England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
AT BLACKBURN

		64 Victoria Street Blackburn BB1 6DJ
		27 April 2018

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 children and members of their 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.

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

HIS HONOUR JUDGE BOOTH:

1. This case concerns Y who was born on 21^st July 2016. Sadly, Y has suffered a significant brain injury. His sight has been damaged. Consequently, he has significant disabilities, and the future for him is uncertain. The hearing I have been conducting has been a finding of fact hearing to determine, if I am able, how it came about that because of the events of the 21^st October 2016 Y is in the condition that he now is.
2. This hearing arises within care proceedings brought by Lancashire County Council begun on 1^st November 2016 in which they have sought findings of fact against both his parents. However, at the conclusion of the evidence, the local authority withdrew their allegations against Y's mother and so it is only those allegations against his father that I must consider.
3. The local authority has been represented by Mr Howling QC and Miss Bramall, the mother by Mr Feehan QC and Miss Korol, the father by Mr Storey QC and Miss Lewis and Y by Miss Woods taking instructions from his Guardian Gemma Howarth.
4. I heard evidence either live or over live link from the following witnesses: Jason Eddings and Samantha Maudsley, ambulance crew who went to Y's home in Accrington to take him to hospital; Patrick Cartlidge, consultant paediatrician, Peter Richards, consultant paediatric neurosurgeon, Danny Morrison, consultant paediatric ophthalmic surgeon, Andrew Curran, consultant paediatric neurologist, Russell Keenan, consultant paediatric haematologist, Stavros Stivaros, paediatric neuroradiologist, Anand Saggar, consultant in clinical genetics, all instructed as single joint expert witnesses; Dr Chris Gardner, the treating consultant paediatrician who looked after Y when he was first admitted to hospital and Dr Helen Basu the consultant paediatric neurologist who is responsible for his ongoing care. I heard from both parents with the assistance of interpreters. I have 6 volumes of written material that I have read. I received detailed written submissions on the law, the facts and the medical evidence from all the advocates and these were supplemented by oral submissions. I have taken all of this into account.
5. The local authority case is that on 21^st October 2016 when Y was admitted to hospital suffering from life threatening concerns he had been the subject of inflicted injuries. The local authority seeks findings as follows:

That the father had inflicted injuries on Y resulting in the following: (a) a sudden onset of struggling to breathe, going red, having fits and then going floppy and unconscious (acute encephalopathy). When paramedics attended he had no pulse, no breathing and was completely unconscious; (b) acute subdural blood over the cerebral hemispheres, in the falx, in the tentorium and in the posterior fossa (i.e. multi-focal); (c) acute subarachnoid blood over the brain; (d) no parenchymal brain bleeding. A small focus of blood in the left side of the brain; (e) hypoxic-ischemic changes in the cerebellum; (f) extensive left-sided retinal haemorrhages.

The local authority seeks a finding that the injuries were caused by inflicted trauma by means of shaking and that that shaking was carried out by his father.

6. It is accepted that the medical tests and examinations carried out on Y in the days following the 21^st October 2016 demonstrate an acute subdural bleed over the cerebral hemispheres, an acute subarachnoid bleed, hypoxic-ischaemic changes in the cerebellum, extensive left-sided retinal haemorrhages and that when he was first seen by the ambulance crew he was suffering acute encephalopathy having gone floppy and unconscious and had no pulse and was not breathing.

The law

7. Before I deal with the facts and the evidence that I have read and heard, let me address the question of the law.
8. In R v Harris [2005] EWCA Crim 1980 the Court of Appeal set out at paragraph 56 a description of what had been called "shaken baby syndrome" but what is more properly called non-accidental head injury. The accepted hypothesis depends on findings of a triad of intercranial injuries consisting of encephalopathy (defined as disease of the brain affecting the brain's function); subdural haemorrhages; and retinal haemorrhages. For many years the coincidence of these injuries in infants was considered to be the hallmark of non-accidental head injury. The Crown had pointed to two further factors of circumstantial evidence, namely that the injuries are invariably inflicted by a sole carer in the absence of any witnesses, and they are followed by an inadequate history incompatible with the severity of the injuries.
9. The following general points are of relevance in this case:

i) The burden of proof lies at all times with the Local Authority.

ii) The standard of proof is the balance of probabilities.

iii) The finding of fact must be based on evidence, including inferences that can properly be drawn from the evidence but not on suspicion or speculation.

iv) When considering cases of suspected child abuse the court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to conclude whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.

v) 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.

vi) It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear, distress and maybe out of fear that the truth will not speak loud enough. The fact that a witness has lied about some matters does not mean that he or she has lied about everything.

vii) The legal concept of proof on a balance of probabilities must be applied with common sense.

viii) The court should have regard to the inherent probabilities but this does not affect the legal standard of proof. This proposition was enunciated by Lord Hoffman in Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, where at paragraph 15 he said this:

'There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely'.

ix) The fact that the parents failed to prove, on a balance of probabilities, an affirmative case that they have chosen to set up by way of defence, does not of itself establish the Local Authority's case.

x) Parents may in some respects be good parents. That does not necessarily mean that they are willing and able to protect their children in the way that might otherwise be expected.

xi) Where repeated accounts are given of events, the court should think carefully about the significance or otherwise of reported discrepancies. They may arise for many different reasons such as lies, faulty recollection or contamination from other sources. They may simply be the effect of the human reaction of unconsciously filling in the gaps.

xii) Expert evidence must be viewed against the broader canvas of all the relevant information before the court: 'The expert evidence has to be carefully analysed, fitted into the factual matrix and measured against assessments of witness credibility'. Wall LJ in Webster v Norfolk County Council [2009] 1 FLR 1378. The expert advises, the court decides.

xiii) It is perfectly acceptable (and not uncommon) for the court to reach a conclusion that a medical condition or presentation has an unknown cause.

xiv) The court must bear in mind that, 'Today's medical certainty may be discarded by the next generation of experts or that scientific research may throw light into corners that are presently dark' - Re U (a child) (serious injury: standard of proof); Re B (a child) [2004] EWCA Civ 567.

xv) It is open to the court based on the totality of the evidence to reach a conclusion which does not accord with the conclusion reached by the medical experts - A County Council v K, D and L [2005] 1 FLR 851.

xvi) It is in the public interest that those who cause non-accidental injuries to children should be identified. The court should not 'strain' the evidence to identify on the simple balance of probabilities the individual who inflicted the injuries. If identification of the perpetrator is not possible the court should reach that conclusion - Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2005] 1FLR 285 Court of Appeal.

xvii) The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise. The threshold is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided - per Ryder LJ in Re S (A Child) [2014] EWCA Civ 25.

The Background

10. Y is the only child of his parents but his father has an older son from a previous marriage. Y's father has been in England for fourteen years, having been born and grown up in Pakistan. Y's mother came to England from Pakistan four years ago on her marriage to Y's father. Y was a much-wanted child but the parents had had difficulty conceiving and had sought medical help. Towards the end of her pregnancy Y's mother had some significant difficulties. She had a blood clot in her leg. There were concerns that shortly before he was delivered Y was not moving and the birth process itself was difficult resulting in Y's mother having a significant cut which had been slow to heal. Following his birth, his mother's medical problems continued. She had difficulties with her legs. She became anaemic and required a blood transfusion, and she had difficulty holding Y because her arms were weak and shook.
11. Much of the caring responsibilities for both Y and his mother fell on the father. Y's mother worked as a beautician. Although the health visitor was concerned that she might be depressed following the birth, Y's mother felt that it was the absence of her employment and her feelings of being unable to help her new born son and look after him that were all pressures on her and affecting her. Y's father had a business repairing mobile telephones. He closed that business immediately following Y's birth temporarily until he reopened it again at the time when Y's mother also returned to work part-time. On 21^st October 2016, the day on which Y's mother was going to work, the plan as it had been on the previous handful of days when she had worked, was to put Y's care with his father during the day, so that he would take Y to the shop premises from where he ran his business and look after him there, closing the shop when Y needed attention and allowing Y to sleep in a back room whilst he attended to his business.
12. Y's father initially in evidence in chief described himself as a "hands on father". It was clear I was meant to get the impression that he knew what he was doing. In fact, it transpired that his involvement with his first son had been minimal as he had not been involved in his care other than occasionally holding him in his arms when giving him a feed. He was learning as he went with Y.
13. The description "hands on father" was adopted from the parenting assessment carried out in this case. The father has made a favourable impression on all those having dealings with him: the health visitor who attended the family home before Y's injury, Ms Bryant who carried out the parenting assessment, and the guardian in her description of father in the context of contact. Father is a man of good character who has shown commitment to his son and who is described as emotionally in tune with him. There has been nothing identified to suggest that father was under any unusual pressures or anxieties that might help explain why he should have a momentary loss of control on the day Y was injured.

21^st October 2016

14. The events of that morning have been the subject of considerable scrutiny. Only the parents know what actually happened in the early part of the day. They told me that Y's mother was the first to wake at approximately 6 in the morning. At about the same time Y woke and she fed and changed him. She then played with him for a while until it was time for her to get ready to go to work. At that point, and there is no timing for this, she woke Y's father who was sleeping in a separate room, handed Y to him whilst she prepared some food for work, had a shower and got changed.
15. Once she was ready for work the parents agree as to what happened next. Y's mother was due to travel to work on a train. They decided together, both now accepting that this was a huge mistake, to leave Y at home whilst father took mother in the car to the railway station and returned, a short journey of a few minutes duration. And that is what happened. Mother thought that they left the house at about 8.30 for her to be in good time for the 8.51 train. It is father's case that the journey was one of approximately three minutes duration in each direction and that the reason they decided to leave Y is because they thought the day was cold. Mother told me he was settled and asleep on his father's bed and they thought he would come to no harm.
16. Father returned, having dropped mother at the railway station. He locked the door and from that moment on there was only him and Y in the house. The local authority accepts that at the time father returned to the home Y was well. But what happened thereafter is known only to the father. His case is to this effect: on returning he found Y was whining and apparently hungry. There was an ounce of milk left in the bottle from the earlier feed that mother had given to Y and so he gave that feed to Y. He told me that he fed Y when Y was lying flat on his back on his bed. Y took that feed and in father's judgment remained hungry and so father went into the next-door bedroom where Y and mother normally slept to make up a further 3-ounce feed. He did that and returned to Y and again when Y was lying flat on his back on the bed proceeded to put the teat of the bottle in his mouth and allow Y to take the feed. The next thing that he says happened is that Y appeared to choke, that he went stiff and then appeared to stop breathing. Father says he was panicked by what he saw and scooped up his son from the bed with one hand on his bottom and one hand on his back and in a motion involving backward and forward movement as he held Y and shouted at Y to wake up. He then says he turned Y over, holding him on his chest and patted Y's back. That caused Y to produce from his mouth some mucous-like milky substance which went on to the bed. Despite this father believed that Y was still not breathing and he put him back on his back on the bed and tried to carry out some mouth to mouth resuscitation. That appearing not to work, father then rang 999. That was the account father gave in his evidence to the court.
17. I had the benefit of a tape recording and transcript of what father said in the telephone call. Having got through to a call handler father said "Hello, my baby is three months old and he's not breathing." There was then an attempt by the call handler to establish Y's condition and to better identify the address to which the ambulance was to travel. The call handler then asked this of father: "Tell me exactly what happened." Father's reply, "He's just crying and he starts … he stopped breathing because I just left out and then we've come in and he's just started crying, crying and then just …" A few questions and answers later the call handler asked: "Is he awake?" Father: "No, no, it's very hard to breathe. He's not breathing any more." Call handler: "He's not breathing anymore at all?" Father: "No, no, no."
18. The call handler then gave instructions to father to put Y on his back on the floor, and that is what father did. He was then given instructions about how to test for breathing and indeed the tape picks up some high pitched gasping sounds which are undoubtedly Y trying to breathe. Father was then instructed on how to carry out CPR, at which point the ambulance staff arrived. Father left Y on the floor in the bedroom while he went to unlock the door to let the ambulance team in. That is where the tape recording of the 999 call ends.
19. One of the matters I must grapple with is father's command of the English language. It is undoubtedly the case, as is apparent from the transcript of the recording itself of the 999 call, that he has a serviceable command of the English language. He can make himself understood. However, it is his case that his vocabulary is not extensive and that his ability to understand and construct complex sentences is limited. To that end his evidence before the court was interpreted into the Punjabi dialect of Urdu, that he and his wife and the local community in which he lives generally speak. This is a matter that arises throughout the evidence and which I will have to consider. I raise it at this point because it is relevant to father's initial description of Y which he gave to the call handler. There he said, as I quoted above, "He's just crying … he's just started crying, crying …" In his evidence father said that what he really meant would be represented better by the word "whining" rather than "crying". Whining was not a word he was then familiar with. But I will have to decide as I go through the case whether father's use of English language is something I can rely on, or whether I should take a closer look at just what he was trying to convey in the words that he used and/or whether there is scope for misunderstanding and confusion.
20. The ambulance team who attended to Y, Jason Evans and Samantha Maudsley both gave evidence. Both remembered the incident. Ms. Maudsley had written out a patient report form which contained a mix of information from the computer operating on the ambulance and which recorded the accurate time of events, but also including a narrative account of what happened as well as the team's recordings of Y's state. In so far as it contains a narrative account of what happened that was written out by Ms. Maudsley once they had Y at hospital and once they had handed him over to the resuscitation team at the hospital. But she could not say with accuracy when it was that she had prepared that note.
21. She remembered this incident clearly. Indeed, all of those who treated Y remembered him, primarily because he was such a very sick child. One of the doctors described him as one of the sickest children admitted to Blackburn Hospital in the last 2 years. There were grave fears that Y would not pull through. Ms. Maudsley told me that she had worried about Y all the weekend that followed this incident. She was upset in giving her evidence. What she wrote in her note prepared as I said after she had handed Y over to the hospital reads as follows:

"Dad states pt. [patient] had been constantly crying this morning. Dad took mum to work and o/a home. Dad giving pt bottle. Pt. took approximately one ounce, constantly crying and stopped taking milk, became floppy and stopped breathing."

22. What the ambulance staff found when they arrived at Y's home at 9.07 am that morning was Y on the bedroom floor. He was without pulse and was not breathing. CPR was started immediately and fortunately Y responded. As soon as he started making a respiratory effort he was moved to the ambulance. He was ventilated and taken to hospital. Once he arrived at hospital the emphasis there was on treating him. Based on what the medical staff understood had happened they thought they might be dealing with a case of meningitis.
23. I remind myself of course that the notes taken by the ambulance team, by the treating doctors and those who spoke to Y's parents were designed not for court proceedings but for the purposes of treating Y so that the doctors could best know what had happened to him to ensure they were giving him the most appropriate treatment. As other doctors arrived on the scene to assist with Y the notes will have been made available to each of them in turn and during Y's treatment the notes will have accumulated.
24. From some of the notes it is not at all clear where the information recorded was taken from, so that the next note in chronological order written by Dr. Robertson begins: "constantly crying this morning". That of course is the same wording used by the ambulance crew in their note. There is inevitably a risk in these circumstances of information being taken from one note and carried forward into another note, reflecting simply the historical note taking and not necessarily adding information gleaned from the parents. Also, there is no independent record of the conversations that preceded the note taking. Father's interactions with the 999 call handler are recorded and I can be confident that they are entirely accurate. The notes that follow cannot bear that same weight of confidence.
25. Several matters struck Samantha Maudsley as "odd". The door to the house was locked. Y was found lying on the bedroom floor when in her experience parents of sick babies usually rush out to the ambulance. Y's father did not want mother to be told that Y was ill and being taken to hospital. She could not understand that. Father appeared calm.
26. Father's explanation amounted to this: I did not think Y was seriously unwell and expected to be bringing him home after a brief visit to the hospital so that his mother need not be worried or upset by being told of the trip to hospital. Is that true? He says he was panicked by Y stopping breathing and picked him up and tried to revive him in a way that may have involved one or more movement of Y's unsupported head. If the picture was so alarming why did he think the incident was not significant? Was all this merely a reflection of his lack of expertise as a parent of a 13-week old child? Why else might he not have wanted the mother to know what had happened to her son?
27. The treatment at hospital began the moment Y arrived. He was found to have a decerebrate posture with stiffness and intermittent screaming. The anterior fontanelle was full. The eyes were deviated to the right. He was intubated and ventilated He had a chest x-ray.
28. The next chronological note is written by Dr. Grainger. The note was written at 10.30 and is recorded as being "written retrospectively". Dr. Grainger records that he was responding to a crash call at 9.19 that morning. He recorded this:

"According to dad baby had been unwell for past 2, 3 days.

– feeding less

Point normally takes 3 ounces C 10% G 2-3 hourly

Last 2, 3 days taking one ounce/feed

Sleeping less

– this morning crying more. Mother left for work.

Dad gave feed to baby.

Baby starting sucking and ? gasping.

Stiffening of limbs.

Became apnoeic and stopped breathing.

Dad gave some mouth to mouth breaths and called 999."

29. That note has the hall marks of being a separate note based on information given by father. Again, I must put this into context. Father was by now at a resuscitation unit within the hospital close to the ambulance arrival point. Y was recognised by the doctors as a very poorly child. There were a team of people working on him to try and keep him alive. That will have been a very busy and distressing environment, added to which father had had the experience of his son stopping breathing, having to call for the ambulance, being transported to hospital with the ambulance crew and now being asked for an account of what had happened. Again, this is not a verbatim note but a note of information that the doctor was taking to assist the process of treating Y.
30. Father was persuaded to call the mother. He directed her to the wrong hospital. This caused her to be extremely upset. She was clearly in something of a state when she arrived which will inevitably have affected her ability to convey accurate information to the doctors. In addition, she has little English. Why did father direct her to the wrong hospital? He says that that was symptomatic of the panicked state of mind he was in. Is that consistent with his reason for not telling the mother in the first place or had the threat to Y's life begun to dawn on him during his time at the hospital?
31. A CT scan of his head showed bilateral subdural haemorrhages over the cerebral convexities of up to 4 mm deep. A series of initial blood tests noted that his haemoglobin was low and he was given tranexamic acid and fresh frozen plasma to promote blood clotting.
32. It is father's case now that I should ignore everything that follows approximately 10.50 that morning such as where he was asked questions and gave answers and/or volunteered information. At 10.50 the results of the CT scan were known thus raising the possibility of Y being the victim of an inflicted injury. It is said on his behalf that because he was not provided with an interpreter at hospital, when spoken to by the police or when he attended at court he was thereby denied the opportunity of a fair trial within this finding of fact hearing. For reasons I will deal with below I reject that as an absolute consequence but it is right I have it in mind as I go through the evidence and particularly when I come to consider the weight I give to the different parts of the evidence.
33. At 12.30 an interview took place with both parents, mother by this time having arrived at the hospital, conducted by Dr. Gardner with a second doctor, Dr. Kulkarni available should translation be needed. Father appeared to remember that such an interview had taken place but could not recollect what was said either to him or by him. Mother had no recollection. At this point father had been told that Y might not live.
34. What Dr. Gardner recorded was the family woke at 6 a.m., that mother had changed him. From 6 till 9 Y was fine and that mum had left for work at 9 a.m. He records that dad gave one ounce of milk at 9 a.m. He then records that dad noted him to be crying, spitting out milk. He then records that Y seemed to take a big breath while he held the bottle. Seems he could not breathe out, red in the face. He then records this: "Dad picked him up and patted him on back. Milk coming from mouth." The note goes on to record "dad gave mouth to mouth and then rang the ambulance." Towards the end of his note Dr. Gardner records: "Parents adamant that there is no history of trauma."
35. A point has been made in relation to the timing of matters contained in Dr. Gardner's note. He records: "Mum left 9 a.m." It is known that mother was due to start work at about 9 a.m. when her train arrived at its destination. There is scope, it seems to me, for some easy confusion as to precise timings. Again although Dr. Gardner was taking a contemporaneous note, it was clear from his evidence that he could not necessarily have written down everything that the parents said and that the interview was conducted largely in English.
36. It is father's case that throughout this episode when Y became ill he was in a state of panic. He told me that he did not know what was happening to his son or what was wrong with him. If that is right then that can influence everything that follows. If he was panicking he will not have been as in control of his bodily movements as he might otherwise have wished. His perception of what was happening may have been skewed so that subsequent descriptions may be inaccurate.
37. One of the features of the notes I must consider is their consistency or inconsistency. Might that be explained by father being in a panic, or are those inconsistencies more readily explained by a father who was already trimming his story to absolve himself from something he had done that he should not have done? Or was it merely the process of his mind rearranging the events of the day to perhaps absolve himself from some innocent mistakes he had made but that might have led to or contributed to his son being ill? In so far as there was doubt as to his panic he relied on what he did in contacting his wife. He accepted that the ambulance staff had enquired as to where Y's mother was. When he travelled in the ambulance to the hospital the ambulance crew thought he appeared surprisingly calm. When he got to hospital he was again asked where Y's mother was, and he told those who asked at that stage that he did not think it appropriate to ring her, that she was at work. Later, in the morning at about 10.30 he was persuaded to ring her, and there is no doubt from the other evidence I have seen from her work colleague, amongst others, that mother was called and was told Y was in hospital. She was very upset and herself panicking. But father sent her to the wrong hospital, so that when she arrived and was talking to him on the telephone and going where he said he was she found he was not there. The penny then dropped that they were at different hospitals. She was fortunate in achieving a lift to take her to where Y and father were.
38. So why didn't Y's father want mother to be there? His explanation in evidence was that he fully anticipated that Y would make a speedy and complete recovery and that they would be going home together very shortly. It is plain that the ambulance crew and medical staff at the hospital immediately formed a very different impression from that maintained by father. They had a very poorly child on their hands. Did he deliberately send mother to the wrong hospital? I think that unlikely. Mother accepts that she was very upset when she learned what had happened to her son and did not really understand what it was that the doctors were saying to her when she spoke to them, did not take in anything that was said and certainly did not process it.
39. When he was stable enough to be transferred Y was sent to Royal Manchester Children's Hospital in the mid-afternoon.
40. The next record containing an account of the parents' version of events is recorded by Dr. Anogoustopoulof taken at 16.40 in the afternoon of 21^st October. The note begins by recording that the history was taken from the notes and parents. It records this:

"Dad was feeding Y at home, in his arms, bottle fed, the baby took a large amount of milk in him and choked (? aspirated) according to dad. His face became red and flexed all his limbs with increased tone and was unresponsive, no crying. (Mum was at work while the episode took place). After approximately one minute he became loose and stopped breathing. Called ambulance …. "

41. The note that Y was in his father's arms is inconsistent with every other account. Father says he fed Y with Y lying flat on his back on the bed. Such an account from father readily explains why Y might choke if he was being fed milk when lying flat. If in fact he was in his father's arms perhaps a different explanation for what happened is required.
42. On the 22^nd October Y remained poorly and was treated with high pressure ventilation. He developed bilateral pneumothoraces and was treated with chest drains.
43. On the 23^rd October he had an MRI brain scan that confirmed the damage to his brain.
44. The next chronological recording of an account of the events of 21^st October was recorded by Dr. Lee on 23^rd October. It is not clear from the note how much of the background may have been gleaned from the existing notes, save that under the heading "History from Carer" – so that would be either the mother or the father or both – Dr. Lee has recorded the following:

"On 31.10.16 [sic] dad at 8,39 a.m. fed baby, gave one ounce milk, then went to get another 3 ounce. Child was crying before and after feed and described as wingy [whingy]. Baby was feeding large amount each suck (gulping) then his face turned red and became lifeless after being stiffened. Dad tried mouth to mouth but no response. Called ambulance …"

45. This note potentially undermines part of father's case. Father told me in evidence that when he used the word "crying" in the 999 call what he really meant was "whingy" but that he did not have the language skills to accurately describe Y and that he only learnt the word "whingy" afterwards. In this note crying and whingy are used together and not as alternates.
46. Later on the 23^rd October, an ophthalmological examination was carried out that revealed left-sided multi-layered retinal haemorrhages being too numerous to count. There were no right sided haemorrhages.
47. The next chronological history was taken by Dr. Mattison on 24^th October 2016. This was a child protection interview with mother and father. The relevant part reads as follows:

"8.50 a.m. dad home with Y, Friday, 21/10/16. Mum went to work. Started crying. Dad gave him one ounce in bottle. About 8.40 dad took mum to Accrington train station, left Y on [indecipherable] bed.

Prior to that mum gave him 2 ounces of a 3 ounce bottle between 6 and 7.

I asked if Y okay when parents left for train station.

Crying in middle of bed.

When came back Y still crying.

Dad then fed him the ounce, finished it, still sucking, so dad thought he wanted more milk.

Dad put him back on the bed to get more milk. Still crying.

Made up 3 ounces

Dad went back up, tried to feed him. He refused at first, then started to drink.

Sucked first and some milk dribbling out of side of mouth, crying/coughing/sucking, all while drinking.

Baby flat while dad feeding him lying on bed.

Then coughing, went red, breathing deeply, went stiff, very red for 30 to 40 seconds, not breathing. Dad tried blowing in his face.

After one minute became floppy, still looked red.

Dad put him down and gave him mouth to mouth, then called 999."

48. The next chronological account of what happened to Y was given by his father during his police interview. During that interview, which took place on 25^th October 2016, the police officer read a notebook entry that a police officer had taken when first speaking to father, a note which father had signed. The note read as follows:

"Left alone at 8.35 for five minutes and crying when father got home. Part fed him, still crying. Went next door to prepare more milk. He took milk, then coughed. He then struggled to breathe out. Tapped him on the back, white stuff came out. Gave him mouth to mouth."

The police officer then said: "And I did ask you did you pick the baby up and shake him? and you said no. Gave a tap"

49. When he gave his evidence, father said he may well have signed the notebook but had no recollection of it and certainly had not at the time read the note that was contained in it.
50. Father was interviewed at some length. The interview was tape recorded and I have no reason to doubt the accuracy of the transcription of that interview. Father explained during the interview that he had given Y a tap and that something had come out and that he carried him back again and put him down on the bed and given him mouth to mouth. He was asked this question:

"When you turned him over had you shaken him, juggled with him. Had you tried to get him breathing in any way, shape or form?"

Answer: "No."

He was subsequently asked: "Have you done it while you've been distressed because, you know, because of the condition because he's not breathing?"

Answer: "No. All I did was two taps, that's all I did."

51. Father's description to the police in interview ran as follows:

"Had the milk little and then basically choked … Turns his face turns really red cause he is trying to breathe in er and face red, you know holding very very red and then one minute er … he just go loose I led him down … give him a tap 2 times on the back (does motion of turning baby over on hand) … came up with white milk and white stuff … I turned back again and like him down on the bed gave him mouth to mouth press the chest once or twice I don't think I done it twice, not responding … rang 999."

"… moved head around before starting choking, sucked very heavily … When choking I picked him up. When choking picked him up and moved him."

52. During his police interview Y's father did not have the benefit of an interpreter. He had a solicitor with him, but his complaint now is that he did not fully understand the questions he was being asked, nor could he express himself with the precision and clarity that he would have wished.
53. On the 26^th October Y was extubated. He had a skeletal survey on the 3^rd November that was reported as normal. He was discharged from hospital into foster care in November 2016. To add to his difficulties, he has manifested epilepsy for which he has been treated with drugs.

Evidence prepared for the court

54. In his first written statement to the court dated 18^th November 2016 the material part of father's account reads as follows:

"He then took 2 or 3 big sucks and then began to struggle to breath out. He started going red and was holding his hands in fists. I picked Y up as I thought he was choking … I patted him on the back with my right hand. I patted Y twice and he was then sick on the bed … After he had been sick he went floppy but he was still red in the face. I think he was unconscious."

55. That statement was written in English and signed by father. Mr Storey's complaint now is that that statement should have been taken from him in his native tongue and the English version translated to him by an interpreter and endorsed accordingly.
56. Sometime between his first and second written statements father changed solicitors. The solicitors who prepared the second statement are the solicitors instructing Mr Storey and Miss Lewis. The second statement dated 27^th March 2017 was written in English and signed by father. It does not bear an endorsement that it was translated to him.
57. The material part reads as follows:

"I fed Y the new bottle I had just made as he laid on the bed and after a few gulps Y started to choke and turn red in the face on the bed. I picked Y up and as I did so he was clenching his fists and going stiff for approximately 15-20 seconds, he then went limp. As he went limp I became extremely panicked and as I held Y with his back on my right hand and my left hand on his bottom I tried to get a response from him by moving him backwards and forwards quickly two or three times and called his name to try to wake him. I don't know if I supported his head.

He was unresponsive so I turned him over on his belly with his chest on my left palm and I patted his back two or three times hoping he would start to breathe. I was not supporting his head and cannot recall how hard I was patting him. I was panicking and my hands were shaking. He then regurgitated a thick white type of mucus. I again checked Y by turning him over to face me to see if he was responsive but he wasn't so I put him on the bed and proceeded to give him mouth to mouth to help him breathe. I was not successful so I called 999 …"

58. The case put on father's behalf by Mr Storey is that in his panicked state father handled Y by scooping him off the bed when he choked/stopped breathing with his hands under his bottom and under his back, moved him forward and backwards calling to him to wake up and then turned him over and patted his back whereupon he was sick and then put him down on the bed on his back. Mr Storey characterised that as a "resuscitative shake" at a time when on that account Y's head would have been unsupported.
59. So where did that account come from? Father told me in evidence that although the events of that morning had been talked about at numerous family meetings and had been part of a constant conversation between himself and mother he had never mentioned anything about what might have been a "shake". He told me it was something he did not feel able to mention. He offered no explanation as to why that was.
60. During the proceedings father told me that he had met at court with a barrister who had told him that it was essential that he read all the papers that the case was generating, particularly the medical reports – the reports of Dr Cartlidge and Dr Stivaros were in before father's second statement was sworn. He told me that he needed help as his English was not good enough. He got some help from a lady who had been helping with interpreting at contact sessions. He and mother attended her home in Manchester taking all the papers with then so that she could take them both through everything. Mother told me that as the lady went through the medical evidence she challenged father on the basis that his account did not explain what the doctors were saying had happened to Y. At that point father picked up a hot water bottle and demonstrated the movements I have set out above. Both parents told me that that account was then set out in statement form by the lady and became father's statement of 28^th March 2017.
61. Why did father not say right at the beginning what he had done with Y? Had it slipped his mind? Is it what happened? Or was it a deliberate shake for some reason? Was father hampered by his language deficiencies from giving a full explanation or was he deliberately editing events to protect himself? Or was this an innocent "resuscitative shake" that he feared might be misconstrued.
62. Mr Storey's answer is to say that to expect a parent in these circumstances to accurately remember everything is unrealistic and that human memory is far from infallible. He points out that Y was found by the ambulance crew lying on the floor. Nowhere in any of his various description and statements did father mention placing Y on the bedroom floor although we can be sure that that is what happened. There is no reason to think he would be editing that out of the story.
63. Father's case at the conclusion of his evidence was that he accepted he had carried out a shaking type movement of Y when Y's head would have been unsupported and that he had not mentioned this until 6 months after the incident. That leaves the essential questions I must grapple with as follows: what have the local authority proved? Was Y shaken by his father? If he was, was that an angry shake in a momentary loss of control (as the local authority contend) or an anxious shake carried out in an attempt to revive him? Did that shake cause the injuries or is there some other explanation in whole or in part for the damage that Y suffered?

The medical evidence

64. The consensus of expert opinion was that the most likely explanation of what happened to Y is that he was the subject of some kind of shaking incident during which he was subjected to forces outwith the normal handling of a child of his age.
65. The doctors I heard from all agree that they cannot tell me whether any shake that occurred was done in anger or in panic. Medical science cannot tell me how much force would be needed in moving the unsupported head of a baby to cause damage to that particular child. Medical practitioners are dependent on those who were present at the time of the incident to describe to them what happened – as Dr Richards put it "It's the story that matters". What they can say is that at the point of injury there would be significant changes in Y's presentation.
66. All the various findings made during Y's treatment were considered by the experts with nothing being identified that would provide an explanation for what happened to him. I need not burden this judgment with an analysis of each of those matters. The question of whether the bleeding to his brain might have been a re-bleed following some potential bleeding at birth was dismissed as was the suggestion that the retinal haemorrhages could be birth related. I accept their collective evidence on these points.
67. The medical findings in Y show that he suffered acute subdural bleeding over the cerebral hemispheres being thin film to a maximum depth of 4mm, acute sub arachnoid bleeding, hypoxic ischaemic changes in the cerebellum and extensive left sided retinal haemorrhages.
68. Mr Storey and Miss Lewis in their written submissions set out the effect of the medical evidence as follows: the possibilities in this case identified by the experts and by the expert evidence are

i) A momentary loss of control shake that explains all the injuries;

ii) Some initiating event causing the father to panic and perform a number of manoeuvres on Y including a shaking motion, or;

iii) In the case of either (i) or (ii) a reduction in the normal force threshold due to a susceptibility of genetic, haematological, vascular or unknown cause.

That said, they invite me to consider on the totality of the evidence whether there may be some other medical explanation that might explain the injuries so that they were not caused by the actions of the father but by some combination of other medical issues either known or unknown.

69. Does father's description of Y choking and stopping breathing fit the medical picture? Dr Cartlidge accepted that children can have funny turns that might be caused by choking, reflux, apnoea, laryngeal spasm, perhaps an epileptic episode. Additionally, he accepted that a parent might mistake the difficulty the child was in and so overreact. Of course, the experts only have father's account of what happened – particularly whether Y went floppy and/or stopped breathing before or after the shake. The experts agreed he would not have been able to feed after the injury to his brain. Can father's account be relied upon to accurately sequence what happened before he called 999?
70. Can the medical evidence help me as to what movement of Y's unsupported head might lead to the injuries found, in other words what mechanism might be needed? Mr Richards said that one movement and an arrest could cause the injuries seen in Y's case based on what people had told him had happened to their child in the many cases he had looked at. He gave the caveat that he cannot know for certain as it is not possible to experiment with children by injuring them and studying what happens. Dr Cartlidge thought that if Y's head was not supported but then subjected to quick to and fro movements, particularly if the child were already floppy, causing the head to wobble around to an alarming degree that could have caused the head injury seen in Y.
71. What other injuries are sometimes seen in cases of children who have been the victim of a shaking injury but are not present here? Mr Storey and Miss Lewis set out in their written submissions what they described as an Anomalies List. Amongst other things they identify:

i) No bruising suggesting that any shake did not involve any impact or squeezing

ii) No metaphyseal fractures

iii) No posterior rib fractures which lends support to father's description of how he held Y

iv) No spinal bleeding

v) No damage at the cranio-cervical junction.

72. The potential significance of these points is that they lend support to father's suggestion as to how he was holding Y at the point he shook him. They point away from Y being gripped hard or being banged against something. Mr Storey and Miss Lewis suggest that these factors should lead me in the direction of a finding that what occurred was a resuscitative shake rather than something done in anger.
73. Much of the cross-examination of the medical expert witnesses was directed to identifying factors that might lead me to conclude that Y was a child with vulnerabilities that might mean that a less vigorous shake might do more damage to him than it might do to a more robust child without those vulnerabilities. So that as his father shook him, it might be that lesser forces then might otherwise have been the case could have caused the damage that was found – lesser forces more consistent with a resuscitative shake than an angry shake. It might be obvious to any parent that a vigorous shake of a baby with an unsupported neck and with the head wobbling around might cause harm. Dr Cartlidge was clear that even with vulnerabilities the movement of the head created by the shake would still need to go beyond normal handling of a child to cause the kind of damage seen in Y.
74. Alternatively, might those vulnerabilities have been the cause of the injuries rather than the resuscitative shake that father now describes?

What are those vulnerabilities?

i) Testing has established that Y has Klinefelter's syndrome. Symptoms for this syndrome do not manifest until puberty. There is an established link in adults between Klinefelter's syndrome and epilepsy. Y now has epilepsy. Dr Saggar was prepared to accept that there might be a link in infants that is as yet unrecorded.

ii) There is a family history of epilepsy on mother's side of the family. It is known that there can be a genetic component to epilepsy.

iii) Y has had a subsequent re-bleed to his brain. The evidence was that that is not uncommon where there has been a bleeding to the brain. However, there are other signs that Y may have a susceptibility to bleeding where as a non-ambulant child he has had some bruising to his body, some blood when he has been sick. Although he has had blood in his stools that can be common in boys. Dr Keenan reported that none of the common bleeding or coagulation disorders have been found with the tests that have been done. He accepted that there was further testing that had not been done for rarer conditions so that left open the possibility of some sort of connective tissue or collagen vascular problem or something as yet unknown.

iv) Dr Saggar was able to explain how developments in gene testing is shedding light on areas that were previously unknown. This applies to connective tissue disorders Ehlers Danlos Syndrome, here EDS III and EDS IV. However, gene testing cannot exclude these conditions as potential causes of the bleeding seen since October 2016 so that I must have in mind that Y may have a tendency to bleed that might leave him more vulnerable than many other children and/ or might explain why he should suffer spontaneous bleeding that might explain his collapse on 21^st October 2016.

v) Dr Saggar was taken to articles that suggested a link between deficiency and/or fragility of the vascular system and Klinefelter's Syndrome in adults.

vi) Other papers shown to Dr Saggar demonstrate risks with Klinefelter's Syndrome of cerebrovascular disease, subarachnoid haemorrhage, cardio vascular abnormalities, diseases of the circulatory system and peripheral vascular disease.

vii) Y's father has had heart disease whilst in his early 40's.

viii) The hypoxic-ischaemic injury in the cerebellum is said by Dr Stivaros to be unusual and is seen in metabolic disorders.

ix) Dr Saggar thought Y's case was one of complexity given the finding of Klinefelter's Syndrome. None of the experts had experience of head injury cases with a child with this condition.

The parents

75. I have quoted Dr Richards above: "It's the story that matters." That story comes from the parents and in particular the father. What did I make of Y's parents?
76. It is clear from everything I have read that Y's mother has really struggled to process what has happened. It took her a long time to accept that Y had been as badly injured as has sadly proved to be the case. She wants him to be the son that she gave birth to. All of that is perfectly understandable. She was not there when Y collapsed and she has struggled to understand why he collapsed. She was present when father first demonstrated with the hot water bottle what he says he did with Y as he panicked. As she watched father's demonstration in the witness box she was reduced to tears and was very distressed. She appears not to question why father did not mention a shake for 6 months despite their constant going over the events of that day. She does not believe that father did anything to hurt Y.
77. The outcome of this finding of fact hearing turns entirely on what the father tells me happened. Only he was a witness to the true sequence of events. It is into that context that I must fit the medical and expert evidence. The first question is whether he is now telling me what he remembers happened. Has his memory changed over time? Is what he now remembers an accurate account of what happened? What weight should I be giving to those different accounts, if I can rely on them as being accurate and reliable? In many respects his accounts are consistent but in some details inconsistent. The shake he now describes was not mentioned for 6 months. Why was that? Does it matter if the damage had already been done before an attempt to revive Y and if the collapse and damage to his brain and eye had been caused by one of his vulnerabilities or some other unknown or unidentified causes?
78. Y's father is a man of good character who has favourably impressed all those who have had dealings with him since October 2016. Back then he had a caring role to play both with Y and with the mother. He has the support of mother and his former wife.
79. He has given the impression from the time of the arrival of the ambulance team, through all his dealings with social workers during assessments and indeed in the witness box of being calm and in control. Why would he have lost control or panicked if his baby was crying and choking? Why would he send mother to the wrong hospital?
80. I am left with the impression that whilst he may not be deliberately hiding the truth I cannot accept the accuracy of everything that father has told me. I do not think that his language limitations are as significant as has been contended on his behalf. He has demonstrated in the 999 call and in his police interview an ability to understand what was being said to him and to respond appropriately. Certainly, that has been the experience of the social worker and Y's Guardian.

Parties positions

81. Mr Howling and Miss Bramall contend that this is a straight forward case of an inexperienced father struggling with a crying baby who shook him in anger in a momentary loss of control. That provides the explanation they say as to why father did not want the mother contacted and why he never mentioned a shake until 6 months after the event until the expert medical evidence started to come in. They say that the reference to underlying vulnerabilities is a smoke screen. None of the experts who gave evidence had any experience of a child with Klinefelter's Syndrome in the context of a head injury case when the Syndrome is not uncommon but its' manifestation is uncommon.
82. For the first time in their written submissions to me Mr Storey and Miss Lewis told me that the process of evidence gathering from the father and the directions leading to and the finding of fact hearing itself have been conducted in such a deficient way as to prevent father having a fair trial in breach of his Article 6 rights under Schedule I to the Human Rights Act 1998. I reject this submission.
83. Nobody who has had direct dealings with the father has come to the assessment that he could not follow and respond appropriately when conversations were held with him in English. That applied to the doctors at both hospitals. It applied to the social worker and Y's Guardian both of whom have had repeated and lengthy interaction with father. It must have applied to both firms of solicitors he has instructed as neither sought from the court any translation of documents and both of who filed statements from father that had not been translated to him. Both Mr Storey and Miss Lewis appeared at a series of hearings without expressing any concerns.
84. As a judge sitting in a court situated in an area with a large immigrant population from around the world and a population often socially deprived and lacking in educational attainment I regularly have cases to case manage where translation of documents and/or other help is a necessary step, either prompted by me or more likely those dealing with the parents concerned who can see and experience their difficulties.
85. Father has demonstrated in the 999 call and his police interview that he is able to understand and make himself understood. It is right that I make allowances for the limits of his ability to communicate in English. I do. I was not afforded the opportunity to assess his language skills myself as his evidence was given through an interpreter.
86. I am familiar with the jurisprudence cited by Mr Storey and Miss Lewis. For the factual reasons set out above it does not apply to this case. I am satisfied that he has received a fair trial.
87. Otherwise I have set out the father's case as I have gone through the evidence. Mr Storey and Miss Lewis contend that the injury to Y was either a spontaneous event due to his underlying conditions whether they be known conditions or as yet unrecognised conditions or if it was caused by his father's admitted shake of him, that shake was an innocent event carried out in panic in an attempt to revive him.
88. His mother's position is to support the father. She does not believe father could hurt Y. She accepts what he says despite him not telling her about the shaking motion until 6 months after the event and offered supportive explanations that mirrored father case. She too now highlights his language limitations.
89. Y's Guardian advises me that her conclusion having listened to the evidence was that the injuries Y suffered were caused by a shaking action carried out by his father. She does not express a view as to whether that was an abusive shake or a resuscitative shake.

Conclusions

90. I do not need to decide every point in issue between the parties. I do not need to deal with every point made in submissions although I have them all in mind.
91. Where does the evidence lead me?
92. I accept that Y may not have been a normal robust child on the 21^st October 2016. The bleeding to the cerebellum might support that conclusion. I have no difficulty in accepting that it might have taken less extreme movements of his unsupported neck to cause the triad of injuries suggestive of a non-accidental head injury and that that conclusion is entirely consistent with an anxious shake carried out in response to some sort of funny turn whether choking and/or collapse or an angry shake.
93. As to whether Y's weaknesses could explain everything I must return to "the story". When he suffered his brain injury his presentation would have changed.
94. To set the scene, I am satisfied that when father called 999 and said that Y had been "crying, crying …" he was accurately describing how Y was following his return from taking mother to the railway station. He was describing accurately what had started things off. The picture I have from the 999 call is of a baby who had got himself into something of a state. How did his father deal with that? I find that he decided to feed Y whilst he was crying and lying on his back on the bed. Consequently, Y choked.
95. The obvious explanation of why he might have choked would be that he was being fed milk when lying on his back and/or crying. Why his father thought that was appropriate I do not understand. It might well reflect his inexperience – an inept rather than an abusive response. His father described him as gulping the milk. That would be consistent with a child crying/sobbing. That combination of factors would readily explain why he would choke and that is what I find happened.
96. That leads me to the inevitable conclusion that the incident was not precipitated by or a manifestation of some vascular or other problem connected with his Klinefelter's Syndrome or otherwise. Nor was it an epileptic fit. There is a far simpler explanation for what happened.
97. Did he have simultaneous spontaneous bleeds on his brain and in his eye unconnected with any shake? That seems to me highly unlikely and I have been given no explanations as to how that would be likely to be precipitated.
98. Dr Cartlidge told me that a choking episode would not lead to him going floppy straight away. A child whose airways are blocked will fight to breath. In some of his accounts father has described a delay between Y choking and going floppy. If the choke were the moment of the bleed on his brain his presentation would have changed immediately.
99. What happened next is impossible for me to set out with certainty as I am satisfied I cannot rely on the accuracy of father's various descriptions of what happened at this point in the sequence of events. As father refers to a period before Y went floppy in some of the accounts that would be consistent with him trying to breath. At some point I am satisfied his father picked him up and shook him and turned him over so that he produced some milky substance that had been choking him. The likelihood is that it was during those movements that the damage was done to Y's brain and eye leading to his unconsciousness, the struggle to breath when the 999 call was made and cardiac arrest.
100. I cannot say what force was used in the shake. The mechanism may well be approximately as the father described in his March 2017 statement and in his evidence.
101. Was the shake an angry shake or an anxious shake? There is sufficient detail from father's descriptions to lead me to adopt the sequence of events I have set out above as the most likely. If Y choked, as I am satisfied he did, then that would point more towards an anxious shake rather than an angry one. His father may or may not have overreacted, it matters not. I find that this was an example of an anxious shake. I am satisfied his father was trying to revive him after he had choked and struggled to breathe.
102. It is for the local authority to prove the contention that this was an inflicted trauma by means of shaking (the angry shake as I have termed it). That has not been proved.
103. The most likely explanation as to why father should not refer to the shake he carried out was a fear that he would not be believed in saying that this was an attempt to revive his son. He no doubt feared for the consequences of what had happened to Y whilst in his care and what he had done and how he had reacted. It is possible that he did not appreciate the significance of the shaking motion although I think that unlikely. That would also explain his reluctance to call the mother to let her know what was happening. The explanation of why he sent her to the wrong hospital was also straightforward – he thought Y was being taken to the hospital where he was born not the more local A&E department.
104. Only when challenged by the medical evidence when having the documents translated and explained did he reveal what he did. It is a great pity that he did not feel able to give a fuller picture right at the start when the doctors needed to know what had happened in order to provide the best care for Y.
105. I therefor find that Y suffered the injuries contended for by the local authority but that those injuries were caused by his father shaking him in an attempt to revive him after he had choked due to the way he was being fed.