday morning, about 10.30 in the morning, at the entrance of the hostel he had a fall". M was asked how he fell and she said "He was sitting down and then he had a fall. M then gives the explanation that I have already referred to. In her oral evidence M said that she lied to the police about N falling from sitting due to 'extreme fear' and she also said that she lied to Mr Bowers due to 'extreme fear'.
101.
At §36 on C81, M describes N's hand slipping from her's and him falling to the right from a standing position. She says she did not see or hear him hit his head but believes that he may have done. She describes him crying but he stopped crying quickly on being comforted and she had no concerns about him and she thought he seemed 'absolutely fine'. Her brother, FG, arrived very shortly after this and they spent the day together with no indication that N was in any way distressed or unsettled. In her later statement at C205, dated 23
rd March 2016 and filed after the experts meeting, M provides much more detail about N's height and exhibits a number of photos of the scene of the alleged fall. At §7 on C207, she says that she cannot recall if N's head hit the pavement or the kerb. At F10e, a recording of a conversation with Mr Bowers, M is reported to have said that N fell sideways on the pavement hitting the side of his head on the edge of the pavement". In her police interview at G45y, M points to her arm and shoulder when asked what part of N's body hit the floor. She does demonstrate how his head followed over in the same direction but she says in the interview that she does not know if he hit his head and the content of the translated answer is, in my judgment, matched by her demeanor on the video recording.
102.
As M accepted in her oral evidence that she has lied and given different accounts of this fall, I have to consider the reasons that she has to tell lies and whether her admitted dishonesty should lead me to conclude that this fall did not happen at all or whether its importance has now become exaggerated and M is seeking to tailor her evidence to fit what she knows to be a possible mechanism for the causation of a skull fracture.
103.
There is no other accident or fall that has been described by M or F that could have caused the skull fracture. There is no description of him being in pain or showing any sensitivity over the right side of his head at any time. Although the experts disagreed as to how long a pain reaction would have been apparent or how easily a swelling might have been seen, they all agreed that the initial reaction would have been very obvious. N was only in the care of M or F and there is no suggestion by them that he has been left with any other person. M says that, on 6
th September 2015, there was no concerning crying that was in any way out of the ordinary and within minutes N was fine and in the car with FG appearing normal.
The Relevance of Lies
104.
When considering the evidence of M and F concerning this alleged fall, Ms Earley encourages me to take into account what she describes as the many examples of the parents being dishonest and seeking to mislead the court. One example relied upon by Ms Earley concerns an appointment that N had with Dr Warriner on 2
nd September 2015.
105.
As set out above, when M and F left Birmingham they did not bring the medication that had been prescribed for N. It is the LA's case that M and F had an overly casual and negligent attitude toward their responsibility to administer the drugs that had been prescribed and, whilst there is some agreement as to the parents not administering the medication between August and September, the local authority allege that the failure existed for a much longer period than the term admitted by the parents.
106.
At J308, it is recorded that when speaking to the hospital doctor on 13
th August 2015, the doctor was told "Dad stopped diuretics 2 months before". When asked about this recording, F denied saying 2 months and said that he was being asked about the previous 2 days before N had been readmitted to hospital
107.
At J205, the medical notes record that at an appointment with Dr Seale in Birmingham, she was told in the presence of an interpreter, that N had "not taken diuretics for 3 weeks". M and F deny failing to give N his medication during April 2015.
108.
M and F were visited by the health visitor at home in Birmingham on 24
th November 2014 and the health visitor explained to them the importance of complying with the medication as prescribed and to get repeat prescriptions early so that N does not go without. On 1
st December 2014, the medical notes record that N had run out of medication and the health visitor called F to advise that he make an appointment to collect N's prescription. F told the health visitor that he would go that day to collect the prescription. He did not go that day and J499 records that he had not gone by 14.40 the following day. In his oral evidence F gave a convoluted story of not knowing how to get a prescription for the medication and that the health visitor had to explain to him that he needed to go to get prescriptions from the GP. He told me that although the note said he would collect N's that day, as he was at work he could not go until the following day.
109.
When F was asked by Ms Earley about the recording at J308, F said that he knew that N was supposed to be taking the medication twice a day but it was not him who was giving it - it was M- so he said he couldn't give a comment about the 2 months or whether N was taking his medication. He again said the doctor was asking him about the 2 days in hospital and that, maybe, they misunderstood him.
110.
When cross-examined by Ms Howe on this same issue, she put to him that N was given 1 drug before a meal and the other drug after the meal and this had to be repeated on 2 occasions each day so there were, in fact, 4 times per day that N was being given medication. He agreed with this and Ms Howe put to him that he would be aware of this happening at the weekends when he was at home and that he had been dishonest in his earlier answer when he suggested that he wouldn't have known if M had not given N medication for 2 months. F then said that maybe he had misunderstood the questions that had been 'thrown' at him.
111.
I observed F very carefully during his oral evidence. I do not accept that he had misunderstood the question and I find that his answers were designed to minimise his responsibility for failing to administer N's prescribed medication.
112.
When M gave her evidence she told me that it was generally her that gave N his medication. She denied not giving N the drugs prior to the family leaving Birmingham but accepted that they had not after his discharge from hospital and M told me that she didn't know whether to continue to give him the medication due to his injury. She accepted that she did not ask the doctor about this and accepted that they left Birmingham Hospital without informing the doctors of the planned move to Portsmouth and without re-arranging N's review with the cardiologist.
113.
Both parents explained that upon their arrival in Portsmouth, they tried to register with a GP but as they were in temporary accommodation, the practice refused to allow them to register. In his oral evidence F told me that the surgery told him that if there were any emergencies with N, he should phone the surgery between 8am and 10am in the morning to obtain a same-day appointment. I accept what F told me about the difficulties that the family experienced in obtaining a family GP.
114.
In her statement at C79, M describes attending the GP on 1
st September and not being given an urgent appointment so they called as directed on the morning of 2
nd September and were given an 11am appointment. The GP's note of that appointment is at J558 and it records that the parents were concerned "re tachycardia' (increased heart rate) for the past few days but otherwise thought he was well. The GP note records N's heart rate as being 160bpm. The GP referred N to the hospital and he was seen by Dr Warriner at 16.05. The note of that meeting [J99] records that the parents described N has being more breathless and having a faster heart than usual and a time period of 2 to 3 days is given. The note of Dr Warriner records that the parents told him about N's admission to Birmingham Children's Hospital due to the subdural bleedings causes by the fall August injury.
115.
In her oral evidence, when cross-examined by both Ms Earley and Ms Howe, M denied that N was, in fact, breathless and said they had lied about him being unwell to secure an appointment. When F gave his oral evidence, he said that he had lied about N being breathless when he phoned the GP but that he did believe that N's heart rate was too fast. He said that he did believe that his heart was not working as it should have been and he gave the doctor his view.
116.
I found the parents evidence concerning the events of 2
nd September confused, inconsistent and extremely troubling. I do not doubt that F was faced with a lack of helpfulness when trying to register with a GP but in my judgment, it is more likely than not that N was showing symptoms of ill health. Dr Warriner records in his replies to questions at E208 that N was presented on 2
nd September with breathlessness and "his chest moving more than previously".
117.
I find that F's earlier account and M's evidence on this issue are not truthful. F accepts that N's heart rate was high and in my judgment, leaving a treatable condition untreated as advised, so that the child has an increased heart rate and breathlessness, causes that child actual significant harm as even a 1 year old will, in my judgment, be aware that his body is having to work harder to catch the breath that he needs.
118.
In his report at J100, Dr Warriner records "needs diuretics re-starting". He then makes a further entry that he has checked with cardiology and Birmingham children's hospital and they provided the correct dosage for N's prescription and Dr Warriner records that the plan is to re-start the medication and that the "parents are happy".
119.
In her oral evidence, when Ms Howe put J100 to M, she said that there was no interpreter present so Dr Warriner's advice and treatment plan was not explained to her. When she had been asked about this note earlier in her evidence, when cross-examined on behalf of the local authority, M said that Dr Warriner had given them a prescription but they decided not to give N the medication as they wanted advice from the specialist. In his oral evidence F explained this by saying that Dr Warriner had said that he would contact the cardiac specialists at Southampton. F said on a number of occasions in his oral evidence that the parents did not know that they were to give N his medication prior to hearing back from Dr Warriner, following his consultation with the Southampton cardiac team. It was not until F was cross-examined by Ms Howe that F accepted that Dr Warriner had told him to give N his medication and F went so far as to say that they had a plan to get the medication as quickly as possible. Having considered the written and oral evidence on this issue, I find that both M and F have lied to the court about their state of knowledge of the importance of them administering the medication prescribed for N. I find that they were aware that they should have been giving N his medication twice per day every day and that they have sought to justify their failure to do this by inventing an account of there being some confusion about Dr Warriner's advice about the involvement of the cardiac unit in Southampton. However, given the hearsay nature of the medical recordings from April 2015 I am unable to find proved on the balance of probabilities that the parents did not give N his medication throughout April.
120.
The parents left Birmingham without N's medication and, despite knowing where it was, failed to return to Birmingham to collect it. In my judgment they showed a casual disregard for the health of their son.
121.
Following the appointment on 2
nd September, it is accepted that N was not given his medication until 14
th September 2016. F travelled to Birmingham on 5
th September to clean the flat but did not collect the medication that was stored in his old business unit. F had the prescription with him but didn't even go to a pharmacy in Birmingham to collect the diuretics. F returned on 8
th September and at some point went to a pharmacy and was told that the medication would need to be ordered. In my judgment the parents were right to concede that their actions exposed N to likely significant harm as the evidence against them is clear and overwhelming.
122.
When interviewed by the police about the importance of N taking his medication [G29v] F says "until he was 5 months it was very important - well this time he's gaining weight .... He's healthy and he's very active .......so its not that much necessary.....that's what we think". In my judgment, F's own words to the police accurately summarise the attitude at the time. The parents did not think it was important.
123.
When F was interviewed by the police, he was asked if N had been given his medication on 13
th September. F says "I don't know, I can't remember". I accept Ms Taylor's submission that F was confused about dates as on 13
th September, N was travelling back from the christening in Birmingham and did not arrive back in Portsmouth until the evening, but F knew full well that there was no medication available to N on 13
th September as he had not collected it from his unit in Birmingham and had not collected the drugs from the new prescription. I agree with Ms Earley that F gave a dishonest reply to the police.
124.
N was presented to hospital on 14
th September, it is recorded [J28 and J41] that the parents reported that N took his medication every day when they knew that this was not true. They had taken their son into hospital as they had found him to have a swelling on his skull. They were being asked about what medication he was taking and they gave inaccurate and dishonest responses. It is very important that treating doctors are given accurate information so that they can provide the best treatment for a child and not take a course of action that might conflict with an existing drug regime. By failing to be honest with the doctors on 14
th September, the parents again exposed N to a risk of harm.
125.
The local authority invites me to find that N suffered actual physical harm as a result of not being prescribed his medication and the local authority relies on the evidence of Professor Burch, Consultant Paediatric Cardiologist. At E82, Professor Burch opines "non-administration over a long period of time increase his breathlessness because his lungs would become congested (if there was still significant flow through the hole in his heart) and over time this breathlessness would lead to poor weight gain. Non compliance with medication would not cause any long-term damage to his heart". In my judgment allowing N's lungs to become congested when that can be avoided by prescribing medication, when taken together with the emotional impact on N of knowing that his body is having to work harder to draw breath, causes physical and emotional harm that it significant.
126.
The local authority has criticised the parents for leaving Birmingham on 18
th August and moving to Portsmouth when they had no available accommodation. The local authority also criticises the parents for not notifying the Birmingham hospital that they were moving so that arrangements for medical appointments in the Portsmouth area could be made to ensure a sharing of information and transfer of care. I accept that the parents had given notice on their flat in Birmingham and by doing so, had no accommodation available to them in Birmingham. I accept that they felt that they had to move and they had delayed the move as much as they could by remaining with N at the hospital. Their failure to disclose information about their move and plan ahead to set up medical appointments is, in my judgment, an issue that arises from their failure to prioritise N's medical needs and did not, of itself, give rise to another area of potential harm that requires separate consideration within the threshold criteria.
127.
When M and F attended at the Queen Alexandra Hospital in Portsmouth on 14
th September, they are recorded as having reported that N woke that morning with "a soft boggy mass to the right parietal area. Parents deny history of trauma, has been otherwise well and his normal self. No seizures, No LOC (loss of consciousness), no vomiting. At J41, it is recorded that the parents reported the earlier head injury on 9
th August but reported no symptoms in the intervening period. Indeed, there was no recording made by Dr Warriner on 2
nd September that the parents had reported N showing any on-going symptoms as a result of the August head injury.
128.
The local authority has filed a parenting assessment dated 21
st December 2015 that was completed by the social worker, Ms Coleman. Ms Coleman's sessions with M took place between 4
th and 25
th November and F was present at the first meeting. When asked about her coping strategies for managing a crying baby, Ms Coleman reports M as saying that N would very rarely cry and never for long periods. M told Ms Coleman that she could only think of 1 incident in Birmingham when N was crying and she was unsure what was wrong with him.
129.
In her statement to the court dated 23
rd March 2016, M says, at C208 §11, "Following 18
th August 2015 I recall that N was in quite serious pain at times for about 3 weeks. There was one occasion, I don't know the date, I recall one morning whilst we were at the hostel. N was walking holding the wall and he suddenly collapsed to the floor, sat down on the ground as if doubled over - he didn't topple he just seemed to slide and sit quickly on the ground as if in discomfort. He was crying as if he did not know what to do with himself and I gave him some medication. I cannot remember exactly how long he cried - maybe 5 minutes. Because the hospital had told us that N would be suffering pain I thought this was continuing pain following the fall on 9
th August and I gave him the medication as advised by the doctors".
130.
This description by M of N collapsing and suffering pain had not been given by her to the doctors on 14
th September, not mentioned to the police in her interview and not referred to in any of her 4 previous statements in these proceedings.
131.
F was asked about this new information when he gave his oral evidence and said that before he read M's statement he did not know that she had seen N collapse to the floor in pain. He then went on to say that it did not surprise him as he had seen N act in a similar way. F said that N would get pain - and suddenly when N is sitting the pain comes. He said he had seen N in pain for 2 days but when given Calpol the pain would go. Ms Howe asked F further questions about this and he said he would see N sit down and he had pains. He said he could not say where the pain was - maybe the back of his head or in his back and he had seen him sit down in pain roughly 3 times. He said N cried for maybe around 3 minutes and they would give him a painkiller. F said that N cries and doesn't understand what to do. F said he remembers this happening about 3 times but he did not remember the dates.
132.
When asked why he did not mention this in his statements to the court, he said it was because the doctors told them this would happen so he didn't think was a serious matter.
133.
Ms Earley invited the court to find that M has invented her account of N collapsing to the floor in pain and also to find that F has invented his story of seeing something similar on 3 occasions in an attempt to corroborate his wife's lies. I have considerable sympathy with that submission. It is, frankly, astonishing that neither M nor F mentioned these episodes to the medical staff seeking to treat their son or to the police or social workers that were trying to understand what might have happened to him. Ms Taylor urges me to temper my expectations of these parents given their past life experiences; F being an asylum seeker who fled from Country A. I am invited to take into account the significant adversity they have suffered in their lives when judging their actions. I am also invited to take into account the views of a social worker named TM, who was located by M and F and asked to speak to Ms Coleman to explain the cultural differences between the UK and Country A and how this can effect family life. One of the differences TM explained was that medical facilities were different in Country A and people do not necessarily obtain medical treatment and M told Ms Coleman that people from her village tended to treat injuries themselves.
134.
I have to balance that information against the evidence that M spent the first 10 months of N's life attending medical appointments at the hospital and also with the GP. She often attended these appointments on her own. I also have to take into account that M and F have both told me that they were concerned enough about N's health to invent a story of breathlessness to get him seen by a doctor. I also have to take into account that both M and F were asked questions about N's health in the period running up to his admission to hospital on 14
th September. M says in her statement that these episodes of pain lasted for about 3 weeks from the time that he was discharge from hospital on 17
th August. If that is accurate, these pain events happened up to 7
th September, so just 1 week before N's re-admission to hospital. I find it beyond belief that if these events were happening as described, that they were not reported. Further they are not disclosed by any of the witnesses who have provided statements on behalf of the parents. BG, a friend of the family describes the family visiting his home on a daily basis from 18
th August to 14
th September. He reports nothing of concern. F did not know of the collapse described by M prior to reading her statement. Again, given how much conversation has taken place within the family about the events up to 14
th September 2015, conversations that have included FG; FG having read many of the court papers. It is very surprising that these occasions when N was said to have been in significant pain had not been known about and reported. I was particularly unimpressed with F's evidence on this subject. I thought him to be inconsistent, unclear and unbelievable. I find, on the balance of probabilities, that no such pain episodes have taken place.
135.
Having made findings that the parents have not been honest with the court, I have to consider the reasons that they may have for being dishonest and whether dishonesty on these identified issues should lead me to conclude that they have been dishonest when describing the fall on 6
th September or when denying knowledge of any other causal event.
136.
Ms Earley has referred me to a recent case of
H-C (Children) 2016 EWCA Civ 136 and to paragraphs 98 to 100 of the decision of Lord Justice McFarlane where he said:
"98. The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a "lie" made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices.
99. In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.
100. One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251.
In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt".
137.
In my judgment, the dishonesty shown by the parents concerning whether N was showing signs of ill health on 2
nd September and the lies to the hospital that he was taking his medication when he was not, are easily explained by the parents' knowledge that they should have been giving N the diuretics prescribed and told lies to seek to avoid criticism and sanction over their failure to properly provide for his medical needs. In my judgment, their dishonesty concerning these matters does not help the court determine the cause of the N's injuries save that it has to taken into account when assessing their credibility generally.
138.
My findings concerning the dishonest descriptions of the pain collapse events, the dishonest evidence about not being asked by the doctor on 16
th September what might have caused the skull fracture and the admission of lies concerning whether N fell from sitting or standing are, in my judgment, much more relevant to the court's determination of the cause of N's injuries.
139.
However, I also have to into account that these are parents who will, in my judgment, seek to present themselves as positively as possible even when by doing so they fail to see that their answers have the opposite effect. There are 2 very good examples of this. The first is the evidence given by both parents that it was not stressful for them when their business was in trouble and then failed. I expressed my surprise that they would not find this situation stressful. They had invested their life savings and money from family members in their business. They would have had hopes and aspirations that the business would thrive and create a good way of life for them and their family. In my judgment, it must have caused anxiety and disappointment when the business did not succeed and the emotional strain and financial consequences of the failure would have caused a certain level of stress to anyone. It was clear to me that neither parent wanted to accept anything suggested to them that might be seen as being a reason why they may not have been managing the care of N.
140.
Similarly, M's account to Ms Coleman that N never cried and rarely for long periods [F81], was also unbelievable. As Ms Coleman sets out in her report, small children do show signs of distress by crying when hungry or tried and Ms Coleman expresses her concern in her report and in her oral evidence that M does not acknowledge this. In my judgment, this again demonstrates the desire of both parents to paint a rosier picture than the truth. However, these misrepresentations cannot be taken as indicating that they inflicted injuries to their son as the motivation to present themselves positively during proceedings is understandable and regularly seen in many families involved in care proceedings.
The Observed Fall on 9 th August 2015 - Discussion and Analysis
141.
As already described, N was admitted to hospital on 9
th August 2015. M and F gave an account of him falling and hitting his head. The treating doctors at Birmingham Children's Hospital accepted that the fall described was an acceptable explanation for N's presentation.
142.
I have heard evidence from Mr Richards, Dr Cartlidge and Dr Sprigg and all 3 experts would accept that the fall described could account for the subdural bleeding found.
143.
Mr Richards says at §2.4 on E66 that there was no evidence of impact either clinically or on neurological imaging and he thought that unusual given that N's behaviour was disturbed for so many days. He also thought it very unusual that such a low fall would, of itself, cause such significant symptoms. In his oral evidence he said subdural haemorrhages can have no symptoms at all and those seen on N's scans were very thin and not compressing the brain. He said there was no other brain injury so, would not expect the haemorrhages to cause any symptoms at all, the symptoms have come from the way the brain was functioning and it was not functioning right with for 5 or 6 days. It was Mr Richard's opinion that such a level of disturbance would require a harder bang on the head. He said that he would only expect to see disturbance of brain function of 24 to 48 hours so disturbance for longer would be consistent with a harder level of force. He said it was very very unusual if this was caused by this the low level fall.
144.
Dr Cartlidge and Dr Sprigg in the expert's meeting on 11
th February and in their oral evidence acknowledged the unusual features of the case as outlined by Mr Richards but all 3 experts accepted the fall described as a possible mechanism for N's presentation.
145.
I heard oral evidence from MK. Her statement is dated 5
th December 2015 and she describes M and F visiting her home on 9
th August 2015. In her oral evidence she described that N was standing playing by a chair. He fell backwards and she heard a bang when he hit the floor. Her evidence was confused concerning whether she actually saw him fall or heard the bang and then saw him on the floor but she went onto to describe how N screamed out, cried and then went quiet. She was sitting on a sofa with M and when N fell, F, who was on another sofa, rushed to him and picked him up. She said that N went quiet and they thought he was dead. She described how M started screaming and that N was foaming at the mouth. Her partner and father to her children, HB, was upstairs and he came down and drove M, F and N to the local GP surgery.
146.
MK has known M and F for some 12 years and knew them when they lived in Country A. I have taken that into account in assessing her evidence but she gave a clear and unambiguous account of a fall having taken place and N being rushed out of the house for medical treatment. Ms Earley probed MK's recollection of events but did not challenge MK's description of the fall. Therefore, I find that the fall happened on 9
th August 2015 in the way described by MK. MK's account matches the description of this fall given by M and F so it follows that I also accept their evidence as to how the fall occurred and N's reaction thereafter.
147.
N was presented at hospital and then discharged, as he appeared to have improved. M and F returned to MK's house, as they had to collect their car. MK says that N was asleep when she saw him later that day and she did not see him again until she visited him in hospital a few days later.
148.
The local authority invites the court to find that the fall caused N to have a reflex anoxic seizure and that he was then assaulted by M at some point on 10
th August or 11
th August and this assault caused the bleeds then seen on CT scan.
149.
Dr Sprigg said in his evidence that he could not exclude, by looking at the scans, that there may have been a further event between N leaving hospital on 9
th August and being represented on 11
th August, but Dr Sprigg, Dr Cartlidge and Mr Richards agreed in their oral evidence and in the experts' meeting that the injuries were most likely caused in one event. Dr Cartlidge was explicit in his oral evidence that he was not at all surprised that N would present in the way he did when suffering these brain bleeds. He said that children will often collapse and then seem to improve before deteriorating again. He said it was a typical presentation. He was not as surprised as Mr Richards at the duration of the on-going symptoms. He told me that this was a grey area and not a binary situation given that different children react differently.
150.
In her submissions, Ms Earley relied upon N having been discharged by the Children's Hospital as evidence that he had returned to 'normal', therefore the collapse must have been due to a reflex anoxic seizure rather than the fall. In his oral evidence, Mr Richards said whether N was normal or not when discharged would depend on how reliable was the assessment made by the treating doctors. In my judgment he clearly had improved sufficiently to be discharged and given the time of day when he left the hospital and that he was asleep when seen by MK later, it would be difficult for any observer to know whether he was fully well or tired due to the events of the day.
151.
Having seen MK give her oral evidence and found that this fall did happen in the way described, and accepting her evidence of how N reacted to the fall, I accept the evidence of Dr Cartlidge that the initial collapse, followed by an improvement and a later deterioration is a presentation that is not at all unusual. I recognise the rarity of such an event causing the multi-compartmental bleeds found and that it was unusual for interference with N's function to last for such a prolonged period but I am, on the balance of probabilities, satisfied that it was the fall described on 9
th August 2015 that caused these injuries.
152.
I understand the approach taken by the experts that the unsatisfactory nature of the explanation given by the parents for September injury increases the likelihood of the August injury being an inflicted event. However, I have had the advantage of seeing MK give evidence. This was a witnessed fall and not, in my judgment, an event that has been invented. I find that there is no evidence of any other intervening event that has caused this injury and the local authority is simply speculating that M must have injured N at some point overnight or during the day on 10
th August. N's presentation was consistent with a pattern recognised by Dr Cartlidge and although the experts could not exclude a 2
nd event, they were of opinion that one event was the most likely explanation. I accept their expert opinion and find that the one event that was witnessed by MK caused this August injury.
The September 2015 Skull Fracture - Discussion and Analysis
153.
The expert medical evidence received is just one part of the evidential puzzle and the court is required to look at the overall picture when reaching conclusions on the facts.
154.
As set out above, there is some disagreement between the experts as to certain important features of the medical evidence concerning the skull fracture.
155.
Whilst Dr Cartlidge freely, and without being invited to do so by a question, raised whether the swelling seen at the hospital on 14
th September was a scalp swelling caused by recent event or a CH caused by an early incident, he did defer to the opinion of Dr Sprigg as to whether it was a CH that was seen on the scan. Dr Sprigg was clear that the swelling seen was not a CH and was a swelling that contained fresh blood that had escaped from the fracture in the skull. Mr Richards agreed with Dr Sprigg and therefore I find that that swelling seen on the scan by Dr Sprigg and Mr Richards was caused by an event that occurred within 14 days of the date of the scan, that giving a timescale from 1
st to 14
th September 2015. However, given that there was acute blood seen on the scans, I accept the evidence of Mr Richards that this was a swelling that was in the early days of its evolution, not an older resolving swelling and is unlikely to have occurred before 6
th September 2015.
156.
I make no findings as to whether the swelling was seen to be growing on 14
th September 2015 for the reasons explained earlier, so it is not possible to further define the likely window of causation save by considering the evidence concerning N's apparent contentedness when being examined at the hospital on 14
th and 15
th September. Given the evidence I have heard from Dr Cartlidge and Mr Richards concerning how often carers do not see a scalp swelling, it is not surprising that FM did not see a swelling when she met M, F and N on 14
th September and her account of N appearing happy matched the observations made when N was presented at hospital.
157.
Dr Cartlidge told me that he was not assisted in estimating the most likely timescale for the injury by relying on a description of another clinician pressing on the lump and finding an absence of a pain reaction. Mr Richards took the opposite view and told me that it was the absence of pain reaction that helped him most in seeking to age this fracture. Dr Cartlidge accepted that if there really was an absence of a significant pain reaction, the fracture must be a more than 2 days old. This opinion matches the evidence given by Mr Richards that the fracture would not have been recent unless N was a particularly stoic baby.
158.
In my judgment, there is evidence before me from which I can conclude that N is not an unusually stoic child. N was seen in contact on 5
th October to be crying inconsolably and his parents were concerned sufficiently for F to ask the receptionist to call for medical help. The receptionist called the foster carer who said that N's crying was due to teething. In his oral evidence F accepted that Bonjela gel was applied to N's gums and he calmed down. This description of N being hugely disturbed by the pain of teething does not lead me to conclude that he is a child with anything other than a usual sensitivity to pain and that he will show his distress by crying when he does feel pain.
159.
The absence of a pain reaction by N when presented to the hospital on 14
th September was a matter reported by those medical professionals who examined him [J40, J42]. Those descriptions must, in my judgment carry significant weight in my deliberations as these professionals had the advantage of handling the child and observing his reactions. In my judgment these observations, when taken together with the expert opinion of Dr Cartlidge and Mr Richards, lead me to conclude that the skull fracture was most likely to have occurred at least 2 days prior to N's admission to hospital on 14
th September 2015.
160.
During this period, N was in the sole care of M on 6
th and 7
th of September. He was in the joint care for M and F from the time when F returned from Birmingham on 8
th September until when M left Portsmouth around 11am on 12
th September, until they arrived back in Portsmouth at around 8pm on 13
th September. M travelled to Birmingham with BG in his car and BG describes N as being happy and well. I have seen a copy of a photograph of N taken at the christening in Birmingham. He has been dressed in smart clothes for the celebration. It was Dr Cartlidge's opinion that, if N had suffered a skull fracture around this time, his unhappy demeanor would have been noticed by family members present at the event. The evidence of BG is that N was happy and contented on the journey up to Birmingham and during the journey home. This evidence has not been challenged.
161.
Having concluded that N is a child who displays a normal reaction to pain, and accepting the evidence of Dr Cartlidge, Dr Sprigg and Mr Richards that N would have displayed symptoms of pain and discomfort for around 24 to 48 hours following the causation of a fracture, in my judgment it is unlikely that the fracture was caused on 11
th or 12
th September, as N's discomfort would have been noticed by BG and those present at the christening.
162.
In my judgment, the most likely period when N was injured was between 6
th September and 11
th September 2015.
163.
When considering the most likely mechanism for the causation of the skull fracture, it was the opinion of Dr Sprigg that this would be an impact against a flat surface. There was some discussion as to whether a fall against a kerbstone would make this fracture more likely but Dr Sprigg's opinion was that it would not and it is an impact to a flat surface that is the most likely mechanism. I accept the evidence of Dr Sprigg on this issue.
164.
The only event that is described by the parents as being a possible mechanism is the fall on 6
th September 2015. Ms McFadyen and Ms Taylor invite me to find that this fall cannot be excluded and draw my attention to evidence that, they submit, should lead me to reject the local authority's case that one or other of the parents has assaulted N.
165.
Ms McFadyen reminded me that unusual things do happen and Mr Richards highlighted the possibility that N may just be a very unlucky child. She submitted that it was not surprising that there were inconsistencies in the accounts given by the parents as they have their own independent memories of events and the lack of consistency points to them not having collaborated and therefore to honesty rather than dishonesty. When considering M's various descriptions of the fall on 6
th September, Ms McFadyen submits that M has not sought to exaggerate or make more of the account she originally gave. It would have been relatively easy for M to tell the court that N really was very distressed that day and cried a great deal. It is submitted that her failure to do that should be treated as an indication of honesty. Ms McFadyen cautions against the court treating the failure of the parents to given N his medication as any indication that they are parents who would be likely to inflict injury. Ms McFadyen highlights that there is no evidence of M ever being aggressive or short-tempered. There is one occasion in contact on 5
th October 2015, a contact supervised by a newly qualified social worker, when M was described as putting her hands over her ears when N was crying and distressed. It is submitted that this was an isolated event and all other contact has been good.
166.
It was submitted by Ms Taylor that there is no evidence before me that the any of risk factors listed in Re BR were present with this family. Ms Earley submitted the contrary. I do not propose to list the matters set out in paragraph 18 of Re BR. Peter Jackson J says at paragraph 19 that "
In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasized above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established".
167.
In my finding, although the family were living in temporary accommodation, they were not isolated as they had friends and family locally and the evidence is that M and N visited on a daily basis. There are no drug or alcohol issues and no allegations of domestic violence or conflict. N was a child who had medical needs that required the administration of medication on 4 occasions each day but this was not an additional stressor for these parents as it was not a responsibility that they took seriously or were undertaking. The family was economically disadvantaged as their business had failed and they were living in temporary accommodation that was just one room. There is no evidence of poor mental health.
168.
When considering protective factors, there was a family and friends network present and support available for the parents. The parents themselves were in a caring relationship although I am unable to find that they showed nurturing parenting skills at all times given my findings that they have failed to meet N's medical needs.
169.
I also take into account that this is a simple linear fracture and the most common sort of fracture seen in accidental and non-accidental events. There is no evidence of any other marks. There were no bruises seen, no scratches or abrasions of any kind.
170.
I have found that the injury suffered by N in August 2015 was as a result of an accidental event. I have accepted the parents' account of that as being truthful. I also take into account that the parents did not seek to hide the history of the August injury from the doctors when they spoke with Dr Warriner on 2
nd September or with the staff at the hospital on 14
th September. I accept that their willingness to disclose this information could be seen as a positive indicator of their reliability.
171.
I then have to balance these positive elements against the findings that I have made concerning their dishonesty and their willingness to give answers that suit their respective cases and a desire to present the most positive impression. I agree with Ms Taylor that I have to take into account the adversity that these parents have suffered earlier in their lives and that they now live their lives within their community of immigrants from Country A and are unfamiliar with the agencies and procedures to which they were exposed when arrested on 16
th September and following the involvement of the local authority.
172.
However, I accept the evidence of all the expert witnesses that this skull fracture would have been caused by a significant impact with a flat surface and that N would have been obviously and visibly distressed when this event occurred. N was in the care of M or of M and F during the period that I have identified when this injury is most likely to have occurred.
173.
I have carefully considered the evidence given by M concerning the fall on 6
th September but I am satisfied on the balance of probabilities that this fall did not cause the skull fracture. I accept that it is a possible, albeit unlikely, mechanism but M has been consistent in saying that N cried but only for a few minutes and then appeared to be normal. In his statement at C115, FG says that when he first saw M and N, N was trying to walk with M holding his hand. In my judgment, N would not have been up and walking just a few minutes after this fall if he had suffered a skull fracture.
174.
I having concluded that the local authority have proved that the alleged fall on 6
th September 2015 was not the causative event, I then consider the local authority's allegation that N was injured by one or other of his parents.
175.
In Re BR, Peter Jackson J said, at paragraph 15:
"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. However, if the judge's observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.
16. 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.
17. In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby's part on any such occasion was therefore one of the matters requiring careful assessment".
176.
N was in the care of M and/or F at the time he suffered his skull fracture. It is not possible on the evidence before me to refine that window for causation down to a period that excludes either parent. N has been left in the care of no other person and neither M nor F suggests that any other person might have been responsible. I have not been told that N has been left unsupervised and might have had an accident that was not seen by either parent.
177.
I have considered what impact, if any, my conclusions concerning the various lies told, should have on my determination of which parent is the most likely perpetrator. In my judgment, the lies told by M concerning the circumstances of the fall, and the alleged collapse from pain when at the hostel, could be interpreted as attempts to put forward some kind of story that explains how the fracture happened and why M did not notice any display of pain from N. If this was the motivation, then such lies could corroborate other evidence that might point to M being the perpetrator. However, when looking at when these lies were told, F knew of the story about the fall before M was interviewed by the police and I have already found that I do not believe his account of there being little discussion about the fall before M saw the police. I also take into account that the story of the pain events did not arise until M's most recent statement so there was ample opportunity for F and M to collaborate over these explanations.
178.
What was clear from the evidence was that M and F are closely aligned and each protects the other. I am simply unable to identify any evidence that could form the basis of a finding that one parent is a more likely perpetrator than the other.
179.
However, I am also not satisfied that the skull fracture was necessarily a deliberately inflicted injury. In my judgment, I cannot make the leap from rejecting the account given by the parents to making a finding that one of them has deliberately assaulted N. I simply do not know what event might have caused the fracture but given that N was in the care of M and/or F from 6
th to 11
th September inclusive, I find that one of them knows what happened and has not disclosed this information to the court. It may have been an undisclosed event such as an unintentional assault due to a loss of control. However, having heard the parents give evidence, I find it unlikely that that would have maliciously assaulted N with intention to cause injury.
180.
I have considered whether F could be excluded from the pool of perpetrators given that he did not have care of N between 5
th and 8
th September and when in Portsmouth, the parents agree that he did not have sole care of N. Given the findings of dishonesty that I have made and my conclusion that they are closely aligned with and protecting each other, in my judgment it is not possible to exclude F as there remains a real possibility that he was the perpetrator and M simply has not reported what happened.
My Findings
181.
I make the following findings:
1.
That N was caused significant physical and emotional harm on a date between 6
th and 11
th September 2015, when he suffered a 60 mm right parietal fracture to the skull while in the care of the parents.
One or both of the parents knows how the fracture was caused and has not disclosed this information to the court. However, it is unlikely that that the parent responsible would have maliciously assaulted N with intention to cause injury.
2.
The skull fracture was caused by the application of excessive force by way of a hard impact with a flat surface to the right side of the skull.
3.
That N would have been in pain and/or shown distress at the time the injuries were caused. The perpetrator of the injury and anyone observing would have been aware that N had been seriously hurt.
4.
That N suffered significant harm and was likely to suffer significant harm due to the parents' failure to prioritise N's medical needs by reason of the following:
a. On 30 October 2014 N was diagnosed with congenital heart disease, namely ventricular septal defect, which requires the administration of twice-daily medications. Upon moving from Birmingham to Portsmouth on 18 August 2015 the parents failed to take the prescribed medications with them and then failed to obtain new prescriptions until 2nd September 2015. Thereafter the parents failed to obtain the medications until 14th September 2015.
b.
On 14
th September 2015, having discovered a swelling on N's skull at around 10am the parents delayed presenting N for medical treatment until 7pm.
5.
The parents have been dishonest and failed to work openly with medical and social care professionals regarding N's skull fracture and the administration of N's medication.
I find the threshold criteria pursuant to section 31(2) Children Act 1989 satisfied.
Recorder Howe QC
25 th April 2016.
Application for Clarification of Findings
182.
Following the delivery of this judgment on 25th April 2015, I was invited by the advocates to give further clarification to my findings concerning the culpability of the parents for causing the September injury. I was specifically invited to express my view as to the most likely cause of this injury. I then gave additional reasons in court however, on reflection, I consider it appropriate to refine and summarise the clarification of my findings by the addition of these extra paragraphs to my judgment.
183.
As set out above, the skull fracture caused was an uncomplicated linear fracture to the parietal bone. It was not possible for the experts to be more specific about the most likely mechanism other than to say it would have been an impact against a flat surface. Given that the injury itself is not one, unlike a shaking injury, where the physical signs suggest the likely mechanism, it is not possible for me to draw any conclusions as to what action was taken by the parent responsible. If N's own activity had caused this fracture, by him falling onto a flat surface or a flat surface falling onto him, the parents would know about it. M has described what she considered to be the most significant event and I have found that this did not cause the fracture. F has not described any incident of concern.
184.
I have found that the parents have lied to the court, to the police and to the local authority and it was not possible, on the evidence, to determine which parent was the most liked perpetrator. However, in my finding, those lies were not innocent lies. They were designed to mislead and seek to hide from the court the truth of what happened to N. The dishonesty by both parents concerning the times that N was said to have collapsed or sat down in pain is, in my judgment, one of the clear examples of a lie with a guilty purpose and not an innocent lie. As I have set out above, it is my finding that these lies corroborate the other evidence detailed in this judgment that proves, on the balance of probabilities, that one of the parents was responsible for causing this injury.
185.
Given that N was in the care of M and/or F throughout the period I have identified, it is more likely than not that one of them was the perpetrator of the injury to N and the other is protecting the person responsible. As I explained in court, the injury was likely to have been caused 'accidentally' and by that I mean that the outcome was not intended from the action that was taken. I find that it is unlikely that either parent intended to cause injury to their son, although that was the result of whatever it was that was done. In my judgment, it is not possible to determine the nature of the causative event unless the parents choose to disclose this information during the risk assessment that will now take place as a result of my findings.
Recorder Howe QC
26 th April 2016.
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AGREED SUMMARY OF LAW
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The threshold
1.
The court is concerned with whether the statutory threshold criteria which empower the court to make a care or supervision order are met.
2.
The threshold criteria are set out at section 31(2) of the Children Act 1989
"A court (2) may only make a care order or supervision order if it is satisfied -
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to -
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control."
3.
In the case of
Re B [2013] UKSC 33, [2013] 1 WLR 1911 Lord Wilson took the view that 'significant' not a word that needs defining, but at paragraph 27 quoted the formulation of Hedley J in
Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 (at para 50)
"...society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent"; and, at para 51, that "[significant] harm is fact-specific and must retain the breadth of meaning that human fallibility may require of it" but that "it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy."
Burden and standard of proof
4.
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.
5.
In family proceedings there is only one standard of proof, namely the balance of probabilities. This was described by Denning J in
Miller v Ministry of Pensions
[1947] 2 All ER 372:
"
If the evidence is such that the tribunal can say: "We think it more probable than not", the burden is discharged but, if the probabilities are equal, it is not."
6.
In
Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35,
[2008] 2 FLR 141
, Baroness Hale, while approving the general principles adumbrated by Lord Nicholls in
Re H and Others, expressly disapproved the formula subsequently adopted by courts to the effect that 'the more serious the allegation, the more cogent the evidence needed to be to prove it'. Baroness Hale stated
"[70] My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 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.
[71] As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future."
7.
The inherent probability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred:
Common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities - per Lord Hoffman in
Re B at para. 15
8.
The burden of disproving a reasonable explanation put forward by the parents falls on the local authority (see §10 S (Children) [2014] EWCA Civ 1447).
9.
The inability of a parent to explain an event cannot be relied upon to find an event proved. See Re M (A Child) [2012] EWCA Civ 1580 at §16 - the view taken by the Judge was "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".
10.
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
"[26] 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."
Judicial approach to evidence
11.
The judge must decide if the facts in issue have happened or not.
There is no room for finding that it might have happened. The law operates a binary system in which the only values are 0 and 1,
per Lord Hoffman in
Re B at para. 2. This applies to the conclusion as to the fact in issue (e.g. did it happen; yes or no?) not the value of individual pieces of evidence (which fall to be assessed in combination with each other).
12.
When carrying out the assessment of evidence regard must be had to the observations of Butler-Sloss P in
Re T [2004] EWCA (Civ) 558
"[33] Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to 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."
Each piece of evidence contextualises and re-contextualises each other piece as the court strives for coherence.
13.
When considering the 'wide canvas' of evidence the following section of the speech of Lord Nicholls in
Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 remains relevant.
"[101B] I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue ."
14.
The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see
Re W and another (Non-accidental injury)
[2003] FCR 346.
Expert evidence
15.
The findings made by the judge must be based on all the available material, not just the scientific or medical evidence; and all that evidence must be considered in the wider social and emotional context:
A County Council v X, Y and Z (by their Guardian) [2005] 2 FLR 129. This was expressed as
the expert advises and the judge decides in
Re Be (Care: Expert Witnesses) [1996] 1 FLR 667
16.
In
A Local Authority v K, D and L [2005] EWHC 144 (Fam), [2005] 1 FLR 851 Charles J referred to the important distinction between the role of the Judge and the role of the expert (see para.39), saying:
"(a) that the roles of the court and the expert are distinct, and
(b) that it is the court that is in the position to weigh the expert evidence against its findings on the other evidence, and thus for example descriptions of the presentation of a child in the hours or days leading up to his or her collapse, and accounts of events given by carers."
17.
These comments were developed by Charles J. in a lengthy section in the judgment in
K, D and L by a review of the relevant case law in the area. For present purposes, the court may find it useful to consider two short passages from that judgment:
"[44]...in cases concerning alleged non accidental injury to children properly reasoned expert medical evidence carries considerable weight, but in assessing and applying it the judge must always remember that he or she is the person who makes the final decision ;"
"[49]...In a case where the medical evidence is to the effect that the likely cause is non accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof ;"
18.
The conclusion reached by Charles J. (following his judicial summation of the relevant case-law in this area) is to be found at para.63, where he said:
"I am therefore able to reach a conclusion as to cause of death and injury that is different to, or does not accord with, the conclusion reached by the medical experts as to what they consider is more likely than not to be the cause having regard to the existence of an alternative or alternatives which they regard as reasonable (as opposed to fanciful or simply theoretical) possibilities. In doing so I do not have to reject the reasoning of the medical experts, rather I can accept it but on the basis of the totality of the evidence, my findings thereon and reasoning reach a different overall conclusion ."
Unknown and disputed aetiologies
19.
The court is not precluded from making a finding that the cause of harm (to the child and by extension to the mother) is unknown. The judgment of Hedley J in the case of
Re R (Care Proceedings: Causation) sets this out:
"[10]...there has to be factored into every case which concerns a disputed etiology 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."
20.
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.
Hearsay evidence
21.
There is no issue as to the admissibility of hearsay evidence in the family courts. The Children (Admissibility of Hearsay Evidence) Order 1993 states that in civil proceedings before the High Court or a county court evidence given in connection with the upbringing, maintenance or welfare of a child will be admissible, notwithstanding any rule of law relating to hearsay.
22.
In
R v B County
Council ex parte P
[1991] 2 All ER 65 (at 72J), [1991] 1 FLR 470 at 478, Butler-Sloss LJ observed that
A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon. When assessing the weight to be placed on hearsay evidence the Court may have regard to the matters set out in section 4 of the Civil Evidence Act 1995 even in cases (such as this one) where the Civil Evidence Act does not strictly apply.
23.
Section 4 of the Civil Evidence Act reads
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
Lies
24.
The rule of
R v Lucas [1981] QB 720 was adopted in the family courts in
A County Council v K, D and L. The principle is that
if the court concludes that a witness has lied about one matter it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure.
25.
In the criminal courts a lie can only be used to bolster evidence against a defendant and can only do so if the fact-finder is satisfied that the lie is deliberate, relates to a material issue and there is no innocent explanation for the lie.
Identification of Perpetrator.
26.
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).