England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/07/2013

The Honourable Mr. Justice Baker :

1. This judgment concerns a child, A, who is now aged two and three quarters. When she was six months old she suffered injuries and, as a result, the local authority started care proceedings. For reasons which I will explain below, those proceedings have continued for over two years, but in this judgment I set out my findings about what happened to her and, on the basis of these findings, it will now be possible for plans to be made about her future care.

BACKGROUND:

2. A's father is now aged 29. Her mother is now 19, rising 20. They started a relationship several years ago when the mother was 15. That relationship continued until A's admission to hospital in March 2011, in circumstances described below, when the relationship came to an abrupt end. During the relationship, however, the parties were very close to each other.
3. An important feature of this case is that the father has significant learning difficulties. His full scale IQ is measured at 76 which puts him in the borderline range. A psychologist has identified that he has a number of areas of cognitive difficulty and is also highly suggestible. The psychologist advised that, although the father is capable of giving evidence, he should be treated as a vulnerable witness. Despite these difficulties, the father has a good work record and has been employed as a motor mechanic for a number of years, although he is currently out of work. The father's problems have been compounded by a difficult relationship with his own family from whom he is at present estranged. It is clear, however, that, until A's admission to hospital, the father was on good terms with the mother's family.
4. A was born on 29^th September 2010 by a normal vaginal delivery after a pregnancy of 42 weeks. Until March 2011 her progress was uneventful. She was seen by the health visitor and the GP for routine appointments. No concerns were noted and, in particular, there were no concerns as to the care given to her by her parents. On the contrary, the general impression was that her parents were looking after her well. They were manifestly devoted to her. A was cared for at the parents' flat but, on occasions at weekends, the parents and A would stay at the maternal step-grandfather's house whilst he was away having contact with his own children.
5. It is said, however, that there were occasional concerns about the father's handling of A. In particular, the mother and maternal grandmother assert that the father was on occasions over-energetic when handling the baby. In evidence, the maternal grandmother gave various examples. She spoke of seeing the father bouncing A on his shoulders without adequately supporting her head, banging the bed while the baby was lying on it causing her to bounce up in the air and, on one occasion at a bowling alley, swinging the baby round on his arm. The father does not accept any of these incidents, but I say immediately that I found the grandmother to be a truthful witness and I accept her evidence that these incidents took place. Importantly, however, it is not suggested that these actions were malicious or abusive but, rather, examples of naïve and inappropriate handling by the father.
6. On 2^nd March 2011 A was taken to the GP with a history of having suffered a cold for a few days with a runny nose which had become very red and sore. In addition, she was said to be vomiting up her feed. Upon examination, she was found to have impetigo on her nose. A diagnosis was made of an upper respiratory tract infection and she was prescribed antibiotics for the impetigo. Five days later on 7^th March, she was taken to the GP again. The medical notes indicate that the impetigo was improving but had not yet resolved. The doctor advised that she should continue to take the antibiotics and he also prescribed a treatment cream. Two days later on 9^th March, A was taken to the GP for a third time. The skin infection was much better but it was said that she had been suffering from diarrhoea and vomiting over the past three days. The doctor concluded that she was suffering an adverse reaction to the antibiotics and prescribed a lower dose of penicillin.
7. On 11^th March, A was cared for by the mother for most of the day whilst the father was out performing community service. Throughout the day, she was repeatedly sick after feeds. In the evening, the family stayed at the maternal step-grandfather's house and A was put to bed in her Moses basket by the father at about 8.30 pm. The mother went to bed shortly afterwards and the father stayed up watching television for a further two hours or so before going to bed himself.
8. At about three o'clock in the morning, A gave a cry, described variously by the parents as a weak or different cry. The mother woke the father, and he got up and took A downstairs to feed her. The father says that he carried her down still wrapped up in a blanket. He walked into the downstairs lounge and placed her in the corner of the sofa. At that stage, there was no suggestion that A was floppy or unresponsive. The father then went into the kitchen to warm a bottle of milk in the microwave. He states that he was out of the room for about 30 seconds. On returning to the lounge, he found A to be floppy and unresponsive. In oral evidence before me he said that she had fallen forward on the sofa.
9. The father has given broadly the same account on every occasion when he has been asked about this incident. The only significant inconsistency is that, on two occasions, he said that he had placed A on a changing mat on the floor rather than on the sofa. In oral evidence before me, he explained this by frankly saying that he had given an untrue account of placing her on a mat because people would think that he was a bad father for leaving her alone on the sofa.
10. Having found A floppy, he took her upstairs to the mother. She had gone back to sleep and was re-awoken by the father. She saw that A's condition had changed, although she was still breathing. The mother asked the father to ring NHS Direct who advised that A be taken for examination immediately. So the mother took the baby downstairs and put on her all-in-one outfit. Her evidence is that, whilst doing so, she noticed red marks on A's forehead.
11. The couple took A to the minor injuries unit at Trowbridge some 20 minutes away. On the way, A was given a bottle and drank about eight ounces of milk. The family arrived at the unit at about 3.50 am and A was immediately seen by a nurse who, having taken a history from the parents, examined A, noting that she was a dusky/pale complexion and that the mother said that this may be her normal colour. The nurse also observed that her eyes were open, that she was moving all limbs and that there was nothing abnormal about her fontanelles. However, the nurse also noted blue/purple markings on her forehead. She therefore decided that A should be seen at hospital and arranged for an ambulance to be called to take her to the A & E department at the Royal United Hospital in Bath. A left in the ambulance with her parents at 4.20 am. Shortly before her departure, she was sick.
12. A arrived at the hospital at 4.55 am. A junior doctor recorded that she was pale, drowsy and irritable with an area of erythema around her left eyebrow described in the medical records as "? bruise." A further area of bruising was noted on her head. As a result of these skin markings, a CT scan was carried out at 6.31 that morning which disclosed that she had subdural haemorrhages. There were, however, no other signs of brain damage or other intracranial injury.
13. The doctors at Bath decided to refer A to the neurosurgical team at the Frenchay Hospital in Bristol. Prior to her transfer, A's heart rate dropped and, as a result of this episode of bradycardia, she was intubated and ventilated. She arrived at the Frenchay Hospital at about 12.30 pm. Extensive further tests were carried out. An MRI confirmed the findings of the CT scan but a skeletal survey, ultrasound examination and metabolic investigations revealed no abnormalities and blood tests were also normal save for a high level of platelets. Her eyes were examined on two occasions. On 13^th March, an ophthalmological specialist registrar found extensive retinal haemorrhages in her right eye and slight retinal haemorrhages in her left eye. In a further examination on 16^th March conducted by a consultant ophthalmologist, however, retinal haemorrhages were only seen in the right eye. Thereafter, A continued to have episodes of bradycardia and not feeding but overall over the next few days her condition improved. A further CT scan on 15^th March reported no increase in the size of the subdural collections. On 16^th March, she was transferred back to the hospital in Bath.
14. Meanwhile, the doctors had contacted social services and the police who had started an investigation. Both parents denied causing any injury to the baby. The mother, however, quickly came to the view that the father had been responsible for the injuries, and she immediately ended their relationship. Her decision caused much unhappiness to the father who tried over the next few months to win her back, though his efforts were unsuccessful. Since then, the mother has largely wanted nothing to do with the father, although it seems that she has approached him on a few occasions, for example, when she wanted some repairs carried out to her car. Although the mother has continued to blame the father for A's injuries, she has consistently said that she believed that they were as a result of careless or inappropriate behaviour on his part rather than any deliberate abuse.
15. On 23^rd March, A had been accommodated under section 20 of the Children Act 1989 with the parents' permission and placed with foster parents. The parents' contact was initially arranged on four days a week on a supervised basis. A few months later, the local authority decided to start care proceedings which were issued on 22^nd August 2011. The proceedings were transferred to the county court and managed by Her Honour Judge Katharine Marshall. On 24^th January 2012, a litigation friend was appointed to act for the father in the proceedings. In the course of the proceedings, experts' reports were commissioned from Dr George Rylance, consultant paediatrician at the Royal Victoria Hospital in Newcastle, Mr Peter Richards, consultant paediatric neurosurgeon at the John Radcliffe Hospital in Oxford, Professor Alastair Fielder, a professor emeritus of ophthalmology at City University London, and Professor Ian Hann, consultant paediatric haematologist at Great Ormond Street Hospital in London. A paediatric radiologist also prepared a report but this has not been relied on by any party at the hearing before me.
16. The first fact-finding hearing was conducted by Judge Marshall in April in Swindon in 2012. The learned judge found that A's injuries had been inflicted non-accidentally by the father. That finding was the subject of an appeal on the principal ground that the judge had failed to make appropriate provision for the father's learning difficulties and that, as a result, he had not received a fair hearing. On 21^st November 2012 the Court of Appeal allowed the appeal and ordered a retrial before me. It is unnecessary to refer in any detail to the judgment delivered in the Court of Appeal which can be found reported under the neutral citation number [2012] EWCA (Civ) 1905.
17. Prior to the hearing before me, a comprehensive assessment was carried out to identify ways in which the father could be assisted through the hearing. As a result, a number of steps have been taken to enable the father to participate fully at this hearing. In particular he had assistance from an intermediary, Miss Erin Kiernan, in addition to his litigation friend. The advocates were advised to ask questions in a fashion that reflected the father's difficulties, and the court allowed regular breaks in the evidence. One further additional step taken for the hearing before me was the commissioning of a further report by Professor Hann who confirmed that A suffers or at one stage suffered from a haematological abnormality which is considered in greater detail below.
18. The retrial was conducted by me at the Bristol Civil Justice Centre over ten days in June 2013. At this hearing, leading counsel were instructed on behalf of both parents. On behalf of the father, it was accepted that the steps taken to assist him in participating at this hearing have ensured that he has received a fair trial. I am very grateful to Miss Kiernan and to his litigation friend for their assistance in this case; in particular, I pay tribute to Miss Kiernan for the sensitive way in which she has discharged her responsibilities. This case provides an illustration of the valuable role played by intermediaries in such circumstances.
19. At the hearing before me I heard evidence from the following witnesses in the following order. Nurse Moreby and Nurse Hazel from the Trowbridge minor injuries unit, Professor Hann, Dr Rylance, Dr Mackintosh, consultant paediatrician at the Frenchay Hospital, Nurse Harris from the Frenchay Hospital, Mr Richards, Professor Fielder, the maternal grandmother, the maternal step-grandfather, Dr Rebecca Samuel, who in March 2011 was the specialist registrar at the hospital in Bath, the mother and finally the father. At the conclusion of the evidence I had the benefit of comprehensive submissions from all counsel.

THE LAW

20. In determining the issues of this fact-finding hearing, I apply the well-established legal principles. I have previously summarised those principles at length in my earlier decisions in Re JS [2012] EWHC 1370 Fam and Devon County Council v EB [2013] EWHC 968 Fam I have those principles firmly in mind and I need only refer to them briefly here. First, the burden of proof at all times lies on the local authority. Secondly, the standard of proof is the balance of probabilities. Third, findings of fact must be based on evidence including inferences that can properly be drawn from the evidence and not on suspicion or speculation. Fourthly, when considering cases of suspected child abuse, the court must take into account all the evidence and, furthermore, consider each piece of the evidence in the context of all the other evidence. Fifthly, amongst the evidence received in this case is expert medical evidence from a variety of medical specialists. While appropriate attention must be paid to their opinions, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the experts are distinct and it is the court that is in the best position to weigh up the expert evidence against its findings on the other evidence. The judge is the person who makes the final decision. Sixthly, in assessing the expert evidence, I bear in mind that cases involving an allegation of non-accidental head injury involve a multidisciplinary analysis conducted by a group of medical specialists. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others. Seventh, the evidence of the parents and any other carer is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. Eighth, 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, as was pointed out in the case of Regina v Lucas [1981] QB 720, that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything. Ninth, the judge in care proceedings must never forget 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 at present dark. Recent case law has emphasised the importance of taking into account to the extent that it is appropriate in any case the possibility of an unknown cause. Even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown. Finally, when seeking to identify the perpetrator of non-accidental injury, the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of a non-accidental injury, the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interests of the individual child although where it is impossible for a judge to find on a balance of probabilities, for example, that parent A rather than parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so.

THE INJURIES

21. In short, the injuries sustained by A consisted of (1) bruising and swelling to the head; (2) subdural haemorrhages; (3) retinal haemorrhages; and (4) encephalopathy.

Haematological evidence

22. Any assessment of these injuries must be conducted in the light of the outcome of the haematological analysis carried out by Professor Hann. In his initial report dated 21^st March 2012, prior to the hearing before Judge Marshall, Professor Hann reported that the blood count results were essentially normal and that an extended set of periodic investigations had ruled out all of the serious disorders and the majority of minor disorders of the coagulation system. The test did, however, reveal an elevated level of platelets in A's blood and this left a residual concern that she may have had a rare blood disorder such as Von Willebrand's disease. In view of this concern, Professor Hann recommended further testing. In the event, this further testing was not carried out prior to the hearing before Judge Marshall. Following the successful appeal, however, that further testing was carried out for the purposes of this retrial. The test ruled out the presence of known disorders such as Von Willebrand's disease but left unexplained the presence of the elevated presence of platelets in A's blood at the time of the test in March 2012.
23. Professor Hann summarised the position in his final report in this way. A had hyper-aggregation of platelet function of unknown cause. That is a rare finding about which there is no research, so his opinion was based on anecdote and a paucity of published information. In his long career, he has only seen a handful of cases, all of which have been referred for bruising episodes. None of these patients had a long term problem and as a result, "the general feeling amongst colleagues was that such phenomena can be transient and are of no or very little clinical significance."
24. Professor Hann expanded upon his opinion in his oral evidence. He said that the abnormality was unlikely to be a moderate or severe bleeding disorder so that "bleeding out of the blue" is unlikely, although it may lead to excess bruising and easier bleeding. He thought it unlikely, however, that this disorder would be a cause of bleeding within the head, adding that there are a lot of disorders of platelet function but rarely do they translate into intracranial bleeding. Applying this to the present case, he concluded: "it therefore makes it more likely you would get bleeding with slightly less trauma but very unlikely that it would cause bleeding with only slight trauma."
25. In passing, I observe that this is a case in which the instruction of a haematologist was manifestly necessary to determine the issues in this case.

Bruising and swelling

26. The bruising and swelling sustained by A consisted of (1) diffuse swelling of her forehead and (2) a number of bruises on her forehead including (a) a 1 x 1 centimetre pale blue/grey bruise centrally above her nose; (b) two 0.5 centimetre blue/grey bruises to the left of the central bruise; (c) a further 0.5 centimetre bruise lateral to these; (d) a red abrasion around the edge of her left nostril with some reddening of her nasal margins and (e) a 2 x 2 centimetre area of redness on the back of her head. This description of marks is derived from the notes taken by Dr Mackintosh on her examination in Bristol.
27. In his report, Dr Rylance considered a number of possible causes of the bruises including an underlying coagulation deficit; vasculitis; increased pressure within the blood vessels; or impact damage involving a relatively hard and unyielding object. He concluded that there was no evidence for any of these causes, other than impact damage. In his oral evidence before me, he said that the platelet abnormality described by Professor Hann did not alter his opinion. He thought it was "extremely unlikely to have a bearing on the case."

Subdural Haemorrhage

28. The neuro-radiological examination revealed that A had sustained acute bilateral subdural haemorrhages over the superior lobe, in the posterior interhemispheric fissure to the right of the falx extending behind the right parietal lobe, and a trace behind the right cerebellar hemisphere. As stated above, there was no evidence of any other intracranial damage.
29. The view of the experts is that the cause of the subdural haemorrhage is likely to have been trauma involving shaking and/or impact. There are other causes of subdural haemorrhage such as infection, metabolic disorders or vascular malformation, but these have all been excluded in this case.
30. Another cause of subdural haemorrhage is coagulation disorder and the court must therefore consider the possibility that A's platelet abnormality may have caused or contributed to the bleeding. The consensus of the medical evidence, including that provided by Professor Hann, is that there is no evidence that this abnormality caused the bleeding within the head although the degree of trauma required to cause bleeding may be slightly less than usual.
31. The experts properly reminded the court of the recent research papers which have identified a much higher incidence of subdural haemorrhage occurring at birth than was previously realised. In one research paper that incidence is put at approaching 46 per cent and is said to occur after all forms of delivery. No birth-related subdural haemorrhage has so far been found to continue for as long as five months after birth but, given the propensity of some acute subdural haemorrhages to evolve into chronic collections, it is at least theoretically possible that some birth-related haemorrhages may continue for that length of time. I bear in mind that research into this important area is continuing and the court bears in mind that the judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts.

Retinal haemorrhages

32. I have already noted that the specialist ophthalmic registrar who examined A's eyes on 13^th March 2011 observed extensive retinal haemorrhages in the right eye and haemorrhages in the left, whereas Ms Williams, the consultant paediatric ophthalmologist, who examined A's eyes three days later observed retinal haemorrhages in the right eye but none in the left. In his report for these proceedings Professor Fielder described these two diagnoses as "robust." He had the benefit of Retcam images taken at the time of Dr Williams' examination on 16^th March and he commented as follows:

"The right retinas multiple haemorrhages have

different morphologies and different levels in and

on the surface of the retina. Some of the small

haemorrhages have white centres which are hardly

visible above but can be seen if enlarged and viewed

on the monitor. The left retina is completely normal.

The optic discs of both eyes are normal."

The images taken by the Retcam were produced in the course of Professor Fielder's evidence before me and clearly demonstrate the findings described above.

33. There are a number of causes of retinal haemorrhages summarised by Professor Fielder in his report. Most can be excluded in this case, for example, abnormal vitamin K deficiency, intracranial malfunction, metabolic disorder or hypertension. A further recognised cause of retinal haemorrhage is raised intracranial pressure. One sign of raised intracranial pressure is swelling or bulging of the anterior fontanelle. In this case A's fontanelles were examined at several points and different appearances are noted. Mr Richards described how it was very common for the appearance of the fontanelle to vary from examination to examination. Dr Rylance pointed out that it is possible that A may have had raised intracranial pressure after the subdural haemorrhage and caused by a part of the intracranial compartment being taken up by haemorrhage and so putting pressure on the brain. He adds, however, that there is no clinical evidence of A having raised intracranial pressure before she presented with subdural haemorrhages.
34. It is now recognised that there is a high incidence of retinal haemorrhage at or after birth. The frequency varies depending on the form of delivery. Professor Fielder advised that, whatever the mode of delivery, all birth haemorrhages resolved within three months. In his opinion, the retinal haemorrhages seen in A in March 2011 when she was over five and a half months old could not have been due to birth trauma.
35. In an appendix to his report, Professor Fielder sets out the various causes of retinal haemorrhages in infancy. He notes the association of retinal haemorrhages with so-called shaken baby syndrome. He quotes the observation in a research paper by Miss Gillian Adams and others in 2004 that "most authors now agree that the forces necessary to cause this type of injury are far from trivial and in fact are considerable ... it is highly likely that the forces required to produce retinal haemorrhages in a child less than two years of age will be generated by a reasonable person during the course of even rough play or an attempt to rouse a sleeping or apparent unconscious child." Professor Fielder notes that retinal haemorrhages can occur after accidental head trauma but they tend to be relatively few and confined to the posterior part of the retina.
36. In oral evidence, Professor Fielder was asked to consider the impact of Professor Hann's evidence concerning A's platelet abnormality on the interpretation of the retinal haemorrhages. He repeated that "we don't know the sort of force required to cause retinal haemorrhages. We do know from the medical practice that rough and tumble play does not cause retinal haemorrhages. Over and above that, if there is a susceptibility to bleeding, I cannot say."

Encephalopathy

37. The CT scans and MR images revealed no radiological evidence of brain damage. As Mr Richards observed, however, the floppiness, irritability and bradycardia seen in A would be clinically indicative of mild disturbance of brain function or encephalopathy. It should be noted that, save for the bradycardia and occasional reluctance to feed, there were little, if any, signs consistent with encephalopathy observed by medical staff at any point on A's first arrival at Trowbridge. At one point in his report, Dr Rylance observed that "floppiness" had been seen by a medical professional in the course of A's admission. In this respect, it now seems that he was mistaken.
38. Thus, the evidence of encephalopathy is relatively slim and largely dependent on the descriptions given by the parents. On any view, the episode was transient. Importantly, Mr Richards added that, given that A's encephalopathy was mild and resolved rapidly with no radiological evidence of brain damage, he considered that her prognosis is good. Nonetheless, it is a relevant feature because, as Mr Richards advises, in the absence of an identifiable medical cause, a recognised cause of encephalopathy includes a recent head injury.

Timing of the injuries

39. All the doctors say that the history given by the child's carers is a crucial source of information and diagnosis in these cases. Here, the timing of the injuries depends very largely on the observation of the parents. Both parents have consistently said that they did not notice any marks on A's head before the early hours of 12^th March. (A suggestion in a note made at the hospital in Bath that they may have said something different was dispelled by evidence from the specialist registrar, Dr Samuel, who made the note.) The parents' evidence is that there was a significant change in A's appearance in the early hours of the morning when the father, having left her in the sitting room, returned from the kitchen having heated up the milk. He says that he then observed a change in her appearance, noting floppiness, lethargy and changing colour. This evidence has led the experts to suggest that the injury must have been sustained immediately or shortly before this change in appearance was observed.
40. In evaluating their evidence, the court must bear in mind that the parents have certain difficulties and may, therefore, not be totally accurate witnesses. Having taken that risk into account, however, I conclude that the accounts given by the parents as to when they first noticed the bruises and floppiness are accurate. On that basis I turn to consider the medical evidence as to the timing of the injuries.
41. In his report, Dr Rylance said that the ageing of bruises is an inexact science but that, given the description of the bruises on the medical examination, it was more likely than not that the trauma which caused them occurred in the 72 hours prior to the consultant's examination at 19.45 on 12^th March. Dr Rylance added that A's forehead swelling was likely to have resulted from injured blood vessel walls leaking fluid as well as blood as a result of the trauma which caused the bruises. He advised that swelling of this type, if it is going to occur at all, will usually appear within 24 hours of the trauma and last for anything between two and seven days.
42. As for the timing of the subdural haemorrhage, Mr Richards expressed this opinion in his report:

"The timing is likely to be at the point of the floppy

episode. This was the only documented change from

her appearing to be her normal self to one of acute

change in level of consciousness. I note that she

had been unwell for the week before. She had had

some vomiting and diarrhoea. However, there was

evidence of an upper respiratory tract infection to

explain this, coupled with antibiotic therapy to give

her diarrhoea and vomiting. It is theoretically

possible that this may be indicative of her having

some other head injury in the days prior to her

acute floppy episode but, given the description of

her behaving normally and taking her feed normally

on the evening prior to her floppy episode, I would

consider this unlikely. I consider it probable that the

point of floppiness was the point of injury."

43. In oral evidence, Mr Richards was closely questioned about the significance of the fact that A took what appears to have been a full feed whilst travelling in the car to Trowbridge. He said that he would consider it very unusual for a child who had suffered a recent head injury to take a full bottle of milk. Usually after such an injury the child will not want to feed although Mr Richards added that "not every patient reads the text books" and that there can be differences between the patients.
44. Professor Fielder advised that the presence of white centres to the retinal haemorrhages indicate that they originated within two weeks of the examination. In his opinion, therefore, the small retinal haemorrhages observed in A could not have been present for more than two weeks and in all probability it would be less than one week. He concluded that "some or perhaps all of A's retinal haemorrhages were caused by trauma within 14 days of 14^th (sic) March 2011." Dr Rylance adds that if the retinal haemorrhages were due to trauma it was likely that they occurred at the same time as the subdural haemorrhages.

Force and causation

45. Dr Rylance in his report observed as follows:

"Because subdural brain haemorrhages do not appear

to occur with normal handling and minor trauma, the

degree of force used to cause them is likely to be

greatly in excess of normal or what is sometimes said

to be rough handling by carers. In relatively small

numbers of cases in which the perpetrator has admitted

to shaking a baby and the presentation includes

subdural haemorrhages, the level of force described

is greatly in excess of normal handling but is not

consistent with a violent shaking that is sometimes

described as likely or necessary."

As for retinal haemorrhages, Dr Rylance observed:

"The degree of force necessary must be significantly

in excess of normal or rough handling which frequently

involves a degree of head and neck movements as in

mild shaking."

In this case, Dr Rylance said in oral evidence that he had "no doubt" that this was a non-accidental injury. "I can never say never but there is no doubt because there is no other explanation available to me." He added, however, that his opinion was expressed within "the limits of current medical evidence that is finite and one does not know things that are beyond that."

46. Mr Richards in his report stated that there can only be four explanations for the head injury, namely:

"One, that this was not a head injury at all and the

doctors had been fooled; two, A was unusually fragile

in that she suffered head injury from handling which

would not normally cause a head injury; three, an

event occurred which the carers were aware of where

they did not have the intellectual capacity to

appreciate what was capable of causing an injury;

four, an event occurred of which a carer was aware

but they had chosen not to report it to medical

staff."

Mr Richards said that the possibility has to be considered that A is the victim of a new condition causing spontaneous head bruising, acute subdural haemorrhage, acute encephalopathy and acute retinal haemorrhages but he added that this would be unlikely:

"It is, therefore, a theoretical but extremely unlikely

possibility that A is the first case of a brand new

disease."

Mr Richards observed that the minimum force required to cause injury of this sort is unknown adding:

"although clinically this seems to be in excess of

that encountered in normal life. The number of shakes

involved is unknown. The exact head movements are

unknown. Whether at the end of the event there has

to be an impact with an external surface, be it hard

or soft, is unknown. It has to be accepted that most

knowledge of the subject comes from clinical

experience where the perpetrators have admitted

what they have done and in comparison with

witnessed accidents. Therefore, anything that is said

by anybody relating to these events has to be

accepted as informed opinion rather than

scientifically verifiable fact. This includes my own

opinions. A's presentation will be compatible with

her having suffered a shaking event. The presence

of bruising would suggest that there may have been

an impact."

Importantly, Mr Richards added that "A's presentation would be compatible with a shaking injury that occurred during a momentary loss of control on the part of the carer who did not plan to injure the child." In his view, the appearance of the injuries sustained by A puts this case at the lower end of the scale of this type of abusive incident.

47. In his oral evidence, Mr Richards considered the impact of Professor Hann's evidence as to the platelet abnormality or the likely level of force required to cause these injuries. He stated that the haematological evidence would not affect his view as to what happened to A but it may affect the degree of force used. Referring back to his opinion expressed in the report that the level of force was "relatively low for this type of case", he observed that, in view of Professor Hann's assessment of the platelet abnormality, the level of force may have been "even lower than originally thought." Given that there was only a very short interference of brain function with no radiological evidence of damage to the brain substance and that A had recovered rapidly and well, he would speculate that whilst one could not comment with certainty, the force applied was greater than normal handling but at the lower end of the force than would sometimes be seen in these types of injuries. When cross-examined by Mr Storey, he reiterated that the injury pattern was not one of a violent action. He said that "it could be over-zealous handling that crossed the line."
48. Mr Storey on behalf of the father explored with Mr Richards the possibility that these injuries may have occurred as a result of a low-level fall. That is a topic about which Mr Richards and other colleagues have developed a close interest as a result of a number of medico-legal cases in which this explanation has been proffered in recent years. In addition, Mr Richards alluded to a recent case from his own clinical experience in which a child with hydrocephalus, who suffered a low-level fall, was found to have sustained a subdural haemorrhage. It is too early to draw any further conclusions from this case, save that all doctors and courts must now recognise that there may be cases in which intracranial injuries are sustained as a result of a low-level fall.
49. Dr Rylance observed that "it is rare to find a subdural haemorrhage from relatively minor trauma in those children who are scanned." He added, however, that children who suffer minor falls without other consequences are not usually head scanned and therefore the frequency at which subdural haemorrhages result from such minor falls is not known.

PARENTS' EVIDENCE AND SUBMISSIONS

50. The mother and the father signed statements in these proceedings and, in addition, the court has the benefit of transcripts of their police interviews and of their evidence at the hearing before Judge Marshall. They gave evidence again before me as the last witnesses in the hearing.
51. I have already referred to the difficulties that each faces as a witness, the mother as a comparatively young woman and the father with his learning difficulties. The court took considerable efforts to accommodate these difficulties and as a result I am confident that neither was at an undue disadvantage as a witness. In particular, the assistance of the intermediary and the strict adherence to a regime of regular breaks every 45 minutes in the morning and every 30 minutes in the afternoon, and more frequently during the father's own evidence, enabled the father to participate fully in this hearing. In addition, the parents have been represented by full teams of lawyers headed by two of the most experienced leading counsel in this area of the law.
52. The mother plainly found it an ordeal giving evidence and it was quickly apparent to me that she would be a suggestible witness. Despite the assistance of the intermediary and the other measures, the father was only able to give limited answers to the questions posed. It is also important to record that the incidents about which they were giving evidence took place over two years ago. Furthermore, each has been questioned about these matters on many occasions, and the court recalls the advice given by those who drafted the guidance on achieving best evidence that repeated questions undermine the reliability of the answers. That guidance was of course directed to the evidence of children but the point is relevant to all witnesses and particularly those with the vulnerabilities of this mother and father.
53. Despite these limitations, however, I was able to form a clear impression of their evidence and to draw some conclusions about it that I consider to be reliable.
54. So far as the mother was concerned I found her to be a truthful witness, albeit an inarticulate one, who struggled to give detailed answers to many of the questions. I was struck, however, by her devotion to A whom she plainly adores. Some of her behaviour can be criticised – for example, I think she has behaved in a rather insensitive way towards the father since their separation – but I do not consider that this has any significant bearing on the fact-finding exercise.
55. So far as the father is concerned, there are three general points that emerged from his evidence. First, like the mother, he is devoted to A. It is manifestly obvious that he adores her just as much as the mother. I do not believe for one moment that he would intentionally harm a hair on her head. Secondly, he is in a particularly vulnerable and isolated position at the moment, cut off not only from nearly all members of his own family but also from the maternal family who previously had welcomed and supported him. Thirdly, I was struck by the clarity of his account of the events of 12^th March 2011. I take into account that he has obviously been through that account many times but it was striking that he was able to give me a clear answer to nearly all the questions about it. One example was when I asked him why he had put A down in the lounge rather than take her into the kitchen. He responded without hesitation that he needed both hands free to unscrew the bottle before putting it into the microwave. His clear and unhesitating answers lead me to conclude that for the most part at least it was a truthful account.
56. There was, however, one inconsistency in his accounts and although it was only one I think it is significant. As stated above, his evidence to me and on most other occasions was that he had placed A on the sofa before going to heat the milk. At the hospital, however, he said that he had placed her on a changing mat. His explanation for that inconsistency was that he had not told the truth when he had said he had put her on the mat because he thought it would make him look like a bad parent if he said that he had left her on the sofa. I was unconvinced that he was telling me the truth about this.
57. On behalf of the mother, Mr Feehan QC and Ms Griffiths submit that the mother has been consistent in her account as to the key events. She gave a full account of matters in her police interview, only a day after the admission to hospital, which was accurate in many telling details and from which she has never departed. She immediately and permanently separated from the only other possible perpetrator known at the time and fully cooperated with all the enquiries. It is submitted that, at this hearing the mother, although still young, previously assessed as immature and plainly anxious, gave honest and clear evidence. Of equal importance, Mr Feehan and Ms Griffiths submit, is the fact that, in her police interview when she was only 17, there were no attempts at obfuscation, no failures of memory of any significance and no contradictions. Such criticisms as can be levelled at her – for example, her somewhat heartless treatment of the father after the separation – have no bearing on the identity of the perpetrator of A's injuries. On this point, Mr Feehan and Ms Griffiths submit that there is no real possibility that the mother was responsible.
58. Furthermore, they say that there is no compelling evidence to support any finding that she failed to protect A. Mr Feehan and Ms Griffiths stress that the mother has no interest in supporting the father in this case but has been clear throughout that she does not see this as a case of deliberately or maliciously inflicted injury on his part. In her opinion, the more likely explanation, as she told the police at a very early stage, is that there has been a serious but genuine accident that the father was too embarrassed or intellectually limited to acknowledge. The likelihood is that he either dropped A or that she fell from a high surface such as the work surface on which he had previously negligently placed her. Given his adoration of his child, it is, say Mr Feehan and Ms Griffiths, possible but unlikely that he shook her in a momentary loss of control, and the medical evidence permits of an interpretation of a lesser degree of force than usual could have caused the injuries.
59. On behalf of the local authority Miss Duthie advances a case which is substantially the same as argued for on behalf of the mother.
60. On behalf of the father, Mr Storey QC and Miss Storey-Rae, having alluded justifiably to the points about the father's difficulties, social isolation and devotion – which, as indicated above, I fully endorse – identify a number of points which in their submission should lead the court away from a finding that he was responsible for inflicting A's injuries. It is significant that the family alighted on accidental over-exuberant explanations and not on other more serious possibilities. Abuse was simply not thought about. Furthermore, Mr Storey and Miss Storey-Rae draw attention to the fact that the mother's step-father, who saw a good deal of the parents and A together, denies ever seeing rough handling by the father, although he did refer to an occasion when A had been left by the father in a small baby chair known as a "bumbo" on the kitchen work surface. He said he considered the father's parenting in this respect to be naïve.
61. Mr Storey and Miss Storey-Rae submit that there are a number of factors which point to the mother being the perpetrator, or at least that are sufficient to give rise to a real possibility that she was the perpetrator and therefore should be regarded as being in the pool of perpetrators. I bear all their points in mind, in particular the following matters.
62. First, they submit that neither parent was a good historian, an observation made by Dr Samuel who took the history at the hospital in Bath. The court should, submit Mr Storey and Miss Storey-Rae, therefore be cautious in relying too heavily on their accounts on which the doctors relied in reaching their conclusions as to the likely timing of the injuries.
63. Secondly, Mr Storey and Miss Storey-Rae point to a number of parts of the evidence which suggest that the injuries may have occurred sometime earlier than 3.15 on 12^th March – in particular, (1) A's repeated vomiting on 11^th March which could have been attributable to an earlier head injury; (2) the fact that A was perceived as being generally unwell that day so that the mother had already decided to take her to the Trowbridge unit on the 12^th; (3) the parents' description of A's cry when she woke that morning, described variously as a "weak" or "different" cry and, therefore, perhaps indicative of a child who was already unwell; (4) the fact that the parents did not regard A's condition that morning as sufficiently serious to call 999 choosing instead to ring NHS Direct, and (5) the fact that A took a full bottle on the way to Trowbridge, which they say is further evidence that the head injury happened at a time earlier than 3.15 that morning.
64. Thirdly, Mr Storey and Mrs Storey-Rae submit that 11^th March must have been a very difficult day for the mother as for the most part she was alone with A all day and the baby was being repeatedly sick.
65. For these reasons, they submit, the court should be driven to the fact that the injuries were sustained earlier than the morning of 12^th March and either that they were inflicted by the mother or that there is a real possibility that either the father or the mother was responsible and the evidence is insufficient to exclude either from the pool of possible perpetrators.
66. In the alternative, if the court concludes that the injuries were sustained during the period when A was downstairs with the father that morning, Mr Storey and Miss Storey-Rae properly submit that the evidence taken as a whole points to the injuries having occurred as a result of an undisclosed accident rather than any act of direct abuse. In this regard, they draw attention to the absence of any evidence of abusive behaviour on the part of the father and, given his devotion to A, they submit that it is implausible that he would have deliberately assaulted her even under a momentary loss of control. In contrast, there is evidence which, if the court accepts it, suggests that the father was naïve, careless and occasionally over-exuberant in his treatment of the baby. They suggest that the relatively mild extent of the injuries – shallow subdural haemorrhages, mild encephalopathy, no brain damage, no fractures – is consistent with A having sustained her injuries as a result of an impact following a fall rather than an episode of shaking. The abnormality in A's platelets could have led to her sustaining bruising and bleeding with a somewhat lesser degree of force than is usually required.

FURTHER DISCUSSION AND CONCLUSION

67. I accept the evidence of the experts in this case that A's injuries were caused by trauma. One or both of his parents must have been responsible and/or witnessed that traumatic episode.
68. A crucial issue in this case is the timing of the injuries. Whilst I cannot rule out the possibility that the injuries were sustained on 11^th March or even earlier, I find it very much more likely that they occurred at or around 3.15 in the morning of 12^th March. Although her unusual pattern of vomiting on 11^th March could be a pointer to the presence of encephalopathy, I accept the evidence of Mr Richards that it is probably attributable either to her illness or to the medication she was taking for that illness. In contrast, there is a very clear account from both parents of a significant change in A's behaviour around 3.15, specifically and in particular the floppiness and the marks on her head, which point to an event at or around that time. I have considered the evidence about the so-called weak cry but conclude that it is not strong evidence that A's condition had deteriorated before she was removed from the Moses basket by the father. In addition, I accept the mother's evidence that nothing untoward had happened to A prior to that point or in her presence. Both parents state, and I accept, that it was the father who got up to attend to A. It follows that the traumatic incident which caused A's injuries must have occurred between the time that the father and A left the room and the time they returned a few minutes later.
69. There is, in my judgment, a gap in the evidence. I find the father has not told the whole truth about the events of those few minutes. Something happened to A whilst she was in the father's care in those few minutes. Beyond that I find it difficult to make any firm finding because there is no evidence that clearly points to any specific conclusion. I remind myself that I cannot base any finding on speculation. On the other hand, I think it is permissible and indeed appropriate to indicate my impression of what may have happened. I think it extremely unlikely that his father deliberately harmed A or hurt her in a moment of anger or loss of control. There is no evidence that he has ever behaved in this way. There is, however, evidence that he was on occasions naïve in the way he handled A and sometimes seemed not to appreciate the consequences of his actions. Accepting as I do the evidence of the maternal grandmother, I find that on occasions he has been over-exuberant in his play with A. Accepting as I do the evidence of the maternal step-grandfather, I find that on at least one occasion he was careless about leaving A in a potentially dangerous position, namely on the kitchen work surface.
70. Accordingly, I think it possible that on that morning he put her down either on the sofa or perhaps the kitchen work surface and while he was not watching, she fell. The presence of bruises on her forehead strongly suggest that she suffered some sort of impact and I accept the submission, based on Mr Richards' evidence, that the intracranial injuries and encephalopathy could have been sustained as a result of a low-level fall. That is of course speculation and I emphasise that I can make no finding of exactly how A's injuries were sustained. I do, however, accept Mr Richards' evidence that these injuries were at the lower end of the scale for so-called non-accidental head injuries.
71. In this analysis I draw on the well-known dicta of the Court of Appeal in the Lucas case, but for slightly different reasons than normally arises in care proceedings. The insight in Lucas that people lie for a wide range of reasons such as shame, embarrassment, panic, fear or misplaced loyalty is usually used to support a submission that a finding that a person has lied about one matter should not be necessarily relied on as evidence that a person has lied about everything. In this case, however, I think that the insight on Lucas is helpful for a different reason because, whilst making no finding about the matter, I think it possible that this father has not told the truth about what happened to A because he is embarrassed about an act of carelessness. His explanation that he wrongly claimed to have put A on the changing mat instead of the sofa may provide some indication that he is capable of withholding the truth out of shame or embarrassment.
72. I, therefore, find that A suffered a comparatively minor head injury comprising bruises, subdural haemorrhage, retinal haemorrhages and mild encephalopathy whilst in the father's care around 3.15 on 12^th March 2011. I absolve the mother from any responsibility for the injuries and there is to my mind no evidence that she has failed to protect A in any way. I do not accept the suggestion that she is to be criticised for ringing NHS Direct rather than 999. A's symptoms were not so obviously serious that the emergency services were required.
73. I anticipate that, as a result of my findings, the local authority may now move quickly to restore A to the care of her mother who has been having increased contact in recent months. So far as the father is concerned, I hope that with support and guidance he can be helped to understand and disclose more about his responsibility for what happened to A. Although it is too early to make a final decision on the details of his future contact with his daughter, my provisional view is that it is likely to be in A's best interests to have regular contact with her father as she grows up so that he can play a role in her life.

GENERAL OBSERVATIONS

74. This case provides a further illustration of the problems faced by those suffering from learning difficulties who find themselves caught up in the family justice system. I have alluded to those problems elsewhere (see in particular my decision in Kent County Council v A mother and others [2011] EWHC 402 Fam). This case shows the particular problems faced by courts by identifying the problems and addressing the needs of persons with learning difficulties so as to enable them to participate fully in the court process. But it also demonstrates a wider issue – the challenges faced generally by parents with learning difficulties in coping with the demands of parenthood.
75. On the specific issue of participation in care proceedings, counsel in this case (led on this aspect by Mr Feehan and Mr Griffiths but supported by the other legal representatives) have helpfully suggested a process to enable the court to identify and address these issues at an early stage in family proceedings. They base their proposal on the new Public Law Outline, ("PLO"), which coincidentally comes into force today in this care centre, and provides a standard timetable for care proceedings for a maximum of 26 weeks, save in exceptional circumstances. This proposal seems to me to be sensible and constructive and should, in my view, be followed where there are grounds for believing that a parent is suffering from learning difficulties.
76. It is rightly submitted that the duty to identify the need for assistance in responding to questions and giving instructions falls to those acting for the parents. Plainly it is essential that those representing parents consider the question of capacity to give instructions and competence to give evidence at the outset of their instruction. If there is perceived to be a need for support, that issue must be addressed at the earliest opportunity.
77. In many cases, the fact that there is or may be an issue about capacity and competence will be known to the local authority and/or the party's representatives prior to the outset of proceedings. On the issue of the proceedings, this matter should be drawn to the attention of the court which will in turn, on the day following issue, give directions for the appointment of a litigation friend. The new PLO envisages that in those circumstances the court should give directions for special measures at the case management hearing to take place by day 12 of the proceedings.
78. In those cases where the matter has not been identified prior to the proceedings, so that no directions are given immediately after issue of the proceedings, it should be addressed fully at the case management hearing. I agree with the submission made by Mr Feehan and Ms Griffiths that there should normally be sufficient opportunity by that point for the fact that the party has or may have learning difficulties to have been identified. At that hearing, those representing the parents should apply for special measures, where they consider that the case for such measures can be made out without any expert advice. Alternatively, where they consider that expert advice is necessary to identify the existence or extent of the learning difficulties, they should apply to the court in accordance with Part 25 of the Family Procedure Rules (as amended) for an expert to carry out an immediate assessment of the capacity and competence of the party. There must, of course, be full compliance with the terms of that Rule and the accompanying Practice Directions. In addition, the legal representatives should normally by the date of the case management hearing identify an agency to assist their client to give evidence through an intermediary or otherwise if the court concludes that such measures are required. If the court is satisfied that an expert report is necessary to determine whether the party lacks capacity or competence and/or as to the extent of any special measures required, it may direct a further case management hearing to take place once the expert has reported so that detailed directions can then be given for the instruction of an intermediary and/or such other assistance as may be necessary.
79. So far as funding is concerned, there is a distinction between, on the one hand, the cost of obtaining a report from an expert as to capacity and competence and, on the other, the cost of providing services from an intermediary. The former will, subject to the approval of the legal aid agency, fall under the public funding certificate ,whereas the latter, as a type of interpretation service, will, as far as I understand the rules, be borne by the Court Service. It is important that those representing the relevant party address these funding issues at the earliest opportunity. They should obtain prior approval from the legal aid agency for the instruction of the expert and, as soon as possible, give notice to Her Majesty's Courts and Tribunal Service that the services of an intermediary are likely to be required.
80. Provided these issues are identified and addressed promptly, there is no reason why they should necessitate any delay or departure from the 26 week timetable which is to apply in all cases, save in exceptional circumstances. In saying that, I do not underestimate the difficulty that sometimes arises in identifying persons with learning difficulties. This court has experience of hearing a case in which everyone, including the judge, failed to identify that a mother had difficulties until a very late stage in the proceedings.
81. So far as the wider issues are concerned, I repeat my observation at paragraph 132 of the judgment in the Kent case:

"The last thirty years have seen a radical reappraisal

of the way in which people with a learning disability

are treated in society. It is now recognised that they

need to be supported and enabled to lead their lives

as full members of the community, free from

discrimination and prejudice. This policy is right,

not only for the individual, since it gives due respect

to his or her personal autonomy and human rights,

but also for society at large, since it is to the benefit

of the whole community that all people are included

and respected as equal members of society. One

consequence of this change in attitudes has been

a wider acceptance that people with learning

disability may, in many cases, with assistance, be

able to bring up children successfully. Another

consequence has been the realisation that learning

disability often goes undetected, with the result that

persons with such disabilities are not afforded the

help that they need to meet the challenges that modern

life poses, particularly in certain areas of life, notably

education, the workplace and the family."

82. It is possible that the injuries sustained by A were attributable in part to the father's imperfect understanding of risk to a small baby. Some people were aware that the father did not fully understand the risk, yet no one took any steps to obtain assistance for him in caring for A. Now that the risk has been identified, the father will, I hope, receive assistance, but plainly more needs to be done in other cases to identify and address such risks at an earlier stage. It is sobering to think that, had this been done in this case, it is possible that the injuries suffered by A and the consequences that followed – the separation of A from her mother, and the lengthy and costly proceedings – might have been avoided.