England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NOTTINGHAM DISTRICT REGISTRY

		21 March 2014

1. Shortly after 6.30 in the evening on 4^th June last year a mother dialled 999 from her home in N.... She told the operator "my nine month old son has just rolled off the bed and he's vomiting and he's not responding". The mother is TW. I shall refer to her in this judgment as "the mother". Her nine month old son is BG. He was born on 3^rd September 2012. I shall refer to him as B. DG is B's father. He claims to have seen what happened. I shall refer to him as "the father".
2. It was apparent to the experienced paramedics who were on the scene very quickly that B was seriously ill. He was rushed to hospital in Lincoln. Later that evening B was transferred to the QMC hospital in Nottingham and underwent emergency surgery by way of a left frontal craniotomy. It is agreed medical evidence that operative and radiological findings indicate that B had a significant head injury in that there were bilateral chronic subdural haematoma as well as evidence of an acute subdural bleed. On 5^th June an ophthalmic registrar observed that B had sustained multiple retinal haemorrhages.
3. The first paramedic to arrive at the family home felt that the extent of injury sustained by B could not be accounted for by a simple fall from a bed onto a carpeted floor. He was also concerned at the apparent lack of emotion displayed by the mother when he attended at the scene. He therefore made a safeguarding referral. The police quickly became involved. The parents were arrested and interviewed. Care proceedings were issued by Nottinghamshire County Council. It was asserted in the C110 that B's injuries were not consistent with a fall from a bed onto a carpeted floor but were consistent with non-accidental injury. At the first hearing of the care proceedings on 27^th June an interim care order was made. The parents neither consented to nor opposed the making of that order. A fact-finding hearing was directed to try to determine how B came by his injuries. This is my reserved judgment of that fact-finding hearing.
4. At the outset of the hearing NCC set out to prove that whilst in the care of his parents B suffered bilateral chronic subdural haematomas, an acute L sided subdural haematoma causing neurological disturbance and deterioration, hypoxic-ischaemic brain injury and bilateral, multi-layered retinal bleeding including a R premacular fold and multiple peri-papillary haemorrhages. Findings were therefore sought as follows:

i. The bilateral chronic subdural haematomas were likely to have been caused by an earlier inflicted injury which occurred several weeks or more before 4^th June 2013 for which no account or explanation has been provided by either of the parents.

ii. The acute L sided subdural haematoma was likely to have been caused on 4^th June 2013 and was likely to have been caused by a further non-accidental inflicted injury for which no consistent account or explanation has been provided by either of the parents.

iii. The most likely cause of any inflicted injury caused to B was shaking, with or without an impact with a semi-yielding object.

iv. The retinal bleeding was most likely to have been caused by shaking.

v. The only people who cared for B during the period in which he suffered the injuries, apart from short or insignificant periods, were the parents, and neither can be exculpated as potential perpetrators of the injuries.

5. At the conclusion of the evidence Miss Isaacs QC for NCC stated that the local authority no longer sought a finding that the earlier subdural bleeding was caused non-accidentally. It is accepted by NCC that the earlier subdural bleeding was benign, probably birth related, acute bleeding which then evolved into the chronic subdural effusion observed by Dr Stewart-Smith as the reddish-brown blood evacuated during the craniotomy and as confirmed by Mr Richards in his review of the neurosurgical procedure and by Dr Jaspan in his review of the imaging. This is a significant concession, properly made on the evidence that the Court heard. The injuries sustained by B on 4^th June now stand in isolation rather than as a repeated or second assault. Having made this concession NCC now seek 2 findings, as follows:

i. B suffered acute subdural bleeding, hypoxic-ischaemic brain injury and retinal bleeding on 4^th June 2013 caused by a non-accidental injury for which no consistent account or explanation has been provided by either of the parents.

ii. the most likely mechanism of the injuries caused to B was shaking, with or without an impact with a semi-yielding object.

The legal approach.
6. There is no dispute as to the legal framework applicable in a fact-finding case such as this. I have been helpfully provided with written submissions and a bundle of the relevant authorities. This is of course familiar territory.

i. The legal burden of establishing the existence of the threshold conditions in s.31 (2) CA 1989 rests on NCC as the local authority applying for the care order. I remind myself that it is for NCC to establish that the injuries sustained by B on 4^th June were non-accidental and that it is not for the parents to prove an innocent explanation for them.

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

iii. In considering the standard of proof the court should apply the binary system confirmed in Re B (Children) [2008] UKHL 35, namely that – "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" (Lord Hoffmann at para [2]).

iv. Given the seriousness of a finding that a parent has inflicted non-accidental injury to its child there is a clear public interest in the Court making such a finding where on the evidence it can do so or exculpating an innocent parent where on the evidence it can properly do so. The Court should not however "strain" the evidence in an attempt to identify the perpetrator of injury. If it is clear that identification of the perpetrator is not possible and the judge remains genuinely uncertain then the judge should reach that conclusion.

v. the court must decide whether the threshold criteria are proved on the facts proved on the balance of probability before it – suspicion is not sufficient Re M and R (Child Abuse: Evidence) [1996] 2 FLR195, Re B and W (Threshold Criteria) [1999] 2 FLR 933.

vi. In Re S-B [2009] UKSC 17 the Supreme Court ruled that it is not appropriate to seek to apportion responsibility as between possible perpetrators and to suggest that one is more likely to be the perpetrator if it has not proved possible to determine which one of them was the perpetrator on the balance of probabilities. The correct test for whether or not a person is a possible perpetrator is the "real possibility test" and not whether the person can be "excluded" as a perpetrator: so the test is does the evidence establish that there is a likelihood or real possibility that a given person perpetrated the injuries in question?

vii. where the Court is satisfied that a child has suffered significant harm the threshold conditions will be met in relation to that child even though the Court is unable to identify who within the pool of possible perpetrators inflicted the harm.

viii. I remind myself of the case of In re U: ReB [2004] 2 FLR 263 and the guidance given at para 23 by Dame Elizabeth Butler-Sloss P and to other authorities which elaborate on the approach to be taken to expert evidence . In particular I remind myself that properly reasoned expert evidence carries considerable weight but it is for me to make the final decision as to non-accidental injury having regard to all of the evidence and not simply to the medical evidence.

ix. As was said in Re T [2004] 2 FLR 838 "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence, and exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."

x. Finally when considering whether a witness may have lied either in a witness statement or to the police or in Court I take into account by way of self-direction that lies do not of themselves prove guilt but may support adverse findings if there is no reasonable explanation for those lies. `

The hearing
7. I heard from the 3 paramedics who attended the scene who had each made a statement to the police Geoffrey Gane, Robert Fletcher and Ian Cowley. Evidence was given by Dr Giannoladis who saw the retinal haemorrhages, Dr Cartlidge, Consultant Paediatrician, Mrs Tambe, Consultant Ophthalmologist,

Mr Newman Consultant Paediatric Ophthalmologist, Mr Richards, Consultant Paediatric Neurosurgeon, Professor Pope whose special expertise lies in the clinical diagnosis and classification of Inherited Diseases of Connective Tissues, from both maternal and paternal grandmothers, AW and SC and from the parents themselves.

The medical evidence
8. I summarise and analyse the position as follows. On 4^th June 2013 B already had a chronic subdural haemorrhage. It is no longer suggested by NCC that this was an old inflicted injury. The evidence of significant head swelling would indicate the strong possibility that this was a birth injury. A significant percentage of babies are born with subdural haemorrhages. The father has Ehlers Danlos Syndrome ('EDS') type III. B has probably inherited his father's EDS type III. EDS is a disorder, or more accurately a series of disorders of the connective tissues, including collagen. Collagen is a major component of the blood vessel walls, which are weaker in a person with EDS. While EDS type IV affects primarily the larger blood vessels, EDS type III affects capillaries and the smaller veins and arteries. That will predispose a sufferer of EDS type III to easy bleeding and easy rupturing of those smaller blood vessels. There is a possibility therefore that B would be more likely to suffer birth related subdural haemorrhages than would be the case if he was not susceptible by reason of EDS type III to bleed more easily. Dr Cartlidge carried out the paediatric overview. Giving evidence he was obviously uncomfortable with the Court reaching a finding of non-accidental injury solely on the science of the case, notwithstanding the presence of retinal haemorrhages. He observed photographs of a well-cared for, well nourished baby with no other indicators of physical abuse as are often seen: thus no fractures, no bruises, no injury to the structure of the neck, no injury to the spinal chord, no metaphyseal injuries, no signs of neglect or failure to thrive. Mr Richards, looking at the neurological evidence alone viewed B's injuries as consistent with a birth-related subdural haemorrhage and an accidental fall causing an acute rebleed into the chronic subdural haemorrhage. He confirmed in his evidence that it would not be unusual for the reported fall from the bed to cause the problems B had if there was a pre-existing chronic subdural haematoma and potentially fragile vessels in the subdural space, were stretched more than normal by the fluid in the subdural space. Moreover B's reported response to the fall, initially crying and then deteriorating suggested that whilst the primary injury – the fall from the bed onto the carpet – was not severe the secondary effects of a rebleed as a consequence of the fall were. This is an important finding since the father in giving his account would not have been aware of the science. Dr Cartlidge agreed that the presence of chronic subdural effusions made children more vulnerable to acute subdural haemorrhages and that if the Court accepted that B probably had EDS type III that too would make him more vulnerable to subdural bleeding.
9. The significant evidence supporting the case of non-accidental injury comes from the presence of retinal haemorrhages. There is an issue as to the presence of a macular fold. The first person to view B's eyes was Dr Giannoladis. He examined B's eyes on 5^th June. He observed multiple bilateral retinal haemorrhages. Dr Giannoladis was a registrar and he followed good practice in asking for a second opinion from a consultant. This it was that Dr Tambe observed B's eyes on the 7^th June. She noted in addition to multiple retinal haemorrhages in multiple layers extending to the periphery of the retina in both eyes, but also a pre-macular fold in the R eye and some optic disc swelling. She noted a clear vitreous in both eyes. Mr Newman concluded that the reason for Dr Giannouladis' failure to identify the macular fold or the optic disc swelling could be attributed to his lack of experience and expertise in this area, something which he conceded in his evidence. As a registrar he had little experience of examining children's retinas, hence the good practice of seeking a second opinion from the Consultant. I acknowledge that pre-macular folds are rare and were infrequently seen by Dr Tambe and that it would be unusual but possible for an experienced ophthalmologist to mistake a pre macular fold where there was a lot of haemorrhage obscuring the view as here. On balance however I find that there was a premacular fold as described by Dr Tambe which Dr Giannoladis failed to spot. That finding is not critical however. Mr Newman was of the opinion that B's retinal findings were consistent with and strongly suggestive of a shaking injury. He doubted that the damage to B's retina could result from a short fall from a bed. In evidence Mr Newman confirmed that the court must consider all of the evidence; the ophthalmic findings alone did not "trump" everything else. He conceded there were limits to current ophthalmological understanding such as the causes of retinal haemorrhages during birth. Children who suffer low impact falls are not routinely scanned for signs of retinal damage. I got the impression that Mr Newman might have been less strong in his opinion if there had been haemorrhages in just one of B's eyes. Similarly Dr Cartlidge who talked of his involvement in a somewhat similar case of a low level fall which the court had found not to amount to non accidental injury, was unable to recollect whether the retinal damage was bilateral. Mr Newman accepted that not everything in medicine was explained and that here the presence of pre-existing chronic subdural haematomas, raised intracranial pressure and the possible diagnosis of EDS type III made it difficult to say with certainty that this was a non- accidental injury. What all this means is simply this. The Court has to examine the evidence of the parents as to what they say happened alongside the medical evidence when determining the question as to whether the local authority has proved its case.
The parents
10. As I have already observed B did not have any of the other injuries usually associated with inflicted abuse which in the opinion of Dr Cartlidge are seen in 70-80% of cases. Moreover the family were unknown to social services. B had been seen many times by health professionals and nothing about his care or appearance caused any concern. The noted increase in head circumference can be attributed to the chronic subdural haemorrhages. The parents produced a number of photographs of B revealing a happy well nourished baby. Like a lot of new born babies he was an oft-photographed child. Neither parent has any previous criminal convictions. They have been together for 12 years. There is no evidence of domestic violence within their relationship. There is no evidence as one sometimes finds that the arrival of a child was resented by one or either of the parents or imposed unwanted or onerous childcare duties. The grandmothers saw B frequently. They were understandably supportive of the mother and the father. I did not get the impression that they were blindly supportive. Given the serious injury sustained by B had they been privy to relevant information which might have identified a potential perpetrator of abuse they would have done so. Moreover nothing has emerged since proceedings have begun in supervised contact that has revealed other than a caring and loving relationship between B and his parents.
11. NCC alleges and invites me to find as a fact that B was shaken with sufficient force by one or other of his parents so as to cause the acute subdural rebleed, the retinal injuries and also possibly came into impact with a semi-yielding object. If that happened it logically follows that the parents have covered up such an event by inventing the account of a fall from the bed and have conspired together to support that account. It is not easy to do so given the number of separate people to whom an account has been given. From the account given by the mother over the phone to the emergency services to the father's accounts at the house and in hospital and the accounts given by both to the police when under caution there has been a consistency of account. The forensic nature of the hearing before me is such that quite properly the evidence of both parents was tested with vigour in cross-examination by Miss Isaacs QC. In her closing submissions I am invited to draw certain adverse conclusions which it is submitted should lead me, when viewed with the other evidence in the case to make the findings contended for by the local authority. I shall set out some of the principal submissions and deal with each in turn. I do so and make this important caveat. Matters of credibility – my assessment of the truthfulness of witnesses is ultimately for me to make and I only adopt comment on the evidence by any of the advocates in the oral and written submissions where having carried out my own assessment I agree with it.
Mother's demeanour
12. One of the concerns of the paramedics which prompted the safeguarding referral was the flat unemotional response of the mother. The recording of the 999 call was played in Court. The mother at that time exhibited an appropriate level of concern and emotion. It is surprising that she did not do so once the paramedics arrived and in particular that she at no time went upstairs to see what was happening. She had of course been with B throughout her phone call to the emergency services. She would have sensed how ill B was. Her explanation in Court before me was that she shut down emotionally, not wanting to see that her baby had died or perhaps be there when he did. This was as I judge it her way of protecting herself from something she did not think she could face. The paramedics conceded, as one might expect, that people deal with traumatic events in different ways. There is nothing about the mother's demeanour on the 4^th June which proves anything adverse to the mother or enables me to conclude that she has not been truthful about the events of that evening.
The mother's darts match
13. Two points are taken. The mother failed to tell the police in interview that she should have been playing darts later in the evening. I find that neither surprising nor sinister. She was being asked to recollect the events of that day. Why would she necessarily mention something which she did not do which would only have happened after the injury sustained by B. Secondly she gave no explanation in her text message to the team captain as to why she could not play darts that night. I can understand why. She was protecting herself from a reality she did not want to confront namely that her son was seriously ill.
The delayed appearance at the hospital
14. Some perhaps most parents would have rushed to the hospital following the ambulance. The mother's response was consistent with her lack of demeanour at the house. I did not hold that against her and see no rational basis for drawing an adverse conclusion here.
Inconsistent or vague recollections of key events
15. These are set out on page 20 and 21 of the NCC's closing submissions. I cannot see how the mother's account of whether she was at work on the Monday 3^rd weakens her evidence about the events on the 4^th even if it conflicts with the evidence of the father. Mr Feehan QC poured a certain amount of scorn at the submissions of the local authority on these points. I agree with him. I am puzzled as to why the father mentioned for the first time leaving the house in the afternoon of the 4^th but struggle to see anything sinister arising from this since it cannot relate directly to the account of what happened later when B rolled off the bed. I equally see nothing sinister in the explanation the father gave about preparing B for his bath.
The mother's mental health
16. It is clear that the mother has experienced difficulties with her mental health in the past. She has always sought help. Efforts were made in cross-examination of the father to suggest that the mother was not always frank with him. Neither parent struck me as being particularly emotionally intelligent or attuned to each other's difficulties. It would be wholly wrong to stigmatise those with mental health difficulties as somehow more likely to injure a child.

The local authority did not go that far. At no point was it directly put to the mother that she had injured her son as alleged in the threshold finding which I am invited to make. The evidence as to the mother's mental health difficulties falls short of providing some form of trigger for the mother to suddenly behave in a violent way to her son.

Conclusion
17. The medical evidence is not conclusive. It has its limitations. There are clear uncertainties arising from the combination of pre-existing chronic subdural haemorrhages, the possibility of an acute rebleed from a low impact fall and B's likely vascular fragility as a result of EDS type III. The father's account is consistent with a reflex anoxic episode, a fact he could not possibly have known. The account of the fall has been consistent throughout. It fits with the crime scene photographs which again the parties would not have seen until they were interviewed by which time the account of the fall had been given a number of times. The father gave his evidence in a straight-forward uncomplicated way. I formed the impression that he was telling me the truth of what happened. There are no features of this case, save for the injuries themselves which would raise suspicion against these parents. The evidence of the parents was fairly but vigorously tested in cross-examination. If this had been a concocted account clear fault lines would have opened up. They did not do so. I therefore conclude that NCC has failed to discharge the burden of proving the 2 findings that it seeks. Those findings form the only basis for the care proceedings. I will therefore discharge the existing interim order.
18. I am very grateful to all Counsel for the way in which the hearing before me was conducted well within the time limits set and for the written skeleton submissions. This case once again exemplifies why complex cases such as these with very far reaching consequences for parents and child alike benefit from the skills of the experienced lawyers who conduct them. I would also like to thank all the medical experts for the clear explanations given of medical matters some of which were not straightforward. None sought to stray beyond his obligation to assist the Court rather than side with one party or another.

21.3.2014

HHJ LEA