England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		BIRMINGHAM CIVIL JUSTICE CENTRE 33 BULL STREET BIRMINGHAM
		29/01/2009

MRS JUSTICE HOGG :

1. The matter I have been hearing relates to a little girl J who was born on 1 July 2008. The Local Authority issued Care Proceedings in respect of her on 25 September 2008. I have been hearing evidence relating to the threshold criteria and findings sought by the Local Authority.
2. It is agreed by all parties that this is a "single issue" case.
3. J was admitted to the local hospital on 17 August 2008. She was brought to the hospital by her parents with an account that she had been "dropped" by her father.
4. That early evening she underwent a CT scan. 3 skull fractures were found. A small frontal fracture on the left hand side above her eye, and bilateral parietal fractures: that on the left has been described as complex, being in a 'dog-leg' shape, and the one on the right as 'simple', being in a straight line across the bone.
5. Swelling of the scalp was seen over the parietal fractures on the CT scans and by the Clinicians and parents. Previously, and almost immediately after "the drop" the parents and locum registrar had noticed a red mark or bruise on the child's forehead, and the parents had noticed a small nosebleed. On examination at hospital there was a small bruise to her left nostril, and another bruise over the lateral aspect of her left upper eyelid. A skeletal survey was undertaken and no other fractures or abnormalities were noticed. There was no injury or abnormality in her eyes, and no other marks were seen on her. Various tests were performed which were able to exclude other causes for the injuries found on J.
6. The Clinicians treating J were concerned that the initial explanation given by the father that he had accidentally dropped J from his arms to the carpeted floor of the home, a distance of about 4 feet, was not consistent with the number and severity of the injuries she had sustained. Nor were they satisfied with the later explanation by the father that before she reached the floor her head had struck a low coffee table. A suspicion of there being Non- Accidental or Inflicted injuries arose.
7. As a consequence the Local Authority initiated the care proceedings.
8. This is the briefest outline of the case before me. I need to go into greater detail before drawing conclusions as to whether or not J sustained non-accidental injuries and, if so, to identify the perpetrator if possible.
9. The onus is on the Local Authority to prove that she did suffer non-accidental injury.
10. In reaching my conclusions on the evidence I have to apply the civil test: in that I have to be satisfied that the allegation is made out "on the balance of probabilities" as set out in Re H and R 1996 1FLR 80 and affirmed in Re B 2008 2FLR 141 by the Baroness Hale of Richmond. In short, I am obliged to consider and find upon the totality of the evidence whether it is more likely than not that J had or had not sustained non-accidental or inflicted injury.
11. If I am satisfied that she did sustain such an injury it is accepted by all parties that the Local Authority would have proved the allegation and the threshold criteria required by Section 31 of Children Act met, in which case these proceedings would continue and proceed to the next stage.
12. If I am not satisfied it is agreed that the Threshold Criteria would not have been made out, and these proceedings would terminate with J being returned to the full time care of her parents.
13. Currently, and ever since her discharge from hospital on 22 August 2008 with the parents co-operation and acceptance given the circumstances, J is being cared for by her paternal grandmother, with assistance at times from a maternal Aunt. The parents, particularly the mother now she is not in employment, have extensive contact to the child and are able to care for her, feed, bath, change her under the supervision of the family member. As a result the parents have been able to play a very active role in J's life and not only maintain the parental/child bonds, but to build on them and develop genuine parent/child relationships.
14. Whatever my decision I have been enormously impressed with the sensitivity, consideration and co-operation between the Local Authority, the parents and extended family in what must have been extremely difficult circumstances. It is greatly to the credit of all concerned, and as a result J has benefited: while her security was guaranteed she has been able to maintain and develop close links with her parents and other family members.
15. In this case also I have been impressed by the Local Authority's approach. On any basis the medical evidence is not straightforward. It has been described by the medical experts as 'unusual' whether accidental or non-accidental. The experts have not been able to say with any certainty whether it was one or the other. Bearing this in mind the Local Authority, given the severity of the injuries and the possibility that they were non-accidentally sustained proceeded throughout with this case in an open, fair and independent manner. The conduct of the Local Authority and of Counsel during this hearing cannot be criticised. They felt the matter should be put before the Court for an independent adjudicator hearing all the evidence to decide. In doing so the allegation that J had suffered non-accidental injury had to be made and pursued, but it has been done with openness and fairness. The Local Authority and legal team are to be commended. Indeed, the parents' Counsel acknowledged that this was the situation.
16. It is accepted by all parties that J suffered 3 skull fractures, a bruise to her left nostril and left eye lid which I have already described. It is accepted that there were no other injuries or marks on her, and no other apparent cause for her injuries.
17. Given the developing swelling over the parietal regions and fractures on the evening of 17 August, the history of the nosebleed consistent with the bruise to the left nostril, recent bruise to the eyelid, and a red mark being observed by the mother and the first doctor (the locum registrar) who saw her, the experts are of the same opinion that the injuries were all recent, and consistent with an incident happening within a few hours of first presentation to the hospital. A birth injury has been excluded as being most unlikely.
18. The parents accept that evidence: indeed it is their case that the incident occurred at their home that afternoon sometime after 3.00 pm.
19. The hospital records say that the family arrived at the hospital at 16.35pm, were seen by the locum doctor at 16.40pm who recorded "fall from dad's hand 20 minutes ago". This accords with the evidence of the parents who say they returned to their home at about 3.00pm from a shopping trip.
20. On their return the father immediately spent between 10-20 minutes upstairs in the bathroom as he felt unwell. Thereafter for a period they sat together watching television with J still in her car seat asleep beside them on the floor. In due course she woke; the mother took her out of the car seat, and at his request gave her to the father who, lounging along a sofa with his head on one arm and feet over the other, placed J on his chest.
21. She was grizzling and a bit upset. He tried to calm her. In the meanwhile the mother went into the kitchen to prepare their dinner. J continued to cry and the father called the mother to ask if it was near her feeding time. The mother realised the feed was due, returned to the kitchen where she filled and turned on the kettle to boil so she would be able to warm the bottle. While in the kitchen preparing the bottle she heard the father call. She assumed it was because J was crying and had become louder, and he was anxious about the feed. She heard the father call again, this time she heard panic in his voice and rushed into the living room where she saw the father on his knees, shaking. "He looked panicked and upset". He was cradling J who was lying across his knees.
22. He told her that he had dropped J. The mother took J off him because "he was in such a state" and J was screaming, and saw a dribble of blood from her nose. According to her the father jumped up and said they had to take J to hospital. The mother tried to calm him down, but he insisted they needed to go to hospital. She tried to find out what exactly had happened but to no avail - "he was in shock, and panicked and very worried". They collected a few bits, the car seat and took J straight to hospital where they were seen quickly.
23. At the hospital the locum registrar assessed J briefly and discharged her, recording his diagnosis as "minor head injury". Before leaving the hospital the mother fed J who by then was hungry. The parents were unsure and unconvinced by the doctor's examination and diagnosis. They decided to take J over to his mother to see what she thought. On the way to her grandmother the mother noticed J's breathing slowed, stopped for a short period, and went pale. The father turned round and returned to the hospital as soon as they could.
24. The family arrived at 17.21 pm and J was examined almost at once. A short history was taken and J was admitted for observation. During the course of the evening swellings over the parietal regions were observed. CT scans were taken later in the evening.
25. The father's account of what occurred whilst the mother was in the kitchen at the home has changed in detail. However, throughout he has said that he dropped J, or she fell from his hand/arms. He has always asserted that the drop or fall was accidental.
26. Initially he told the mother that he had dropped J, and although she asked for more he did not give further details. Both agree he was shocked, shaking and panicky at home, insistent they should take J to hospital immediately. At hospital the locum doctor recorded "a fall from Dad's hand".
27. On their return a more detailed history was taken by Dr Robertson at 17.30pm and recorded in the notes: "Dad holding baby whilst standing. Baby was lying along length of his own arm. Dad went to wipe vomit away from baby's face with his other hand and baby slipped and fell to floor, landed on L side, landed on carpet. Cried as soon as she was picked up. Nose noted to be bleeding at the time".
28. The Consultant Paediatrician Dr Venkataraman with Dr Robertson spoke to both parents next morning. He recorded that J "fell from crook of Dad's arm from about 4 feet height". In her statement for the Child Protection Conference she says she obtained the history from both parents, and was informed that the father had been lying down with J on the sofa. J posited over the shoulder. He stood up with J in his arms and crossed the room to get a muslin to wipe her mouth. She fell from his arms (approximately 4 feet in height) and father remembers her on the carpeted floor landing on the left side of her face. He could not remember any other details of the mechanism of injury.
29. The following morning, 19 August, Dr Venkataraman again spoke to the parents about the mechanism of injury. She recorded: "Father had baby in crook of arm. Baby fell. He cannot remember entire mechanism. Cannot remember if had impact on table on the way down. Very happy to reconstruct events with someone at home. No epilepsy or previous memory losses in Dad". "……no stresses at home. No domestic violence. No substance abuse – on enquiry". She recorded the need for a second opinion, and in due course contacted Dr Sidebotham, who gave evidence before me.
30. Later that day the parents told a senior nurse about two incidents which they thought might have caused the injury. Those incidents have since been discounted.
31. The police were informed, and during the afternoon of 19 August 2008 both parents were arrested and later simultaneously interviewed at length.
32. The following day, 20 August, at the hospital the parents again reviewed the history, and it is recorded, "….. the father was holding J along his left arm with her head in his left palm. He used a muslin in his right hand to wipe her mouth ….. the next thing she was on the floor. Not exactly sure how she fell. Landed on carpeted floor on her tummy with head on left side. Left side of head in contact with floor. Cried within seconds. Dad called to Mum. Mum entering room with Dad was shaking and on floor with Jin his arms. He was crying. J had a mark on her forehead frontal central and a few spots of blood from her nostrils. Mum took her, Dad said they must get her to A & E".
33. Later that afternoon Dr Venkataraman spoke to the parents and both sets of grandparents. She recorded that the paternal grandmother asked "if fall onto coffee table and then onto floor could have caused all three fractures". The Doctor explained it was not likely. The grandmother also mentioned "father has dizzy spells. Mother said these were not significant and were associated with stress at work. She confirmed that the father had no memory losses". The doctor recorded that both parents were distraught and crying.
34. Both parents were interviewed by the police during the late evening of 19 August. I have read the transcripts of both sets of interviews. Neither parent wished to have legal advice. The father gave his reason "I've got nothing to hide". The mother said "I don't feel the need …".
35. During his interview the father repeated the account of the earlier part of 17 August until the family's return home at "about fourish". The time we know from the hospital notes is likely to be wrong, the mother in her interview said 3 o'clock which accords better with the hospital records.
36. He gave an account of lying on the sofa with J on his chest, she started to choke or was sick, he needed a muslin square. He went over to the other sofa to pick the muslin up. He "turned round and J was choking so I'd been told not to ….. cos I tend to lean her back for some reason and that's something I did ……. And at that point I don't remember anything happening. I don't remember what happened between that point and the time I picked her up off the floor …….. I picked her up off the floor. I screamed at mother to get in the house ….. she was in the kitchen sorting a bottle out for a feed. I picked her up. I passed her to mother and noticed she was bleeding from her nose and I said ……we're going straight down the hospital ….. I want to get her checked over ……"
37. He was asked many questions about his account. During his answers he said that J lay on his chest 5-10 minutes and at one point that once he had the muslin square "J was trying to be sick, to stop her being sick and I believe, thinking about it I tried to turn her onto her front to stop her". "I don't wanna say that for definite because I don't remember".
38. Later he answered "I think I was holding her like that, so with my arm out, so her head was in the palm of my hand, her lying long ways along my arm with her legs in towards my shoulder and the muslin square was in this hand."
39. "… and then she choked or was sick and I used the muslin square to ….. tilted her forward to like bring it out of her and then she…. Then I dropped her", "She'd have been in my right arm", "I don't know if I lost balance or grip of her or kicked out. Cos she was choking she tends to kick out. Maybe she kicked out. I don't know".
40. "She hit the floor", "left side of her …..the left side of her face first, I believe", "She definitely went down on the floor that on her left side face. She was in my hand, and she would have been facing the stairwell".
41. "She would have rolled out (of my hand) that way" (to the right side of his right arm).
42. "Its horrible, it was like seeing a doll. You know how kids throw dolls around. It was like seeing that, and it was the way she hit the floor. It was like a doll hitting the floor".
43. "I can't remember what happened between leaving my arm ….. and to hitting the ground".
44. He was asked about whether she hit anything else on the way down and replied, "I'm not ruling out the (coffee) table ….. I'm not saying she did hit the table …… it's a possibility".
45. After the fall he said "I was stressing out cos I've just dropped my baby", "I was petrified. I though I had seriously hurt her….. I was worried for her safety", "I didn't want any harm to come to her ….. I dropped her so I hurt her. I wanted to get her checked over so I was in a panic …..just to get her down to the hospital". He also referred to the mother remaining calm, but later told him she was panicking and sacred for J but tried to remain calm for J.
46. He also referred to a red mark developing on her face on her left forehead from her brow to her hairline, and then the sides of her head swelling when they were at the hospital the second time.
47. He was asked on a number of occasions whether J had hit the coffee table. His reply was non committal "I'm not saying she did or didn't: there is a good chance she did", "She may have hit it: she may have not hit the table", "I'm not ruling out the table".
48. During the course of the interview he sketched the floor plan of the living room in which he says the fall occurred. From that a more detailed plan with measurements was created by a scene of crimes officer. Photographs were also taken of the room by the police on 20 August.
49. I am told that other than the child's car seat little if anything had been moved by the parents between the 17 August and the photographs being taken. I have seen both plans and the photographs which have been helpful.
50. The mother in her interview spoke of J's first couple of weeks, their difficulties in getting her to settle at night and into a routine, of taking her to the GP and hospital because her nose was blocked (a cold), and vomiting and diarrhoea (she has since been diagnosed with reflux); of the father being with her on leave for the first two weeks, and the long hours he worked. She spoke warmly of how the father helped with J when he could, and how he played and enjoyed watching J.
51. She gave a history of the weekend, and of the morning and early afternoon on 17 August, returning home at about 3.00pm. She confirmed that she was in the kitchen preparing the dinner and J's bottle, when she heard the father shout to her. She lad left him with Jin the living room with the father on the sofa with J who was crying. She returned to the living room to find "the father knelt on the floor with J cradled in his arms, and he was really hysterical and said "I dropped her". She took J off him. J was crying, had a little bit of blood on her nose and her nose bruised straightaway.
52. The father jumped up and screamed "we need to take her to hospital". She tried to calm him down. She asked him what happened. He said he did not know. She asked if had hit her head, and he said she had, and had landed on her left side. In the car going to the hospital for the first time she noticed that J had quite a big lump and red mark on her forehead.
53. On further questioning she described the father as shaking and crying, upset, panicking when she returned to the living room, and that she had returned because when he shouted to her "he sounded really panicked".
54. She was asked about the father and what he had said to her and the doctors in hospital. That day (19 August) she said "he could not remember how it happened, he's still in shock ….. she was being sick while he was lying on the sofa … he stood up to get a muslin square to wipe her", "J was being sick and he said he tried to roll her onto her front to stop her from choking and the next thing he knew she was on the floor. He's not sure how exactly it happened. The doctors asked him to think if there was anything she could have hit her head on when she fell". "He couldn't understand where he was standing how she ended up as far away as she did ….. but if he was leaning down a bit she could have rolled a bit further. I don't know, I wasn't in the room". "…. He says he thinks she possibly could have bit her head on the coffee table but he can't be sure. I think he's still in shock and probably doesn't want to remember". "I know he wouldn't hurt her on purpose. He loves her to bits". "They (the doctors) asked him if she could have hit her head on the coffee table. He said that it's possible. He has been going over it all day in his head and he keeps saying he can't remember. He is trying to work out in his head if it could have happened. He said when he went back to the house it didn't bring anything back. He still can't remember".
55. She told the police that they had been speaking about it all week, and "I've been trying to get him to remember ….. all he remembers is that she fell on her head, saw her head hit the floor …. The nurses have been trying to get him to remember".
56. She also told the police that the father "worries" about things and for the last few weeks the father had been working long hours, and was "quite stressed at work as he was running the branch on his own, but if he was stressed on his return home he would calm himself down before picking J up, and seeing J cheered him up.
57. She was asked if there had been any violence or arguments between them: while admitting to the occasional "tiff" she said he does not lose his temper but can "snap at people, like a stroppy teenager, but then he will calm down and apologise". She denied any kind of violence between them.
58. The parents met the social workers on 20 August at the hospital before the Strategy Meeting. With their co-operation, and given the circumstances, it was arranged that J would be discharged from hospital to the paternal grandmother's care on 22 August.
59. At a home visit to J on 27 August the social worker met the parents. The father told her that since returning home his memory had become clearer, and he now remembered that J had fallen out of his arms onto the edge of the coffee table and then onto the floor".
60. The mother in evidence told me that during the previous 10 days there had been frequent discussion between them and the professionals as to how the fall had occurred, that the father was going over it again and again and trying to work it out. He had used the Tigger toy to help him. And, shortly before the meeting on 27 August, he told her he remembered. She has always accepted his account, and still does. She concluded that the delay in his recall was because he was "in shock, stressed and upset".
61. The hospital notes refer to his being upset. From his GP notes it is apparent that on 22 August he, with the mother, visited the surgery complaining of chest pains and "light headed when standing at times or changing posture". He could not recall events relating to the baby's fall and there is a record that he had fallen downstairs in the past. The doctor considered he was suffering from stress and provided a medical certificate saying he was unable to work through stress.
62. A parenting assessment has been undertaken between 8 October 2008 and 8 January 2009. They were commended for their time-keeping, attendance, co-operation and commitment to the assessment. They were commended for their consistent physical care of J, each parent being supportive of the other's parenting capabilities.
63. Initially the father was "nervous and unsure of his handling of J and preferred to be sitting down whilst holding her". Latterly he developed in confidence, and was able to carry her around the house safely and confidently. Both the parents, particularly the mother, recognised and responded to J's physical needs, with the father growing in confidence and responding to reassurance from the mother.
64. J is always "beautifully dressed in appropriate clothes" and the mother takes pride in her child's appearance. They spend "any spare money on items for the child often going without themselves". Their basic care was summed up as "consistently of good quality with no concerns", and the standard of J's hygiene being "exceptionally high".
65. J was observed to be the centre of the parents' life and main topic of conversation and each parent showed "genuine affection and pride" in and towards their daughter. It was also noticed that both were "able to regulate their own emotions and feelings", and I add during what must have been a very difficult period for them with J living away from them and preparing for this hearing.
66. They were observed to be loving towards each other, and the relationship was described as stable and their own extended families being supportive of them.
67. The report concluded: "Both the parents are able to demonstrate empathy towards J and continue to prioritise her needs above their own. There has been nothing to indicate concerns about their parenting capabilities and commitment towards J".
68. I add a glowing report, and one seldom seen in court.
69. The allocated social worker also reported on the meetings he has had with them and in particular in his statement said, "I believe the parents have shared with me information in an open and honest manner, their facial gestures and verbal responses have given me no cause for concern that they have tried to conceal things from me. I would say their verbal responses have been spontaneous".
70. He was allocated on 1 September and first met them on 20 October. He was not the social worker in August, and during his sessions with the parents did not ask about the events of 17 August, but about the parents' early lives, their relationship and feelings about their child. He observed them with Jand saw them to be caring, affectionate and loving parents who are devoted to J. He also commented how well dressed and cared for J seems to be, with the parents responding sensitively to 'her cues'. They have a "lovely way with J" who has always presented as a very alert and happy baby.
71. It is not always the case at this stage in care proceedings to receive and consider in detail parenting assessments. In this particular case it is important to consider the outcome of the assessment, and the social workers' observations, as both indicate a loving couple who are loving, caring and sensitive to their daughter; that, other than the events of 17 August, there are no concerns for the care and commitment the parents show towards J.
72. Both the parents rely on the reports as showing that they are nothing other than loving, caring parents, and most unlikely to deliberately harm or injure their daughter.
73. I have borne in mind the contents of these reports, and accept they are favourable to the parents' case.
74. However, I cannot forget the severity of the injuries and lack of clarity in the explanations proffered by the father.
75. The father changed or amended his account of "the drop" or fall some 10 days after the event. He has stuck to that account. Even in evidence when other suggestions of an innocent explanation were put to him he stuck to his account, "She fell on the table first, and then onto the floor". The suggestions included having a dizzy spell; a black out; falling on top of J. But, he was resolute.
76. The parents have been in Court throughout the hearing, and given evidence. I have been able to observe them sitting in Court with each other, and independently in the witness box. The father is and was obviously nervous, the mother less so. Both supported each other while sitting together, holding hands, encouraging the other with gentle eye contact and smiles. The mother appears the calmer of the two, and herself a mature young woman. I have to remind myself she is only just 19.
77. Both expressed great love and commitment to J, and while the pregnancy was not planned, their nervous excitement of having a baby.
78. The father gave evidence first. He repeated his account of the "incident", showing how he held J in his right arm with her head in his right hand, immediately before the fall. He told me how immediately after the fall he could not remember how it occurred, and how he tried on many occasions alone, with the mother or others to work out how it happened. He used Tigger, he walked the floor, he puzzled it out.
79. He accepted that he had been prompted by the doctors, his own mother, the police, the mother about possible fall onto the coffee table. He said he never rejected the idea, but until 27 August could not recall it. Now he can see it in his 'mind's eye' and is certain.
80. He admitted he was an anxious person, a 'worrier', that he worked long hours, and at the time was under great stress at work. He recounted the difficulties during the first two weeks after J's birth. He accepted he went to his GP on 22 August.
81. He was pressed in cross-examination about his account of the drop with J falling onto the coffee table and floor. He remained resolute that this is what occurred.
82. The mother in turn gave her evidence. Again, she maintained her earlier account of being in the kitchen at the time of the drop, coming in to find a panicky, crying father cradling J. She confirmed the overall history surrounding the 17 August.
83. When talking about J it was obvious from her facial expressions how much she loved her, and how much she missed having her at home.
84. I turn now to the expert medical evidence which I have received. I have had the advantage of reading reports and letters, and hearing Dr Chapman in evidence. I have also read a report from Dr Watt, with whom Dr Chapman agreed. Both are Consultant Paediatric Radiologists.
85. I have seen reports and letters and heard from Dr Cartlidge, and Dr Sidebotham who are both Consultant Paediatricians. Dr Sidebotham was initially consulted by Dr Venkatraman.
86. Dr Chapman and Dr Watt were in agreement with their findings in radiological terms from viewing the CT scans.
87. Dr Watt concluded his report that from radiographic appearances and from the information provided to him, "it is not possible to reliably confirm one way or the other as to whether J's injuries were sustained accidentally or as a result of inflicted trauma". He was not called.
88. He was able to say that there were three skull fractures most probably resulting from more than one impact. The frontal fracture suggests a direct blow to that region. The bilateral parietal fractures could be the result of a posterior mid line impact with deformation of the skull and resultant bilateral fractures. Alternatively they could have been caused by two separate impacts. There was a third possibility for all fractures in that a compressive force was applied to the skull resulting in multiple fractures. The configuration of the fracture of the left parietal bone suggested a possible site of impact. It was likely that all three fractures were sustained at or around the time of the incident described by the father.
89. Dr Chapman had the advantage of being updated with the live evidence before he gave evidence. He discounted the suggestion of a compressive injury resulting in the three fractures. Of the other possibilities: two impacts or three impacts he preferred the latter. He was concerned by the father's evidence of two impacts onto the table and then the floor. He said it was a possible mechanism and could account for the frontal fracture, but he was concerned by the presence of the bilateral fractures. They were not symmetrical, the left fracture was 'complex' and the apex of the 'dog-leg' shape was the likely site of impact. He could not rule out the possibility that there was some mechanism which enabled a single impact on the left parietal bone to result also in the simple fracture in the right bone.
90. He was much more comfortable with the concept of three impacts occurring within a single incident, at about the time indicated by the parents.
91. He made it clear that this was an unusual case, and that although the radiological evidence was important so too was the clinical evidence and history from the parents and general surrounding circumstances.
92. He made it clear that whether the injuries were non-accidental or accidental it was an unusual case, and said, "I cannot come down definitely one side or the other. It is so unusual".
93. Dr Cartlidge also gave evidence. He had the advantage of hearing the father give evidence in chief, and most of the cross-examination. He acknowledged the father's description of holding J along his arm as "unusual" and perhaps naïve, but he said if she was in that position and kicked against his chest with her right leg she could have fallen off his hand over his thumb.
94. He said that the father's explanation of an impact onto the table and then the floor was plausible, but was concerned as to the delay in recollection. While the father's account lacked detail he accepted that a fall can happen so quickly that a parent may not gather all the details. He was uneasy about the delay: he said it was a matter for the court to decide whether the delay in recollection was acceptable.
95. Like Dr Chapman he preferred the scenario of three impacts, but accepted the "plausibility" of only two impacts.
96. Dr Sidebotham was in agreement with Dr Chapman and Dr Cartlidge that it was more likely that there had been three impacts, but could not rule out only two. He thought one impact causing the three fractures as most unlikely.
97. Unlike Dr Cartlidge he was not so concerned about the delay in the father's recollection of the impact onto the coffee table. He reported "I do not consider this to be a substantial change in the history, and I believe it is an understandable discrepancy within the context of a stressful situation. The apparent discrepancy should not be taken as an indication of possible abuse". He was calling on his own experience of parents recollecting circumstances and events sometime after a traumatic experience with a child. He acknowledged that the father was under significant stress and pressure not just because of the incident, but the admission into hospital, anxiety caused by the injury and risks of long-term harm to J, frequent questioning and the arrest and lengthy interview by the police.
98. He met the parents on 29 August, and thought they had been and were struggling to understand what had happened to their baby.
99. Like Dr Chapman he acknowledged that this was an unusual case, and the injuries could be either accidental or non-accidental in nature. An overall view of the totality of the evidence was important, and in cross-examination by father's Counsel he said, "I need to consider the explanation given, a possible non-accidental explanation, and give each consideration. It is a balancing exercise. I look at the medical evidence, the circumstantial evidence, speak to the parents, obtain a history and in so doing form a view of them, how they give the history".
100. It is a complex case. I agree with Dr Chapman. I find it difficult to contemplate a non-accidental injury. It is difficult to understand such a violent incident occurring. I agree either explanation, non-accidental or accidental, it is very unusual, and very difficult to balance between them.
101. The medical evidence clearly indicates that the injuries were sustained a short time before the first presentation to the hospital at about 4.30pm. That accords with the parents' evidence.
102. If this is a non-accidental injury the father, and possibly the mother in collusion with him, had devised an explanation cover up within a very small space of time and maintained it. The mother has remained consistent and solid in her account. If she is to be believed there was a very short period of time within which something occurred which caused the father to lose control and lash out at J. The father puts the window of time between 5 and 10 minutes while the mother was in the kitchen.
103. The mother suggests it was as short a time as filling the kettle and allowing it to boil. If she is to be believed she did not hear any build-up to the father's loss of control, such as angry shouting. Admittedly she was in the kitchen, the baby was crying loudly but not at her loudest, the television was on but not noisily, and she did not hear the impact or impacts of J's head.
104. What seems apparent is the parents' reaction to immediately take J to hospital, their surprise and concern she was not detained, and their quick reaction to her changed breathing.
105. They had little if any time to concoct a story.
106. Once in hospital the suggestion of the coffee table was raised, not by the father but by others, and on different occasions. The father did not seize upon the suggestion like a lifeline, preferring to be more cautious.
107. Dr Sidebotham thought they were a young couple "struggling" to understand what had happened. The parents told me about their discussions and the father's anxiety to work it out.
108. The delay in recollection can be explained by the stress of the circumstances and there are independent indicators to show the father's anxiety and shock at what occurred.
109. The medical evidence cannot point with any clarity or definition towards a Non-Accidental Injury. None of the doctors was prepared to give that evidence. Either explanation was 'unusual' and I accept that evidence.
110. I was also impressed by both the parents. They answered the questions clearly and were consistent throughout their individual evidence, and with each other. The mother has been consistent with her account since 17 August, and has not wavered.
111. The father has been consistent with his account since 27 August and has always said he dropped her, but could not recall the detail.
112. I have taken into account the social work assessment and reports.
113. Before I can say that there has been a Non-Accidental Injury I have to be satisfied on the totality of the evidence, be it all on the balance of probabilities, that one of the parents lost control and inflicted an injury to the child. Is this more likely to have happened, or is this more likely that it did not happen?
114. I can say firmly that I am not satisfied that there has been a Non-Accidental Injury. In my judgment it is more likely that it did not happen, and that in some way a dreadful accident occurred.
115. The father says he is certain that his account of the fall onto the table and the floor is complete and correct. I am not so certain.
116. It may be that with all the questioning about the table that in some way he came to believe in that idea; it may be that the coffee table played a part. It may be that the father stumbled or tripped, lost his hold on the child in some way so she struck her head not twice but three times. It is not for me to speculate. It may be the full circumstances of the fall will never be known, but I am satisfied that the injuries are more likely to be accidental in origin than otherwise.
117. On this basis the Local Authority have not made out the Threshold Criteria as required by Section 31, and accordingly the Care Proceedings must fail.
118. In these circumstances there is no reason known to me why J cannot be returned to her parents' care.
119. I do not criticise the Local Authority in bringing the case to Court. I hope the parents accept that the Local Authority felt they were under an obligation to do so. I do appreciate how difficult and stressful it has been for the parents and the extended families over the past few months, particularly so when they should have been enjoying the arrival and development of J they have been burdened with the accident and involvement of the police, and Local Authority and these proceedings. They have stood up to it well.
120. Now I hope they can enjoy and love and care for J as they would wish, and I wish the family well.
121. Finally, I add a few comments.
122. In this case I had the advantage of the involvement of experienced Counsel, Solicitors and Guardian. All helped to achieve the smooth running of this hearing, and an early conclusion.
123. This was a complex case concerning a very young child involving complicated issues of fact and medical evidence. From the date of issue of the proceedings until the conclusion of the fact-finding hearing only 18 weeks elapsed.
124. I held the Case Management Conference on 30 October 2008. At that time a five day fact-finding hearing had been fixed in March 2009 before a different Judge. By good fortune a four day window in January 2009 in my list had recently become available. It was agreed by all that I should take the case in January, thereby ensuring a significantly earlier decision for this very young child with the additional benefit of judicial continuity.
125. I could not have contemplated forcing a five day hearing into a four day slot without the co-operation of the legal teams, and the knowledge that Counsel were experienced in care work. As it was I required detailed skeleton arguments in advance and subsequently written submissions to which Counsel could, and did, speak.
126. The evidence with full cross-examination was contained and focussed, and concluded on time. By the end of the third day of the hearing I had heard the evidence and submissions, which enabled me to prepare and give Judgment on the fourth day; albeit because of time restraints I only gave my conclusions in Court, but simultaneously e-mailed to the parties' Counsel the full Judgment. In due course the Judgment will be handed down.
127. The use of experienced Advocates in complex care proceedings is essential. All parties are entitled to high quality legal representation, particularly parents where there is a serious challenge to the medical experts' evidence, or other complicated issue of fact. This case is a prime example. Counsel remained committed to the agreed timetable, focussed on the relevant issues, and in so doing assisted the Court.
128. As a consequence an early decision was reached and the costs of the litigation borne by the rate payers and taxpayer reduced. It also had the happy consequence that the child, only 7 months old, was returned to her parents, and she and the family suffered less disruption than might otherwise have occurred. Had my Judgment been different the case would have proceeded to a final disposal hearing and the decision relative to the child's future would have been made earlier than planned with the original timetable.
129. I recognise it is not always possible to achieve an early hearing as was possible in this instance. There are clear and obvious advantages in doing so. I am most grateful to Counsel and their instructing Solicitors for their assistance.