B e f o r e :
sitting as a judge of the High Court
|RE Y (Fact Finding)|
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
MR. FEEHAN QC and MISS KOROL for the Mother
MR. STOREY QC and MISS LEWIS for the Father
MISS WOODS for the Child
Crown Copyright ©
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:
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.
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)  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  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)  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  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)  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)  EWCA Civ 25.
21st October 2016
"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."
"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
– 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."
"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 …. "
"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 …"
"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."
"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"
"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?"
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."
"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."
Evidence prepared for the court
"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."
"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 …"
The medical evidence
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.
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.
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 21st 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.