England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/02/2014

MR JUSTICE MOOR:-

1. I have been conducting a fact finding hearing into the circumstances surrounding serious injuries that occurred to a young baby, N F on 29th June 2013.
2. N was born in May 2013. She is now some nine months of age. Her mother, C F, had gone to work early on the morning of 29th June, leaving N in the care of the First Respondent, M B and her partner, the Second Respondent, M K. I will refer to them as the Mother and the Father respectively, although they are not the parents of N.
3. The Mother and the Father have a daughter of their own, V K, who was born in 2011. She is nearly aged 2 ½ . The Local Authority, the City and County of Swansea, instituted care proceedings in relation to V on 3rd July 2013, alleging that V was at risk of significant harm because of the non-accidental injuries that they allege had been caused to N by the Mother or the Father.
4. Very sensibly (and to their credit), the parents agreed that V should be accommodated by the Local Authority voluntarily pursuant to section 20 of the Children Act 1989. She has been with foster carers since the 29th June but has been having very regular contact to both parents.
5. Initially, the Local Authority included N's mother, C F as a possible perpetrator of the injuries to N. Following expert medical evidence that ruled her out from having any involvement in the injuries to her daughter, I gave the Local Authority permission to withdraw the care proceedings in relation to N on 20th January 2014. It follows that I have been solely concerned with the care proceedings relating to V.
6. The Local Authority's case is that the injuries to N were caused by a shaking injury inflicted by one or other of the parents of V. In final submissions, it suggested that, on the balance of probabilities, it was more likely to have been the Father. Moreover, it was argued that, if I am able to identify the perpetrator, the other parent failed to protect in that he or she was immediately aware that N had been caused serious injury but failed to inform medical staff of what he or she knew and then acted in concert with the other parent to put forward a false story to the court.
7. The parents' case is that I should find that N collapsed as a result of an ALTE (Apparent Life Threatening Event), possibly as a result of a coryzal (cold) virus that she was suffering. They argue that I should find, in accordance with the evidence of Professor Wyatt that the very serious injuries she suffered were, in all probability, caused by a resuscitative shake that the Mother may have administered to N in panic and confusion following N's collapse. If I find that this was not the case, they each say that they did not shake N and did not see the other do so either.
8. I should make it clear that I accept that, if I was to find that this was a resuscitative shake, the threshold criteria pursuant to the Children Act would not have been made out. The issue, however, is whether it was an abusive shake prior to collapse or a resuscitative shake post collapse that went wrong.
9. The Guardian maintains a neutral stance but has formed a favourable opinion of V's parents. She says she has struggled to make sense of any motive or reason which may have led to an abusive shake. She does say that I should give particular consideration to whether or not N was roughly picked up from her pram, perhaps in circumstances where her head was unsupported.

The Law

10. I will deal first with the law I must apply. To establish the threshold criteria, I need to be satisfied that V is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given if the order is not made, not being what it would be reasonable to expect a parent to give [Children Act 1989, section 31(2)]. If I am so satisfied, it does not automatically lead to a care order. I will then have to go on to consider V's welfare at a subsequent hearing.

The burden and standard of proof

11. The burden of proof is on the Local Authority. It is for the Local Authority to satisfy me, on the balance of probabilities, that it has made out its case in relation to disputed facts. The standard of proof is the civil standard, namely the balance of probabilities. This applies to both the determination of whether N's injuries were caused non-accidentally but also as to the identity of the perpetrator (see Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35; [2008] 2 FLR 141 and Re S-B (Children) [2010] 1 FLR 1161).
12. The seriousness of the allegation makes no difference to the standard of proof to be applied in determining the truth of the allegation. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies (Re B (Children)(FC) [2008] UKHL 35; [2008] 2 FLR 141)
13. If the evidence in respect of a particular finding sought by a party is equivocal then the court cannot make a finding on the balance of probabilities as the party seeking the finding has not discharged either the burden or standard of proof (Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20; [2004] 2 FLR 200). In Re B (Children)(FC), Lord Hoffman said:-

"If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

14. Both Baroness Hale and Lord Hoffman made it clear in Re B that, when seeking to determine the perpetrator of proven non-accidental harm, the test remains the simple balance of probabilities. Baroness Hale said at Paragraph 70:-

"I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold criteria under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."

15. In Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17. [2010] 1 AC 678, she insisted that Re B did not represent a departure from earlier authorities in the House of Lords, stating at Paragraph 13:-

"None of the parties in this case has invited the Supreme Court to depart from those observations, nor have they supported the comment that Re B "was a sweeping departure from other authorities in the House of Lords in relation to child abuse, most obviously the case of Re H". All are agreed that Re B reaffirmed the principles adopted in Re H while rejecting the nostrum "the more serious the allegation, the more cogent the evidence needed to prove it" which had become commonplace but was a misinterpretation of what Lord Nicholls had in fact said."

16. In Paragraph 2 of Re B, Lord Hoffman explained that sometimes the decision will be made by reference to the failure to discharge the burden of proof. In Paragraph 32, Baroness Hale made the same point thus:-

"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof."

17. I have also been referred to the case of AP v Vale of Glamorgan Council & Ors [2007] EWCA Civ 1265 as to the correct way to proceed when it is alleged, as here, that section 31 is established on the basis of future risk to a child rather than of past harm. I have taken particular note of Paragraphs 50, 51 and 56 of the judgment of Wilson LJ.

A pool of perpetrators

18. It is trite law that it is in the public interest that those who cause non-accidental injuries should be identified, provided it is possible in the light of the evidence. Notwithstanding the advantages if it is possible to identify a perpetrator, there is no obligation on the court to strain to do so if the evidence does not enable the court to make such a finding on the balance of probabilities. In Re S-B, Baroness Hale said at Paragraph 40:-

"If the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators…"

19. The test was laid down in North Yorkshire CC v SA [2003] 2 FLR 849:-

"A person comes within the pool of possible perpetrators where the evidence establishes that there is a "likelihood or real possibility" that a given person perpetrated the injuries."

20. There is also a benefit in identifying the role of others who may have failed to protect the child. This type of finding will inform future risk assessments and assist in the formulation of strategies to protect the child in the future (Re S-B at Paragraph 36).

The language barrier

21. The parents are both Polish. English is not therefore their first language. The majority of their evidence was given to me and to the Police in Polish and translated into English by interpreters. I accept that this means I must take great care in assessing their evidence, given that processing information provided in a foreign language may put the participant at a disadvantage. I must guard against the very real possibility that questions or answers or both are misunderstood or at the least nuances and shades of different meaning are lost in the process. I also accept the submissions of Mr Jones (for the Father) that answers may be repeated by the interpreter in a dispassionate/neutral manner whereas the original response may have been loaded with relevant emotion. I have taken all this into account in assessing the evidence of both parents.

Lies

22. There are issues in the case as to the extent to which the Mother and Father have lied to this court and/or to the Police in their interviews. First, I must decide whether or not either of them did deliberately tell lies. If I find that they did, I have to ask myself why they lied. The mere fact that a witness tells a lie is not in itself evidence that the person concerned is the perpetrator. A witness may lie for many reasons. They may possibly be "innocent" ones in the sense that they do not denote responsibility for the injuries to N. For example, they may be lies to bolster a true case; or to protect someone else; or to conceal some other disreputable conduct unrelated to the injuries caused to N; or out of panic, distress or confusion.
23. It follows that, if I find that a witness has lied, I must assess whether or not there is an "innocent" explanation for those lies that does not implicate the witness either as the perpetrator of the injuries sustained to N or as having information relevant to identifying the perpetrator. However, if I am satisfied that there is no such explanation, I can take the lies into account in my assessment of the identity of the perpetrator or perpetrators.

The position of the Police

24. The parents remain on Police Bail. The Police are entitled to a copy of my judgment. The law is clear in this regard. Section 98(1) of the Children Act 1989 provides that, in these proceedings, no person shall be excused from giving evidence on any matter or from answering any question put to them in the course of giving their evidence, on the ground that doing so might incriminate them of an offence. It follows that both the Mother and the Father had no alternative other than to give evidence although I make it quite clear that both did so entirely voluntarily. Section 98(2) applies to that evidence. Any statement or admission made in these proceedings shall not be admissible in evidence against the person making it in proceedings for an offence other than perjury. It follows that, although the Police may be able to make use of my judgment in pursuing their ongoing enquiries, they cannot rely on any statement or admission made to me, in any criminal proceedings that they may subsequently bring.

Expert evidence

25. I have heard expert evidence from a number of doctors with different specialisations. It is for me to weigh the expert evidence alongside the lay and other observational evidence. Ward LJ said in Re B (Care: Expert Witnesses) [1996] 1 FLR 667 at 670:-

"The expert advises but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert."

26. Butler-Sloss LJ added at p674:-

"An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the judge to give reasons for disagreeing with experts' conclusions or recommendations…A Judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes."

27. There have been numerous first instance authorities that confirm this approach. Bracewell J observed in Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20 (Fam); [2004] 2 FLR 200 at Paragraphs 24 and 30 that:-

"Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened."

28. The expert evidence does not sit in a vacuum nor is it to be interpreted in isolation from the other evidence. Even if an expert says that that there are a number of possible explanations for some occurrence, it is still open to the court to find on the evidence as a whole which is the probable explanation (see, for example, Re B (Non-accidental injury) [2002] EWCA Civ 752; [2002] 2 FLR 1133). Charles J said in A County Council v K, D and L:-

"…it is the court that is in the position to weigh the expert evidence against its findings on the other evidence and thus, for example, descriptions of the presentations of a child in the hours or days leading up to his or her collapse, and accounts of events given by "carers"…properly reasoned expert medical evidence carries considerable weight but, in assessing and applying it, the judge must always remember that he or she is the person that makes the final decision."

The factual history

29. Before turning to the expert evidence and my findings as to the facts that are in issue, I will set out the factual history of the case.
30. The Father was born in Poland in September 1988. He is therefore now aged 25. The Mother was also born in Poland in September 1990. She is therefore 23 years old.
31. They met in Poland and have been together for some six years. They came to Swansea from Poland in September 2010. V was a planned and much loved child.
32. It is accepted by everyone that, prior to 29th June 2013, the parents have been excellent caring parents to V. No Agency had any concerns other than one incident in November 2011 when it was alleged that the Mother had too much alcohol to drink and an incident in July 2012. I make it clear that I consider the allegation of excess alcohol to be irrelevant to the matter I have to decide. I do not take it into account in any way.
33. The incident in July 2012 did not appear to involve any physical violence. The Police were called by neighbours who were concerned as to what they were hearing. When the Police attended, they were satisfied that no further action needed to be taken. Again, I take the view that the incident itself sheds no light on the allegations now made against the parents. However, the parents deny that they were having an argument at all. I have heard oral evidence from two of the neighbours. I will, in due course, have to decide whether or not the parents told me the truth about this incident. It therefore goes to their credibility even though the incident itself is not relevant to my determination.
34. In February 2013, C F came to the UK from Poland. I do not need to set out the history so far as she is concerned other than to say that she was pregnant with N when she came here. She lodged for a time with a Polish woman who was known to the parents. She was asked to leave that property. Her relationship with a Polish man, who was not the father of N, broke down. She was homeless. She had met the Mother in a local Café. She asked if she could move in with the parents temporarily. They agreed out of kindness. She moved into their home in Swansea in April 2013.
35. N was born in May 2013. She was initially named T but I am satisfied that this was a mistake. She has been referred to as N throughout the hearing.
36. C F had a number of different jobs, largely for the Polish community. These included baby sitting the children of a Polish Café owner. In consequence, it appears that the Mother took on a great deal of the care for N. No criticisms whatsoever are made of this care until 29th June.
37. It is though clear that the parents became fed up with C F. They have a number of complaints against her that I do not need to detail in this judgment. Suffice it to say that they asked her to leave shortly before 29th June. Whilst this upset C, I am quite satisfied that it is of no relevance to the dispute I have to decide. These parents would not have taken out their frustration with N's mother on N. Indeed, the Mother happily continued to look after N. She could have insisted that C make other arrangements but she did not do so.
38. It is equally clear that the vast majority of the care for both V and N was undertaken by the Mother. I was told that the Father was initially a "nervous" father when it came to caring for V. He told me that he was a bit "scared" of handling her and therefore did not change her nappies or wash her. Indeed, I gained the impression he did not handle her very much for the first couple of months. He gradually grew in confidence but it was clear that the Mother was firmly the primary carer of V and, later, N.
39. During the week before the incident on 29th June, there is no doubt that N had a coryzal viral infection. In other words, she had a cold. After her admission to hospital, this was confirmed by the presence of the rhinovirus. The evidence, however, was to the effect that she was getting over this virus and that it was not, of itself, causing significant distress. There was some dispute as to whether or not she had been given inappropriate Calpol by C but no expert considered this significant. On the night of 28th to 29th June, she slept with C F. She awoke and was fed at 9.30 pm and 3 am.

29th June 2013

40. On the morning of 29th June, C F woke early and gave N a further feed. N appears to have gone back to sleep. At around 5.30 am, C woke the Mother and asked her to look after N whilst she got ready for work. When the Mother went into the room, N was awake, alert and normal. She changed N and took her downstairs. She put her in her pram and says she was sound asleep when C left in a taxi just after 7 am.
41. The Father and V carried on sleeping until around 9 am. He told the Police that N had been disturbed earlier in the morning, contrary to the evidence of C and the Mother. It is argued that, if he was sleeping, he would not be in a position to know this, although I accept that it is possible to know what is going on even if you are basically asleep.
42. The Mother says that N made some noises at around 9 am as if she was about to cry and as if she was hungry. The Mother therefore gave her a bottle which she took normally. She winded her. She had diarrhoea although this was something she had been suffering from for a few days. The Mother changed her nappy and then topped up her feed. She went back to sleep in her pram.
43. The Father and V then came downstairs. The Mother prepared a feed for V. The Father popped out briefly to the shops. The Mother tidied the living room and cleaned the kitchen. She later took the washing outside. Whilst outside, she heard N crying. When she returned, the Father told her that he had picked her up and comforted her before putting her back in the pram. She went back to sleep. V was also in the living room watching cartoons on television.
44. The Mother then went outside to put the rubbish out and was outside for around five minutes or so. When she came in, she says in her statement that she went into the living room and N was still asleep. Shortly before 1120, there is no doubt that N became catastrophically unwell. The Mother says that all of a sudden she could hear N screaming and crying. It was a very strange cry which was very difficult to describe. She was gasping for breath, making a strange noise. The Mother went to her and N looked as if she was about to choke. She then stopped breathing. The Mother says she put her hand on her stomach and it was still. N's face was a very deep red colour and she then went very pale within a matter of seconds. The baby was not moving and she could see white stuff in her nostrils. She thought it might have been milk from her previous feed, although she later realised it was not milk as it was like what she had seen coming from her father's nose when he had a brain tumour.
45. She took N in her hands and started to resuscitate her on the sofa. She put her hands on N's chest and pumped five times and then held her nostrils and breathed into her mouth. As she started to do that, the Father ran next door to summon help. The Mother picked up N and ran after him to a neighbour. Mr P D opened the door. N was taken into his living room and further attempts were made to resuscitate, first on the sofa. Mr D telephoned 999 at 1122. He was advised to continue resuscitation on the floor, having removed N's clothes. It is right that the Mother initially used her palm to perform the resuscitation but Mr D advised her to use three fingers instead. I am satisfied that the initial use of the palm was not material to the injuries suffered by N. I am equally satisfied that Mr D acted entirely properly throughout and did everything he could to assist N. He is to be commended for his public spirited action.
46. The ambulance crew arrived remarkably quickly. A trained paramedic, J M, arrived first at 1124. The ambulance crew arrived very shortly thereafter. N was found to be unconscious. Further attempts were made by Mr M to resuscitate N. She was provided with ventilation. N was making attempts to breathe once every minute by the time they left for Morriston Hospital. The Mother went in the ambulance and was distressed and upset throughout. By the time they reached the hospital, the baby was breathing four to five times per minute but the breaths were not normal and were more like gasps.
47. After arrival at the hospital, the emergency team took over N's care and all proper procedures and investigations took place. N was found to have suffered acute bilateral subdural haemorrhages overlying the vertex; bilateral posterior subdural haematomas; subarachnoid haemorrhage in the sulci of the occipital lobes; thin subdural haemorrhage over the cerebellum; bilateral hemorrhagic retinopathy with bilateral numerous retinal haemorrhages; superficial and deep intraretinal haemorrhages in the posterior poles and peripherally; cardiac arrest; and a significant amount of brain injury, possibly affecting both vision and her limbs.
48. She was transferred to the Paediatric Intensive Care Unit at University Hospital of Wales, Cardiff later that day. She was re-transferred to Morriston Hospital on 25th July 2013 before being discharged to foster care on 30th July 2013. Although she has made a substantial recovery, it seems that her brain and head have not grown since the injuries were sustained. It is not possible to predict her long term development but she may well not be able to see, nor move independently nor, possibly, communicate.
49. Before turning to the medical evidence, it is right to note that the account of the Father as to what happened on 29th June is very different to that of the Mother that I have just outlined. His response to threshold dated 13th September 2013 says that the Mother was caring for N on the morning of 29th June but his statement and his Police interviews do not say that. In his statement to this court, he accepts he went to the Polish shop to get some bread but says he was home by about 9.30 am. He says he began to watch Toy Story in the living room with V. Up until 10 am, N was asleep in her pram. He says she woke at about 10 am with a scream. He rocked her pushchair to try to soothe her but it did not do so. It actually made her worse. He picked her up to hold her and walked around the room with her, dancing or bouncing or singing to her. He says her head was very red, which he thought was due to her screaming. After about ten minutes, she stopped crying and he put her back in the pram. He says the Mother prepared some milk for her and held N as she fed her. She took some milk although he was not sure how much. The Mother winded her and put her back in the pram.
50. The Mother then took the rubbish outside, which woke N up again. She again started to scream. He picked her up and walked around with her to soothe her. The Mother was in the house with him. N did not settle at all. He carried on walking around with her trying to soothe her. He asked the Mother if she wanted to take N instead but she then started to settle. He put her down but she then started screaming again. The Mother picked her up and he said he was going for a shower but as he did so, N made a noise like she was sucking in air or coughing and then stopped crying. The Mother called him and said that N was not breathing. He returned and N was no longer red but looked very pale. The Mother put her on the sofa. She was panicking and he was panicking. He ran to the neighbours and the Mother came with him. While the Mother and the neighbour were administering CPR, a white discharge came out of her nose.

The medical expert evidence

51. I have had the benefit of expert medical evidence from two Neuroradiologists, Dr Marcus Likeman and Dr Neil Stoodley and two Opthalmologists, Professor Ian Lloyd and Mr William Newman. Finally, I had written reports and heard oral evidence from a Paediatrician, Dr Patrick Cartlidge and from a Neonatologist, Professor John Wyatt. I only need to consider the evidence of the last two in significant depth.
52. Dealing first with the Neuroradiologists, Dr Stoodley said that subdural bleeding had been found at several different sites and that this was likely to be caused by a shaking mechanism. Dr Likeman considered that the bleeding was very unlikely to be due to N's birth and was most likely due to shaking. He said that she would have become rapidly unwell following the trauma. He considered that the collapse was very likely to be close to the time at which the injury occurred.
53. Whilst I accept the evidence of the Neuroradiologists, I make it clear that Dr Likeman's observations do not themselves rule out a resuscitative shake as postulated by Professor Wyatt. I have to make findings as to which came first – the collapse or the shake.
54. The Opthalmologists agreed that there had been extensive retinal bleeding in both eyes. Professor Lloyd considered that these were most likely to have been caused by shaking and this occurred at the same time as the collapse. He does say that most experts consider it highly unlikely to have been caused by attempts to revive an unconscious child. Mr Newman considered these extensive retinal haemorrhages were consistent with a shaking injury. He also considered that any actions to rouse N when she was unwell would not result in retinal haemorrhages as identified and that it was very unlikely resuscitation alone would cause them either. It may well be that both these experts are referring to general resuscitation techniques. I have not heard either expert give oral evidence and I am firmly of the view that I should not rely on this evidence in making findings as to Professor Wyatt's evidence.
55. Dr Cartlidge's report is dated 8th November 2013. He considered that the subdural bleeding, hypoxic-ischemic brain injury and retinal haemorrhages had been caused by shaking with or without impact against a semi-yielding object immediately before N became profoundly unwell shortly before 1122 am on 29th June.
56. Professor Wyatt reported on 30th November 2013. He postulated two alternative explanations. The first was that suggested by Dr Cartlidge, namely excessive and inappropriate shaking in an attempt to pacify N. His second was an unexplained life-threatening collapse followed by a shake in an attempt to resuscitate. He referred to Dutch research that indicated that a significant proportion of parents of babies admitted to hospital following an ALTE admitted shaking the baby in an attempt to resuscitate. None of these children had suffered life changing brain injuries, although they did not have MRI scans. I consider that this research does not therefore assist me, particularly as I do not know the level of force used.
57. The two experts spoke to each other in a recorded meeting on 9th December. It is clear to me that there was confusion arising out the report of the ambulance man, Mr P D who had recorded "6 week old; fed @11 am; baby coughed x2, shook then stopped breathing." Dr Cartlidge certainly thought that the reference to "shook" was a reference to a resuscitative shake. It clearly was not. Mr D confirmed to me in oral evidence that the word was used to convey that the baby herself had shaken, after coughing twice. I find that this was exactly what he was told by the Mother, although he did find it difficult to understand her.
58. In any event, Dr Cartlidge and Professor Wyatt agreed that a spontaneous collapse could not have caused the intracranial bleeding/retinal haemorrhages, although it could have caused the hypoxic ischemic brain injury. They considered the most plausible explanation was an injury from shaking. Professor Wyatt said:-

"It is generally accepted that resuscitation, which is done according to standard teaching, doesn't lead to the sort of injuries which are seen in this case and therefore the baby would have had to have been handled in an excessively violent and inappropriate way, which an onlooker would have recognised as being inappropriate."

59. In oral evidence, Dr Cartlidge did not alter the conclusions he had reached in his report. He said that, if a witness saw the shaking, the witness would readily recognise it was inappropriate and seek to intervene to protect the child. He confirmed that the mechanism was a sharp move back and forward of the unsupported head with sudden acceleration and deceleration. He conceded that it might only be one such movement although, the more times it happened, the greater was the opportunity for injury to be sustained. He accepted that mainstream thinking is now that less force is required than was previously thought although he made the valid point that it cannot be normal force as otherwise such injury would be far more commonplace. He said that it is not possible to be sure how much force is required as it has not been possible for researchers to do any tests on live babies. He said that confession evidence in the USA suggested that such shaking may be done in an attempt to pacify and that it could succeed by inducing semi-consciousness until it went too far and caused serious injury or death.
60. Turning to the white substance seen in N's nose, he had originally thought it was mucous but conceded that it may well have been milk. He told me that a baby who has been shaken will quite frequently vomit. Whilst it could relate to an ALTE, he could not remember an occasion when it led to ischemic injury to a baby as the baby would cough it out and recover.
61. Professor Wyatt said in his oral evidence that everything in the case was consistent with an undisclosed violent shaking event and that he had agreed with Dr Cartlidge that this was the most likely explanation. The number of babies who suffered such trauma was extremely small which suggested something pretty serious to cause the injuries. He conceded that there was no account from either parent of a shake sufficient to cause these injuries and that his theory involved a reconstruction. He accepted that, if it was resuscitation, it would have had to be excessively violent and inappropriate although he told me that there was a great deal of uncertainty as to the precise amount of force required.
62. I have come to the clear conclusion that I should prefer the evidence of Dr Cartlidge to that of Professor Wyatt. I recognise that an ALTE followed by a resuscitative shake is a possible way in which injuries to a child such as those suffered by N could have been caused. I have reached the clear conclusion, however, that it is not what happened in this case. In reaching this conclusion, I have taken into account the evidence of both parents as well as that of the doctors.
63. Neither parent gave any evidence that there had been such a resuscitative shake prior to Professor Wyatt coming up with the theory. Even thereafter, the Mother's case is that "as far as I know, I didn't do it." I consider she would most certainly have remembered doing so and she would have told the medical professionals immediately. Her evidence is actually to the contrary. She says in her most recent statement that she cannot remember shaking N either before or after she stopped breathing. All she can say is that she was in a terrible state of panic and shock and cannot really say what happened. She knew of the need for care with a small child. After all, she told me in oral evidence that she thought she had performed her attempts at resuscitation "gently as it was a small child."
64. Perhaps more importantly, however, the Father did not give any evidence at all that the Mother had performed a resuscitative shake. In oral evidence, both tried to suggest that he had run out of the house to the neighbour before the Mother had attempted to revive N but this is flatly contradicted by all their earlier evidence. I have already given the parents' respective accounts of what happened after the collapse. Both said the Father was present during the initial attempts to revive N. After all, why would he run out without seeing whether or not N could be easily revived? The Mother had said that she ran out immediately after him. He said that the Mother came with him. They both arrived at the neighbour's house before Mr D opened the door. I accept Mr D's evidence that he was in the living room downstairs and there was not any significant delay in him doing so. There simply was no opportunity for the Mother to perform any resuscitative shake that the Father would not have seen.
65. This is, in my view, entirely fatal to Professor Wyatt's theory but I consider I can go further than that. I accept that ALTE incidents do occur and that, although they are extremely rare, they actually happen more often than a shaking injury. Nevertheless, the Dutch study gave symptoms for what had occurred prior to the ALTE incident, namely excessive vomiting (25.5%); common cold (28.2%); feeding problems (19.1%); drowsy/in-alert (7.3%); fever (7.3%); recent vaccination (5.4%); apnea (5.5%); diminished growth (3.6%); excessive crying (2.7%); various illness (4.5%); diverse (14.5%). Professor Wyatt placed significant emphasis on the symptoms of the Coryzal virus that N had been suffering. Yet, the Mother's evidence was that N had no significant symptoms that morning at all. N seemed to have been getting over the virus and had been contented on the morning of 29th June. Although the Father did refer to excessive crying, none of the other symptoms applied other than her having a common cold. The apnea only took place at the time of the collapse itself.
66. I have concluded that Professor Wyatt's alternative theory is inherently improbable. Indeed, even he did not seem to favour it in his discussions with Dr Cartlidge. I have come to the clear conclusion that Dr Cartlidge is correct when he concluded his report as follows:-

"In my opinion, the subdural bleeding, hypoxic-ischemic brain injury and retinal haemorrhages were caused by shaking (with or without an impact against a semi-yielding object) immediately before N became profoundly unwell shortly before 1122 hours on 29th June 2013".

The domestic incident as an issue of credit

67. I will deal briefly with the domestic incident that was alleged to have occurred in the summer of 2012. I heard from two neighbours, namely Mr P D and Ms J M. Both were absolutely clear that there had been a domestic incident between the parents that had concerned them sufficiently that they decided to call the Police.
68. I accept entirely that there are a significant number of differences in the recollection of Mr D and Ms M although I am quite clear that both were witnesses of truth trying their very best to help me. For example, Mr D said in his statement to the Police in July 2013 that he heard the woman shouting "Help Me; Help Me" whereas Ms M remembers "Help; Help; Police." In his written statement, Mr D said he did not hear the man shouting although he told me he heard him shout a couple of times. Ms M said she heard screaming and shouting in Polish from both partners. Ms M said it stopped only after the Police arrived but the Police appear to have said that it was quiet by the time they got there. There was disagreement between Ms M and Mr D as to whether or not Mr D was outside the back of the houses when the incident started or Ms M had to summon him. All this does show the need for caution when considering evidence remembered from an incident that took place over 18 months ago. I also consider it to be a relevant factor when I weigh differences in the recollection of the parents when it comes to the incident on 29th June 2013.
69. There is though no doubt that both Mr D and Ms M were sufficiently concerned to telephone the Police. Citizens do not do that unless there is something pretty serious happening. I am satisfied they heard shouting at least by the Mother and that it was a family argument. They were concerned for her safety.
70. The parents, however, deny this. They say that the Mother was on her computer Skyping her mother in Poland. They say there was a fault with the line, requiring the Mother to shout. They say that the Mother was requesting financial help from her mother. They say that she would have used English words such as "help" and "please" to request this assistance. An interpreter was called who told me that it was common for Polish people to use English words in speaking to each other. I accept that this is the case with words such as "football" but I do not consider it likely with "help" and "please" particularly given that the Mother's grasp of English was not great in the summer of 2012.
71. I am quite satisfied that both parents have lied to me about this incident. They were having an argument and the Mother was requesting help from her neighbours. It was sufficiently bad that the neighbours felt they must call the Police. I have already indicated that I do not consider this incident of itself is relevant to whether non-accidental injury was caused to N. It is, however, relevant that the parents were prepared to lie to me about this. It shows that they are prepared to lie to me which means that I have to consider carefully the evidence of both of them as to what happened on the morning of 29th June.

The parents' evidence

72. I have come to the clear but regrettable conclusion that the parents have both lied to me as to what happened on the morning of 29th June. I am far less clear as to what, in fact, was the truth.
73. I have already mentioned fundamental differences between the parents as to the demeanour of N on the morning of 29th June. I do not criticise the parents for not being prepared to accept that the other was lying during skilful cross-examination by Mr Geekie QC for the Local Authority. I do, however, think that it is telling that the parents were not able to speak to each other prior to their Police interviews. They had not had an opportunity to get their story straight. The Mother therefore said that N was fine that morning. The father said she was very unsettled and disturbed.
74. It is right to note that the Father made a number of important corrections to the first account that he had given to the Police on 29th June when he was re-interviewed by the Police on 3rd September. These were concerned with things such as whether or not he put N in a swing that day and whether or not she started to have breathing problems on the sofa or in the pram. He said in the first interview that he could not remember who had picked up N when they realised something was wrong. He corrected this in his second interview to say it was the Mother. He did not, however, change his main account that N was disturbed that morning.

The Mother's evidence

75. It is correct that the Mother has stuck to her story that everything was normal with N on the morning of the 29th June. She told me, however, that she took her out of the pram at the time of the collapse and that the Father was in the living room. She says she told him N was not breathing. She described to me the resuscitation techniques she used clearly and without any difficulty as to her recall of what had occurred. She said she pressed five times on her chest and blew into her mouth five times. She said she thought she did it gently as she knew she was dealing with a vulnerable small child and that she knew heavy compressions could harm the baby. All of this is entirely inconsistent with a shake following a collapse in an attempt to resuscitate.
76. She was then taken through the Father's interview with the Police by Mr Geekie. She said that the sentence that the baby was crying all the time that morning was not true. She said she did not hear the baby crying when she took the rubbish out. She didn't see the Father pick N up. She didn't hear the next heavy cry described by the Father. She denied the Father's statement that she picked the baby up, saying she did not have the baby from 9am to 11am. I have to say that I have been troubled by all of this, particularly given that it is accepted that the Mother was the main carer for N in general.
77. She denied the statement of the Father that she had prepared milk for N. I note, however, that P D, the ambulance man had noted that he was told by the Mother that "fed @11 am". Whilst I accept that he commented on the language barrier, this is another inconsistency in the Mother's evidence. She denied seeing the Father with N in his hands. She said they did talk after the incident but didn't get into details as they were terrified for N and V. I can only assume from this that she is referring to the time after the collapse but before the Father went to the neighbour. I would have expected there to be at least some discussion as to the dreadful situation in which they found themselves. She then said that she might have been preparing some milk for V but I reject that. She postulated that the Father may have thought there was a loud cry when it wasn't. I don't find this at all convincing.
78. She denied that she was trying to hide the truth but I am quite satisfied that she has not told me the truth as to what happened. She then said that she could not say if the Father was with her when she picked N up but she had clearly indicated earlier that he was. She said that she thought he ran to a neighbour but added that, when she saw that N had stopped breathing, she told the Father that N was not breathing and he then ran out. I consider it is inconceivable that this would have been before she had picked the baby up. She then added that he had gone by the time she was resuscitating N but this was not her case in her written evidence where she makes it pretty clear that the Father ran to the neighbour after she took N in her arms and started to resuscitate her on the sofa by breathing into her mouth. The Father had said in his first Police interview that they had had a conversation after N collapsed. At first, she told me she did not remember this conversation. She then said it definitely had not taken place. I regret to say that I have come to the conclusion that she was lying to me in an attempt to explain why the Father would not have seen any resuscitative shake.

The Father's evidence

79. I have already indicated that I have found much of the Mother's evidence to be unsatisfactory in relation to what happened on the morning. I have come to exactly the same conclusion in relation to the Father's evidence.
80. Whilst he did repeat his evidence to the effect that N had been very unsettled that morning, he was less sure when cross-examined by Mr Geekie saying that, from what he remembered, there was more than one occasion of crying but everything was getting mixed up in his mind and he was getting confused. He then said he could not remember if the bottle that had been made up was for N or V. This was flatly contrary to his earlier evidence. I have concluded it was in an attempt to cover for the Mother's different story. He then said that it was his perception that N was very difficult to settle and was crying a lot that morning. Again, I find that use of the word "perception" was an attempt to cover up the differences in their stories.
81. He was asked why the Mother said in her Police interview that he was very scared of handling babies and that he wouldn't handle V until about five months before the incident. He said this was not correct and that it was only for about two months after her birth. He did accept that, prior to the incident, he tried to take N as little as possible as, he said, she had two mothers (C and the Mother) and that was enough. Indeed, he told me he only remembered feeding her once. He had not changed her nappy and had not bathed her. He thought he remembered one occasion previously when he had settled her when crying. If correct, I do not understand why he was taking virtually all the responsibility that morning, particularly if N was so difficult and distressed.
82. He repeated that he heard four heavy cries that morning. The last was the loudest and he would not forget it. If all this is true, it is almost as if the parents were in different households that morning. He was reminded that he said in his second Police interview that they both ran to the baby when she cried out the very last time and that the Mother picked her up. I find that he is correct in this. He added that he did not think he would pick N up rapidly as he was very careful.
83. In my view, this last point is fatal to the submission made to me by the Guardian. She argued, via Mr Locke that the Father's response to the Police that "it could have been when we were coming to her when she was crying and we quickly took her out from the pram" might explain how the injuries happened. I simply do not accept that this could account for the injuries in an accidental way. If so, numerous children would be injured. I do entirely accept that the shake may have happened following removal from the pram after a prolonged bout of crying.

The differences between the parents

84. It follows that there remain a significant number of real differences between the parents:-

(a) The Father says he saw the Mother try to settle the baby. The Mother says she did not do so.

(b) The Father says the Mother saw him try to settle the baby. The Mother says she did not do so.

(c) The Father says there was constant crying with four heavy cries. The Mother says the baby was settled other than a single incident of a "normal" cry when she was hanging out washing but the Father managed to settle N by the time she had returned.

(d) The Father says milk was prepared. The Mother says it was not.

85. I consider that these differences are not innocent differences. They cannot be put down to language difficulties. They arise because neither parent is telling me the truth as to what happened that morning.

My findings of fact

86. On the balance of probabilities, I consider that N was far more difficult to settle than the Mother is prepared to admit. I find that the Father was far more accurate about that. It may be that he was undertaking more of the care that morning than normal, perhaps to leave the Mother free to do the washing and tidy up but I equally find that the Mother was doing more than she is prepared to admit. I find that she did prepare a feed for N at around 11am and there was an attempt to feed her then. I find that this did not settle N and she continued to cry and scream. She would have been red in the face at the time, as both parents report.
87. At around 1120, one of these two parents snapped. It was a momentary loss of control that was totally out of character for both of them. The parent who lost control shook N violently. It may have been for a very short period but, as the doctors agree, the other parent would have realised that this was an abusive shake and had caused terrible harm to N. Her head would have snapped backwards and forwards causing the terrible injuries she now has.
88. I am quite unable to say which parent did this. Both have lied to me. One has attempted to cover for the other as I am sure that the innocent parent knows exactly what happened. It was a small house and I find that the shake happened after the Mother returned from putting out the rubbish. She herself made this absolutely clear at Paragraph 54 of her first statement in these proceedings. It follows that both parents were present and cannot have failed to know what happened.
89. I am not prepared to find, as the Local Authority tentatively suggested, that the Father was the perpetrator. I accept that, on his account, he was undertaking most of the handling but I consider this may be an attempt to cover for the Mother as I would have expected her to do more than either of them has admitted and I find she was involved in an attempt to feed N around 11 am. I accept that the Father has had less experience of handling an infant but I am struck by the fact that he has been more honest to me than the Mother about the difficulties faced that morning. In short, I cannot choose between them. One of them has caused these injuries and the other knows which one. Both therefore remain in the pool of perpetrators and, crucially, it must have been one or other of them, given that I have rejected the resuscitative shake.
90. Moreover, it also follows that there has been a failure to protect by the innocent parent. I accept entirely that there was no failure to protect prior to the shaking incident. These parents were ostensibly good parents and one would not have had any cause to prevent the other from handling either V or N, even taking into account the Father's earlier nervousness. There is a failure to protect, however, in the refusal to tell the truth either to the medical professionals at the time or to this court. The failure to tell the medical professionals could have harmed N further, although it did not do so as a matter of fact. The failure to tell me and pretend that nothing untoward happened protects a carer who has done something very wrong and makes it less likely that the court will find the truth and be able to protect V or any future baby of these parents.
91. This is a terrible shame for V and for N as well as for these parents. I do not believe that either of these parents is a bad or wicked person. They both love V deeply. Neither would set out to harm a child. One of them just snapped.
92. It is for this reason that I cannot accept the Guardian's submission that she cannot see any motive or reason which might have led to these parents behaving in this way. I accept that they otherwise offer patient and appropriate handling of their child but that is not the point. It was a straightforward momentary loss of control, although it should not be thought that I am condoning what happened in saying this.
93. I accept all Mr Tillyard QC's submissions that the Mother is a kind and considerate mother who has, in every respect other than in relation to this incident, demonstrated that she is able to place the needs of a child before her own. She is a child focussed carer with a nurturing nature and she had a strong attachment in relation to N as well as V. Her contact with V since July 2013 has been of an excellent quality. V has always appeared to be comfortable and at ease as well as safe and secure with her. She has demonstrated considerable ability as a mother and carer.
94. Equally, I have heard nothing of significance to the detriment of the Father other than in relation to this incident. He was not as confident a carer for children but he has shown love, care and responsibility during contact. He displayed appropriate emotion to me during his evidence and is clearly not a bad or evil man.

Threshold

95. Both the Guardian and the Local Authority urged me to find that the threshold is established assuming I find there was an inflicted injury as opposed to a resuscitative shake.
96. Mr Tillyard QC and Mr Jones for the parents accept that, as a matter of law, I am entitled to so find in these circumstances given that the parents were caring for N. The perpetrator was one of these two parents and it could not be anyone else. N undoubtedly suffered significant harm and, taking the most obvious example, if V was a baby of only six weeks, she would undoubtedly be at risk of significant harm.
97. Mr Tillyard QC and Mr Jones urge me, however, to reject threshold on a number of bases, namely that N was not their child whereas V is; the findings of fact I have made as to their caring history; and the fact that V is not a baby of six weeks of age. They remind me that she is nearly two and a half. They say that it would not be likely that she would be shaken or, if she was, that it would do her any significant harm.
98. I have decided that the submissions of the Local Authority and the Guardian are correct in this regard. A child in the household has suffered very significant harm at the hands of one of these parents. The other has refused to tell me what has happened. I have no expert evidence as to the likely effect on a two and a half year old of a momentary loss of control by a carer in the face of a similar problem arising in the future. The factual matrix as I have found it to be leads inexorably to a finding that a child in the same household as these parents is at risk of significant harm given what happened to N. I remind myself that one parent has lost control to such a devastating effect and the other is prepared to hide the truth, which is relevant to future protection. I accept the submissions of Mr Geekie in this regard.
99. I entirely accept that this does not necessarily lead to a care order in relation to V. It will depend on what is in her best interests. I do, however, consider that it is absolutely essential that the parents reflect with great care on what I have said. It is undoubtedly in the interests of V as well as their interests to come clean and tell the court what really happened on that June morning. I urge them to do so without any further delay. The court will then find it much easier to decide what is in the long term interests of V. Without such honesty, it will be far more difficult to be sure that V can be safe in the future.