West Sussex County Council v G & Ors

Introduction Page 2

Synopsis Page 5

The medical framework Page 8

Factors in the father’s medical history. Page 23

The evidence in the case Page 24

The Law Page 55

Why the application for withdrawal must succeed Page 60

CONCLUSION Page 67

This is the case of L, a baby who was born in 2014, now on his way to his first birthday. L’s parents are G and N. As I write he has been returned from foster-care to the care of his mother. His Guardian is Jonathon Shone.

Miss Gemma Taylor and Miss Hollingsworth represent the Local Authority, Mr Storey QC and Mr Smith the mother, Miss Crowley and Miss Jenkins the father and Miss McKenna and Miss Harbour represent L through his Guardian.

This is an application under FPR 2010 r 29.4 by West Sussex County Council for permission to withdraw their application for a care order in respect of L which was issued on 6^th November 2014. L’s welfare in care proceedings is my paramount consideration. It must also be considered before granting leave in a case of such significance for him and his family. I have taken stock of all that I have read and heard. The granting of leave is not a rubber-stamping exercise.

The case began its life on the basis that L had suffered significant harm, and the indications from the medical evidence advanced were that this was a shaken baby case for which there was no explanation, but in which the parents and their mothers were in the pool of possible perpetrators.

The local authority must as a matter of law prove their case to the requisite standard, the balance of probabilities, and in a case such as this, the whole of the evidence, including that of the parents and other lay witnesses as well as the doctors and experts concerned would fall to be considered to provide the court with a wide over-view of the relevant facts and matters upon which to evaluate the evidential picture and base its conclusions. The situation in this case is that the extensive medical evidence does not come up to proof and the threshold criteria are not met. Neither L’s parents nor anyone in his family harmed him and there is no available route on all the evidence to come to any different conclusion.

All parties agree to the application, but all parties also agree that a judgment in the case is an essential step, given what has transpired during the course of this case, so that the matters which have emerged can be a matter of record. Things went wrong for L and also for his family which cannot be put right.

I have had no hesitation in granting the application, and I shall give my reasons for doing so in full. A judgment is equally essential to map out the progress of L’s case, the evidential gaps which have become so clear with hindsight and the complex but ultimately unresolved issues which have led the case into unknown territory.

I am satisfied that on the evidence I have heard, there was an incomplete evidence base, that L was an “incompletely investigated child” and that as Mr Jayamohan who was instructed in this matter stated: “ The evidence we have is insufficient for us to be as certain about something as we can be in other cases”.

Western Sussex Hospitals NHS Foundation Trust was invited to hear the submissions of the parties and my judgment. Mr Sachdeva QC appeared on 29^th June for the Trust. They received the invitation to attend on very short notice and prior to the hearing had made it very clear that they wished to have the opportunity to consider all the relevant evidence, the oral evidence, have the opportunity to investigate the matter for their own benefit and understanding and make informed submissions to the court.

At the hearing Mr Sachdeva applied on behalf of the Trust to be joined as party to the proceedings, for the court to direct a freestanding Human Rights Application to be issued by the parents, and for disclosure. It was opposed by the parents and the Guardian, the local authority’s position being that if the Court were to make the findings sought on behalf of the parents it should accede to the Trust’s application to be joined.. The experts’ reports had already been supplied to Dr Kabole pursuant to a direction of 3^rd March 2015 and I gave a judgment on the application on that day, dismissing the application. They wished to be joined in essence to defend the factual issues raised in this case, but in my judgment that was inappropriate. They are a matter of fact and record.

This is not a claim in clinical negligence, nor is it an application for damages pursuant to the Human Rights Act 1989. This judgment is focussed upon the care case from which it arises and the specific application for permission to withdraw. I do not know whether ultimately such applications will be made, but this judgment is not supportive of either: it is my duty in what are highly unusual circumstances to record the matters which have given rise to the application to withdraw and to provide my own analysis and conclusions, relevant to the application, of the evidence which has emerged.

In this judgment I will set out in fullest detail what has transpired in this case where the evidence is now closed, bearing in mind that the Trust has already had the expert evidence, and with the expectation that they will have a copy of my judgment and transcript of the evidence.

Last year, in October, L was taken ill whilst in the care of his mother and father. He was admitted to Worthing Hospital on several occasions over a period of days and underwent some tests. The result was that the injuries seen were thought by the team at Worthing to have been non-accidental head injury – a “shaken baby” case. Luckily he appears to have recovered fully from this trauma.

A strategy discussion was held on 5^th November attended by the medical team and social workers, with input from the family GP, on the basis that L was suspected to have suffered non-accidental head injury, and it appears that part of the information (from an unidentified source and without any evidence in support) was that the father was believed to have caused it. The parents were arrested and interviewed that day, and he was placed with his paternal aunt, under an interim care order when he was later discharged from hospital. After a period of time with his aunt, he was placed in foster-care, where he has been ever since, separated from his parents and extended family. On 25^th June 2015 he went back to the care of his mother, having spent over half his life to date with others. L is a little boy who has not been very well, in fact to add to the anxieties about him, he was admitted into hospital with respiratory problems during the course of this hearing, but thankfully has made a good recovery.

L’s case was medically extremely complex. All the experts referred to it as unusual. I heard the case on 15^th 16^th 17^th 18^th 19^th 22^nd 23^rd and 25^th June. On that day, the local authority applied to withdraw the application. The interim care order was discharged and L was returned in joyful circumstances to his family. I indicated that I was minded to grant the application but would need to give a full judgment with my reasons.

Essentially, the evidence of the experts and medical professionals was put to the test over those days, and by the conclusion of the medical evidence it had become clear to all those in this matter, including myself, that the local authority, who must prove their case against the parents, were in a position where it was highly unlikely that the evidence would support findings to the requisite standard against the parents and the threshold criteria would not be met in this single-issue case. I make it plain that there can be no criticism of the fact that the Local Authority issued proceedings here where there was clearly a prima facie case from the time L fell ill on the basis of the medical information which was supplied to them.

Very properly in my judgment, and with exemplary good grace, the Local Authority made their application having taken stock of the evidence available to them at this point in the hearing.

To found the basis for permitting the local authority to withdraw their application, I note the difficulties posed which have arisen in this unique case: some are serious, some perhaps less so, and some only visible with hindsight. There were gaps in the information available to the experts, and gaps in their own expertise as regards being able to come to clear understanding about what happened to L medically. There was, however, less uncertainty amongst the treating clinicians at Worthing Hospital as regards the cause of L’s head injuries at the critical point in time when life-changing decisions were to be made as regards his future, and I have concluded on all the evidence that this is something which requires careful exploration and recording in this judgment.

L’s case and his long separation from the care of his own family will, I hope, contribute to a greater understanding of how the identified omissions which prevailed in this case might be avoided in future, though that may be poor consolation for his family.

I have the weight of the expert evidence in this case as my yardstick to measure the identified omissions: it is difficult to imagine a more experienced and respected array of consultants with specialist knowledge, who have been stretched to and at times beyond their limits, but who have also provided valuable opinion in terms of their views of best practice. The case illustrates the position that there are limits to what can be achieved forensically.

It is important that this judgment is seen as specific to the highly unusual case of L. Hindsight offers the court the opportunity to develop a counsel of perfection, but I am the first to acknowledge that this is unlikely to be achievable and practices vary and will always vary, and may be resource-specific. I can only do the best I can on what I have to go on in this matter with its very unusual features. The information about L which the experts had to go on was undoubtedly insufficient, and that in turn has left the court in the position where it cannot simply bypass their powerful evidence and return without more to the clinical picture available at Worthing Hospital to make findings, because such doubt has been cast upon L’s case as it was dealt with there. The information that there was what now appears to have been a very relevant differential diagnosis in relation to the cause of L’s injuries was available to the hospital, but it was not provided to the Local Authority at the outset of the case. The fact that there was a later differential diagnosis with a recommendation for further investigations related to L’s treatment was not fully conveyed to anyone in this case until the matter got to court.

What follows is no more than a short synopsis of otherwise very dense information.

The mother obtained appropriate ante-natal care. L developed well in utero – he was noted to have a smallish head. L’s birth was by normal vaginal delivery. He had a small head at birth measured at 32cm, between the 0.4 and 2^nd centiles. Everything else was normal.

His progress as a small baby was good. His mother and father cared well for him. Day by day, the quality of his care has been recorded and evidenced. His mother took him to be weighed more often than was required and all the evidence is of exemplary and focussed care being afforded to him throughout. He had his 6 week check on 5^th August but the family GP Dr Hazell was unable to measure his head as the practice had not been supplied with paper tape measures. The evidence has revealed that L’s head circumference was not measured after his birth by either Dr Hazell or by his Health Visitor Gina Ford. This is a baseline measurement which in a case of this kind would have proved very valuable in assessing L’s condition. The Red Book has a pocket at the back where L’s personal paper tape measure for measuring his head circumference would have been kept but he did not have one.

Mother sought medical advice appropriately and had a good working relationship with her GP, the midwife and the health visitor who were pleased with L’s progress. He went to all his checks and the mother had him weighed very regularly, From the photos I have seen he was a delightful, alert and beautiful baby, being cherished by his family.

I preface the following account by saying that at this stage the expert evidence in the case provides a lens of hindsight through which to understand how things might have been seen or done differently. For example, the expert evidence suggests that L as of the 31^st October was presenting as neurologically unwell. I do not intend in this account to employ that lens at this stage to any great extent, preferring to set out the expert evidence in greater detail later.

During the afternoon of 30^th October, L whilst at home went rigid then floppy and held his breath. He became unwell.

In the early hours of Friday 31^st October, the mother sought advice from NHS direct and was told to take him to the GP. At 9.18 in the morning, the mother took L to the surgery to see Dr Kimber with a one-day history of diarrhoea and vomiting in the night. He was examined and the GP felt that this was gastroenteritis, advice was given and the plan was that the GP would see him again if need be.

That evening at 9.40, the parents called the ambulance. L had been sick all day. He was reported as grunting, limp and floppy. It was said that he had been ill since the previous afternoon, crying and vomiting. By the time the ambulance arrived, he was no longer floppy, had vomited but taken a feed afterwards, other signs were normal and he was fully conscious and alert. However he was admitted to A and E at Worthing Hospital at 22.41.

On examination, he was quiet and settled and his observations were stable. On the recent history, he was kept in overnight and given Dioralyte given the view that there were some signs of dehydration. He was seen on 4 occasions during the night with no obvious signs of concern recorded. I note that at just after midnight, he was seen by Dr Phoebe Cooke who recorded in addition the information that earlier when he came round from his period of unresponsiveness his arms shook. He was seen again in the morning at 8.45 to be crying and unsettled.

On the ward round next morning he was attended by Dr Kabole, Consultant Paediatrician at Worthing Hospital. He was alert and hydrated. He was seen again during the day. Mother reported that he did not like being held, which was unusual for him. Although he was seen to be well, the mother was worried in case he had a further episode. He was seen during the day and stayed overnight, and having had a settled night, and been seen to be well and improved, he was discharged home at 4.00 p.m on the 2^nd November. The parents were advised by Dr Kabole that L might take a few days to return to normal.

Later that evening at home L became unwell again and was readmitted. That was despite the advice that he might take a few days to return to normal. Rather than run any risks even with that knowledge, the parents were proactive is raising the alarm. He was seen by Dr Coutinho. He had vomited twice and was sleepy and at 7.00 p.m he had a floppy episode. He had woken up crying and had an arched back, was pale then floppy with shallow breathing and was unresponsive for 5 minutes and then went to sleep, then vomited again. The view was that he had viral gastroenteritis. He was to have a suppository as he had not opened his bowels for 4 days.

On the morning of the 3^rd November, Dr Kabole saw L again on her ward round. He was smiling and active, looking well and there were no abnormal findings. The view was that this was likely to be a viral illness rather than reflux and that the back arching might be due to discomfort from acid and vomiting. The plan was to observe him and then discharge him later that day.

The mother texted the Health Visitor Gina Ford from hospital as she was clearly worried. She asked “surely, if it was a bug, it would have passed by now?”, and also if she knew of any tests or bloods.

At 4.00 p.m he was seen by Dr Cook to be doing well and feeding, and had had no further floppy episodes so he was discharged because all appeared to be normal.

The father called the ambulance again at 19.42. L was reported to have been floppy and rigid for 10 minutes, looking very pale, that his breathing was noisy, and was not responding in his mother’s arms. The ambulance arrived a few minutes later, and on the way to hospital he had two tonic clonic fits and was given oxygen. His consciousness was decreased.

By 20.10 he was again in A and E at Worthing Hospital. On initial examination by Dr Vamvakati, he was mottled, pale with a fast heart rate, and was crying and no longer fitting. The history was that while he was with his father at 19.30 he went rigid with stiff arms, then became pale and unresponsive, and the mother did not think he was breathing. It was reported that he had had a seizure four days before (possibly a reference to one of the floppy episodes) and after then had started to vomit. The father’s own history of a stroke at birth was given.

While he was in A and E he was seen to have further seizure activity with rigid arms and jerking legs and was given an anti-epileptic drug, after which this settled by 9.00 p.m. He was admitted to the High Dependency Unit and was seen to improve. Blood tests were taken which indicated viral rather than bacterial changes, and no sign of serious on-going infection. The plan was for neurological observations and phenytoin to be given if there was any further seizure overnight.

L remained stable overnight and next morning he was irritable and hungry but unwilling to feed. At 9.30, Dr Kabole saw him on her ward round. He was miserable and crying. She explained that his blood tests were normal. She identified the need to liaise with St George’s and Southampton Hospitals as L might need some investigations there in the form of an MRI scan under general anaesthetic.

Imaging of the brain was planned – as well as an EEG and an ECG and an ophthalmic review and screening for metabolic and organic disease. A CT scan was requested, but no MRI scan was readily available. Dr Kabole looked at the alternatives for the MRI scan.

There was no possibility of it being done at either Worthing or Chichester. She spoke to Dr Fallon at St Georges and was advised to get a CT scan as there was no MRI available, and also a lumbar puncture. If L deteriorated, and there was a need for a transfer on clinical grounds, Dr Antonia Clark was on call. The radiologists at Worthing indicated that they were not able to report on the scans and Dr Fallon advised that a second opinion should be sought from the radiologist at St George’s. Dr Kabole then rang neuro-radiology at St George’s, but no paediatric radiologist was available that day and the plan was that she would email a request for a report the next day.

The CT scan was performed at 16.22 on 4^th November. There was and is no specialist paediatric radiologist at Worthing Hospital. Dr Davies and Dr Murray, the two radiologists with an interest in and experience of paediatric radiology were not available that day. Dr Hinchcliffe who reported on the CT scan was not a specialist in the field of paediatric radiology although he does from time to time perform scans on infants. An initial request was made to St Georges to look at the scan.

The notes of the results reported by Dr Hinchcliffe reads:

“Recent posterior right sided parafalcine extra cerebral haematoma extending over vertex. Much smaller amount of blood in a similar position on the left. Probable blood over the posterior tentorium. Vascular like extra cerebral structure overlying the right ,middle cranial fossa extending back to the tentorium raising the possibility of an underlying vascular malformation or cerebral venous thrombosis. Bilateral enlarged extra cerebral spaces (CSF density) over the anterior half of the brain, No cerebral mass or hydrocephalus. Conclusion: Dilated extra cranial spaces with recent extra cranial blood posteriorly particularly on the right. Prominent extra cerebral vascular structure of the right middle cranial fossa”.

The note continues significantly: “Consider the possibilities of NAI cerebral venous thrombosis or AV fistula. Complex scan that would best be reviewed by a specialist paediatric neuro radiologist.” An initial request was made to St George’s to look at the scan. It is clear that more than one possible diagnosis was indicated: three different possibilities were indicated.

In summary, in his report, Dr Alan Sprigg who was instructed with the proceedings reported that results of the CT scan showed:

Unfortunately for L, no MRI scan was undertaken a part of the investigations at Worthing Hospital. This was recognised as needed, attempted but ultimately not followed through by Dr Kabole. She brought to court a document which was not contained in L’s medical records at Worthing, which is a fax which appears to have been sent on the morning of 15^th December 2014 from Dr Phil Rich. He had reviewed the CT scan on 12^th November as requested and recorded his findings and summary. He goes on:

“Regardless of the timing the differential diagnosis for this appearance includes non-accidental head injury. However in this case there is also what appears to be a large thrombosed cortical vein so the possibility of more extensive venous thrombosis as the underlying aetiology needs to be considered. The patient should have an MRI scan and paediatric neurology opinion”.

He was clear that there was a differential diagnosis, non-accidental head injury or alternatively something arising from the presence of the vein.

This recommendation was known to Dr Kabole earlier, because Dr Rich’s secretary read the contents of the fax to her over the phone before it was sent. She does not know exactly when. There is nothing in L’s hospital notes to indicate the recommendations contained in the second opinion.

I have heard Dr Kabole’s reasons why she did not continue in her efforts to obtain the MRI scan for L: in essence she told me that she exercised her clinical judgment, and as L had improved and returned to a well state, she decided not to follow it up.

The consensus of all the reporting experts is that it was indicated and should have been done. This is not a question of hindsight because it was clearly recognised at the time as being necessary. I shall return to this later in the judgment.

L’s blood was taken for testing at 16.45. Dr Cook’s plan was to wait for the formal report on the CT scan and the blood cultures.

Dr Williams, Consultant Haematologist, was instructed in the case and his view was that the tests taken at this time were “basic”. Dr Kabole explained to me that the extended tests would not be done at Worthing, a large quantity of blood would have had to have been taken from L and the blood transported to an appropriate testing centre, but because of the time it would take, the blood would have deteriorated, although a courier could have been used.

At 19.30 that evening a lumbar puncture was performed by Dr Ruffles together with Dr Cook, to obtain cerebrospinal fluid (CSF). This took three attempts. There was no pressure measurement taken, nor were three samples taken, something which I am told is usually done to distinguish between blood already present in the CSF from blood introduced by the needle at the time of the procedure. The analysis of the fluid was returned showing a cell count suggestive of a traumatic tap, not supportive of a raised white cell count ratio which would might be seen in meningitis. The ratio here was 1:2800, higher than the usual ratio of 1:700.

There were assiduous attempts made to contact St George’s by both Dr Cook and later Dr Liyanaschichi that day, 4^th November, who that evening held a discussion with the Neurosurgical team at St George’s Hospital – no acute interventions were recommended, the neurological observations were to continue, and no neurosurgery was thought to be required, so L remained where he was.

On the next day, 5^th November, Dr Ruffles made an entry in the notes. He had communicated with an unidentified specialist neurologist registrar St George’s and the note goes on to record: “awaiting discussion with on-call neurological consultant”. I take the consultant to be Dr Rich who later reported, but I cannot be wholly sure as neither has given evidence.

He wrote that the CT scan showed “bilateral subdural of differing ages, strongly suggestive of NAI”. The record reads: “Extra cerebral vascular structure unlikely to be of clinical significance”. It is important to highlight this recording at this stage. I am not clear still who it was that Dr Ruffles spoke to at St George’s. This recorded view of the significance of the vessel was certainly the view which was provided at the strategy discussion later that day, despite the fact it did not coincide with the complex profile and differential diagnosis available from Dr Hinchcliffe and also Dr Murray.

Dr Kabole saw L on her ward round at 9.55. Given the interpretation of the scan showing subdural haemorrhage of different ages, she told the parents that the most common cause was shaking and explained that more investigations were needed. A skeletal survey was recommended alongside the eye examination. She told them she was going to liaise further with St George’s for a further opinion on the unusual vein and alerted them to the fact that social services would need to be alerted.

Later that day, Dr Pauline Shute, Consultant Paediatrician who had just reviewed the CT scan with Dr Murray the radiologist. It is recorded that Dr Murray felt that NAI was “very likely”. However Dr Murray who gave evidence did not accept that she had said that at all. She thought this must have been Dr Shute’s interpretation of what she had said, and she told me in her evidence, very frankly, that she felt she was being pushed into saying that it was NAI. She did not state by whom.

The plan at this point was to undertake clotting studies, an eye examination, a skeletal survey and look into metabolic conditions causing subdural haemorrhage.

L then underwent an ophthalmological examination by a Dr Baddeley at 10.15, which revealed blot haemorrhages in all four quadrants in both eyes, possibly with engorged optic discs, though it was difficult to see this. Later another a Consultant saw L and they did not note the fresher and older haemorrhages noted by Dr Baddeley. . Drawings were made at the time, which have been accepted by Mr Morrison who reported them to be of high quality, but although non-accidental injury was suspected, no Retcam images were taken. A skeletal survey that day was normal.

In the health visitor chronology of significant events, at 11.15 on the morning of 5^th November, the entry reads: “Telephone call from social services states…L is in hospital, suspected shaken baby syndrome, believed to have been caused by his father”. I remain unclear as to who it was who first suggested that they believed that the father had caused L’s injuries or upon what evidence such a wild assumption was based. There is and indeed was a total absence of evidence pointing towards this grave statement as regards the father’s responsibility and this is an extremely unfortunate note, and a wholly unjustified assumption, however someone at this stage clearly felt that they had enough to go on to blame the father for what would likely have amounted to a criminal offence if proven. This was even more astonishing as there had been no professionals’ discussion between social services and the hospital to consider the case from a medical point of view and the parents had not been spoken to save in relation to L, his condition and his treatment.

Dr Kabole met with parents that day who were clear that they had not shaken L. She was asked why nothing had been done when he came in on two previous occasions, and told the parents that on the history of vomiting and floppy episodes scans were not indicated then, and gave them further information about L’s medical condition.

On that day, the 5^th November, a strategy discussion was held at 4.00 p.m. This is the subject of serious contention and I shall return to it later in this judgment. The information given to the meeting, and the exclusion of the parents from the meeting are at the heart of the concerns.

What the evidence I have heard shows is this: Dr Hinchcliffe’s findings were available prior to the meeting and I refer to the recording above, significantly, he told me in cross-examination that there was a differential diagnosis available from his findings which was clearly reported.

Further he was clear in his report and his evidence that there were enlarged extra-axial spaces away from fluid areas.

Further, Dr Murray had by this time reviewed the scan, and she was clear about two things. She had been confounded by it at the time, and was not saying that non-accidental head injury was the likely cause. She like Dr Hinchcliffe gave a differential diagnosis which she subsequently noted on 17^th November but which was misinterpreted on her account by Dr Shute in the notes at the time she visited L on 5^th November.

It is also significant that Dr Murray when she was asked to report on the scan on 17^th November was not provided with the report from St George’s, which by that time- was available, but was not sent to Worthing hospital until 15^th December 2014. That might have contributed to her review, although Dr Sprigg did not see this lack of cross-referral as unusual.

Dr Kabole who had the report of Dr Hinchcliffe by the time of the meeting was aware that there was a differential diagnosis for the findings. She was also armed with the preliminary view from the registrar at St George’s recorded in the notes by Dr Ruffles highlighting non-accidental injury and dismissing the significance of the abnormal vein. She was asked in evidence about the significance of extra-axial spaces creating vulnerability to rupture of veins travelling a greater distance across the subdural space. She said she understood this phenomenon, as she did the fact that vascular malformations are one of the things which are looked for in cases of subdural bleeding. However it appears as though no mention of any possible differential diagnosis was made at that meeting. The scan was referred to in the notes of the meeting as follows: “Scans CT scan 4^th November revealed bleeding, subdural haemorrhages of different ages. Scans seen by two different neurologists Worthing and St George’s Hospital both confirmed subdural haemorrhages of different ages.”

It continues: “L was seen by an ophthalmologist who confirmed retinal haemorrhages. Skeletal survey - no fractures seen a further chest X-ray will be undertaken in two weeks. Lumbar puncture blood stained through procedure- no infection. All blood tests normal”

“Tests revealed abnormal blood vessel at the back of the brain not cause of haemorrhages all organic causes ruled out at this stage”.

The recordings continue “All agreed significant physical harm at this stage. No evidence of organic problems causing the bleed” and “Tests revealed abnormal blood vessel at the back of the brain not cause of haemorrhages. All organic causes ruled out at this stage.”

In other words it appears from the notes that the complex nature of the CT scans and the seriously unusual findings of the vein were not discussed. It may be that the note from earlier that day by Dr Ruffles who had spoken to St George’s accounts for the view advanced that the abnormal blood vessel at the back of the brain was not the cause of haemorrhage, but the consultant there had yet to report. In addition the view of the local radiologist ran very much counter to the singular proposition of subdural haemorrhage.

Mr Storey argues that the omission to include the differential diagnosis in information given by Dr Kabole at the Strategy discussion was “unsustainable, inexcusable and unsupported by the then prevailing evidence”. On the evidence I have, there was incomplete representation of the findings from the CT scan. The differential diagnoses were clearly not available at that meeting which had such catastrophic consequences for L. Assuming that Dr Kabole had chosen to base her opinion on the note from St George’s as I do, she (and the other doctors who had been involved, I assume) advanced the single opinion that this was a case of non-accidental head injury.

Three radiologists within the sphere of L’s case gave a differential diagnosis at different dates: Dr Hinchcliffe, Mr Murray and ultimately Dr Rich from St George’s. Moreover, Dr Murray who had given her input into the case earlier that day was quite clear that she was not advancing non-accidental injury at that point, rather that Dr Shute who was with her misinterpreted what she had said. I have not heard from Dr Shute.

On Thursday 6^th November, L was seen to be doing well. For the first time since after his neo-natal checks, L’s head circumference was measured. It was 42cm, just above the 75^th centile. It had not been measured at any previous time since he first fell ill until this date since his birth. As an indicator in a case of this kind of what might be happening in a child’s head, that measurement is crucial and would have assisted the experts in their understanding.

The plan was to keep him in over the coming weekend and discharge him on the following Monday.

L got better, and he was discharged on 11^th November to the care of his aunt.. .

On 12^th November, the review from St George’s referred to above was written up by the consultant Dr Rich, and faxed to Dr Kabole on 15^th December.

On the 17^th November, Dr Murray reported the CT scan at the request of the paediatricians. Her evidence to me was that it had “confounded” her, and still does. She had never seen anything like it before and both she and Dr Hinchcliffe were of the opinion that it needed a review by a specialist paediatric neurologist. It was beyond their experience. She was never shown the review of Dr Rich.

There was correspondence between Dr Murray and Dr Kabole later: on 30^th December Dr Kabole asked Dr Murray for further information. She wrote: “I hope you can help me with further information. In L’s report you have put that the subdural haemorrhages raise the possibility of non-accidental trauma. I need to know what other conditions in your experience cause a similar picture… the police were hoping for a more definite conclusion on the CT scan report but I explained that in medicine we have differential diagnoses rather than just one”. Dr Murray had replied: “There is definitely acute subdural haemorrhage but of course I cannot say that it was definitely caused deliberately… there is no fracture which might add weight to that possibility. The other confounding factor in this child is that there is a large vessel seen in the right middle cranial fossa which is an unusual finding and just raises the possibility of an underlying vascular malformation which might have bled… I can’t be any more definite, I am afraid”

As a matter of fact she does not state in her report that “the subdural haemorrhages raise the possibility of non-accidental trauma”.

There are factors in the father’s medical history which have been viewed as potentially relevant. L’s father had difficulty after he was born. He had shoulder dystocia when he was born and a variable slowing down of his heart, and was in poor condition immediately after he was born. He began to have seizures over a 40 hour period. When he was 5 days old, a cerebral ultrasound showed that he was seen to have had a stroke. He later suffered language delay, learning difficulties and motor function issues, and at 7 there was a history of episodes thought to be representative of seizures. He had a weakness of his left side which does not appear to have been neurologically investigated, although his stroke after birth was to the right side of his brain.

There is very extensive evidence in this matter. It ranges from the medical records filed to the evidence of the police, the parents and their witnesses. In addition I was provided with research, Guidance and an extensive number of related authorities.

Clearly it has not been tested but it is of course of note and a significant part of the evidential picture. If I may say so the details in both the evidence of the mother and the father has been prepared with the kind of attention and care to detail which is of great assistance. It would be hard to find a stitch dropped, particularly in the evidence of the mother where she relives the details of the case and carefully underlines the uncertainties, discrepancies and concerns she felt at the time. Her attention to detail about L is intense. Her concerns about L being returned to Worthing Hospital on 3^rd November were very real- she wanted to be taken to Chichester because she had been so unhappy about the lack of testing done at Worthing. On 1^st November she says that she knew L was not himself although the hospital had said he could go home and for that reason she asked to remain.

Within this case, a number of experts were instructed to report. They were: Dr Michael Williams, Consultant Haematologist at Birmingham Children’s Hospital; Mr Danny Morrison, Consultant Paediatric Ophthalmological Surgeon based at St Thomas’ Hospital in London; Mr Jayaratnam Jayamohan, Consultant Paediatric Neurosurgeon employed by the Oxford Radcliffe NHS Trust; Dr Patrick Cartlidge, Consultant Paediatrician based in Cardiff; and Dr Alan Sprigg, Consultant Paediatric Radiologist at Sheffield Children’s Hospital. The expert evidence is as follows:-

On 28^th January 2015 Dr Williams provided his preliminary advice that further coagulation tests be undertaken “as the only haematology tests which have been carried out consist of a full blood-count and an abbreviated coagulation screen”. They were undertaken within proceedings to the cost of the parties. His list of tests required was as follows with a recommendation that they be undertaken at haematology laboratory experienced in paediatric haemostasis:

Mr Morrison reported on 13^th February. He felt that the eye examination undertaken at Worthing had been sufficiently detailed and that the diagrams were of good quality. His conclusion, having scrutinised those findings, was that the ocular findings were moderate to severe and that they were significant. He wrote:

“L’s retinal haemorrhages, in the context of his presentation plus the brain injuries and subdural haemorrhages, are possibly the result of a shaking and/or impact type of hear injury. Non-Accidental head injury (NAHI) is a cause of the retinal findings described on examination of his eyes following the acute hospital presentation and the cranial (CT and MRI) scan imaging. Venous sinus thrombosis, and whether or not it is related to any pre-existing structural brain abnormality, needs to be considered as a possible cause of an apparent rise in intracranial pressure. Venous sinus thrombosis and/or underlying structural brain or vascular abnormality, could partly or completely explain the imaging finding”

He made the following observations: he sets out the causes of retinal haemorrhage, the absence of infection, coagulation problems as causes or any metabolic cause, excluded birth and intracranial bleeding as likely causes. He suggested that the swollen optic discs could be due to raised intracranial pressure (ICP), which could be secondary to a head injury or venous sinus thrombosis and that papilloedema made it more likely than not that L had a significant and sustained elevation of ICP. He dated the retinal haemorrhages as likely to have happened at the same time, and in the period immediately before L was admitted to hospital on 31^st October to 3^rd November 2014, and compatible with them happening at the same time as a traumatic head injury within that time frame.

Mr Jayamohan reported on 17^th February 2015. At this point, the extent of the difficulties this case became even clearer. In his lucid report, he turned to the heart of the problem:

“Eye examination is also reported to have shown bilateral haemorrhages of different ages. The last finding is clearly important and will need to be taken into significant account by the Court, but from the perspective of a Paediatric Neurosurgeon, there is clearly significant concern that this child has undergone an unexplained traumatic event which caused the collection of fluid, which is either an acute effusion (fluid made by the linings of the brain after trauma or infection, the last of which has been essentially excluded) or old blood (looking at the density of the CT scan I would suggest at least four weeks old at this stage). The head circumference change does show that the head was on a higher centile then when it was done when the child was a newborn , but unfortunately we do not have intermediate head circumferences to be able to tell whether the change was acute or more chronic in between birth and admission to hospital.

In cases where children are admitted with unusual neurological findings and are suspected to potentially having had an unexplained head injury there is a series of investigations that would usually be performed by the investigating team. The CT scan and initial blood tests performed in this case were to aid initial diagnosis of treatment; however, once a child has been stabilized they would usually undergo more detailed investigations including extended clotting profiles to look for more unusual abnormalities of clotting screen, tests for inbuilt metabolic and genetic disease, which are rare, but may present with unusual neurological findings and indeed with subdurals in certain very rare conditions such as glutaric aciduria With the finding of suggestion of the thrombosed vein or even veins on the initial CT scan consideration of more widespread cortical vein thrombosis or abnormal venous architecture of the brain needs to be considered. This would unusually be investigated with a CT venogram or an MRI scan including MR angiogram and venogram studies. I can find no evidence of these investigations being performed in this case.

This puts me in a very unusual position where I must state that on the evidence that is provided an unexplained or as yet unexplained or as yet unrevealed head injury would be the most likely explanation. In the absence of skull fractures or external signs of injury to the scalp and given the bilateral nature of the findings in the brain imaging (as well I would suggest as the eye findings), this raises significant concern that the child had been subjected to a shaking event where the child is held underneath the arms and shaken to and fro, usually in an effort to quieten the child. This does work on these occasions as the child goes quiet, not because they have become better, but because they have had dysfunction of the brain which can lead to them decreasing the conscious level and therefore stopping crying and going quiet. However, it may also lead to brain dysfunction and collapse and seizure activity with abnormal breathing, in what is known as an encephalopathic episode and certainly the history provided by the parents from the 31^st October would be in keeping with multiple such episodes.

However they would also fit with what is known as an apparent life-threatening event (ALTE) of which one explanation would be trauma, but without the investigations as I have discussed above, I feel it is important to raise to the Court that there is concern in my mind that there may be another explanation for this child’s presentation that simply has not been investigated in enough detail to be found.

Therefore although on the basis of the information provided, unexplained head trauma must be the greatest chance of being the correct explanation, I believe that there are too many unanswered questions in this case to allow me to confidently say that this is the likely explanation on the balance of probability in reality.”

He went on to recommend and MRI/MR venogram, or at least a CT venogram as being needed to examine the temporal lobe abnormality (i.e the thrombosed vein), but with the caveat that due to the lapse of time it might not be possible to see what the pathology at the time of admission was.

He also raised the question of the potential connection between what happened to L and what happened to his father at birth. He notes the bilateral nature of the father’s symptoms, but that only unilateral pathology was noted and asked whether there was or is any pathological process in the father’s brain and whether or not it was related to L’s condition. That too he felt might require further paediatric investigation, possibly a genetics review.

He was clear that the relevant further investigations did not appear to have been performed.

On 25^th February, Dr Cartlidge reported. He provided a very detailed summary of L’s development. He was clear that the medical evidence was currently incomplete. His very detailed reported points out the following evidential considerations: -

Considering the available evidence as regards L’s head circumference, the growth rate from the small head circumference at birth to 6^th November was consistent with a chronic subdural fluid collection but that did not indicate when the head stared to grow rapidly. The alternative was a very rapid and recent increase in the head size, but that would have been noticed.

The absence of any mention of subdural membranes in the CT scan is significant. Their presence would have confirmed that the subdural fluid collections were at least 2-3 weeks old, although they do not form in all cases. An MRI scan would have assisted.

Acute subdural blood could have been caused by recent trauma but also be a re-bleeding with a chronic subdural collection. It was not possible to distinguish between the acute subdural effusion and a chronic subdural collection.

Mr Morrison suggested that the retinal haemorrhages could have been caused either by trauma or raised intracranial pressure. Until the question of whether the evidence indicated that the intracranial pressure was likely to have been high enough to cause the retinal haemorrhages was clarified, the retinal haemorrhages did not help to determine whether the subdual fluid collections were acute or chronic.

He was concerned that no paediatric neuro-radiologist had been instructed.

He was of the view that the subdural fluid collections were chronic which was important in terms of dating the event or events which had caused the head lesions.

He provided a summary of the potential causes of acute subdural bleeding, and excluded the possibility of the father bumping L’s buggy down the stairs as a possible explanation, although if there was a finding that there was chronic subdural fluid collection, then such trivial trauma could not be excluded as a cause of re-bleeding.

He considered other medical conditions, and within that heading considered the possibility of birth-related acute subdural bleeding developing into a chronic subdural fluid collection. He was of the view that it was not possible to exclude birth-related subdural bleeding as being the root cause of the chronic subdural collections.

In considering other causes and the fact that there was apparently no parenchymal injury, he noted that an MRI scan would have been more sensitive at detecting hypoxic-ischaemic brain injury than the CT scan. Although the history of floppiness and stopping breathing could have been caused by repeated episodes of trauma he notes that the history of L of repeated symptoms interspersed with (near) normality was atypical of shaking impact injury.

His view of the cause of L’s symptoms was primarily and possibly exclusively the intracranial lesions.

Helpfully he has listed the tests which in his view should have been carried out:-

His conclusion against the background of incomplete medical evidence was that 3 matters required consideration, which he later modified in his oral evidence.

On 3^rd March 2015 Dr Williams provided an interim report in which he excluded coagulation or any other abnormalities which might have contributed to or caused L’s condition. He recommended extended coagulation tests by an appropriate laboratory.

On 8^th March, Dr Williams’ final report followed the test results from Great Ormond Street Hospital taken in 9^th February, which revealed that there was no evidence to suggest the L had a congenital bleeding disorder. By this stage he had seen the other expert reports. He suggested that further information be obtained on L’s cranial vasculature and the opinion of a paediatric neuroradiologist be sought on the age and nature of his subdural haemorrhages, and of the thrombosed vein.

On 10^th April, L underwent an MRI scan under general anaesthetic with MRS and MRV at the Portland Hospital, funded by the Local Authority, and 4 months after L had fallen ill.

As a result of the concerns raised by the lack of a report by a paediatric radiologist, Dr Alan Sprigg reported on 2^nd May 2015. He shared the concern that no MRI scan was performed, and that head circumference measurements were not taken. The MRI scan should have been performed between day three and seven after presentation. He also states that even if it had proved difficult to obtain an MRI scan locally, a follow-up and contrast enhanced CT scan would have been useful.

More generally he was of the view that L was at low risk of developing any acute subdural haemorrhage related to delivery that might become chronic as he had no difficulties at delivery. He reports that there is no documented case of an acute bleed at delivery becoming chronic, but that it remained a theoretical possibility.

He records what the images show including the unusual vein on the right which may have been thrombosed draining vein, slow flow in a vein or haemorrhage adherent to a vein. He also assists with the appearance of this feature on the MRI scan which appeared as a normal draining vein, unusual for a re-canalised vein.

Unfortunately the MRI scan at this distance in time did not help to resolve the issue about acute traumatic effusions as opposed to chronic subdural haemorrhage. He was not convinced that the peripheral surface vein thrombosis would of itself explain all the areas of subdural haemorrhage.

He has provided a summary of the unusual features of the case where the clinical history was not entirely clear about the onset of symptoms which might be attributable to head injury – i.e the interval between the first documented fit and the firs CT scan being performed. Where the dating of acute bleed was within 10 days of the CT scan, it was not possible to date the acute event or events based on the radiology alone, without detailed consideration of the history. The imaging did not allow for differentiation between the fluid components. The presence of the high density vein on the right without evidence of brain damage associated with this or acute subdural haemorrhage associated with this vein. The father had a neonatal stroke event and there is a possible family history of a pro-thrombotic state (undefined in L).

That in summary was the expert evidence available in the case and the problems raised are significant.

The experts met on 20^th May 2015. There are disputed matters between them both in relation to the clinical findings, and also the extent and cause of any injury. However all of them agreed that L’s case was unique in terms of their individual experience, and that unknown causation was a real possibility.

They discussed the following topics: the link between a thrombosed surface vein and subdural haemorrhage; raised intracranial pressure and retinal haemorrhages; birth injury and subdural haemorrhage and retinal haemorrhage; the issue as to whether the haemorrhages are chronic and acute or just acute; the presentation in the event of chronic/acute intracranial pressure; the possibility of chronic subdural haemorrhage plus re-bleeding; the possibility of re-bleeding and retinal haemorrhage; timing.

The discussions further highlighted the position that this case was entering into the realms of unknown territory. I do not intend to repeat all that was debated. What is clear that the experts’ meeting was hampered by the gaps in the evidence already identified, which prevented certainty in a number of key areas, again already identified.

On 21^st May Mr Morrison provided a letter in relation to a number of questions in relation to retinal haemorrhages.

There was little doubt that the experts in the case were perplexed and inhibited by the lack of what they considered the adequately thorough and appropriate examinations and testing when L was admitted and they can take the case no further in terms of causation.

The list of omissions in terms of the testing performed on L, which has prevented findings to the requisite standard which emerges is as follows:-

In addition to the clinical tests identified above, there are further concerns:

I heard from Dr Hazell, the family GP, and from Gina Ford, the family health visitor, as well as Mr Leggatt the Ambulance Paramedic.

Both Dr Hazell and Miss Ford were very familiar with the case. In my judgment it was particularly helpful to hear their oral evidence as it put some of the recorded concerns into perspective and shed a more favourable light on the mother than the impression given by a reading of the notes. Both were helpful and honest witnesses.

Dr Hazell had supported the mother during 2013 when she was experiencing personal difficulties. She also kept an eye on the fact that the mother has a heart condition; she referred her to Time to Talk for her anger issues. At the first pregnancy appointment the mother had by then been “in a good place”. Later she had told Dr Hazell she would never harm her baby. Where the mother had been referred to an obstetrician because of her heart condition on 27^th November, she had included the reference to anger management just in case there were any safeguarding concerns. My impression is that this was for completeness sake rather than because there were on-going concerns at that time. She thought the mother was very honest with her when she had previously asked for help and there was no cause to refer her under Working Together.

She and the health visitor each believed that the other would have measured L’s head circumference at 6 weeks. The fact was she could not have done it herself as she did not have the right paper tape measure for over month. They were not plotted in the Red Book but she was not able to say if she had spotted that. However she had no worries about L.

The clotting disorder Factor V Leiden had been excluded in the mother’s case.

Gina Ford the Health Visitor added her evidence in relation the lack of tape measures – they too had run out. She believed the GP would take the measurement at 6 weeks. She was helpful and clear in terms of any concerns – her recordings and her evidence are generally positive and supportive of the picture of assiduous and good care being given to L throughout.

The evidence of Mr Leggatt the ambulance paramedic was ultimately of no forensic significance to the case.

I heard from Dr Kabole, Dr Hinchcliffe and Dr Murray. None of them have made statements for these proceedings. Dr Hinchcliffe was a Consultant Radiologist before he recently retired but any training in paediatric radiology since training had been en passant –he was a general radiologist who worked with adults. It was rare for him to undertake paediatric reports but the two other radiologists with a paediatric interest (Dr Davies and Dr Murray) were unavailable. He reported on 4^th November and Dr Murray who has a special interest and experience in paediatrics added her note to that report on 17^th November. He had not had follow up discussions with Dr Kabole after he reported and never saw the fax from St George’s. Nor did Dr Murray.

He felt it was a complex scan – there were long extra-cerebral spaces and a potential vascular malformation. There was a differential diagnosis about what the scan showed might be due to.

He had not been asked to consider the option of an MRI scan, and it would not be his normal practice to arrange for one.

His report would have gone straight onto the system and was available at 16.22 on 4^th November for all those involved in the case to look at.

Dr Murray who had been a consultant for 15 years and who has experience of paediatric radiology told me she would have seen the CT scan when it was first in. She reviewed the scan together with Dr Shute on the 5^th November. Her report was dated the 17^th November but she had had an email asking her to double the report of Dr Hinchcliffe. That appears to me to be the email sent on the 14^th November requesting her to add her findings to the report on the system.

Dr Murray was asked about the email she received from Dr Kabole on 30^th December where she wrote “In L’s report you have put that the subdural haemorrhages raise the possibility of non-accidental trauma”. Dr Murray’s emphatic answer was “Not me!” Indeed as I have noted earlier, there is no mention at all in the report that “the subdural haemorrhages raise the possibility of non-accidental trauma”.

She also told me that the note of 5^th November where she is cited as saying that she felt that non-accidental injury was “very likely” was wrong. She thought it was what Dr Shute may have interpreted her as saying but she was very clear that the complicating factor of the vessel confounded her and that she was still confounded by it. She accepted that she could not remember if she had brought the vessel to Dr Shute’s attention.

Neither she nor Dr Hinchcliffe had seen a “funny vessel” like this before. It was unknown territory, and a “massive caveat”. Her view was that an MRI scan should have been done. She would not have seen the report from St George’s as it goes to the clinician. The guidelines advised that in a complex case an MRI was required as it is a better tool for ageing. It should have been possible and should have happened for L.

In answer to one of my questions she told me spontaneously: “if you have an abnormal vessel, there is potential for bleeding, possibly spontaneously. I felt I was being pushed to say for sure it was non-accidental injury and I felt that I couldn’t”.

Dr Murray gave difficult, frank and uncompromising evidence which was deeply uncomfortable in the context of the case and its significance cannot be put aside. She was an impressive witness.

Dr Kabole had been provided with the experts’ report after March. She brought to court the faxed letter from Dr Rich at St George’s which had not been seen hitherto. The omission of this document from the available records cannot be overlooked. It was a highly crucial report from a specialist unit which contained very specific recommendations.

In her evidence she explained to me that as no suitable MRI facilities were available at Worthing, she liaised on 4^th November with St Richard’s in Chichester. She spoke to staff there but ultimately they were not able to help. She also said that at times it was necessary to go to St George’s if specialist intervention apart from a scan was required – but a patient would not be taken there just to have an MRI scan. She spoke to Dr Fallon there who advised a CT scan, not an MRI, but that if there was a deterioration, and a need to transfer on neurological grounds then a registrar was available to be contacted. MRI was her preference. It was clear that Dr Kabole had to use her clinical judgment at every step of the way at this point.

When she saw L the next day, 5^th November, she knew that Dr Ruffles had spoken to St George’s before she began her ward round.

I heard her reasons for not undertaking more extensive blood tests –that a very large amount of blood was required: at least 10 bottles and it had not been possible for them to do this during that admission. I heard about the practicalities of transporting blood afar, and the difficulties in getting samples there in time. She was clear that basic testing was done and had discussed testing with the haematologist at Worthing. She rejected the suggestion that this was management only, not child protection.

As regards the pressure reading to be taken at the time of a lumbar puncture, she said that it was not routinely done in babies. The aim was to do a scan and if there was no evidence of ventricle pressure they would know it was safe to do a lumbar puncture. She appeared to agree that where there was evidence of widened sutures, and raised pressure, the person who did the lumbar puncture could have taken a pressure reading.

As regards L’s presentation on 31^st October she was asked about the recordedsymptoms of an unresponsive episode lasting a couple of minutes, grunting breathing and feeling hot, and the shaking arms. She answered each point with care. She felt that ultimately she had no information to let them think that L had had a seizure. She told me that she did not think it was non-accidental head injury at first: a lot of children are admitted with vomiting.

I also heard her reasons for not ultimately not obtaining a follow-up CT scan or an MRI scan – it was clearly a matter of clinical judgment for her: “L was getting better so there was no need for a report”.

I heard her explanation for not obtaining a head circumference measurement: if they were worried or felt that there was something neurological for example meningitis, it would be done. It would be case-dependent. She had taken it on 6^th November to look for later complications, but she said that on the 4^th she did not look that far forward, she was trying to sort out the head scans etc.

When asked about when she had become aware of the interpretation of the scans by St George’s she told me that she had had a verbal report confirming the changes – she did not remember when, but the fax had taken a lot longer.

She was asked about the content of her letter to the Local Authority on 10^th December which concludes that the combination of the findings in relation to the two findings from the CT scan and the report from St George’s were in the balance of probability indicative of non-accidental injury. Significantly in that letter, the letter from Dr Rich is cited verbatim. What does not appear are the final sentences: “Regardless of the timing the differential diagnosis for this appearance includes non-accidental head-injury. However in this case, there is also what appears to be a large thrombosed cortical vein so the possibility of more extensive venous thrombosis as the underlying aetiology needs to be considered”. Her answer was that she was reporting what the CT scan showed.

She told me that she had liaised in verbal discussions with both Dr Shute at Worthing, The picture is incomplete because I do not have any evidence from Dr Shute who holds a very senior position at Worthing and who was clearly involved in the decision making process. She also spoke to Dr Fallon, but no note was taken and she said that she had been advised to wait for a few weeks to see if the MRI was needed. Dr Fallon had told her that she felt it would not change her management of L at that time. Indeed that was her own emphasis – she asked herself whether it would change her management of L and the answer was no. St George’s could only perform a scan if one of their neurologists made the request. There was no way she could physically ask for an MRI scan, but she did write and say “can we have an MRI scan later?”

Dr Kabole fully accepted that St George’s had recommended an MRI scan and that it was not done. She added that Dr Rich would have done it, but no time or date was established for when it should be done, it was just recommended to be done later. L would have been transferred if he had not been improving. She also explained that in trauma, a CT scan is better information than an MRI scan and the tertiary units did not feel there was enough to warrant a transfer and a scan under general anaesthetic when all the rest was improving.

She also added that the report in relation the vein had arrived a lot later, and in acute management the vein cannot explain the retinal haemorrhage and the bleed on a different side to the vein.

Dr Kabole was required to deal with the CT report which was with her from Dr Hinchcliffe on 4^th November where three possible causes were identified.

Dr Kabole said that there was no MRI scan, but not for lack of trying.

Dr Kabole has given a fairly full account of her decisions and her clinical approach to the treatment of L. Significantly, she was not cross-examined on the information she provided to the Strategy Discussion on 5^th November to which she was invited.

Her evidence illustrated the gap between what was available to her at Worthing, what it was that informed her clinical opinion and judgment and her handling of the case, and how that differs from the expert evidence. In forming concluded views about her evidence I refrain from arriving at unsubstantiated conclusions or inferences, where there may be other explanations or contrasting or additional evidence which she was not asked about, in circumstances where she was not a party and had not made a statement accounting for her actions.

The experts who looked at L’s case are of course highly experienced experts in differing fields of paediatric medicine, and I am careful to remind myself that their expertise was not readily available to L at the time he fell ill. Where they shine their intense beams of insight onto what happened to L, and through the holes in the information available, their collective evidence comes close to a counsel of perfection, something which I have been acutely aware of in the context of this case. Neither their degree of expertise, nor their individual areas of specialisation were available to L when he was admitted to Worthing. What follows is no more than a very brief overview of their oral evidence which in each case was explored in considerable fine detail, however the emergent reasons why this case could not continue in terms of the uncertainties and gaps are what I have focussed on, and in my reasons for acceding to the application below I have separated out the salient problems.

Dr Cartlidge refined his conclusions in his oral evidence and those refinements appear above. I was appreciative of his observation that this is an unusual case, and in any unusual case one has to be very cautious about being dogmatic, which was why he had been so cautious about drawing a single conclusion. That wisdom has been reflected by the other experts. He told me that there were parts of the evidence which will “forever be deficient”. Whilst he was clear that he thought trauma to be the most likely explanation, he described the case as a conundrum which should not be shoehorned into something convenient, and where it would be wrong to pretend to understand what had happened. In particular he highlighted the crucial difficulty of distinguishing between the chronic or acute nature of the fluids seen due to the lack of an MRI scan. Dr Cartlidge’s skill at cross-referencing all the difficulties in the case was of great assistance, and I am left with no doubt about what conflicts he has identified which go to creating the underlying difficulties.

Without repeating the whole of his evidence, the clarity of his explanations on the individual topics to which he spoke was of real assistance in understanding the complexities at large and how the evidence did not fit together. For example he was clear that L’s symptoms as recorded on 31^st October were not typical of gastroenteritis- the rigid arms which were described were more typical of a neurological dysfunction. This chimed with the view of Mr Jayamohan who was also of the view that L was presenting with a neurological problem at that time.

After a penetrating and methodical exploration of all the competing complexities, I was impressed by the evidence of Dr Cartlidge and I accept his cautious and honest approach.

Dr Williams was clear that because of L’s age tests were needed to rule out a significant bleeding disorder which would be linked to an intracranial bleed. Dr Williams was very careful to remain well within his speciality. He was able to tell me that practice as regards the taking of the full spectrum of blood tests is variable. He referred to the Royal College of Paediatricians Safeguarding handbook in relation to cases of suspected non-accidental head injury. He thought that most paediatricians would be aware of it. He recognised that while not all hospitals can do the full range of tests laboratories attached to haemophilia centres can undertake them.

Mr Jayamohan in evidence was a model of simplicity and clarity in regards the central problems which have rendered L’s case an unsolved forensic puzzle. He was happy to put on record that he was unimpressed with the investigations that had occurred. He had been left with a nagging uncomfortableness in so much as the evidence base was shaky.

I understood from him why an MRI scan is more desirable than a CT scan in that is provides much greater detail (save in relation to bone) about the changes in the brain. It would have given information as regards the significance of the abnormal blood vessel. There is significantly more information in relation to the brain itself and imaging of the spine can be done. Where there was evidence of injury or bleeding in the spine, that would have been possibly a significant factor in support of non-accidental injury. The loss in this case is of information about the abnormal blood vessel and whether it was thrombosed or whether just a clot was adhering to it. It would have distinguished the two types of fluid collection seen here.

He was very clear about the importance of looking for other causes which might mimic a similar presentation to non-accidental injury.

He told me that he felt significantly hamstrung in this case where there were such important gaps. He told me that he had reservations in this case about being as confident as he could be in other cases he had dealt with. In this case “we have to accept the limits of our own knowledge in this field” and accept the possibility of an unexplained or unknown phenomenon. There is no current explanation as to why L’s brain dysfunction has occurred. Either it was trauma, or unexplained brain dysfunction and it was up to the court to decide which it was, not something he was happy to do. There was a real possibility that the court in looking at the case could choose the wrong option.

On the evidence he said that he had substantial evidence that L has had a traumatic event within a few days of being seen causing brain dysfunction away from where the low density fluid and the anomalous vein was. The anomalous vein had to be factored in as well as the father’s history as a child.

He took in the important wider picture of how assiduous the mother had been in caring for L.

In particular I note his clear evidence that L was on his view going through something neurological on the 31^st October – the opisthotonos – that this the arching of his back is an indication of irritation of the nervous system. On the whole of the evidence as it evolved he would have expected someone to add it some neurological signs to have been added in. The signs would have easily been seen as neurological although his opinion was “slightly biased”.

All the lengthy evidence given by Mr Jayamohan returned time and again to the same identified gaps in the evidence and the unusual nature of this case. Every possible discrepancy and alternative was laid out before him but he was drawn back each time to the broken chain of understanding.

Mr Morrison’s evidence was also tested comprehensively and was rich in detail. He corrected his report where it reads “the fact that L’s optic nerves were described as swollen. makes it more likely than not that he had a significant and sustained elevation of the ICP” to read: “ the possibility” rather than “the fact”.

He was helpful as regards the use of guidelines – it is not possible to follow every aspect of guidelines but if something is excluded there is a possibility that doctors may have to defend themselves. Of course he was correct in saying that it is almost impossible to find a perfectly documented case in medicine.

He was complimentary about the quality of the notes of the ophthalmological examination of L and as regards the use of a Retcam he told me it is normal not to have pictures. Of the cases he had seen, less than 10% had images- the equipment is very expensive and it is not always possible to take images.

Although he had experience of children with sagittal venous thrombosis, he had yet to see a case similar to this in 10 years as a consultant. He fully agreed that an unknown cause was a serious consideration here and he placed himself within the group of those who had never seen a cortical vein like this in non-accidental head injury. He too joined Mr Jayamohan in seeing the real possibility on the state of the evidence finding the wrong option

Dr Sprigg told me that there were limits to CT imaging. An MRI scan would have been indicated with a few days of L’s admission. The vein was a very unusual feature and without an MRI scan or a CT venogram he was faced with a very unsatisfactory situation.

In conclusion the consensus is evident: the absence of a fuller picture of the contemporaneous evidence, for whatever reason it occurred, in a case of unique complexity meant that the experts instructed could not support a finding of non-accidental head injury, albeit that was the conclusion of the treating paediatrician. I cannot favour Dr Kabole’s opinion over the experts’ collective evidence.

All are agreed that this case could not proceed following the testing of the medical evidence. I shall explore the reasons why the evidence did not come up to proof later in the judgment.

The Local Authority proactively drew this matter to a conclusion based on their analysis of the difficulties in the medical evidence and the welfare of L, and mindful of the law. I will refer to their analysis in due course, which is almost exclusively uncontentious and in my view irrefutable. I concur with their fair view that L’s welfare will best be met by the immediate and supported return to his mother, and I commend the local authority for the very appropriate and helpful package they have advised on the basis that L, with his health issues and also with a difficult change before him, is a Child in Need.

I also commend the suggestion that the Safeguarding Board takes this case as a referral.

Miss Taylor takes issue with the stance of the mother’s representatives who actively seek to persuade me that the strategy discussion on 5^th November and the way it happened constitute a clear breach of the parents’ Article 6 and Article 8 rights.

The mother was separated from her child for seven months. That is an almost unimaginable situation. I reaffirm the significance of this; of what she has missed out on in enjoying the first wonderful months of her child’s life and of what she must suffered as a result. She has lost her happy relationship with the father as well.

Mr Storey invites me to deal in depth with two aspects of the case: what happened at Worthing Hospital as opposed to what should have happened, and secondly he raises an issue which was not previously raised either at the outset of the case or prior to 25^th June 2015 which comes as somewhat out of the blue, namely the alleged breach of the parents’ Article 6 and Article 8 rights which he says occurred as a result of the strategy discussion on 5^th November, to which they were not invited.

In addition to the identified omissions in L’s treatment, Mr Storey argues that further significant failings have emerged which require my attention.

In addition he argues that because there was no MRI scan, the absence of an acute bleed, if it had shown up, would have excluded the grandparents from the potential pool of perpetrators, within which they remained until a late stage in the case, but the net effect was to deprive L of being placed with them within his own family. That is correct in terms of the implications arising from the lack of an MRI scan which would have assisted amongst other things with ageing L’s injuries.

He highlights the significance of the lack of further ophthalmological testing.

In his written submissions he invites me to conclude that the omissions and failures that he identifies constitute a breach of the Article 8 rights engaged here whilst making it plain that this is not a claim under the Human Rights Act.

Significantly he has drawn my attention to the hearing on 10^th November 2014 before HHJ Farquhar. The court was given the report of Dr Kabole dated 6^th November on that date in support of L’s removal and the making of an interim care order. Under “Investigations” in reference to the findings from the CT scan she reports “There is also a prominent vascular structure in the right middle cranial fossa which is unlikely to be of clinical significance in this condition. The scans were reported on by our paediatric radiologist as well as the neuroradiologist at St George’s”. Her expressed opinion was that on balance, L’s injuries were due to a non-accidental head injury.

She does not mention that previously she had thought that an MRI scan was needed, or recommend one at that point.

He argues that on the basis of that unequivocal report, without the court having had the benefit of the known differential diagnosis, there was no option to mount any resistance to the medical evidence. A key limb of his argument is that had those matters been dealt with differently, L would not have been lost to his parents for all this time. He argues that had an entirely truthful, fair, alternative report to that which Dr Kabole produced that was before the court on 10^th November been available to the court, the court would have seen the exemplary record of the parents’ care and the extensive recording of their attention to his health needs, and the appropriateness of their behaviour in reporting L’s condition, In addition the report of the differential diagnosis and the “air of mystery” around the three radiologists’ reports. If the case had been properly conducted after that, it would have had an MRI scan which would have allowed the unresolved question of whether there was membrane formation and allowed the court to give early consideration to a birth-related subdural and a spontaneous re-bleed, or alternatively to the question of unknown cause.

He refers to the note emanating from Dr Kabole’s ward round on the morning of the 5^th November: “Dr Shute came to the ward after we had spoken to parents. She has just reviewed the X-Ray CT with Dr Murray, the radiologist who also feels that NAI is very likely, as she also described more chronic subdurals anteriorly of differing ages, in addition to the posterior bleed”.

This note clearly implies that Dr Shute clearly held the view that this was a case of non-accidental injury. However Dr Shute has not given evidence. The complete picture as to how the single conclusion was reached instead of the differential diagnosis by those involved is not available to me. It appears likely that there may have been a collective view in support of Dr Kabole’s single cause.

I shall return to consider these points below.

Like the mother he has missed out on the precious early months of his child’s development. He supports the return of L to her care. Great emphasis is put on the impact on the father, the mother and L’s extended family as a result of what has occurred here, not least the parents’ separation as a result of the dreadful pressures upon them, however they are able to co-operate well.

Miss Crowley echoes the submissions on behalf of the mother in relation to the available differential diagnosis and the lack of investigation.

She has a further concern on the father’s behalf, namely that he was identified as the likely perpetrator by somebody, on 5^th November, without a shred of evidence to support that contention, and that that was fed into the strategy discussion on that day. This was tantamount to an accusation of a serious criminal offence.

She argues that the father’s Article 6 and Article 8 rights were breached. Together with the mother he advances his concerns in relation to the way the case was handled by the hospital. I am urged to consider this as part of my judgment.

She argues that gaps leave longer term implications for L’s health – for example the failure to test for thrombophilia mooted by Dr Williams has never been followed up, and she suggests this should be done.

Within the Guardian’s argument on behalf of L Miss McKenna has helpfully set out what she describes as the two “alarming features” of the case:

She cautions against “Hindsight” or “Outcome” Bias as identified within the DoE Guidance “improving the Quality of Serious Case Review” published in June 2013 (Footnote: ¹) , and that is a helpful reminder in a case where the actions one cohort of professionals has been scrutinised by another, as here.

On L’s behalf she expresses the view that the omissions at the hospital which prevented a clear understanding of what was wrong with L could easily have been avoided

Permission to with draw is a matter of judicial discretion – it is incumbent on the court to consider the existence of evidence potentially capable of satisfying the requirements of Section 31(2) and I have done so. Where non accidental injury cannot be established on the evidence there is no other evidence supportive of risk which would indicate a threshold findings could be made.

I am referred to the to Medway Council v M, F and G (By her Children’s Guardian) [2014] EWHC 308 (Fam) a decision of Theis J where taking into consideration the medical evidence in its totality it was unlikely that the Local Authority would be in a position to prove its case – as here the parents had been without concerns and there were many positives in relation to their appropriate conduct. Permission was granted in that case. As here, the court was left with no alternative.

I am referred to the case of Redbridge LBC v B and C and A (Through his Children’s Guardian) [2011] EWHC 517, and the more recent authority of Lancashire CC v NG, DJ, A, M and X [2013] EWHC 517.

In the first case, there was no available explanation to the injuries found on the child. The parents provided good care to the child. The expert was clear that there were alternative possibilities apart from non-accidental injuries. Where it had been conceded by the local authority that the threshold criteria could not be met, Hedley J chose to allow the application on a welfare basis and on the basis that nothing had been proved against the parents. There can be no more succinct analysis of how I view this case in terms of the application to withdraw.

In the Lancashire case, the Local Authority sought leave to withdraw before the start of a 12 day-hearing – very different circumstances pertained in that case. Whilst Cobb J emphasised the importance of ensuring that the decision to withdraw is child-focused is obvious. He considered that the threshold might be crossed, depending on the evidence. Having heard from the medical witnesses he concluded that it was still such a finely balanced matter that the parents needed to be called. He reminded himself that when considering whether or not to proceed with the fact-finding exercise, the court was required to look at the whole application, and that in the case of A County Council v DP, RS, BS (By The Children's Guardian) [2005] EWHC 1593 (Fam); [2005] 2 FLR 1031 McFarlane J (as he then was) set out, albeit in different factual circumstances, the factors that should form part of this evaluation.  These were:

I do not intend to elaborate individually on these factors, but having considered them, beside all the evidence, including the evidence which relates to the parents and their care of L, and their absolutely commitment to him, it is open to me find that his interests requires the withdrawal of the application in his best interests which are best reflected by his return to his mother’s care with contact to his father. Justice demands this outcome. The position is that a non-accidental injury did not happen in this case.

I have also been referred to the case of Re S [2009] EWHC 2115

Article 6 (Footnote: ²) and Article 8 (Footnote: ³) are at large and I am required as in all cases to consider their relevance in this case. I have considered Re J (Care proceedings: Perpetrators) [2013] 1 FLR 1373 at 1376 where Baroness Hale stated as follows:

“In a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family at birth. Interference with the right to respect for family life, protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention) can only be justified by a pressing social need.”

I have been referred to Re R [2002] 1 FLR 755, Re L [2002] 2 FLR 730, Re G [2003] 2 FLR 42, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings. (Footnote: ⁴)Re M [2001] 2 FLR 1300; Re S (Minors) [2002] 1 FLR 815; McMichael v UK [1995] 20 EHRR 205 and the injunction that: “Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”

In Re G, the importance of full and frank disclosure by a local authority was emphasised:

I have also been referred to Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 where parents were not present at a discussion where the decision was taken to place a child from adoption; Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 for the premise that the case must be viewed as a whole and exclusion may not in itself render the proceedings unfair.

S 47 of the Children Act 1989 governs the duty of a Local Authority to investigate. The relevant aspects of this section are:

S47 (1) 1:

Where a local authority—

In addition I have been referred to the Sussex Child Protection and Safeguarding Procedures, published in March 2015. I have not been privy to this document hitherto. It contains a chapter on Strategy Discussions and Discussions, envisaged as a preliminary step before initiating a S 47 Enquiry, and when one is required, to plan how it should be undertaken. It provides guidelines for convening a strategy discussion or discussion. Discussions are advised in the case of serious physical abuse. It is identified as a “confidential professionals’ discussion” and participants are identified as a “professionals sufficiently senior to be able to contribute, although exceptional circumstances may arise where others may usefully contribute”. The relevant Consultant is highlighted as a required participant, as here.

There is no requirement to include parents at such a discussion.

In this case, I am faced with the tension between the need for a confidential professionals’ discussion to take place to which parents would not ordinarily be invited, and the argument that these parents should have been invited to contribute to that meeting, either for whole or part of it.

The medical evidence was rigorously tested in this case. The experts kept scrupulously to the limits of their own knowledge and expertise and I accept that their views are entirely correct. A number of clearly identifiable themes have emerged which have wholly undermined the possibility that a court might safely arrive at a sound conclusion over and above the anomalies, doubts and concerns raised by the medical experts.

The first unusual feature arises in the evidence of L’s presentation before his final admission into hospital on 3^rd November. The parents, and the mother in particular, were clearly proactive in seeking medical attention because it was clear that he was unwell. Mr Jaymohan and Dr Cartlidge thought that L was presenting with signs of neurological difficulties from at least the 31^st October. These signs were floppiness, vomiting and arching his back. However, L when seen by the staff and paediatricians at Worthing Hospital was seen to be well. He was admitted on 31^st October by ambulance, discharged on 2^nd November, readmitted on the same day, 2^nd November, then discharged on 3^rd November, but readmitted again the same day, 3^rd November. The parents were persistent in seeking help for him.

On 4^th November a CT scan was taken. I have been referred to the Good Practice Guidance of radiological investigation where there is a suspected non-accidental head injury. It is clear from all the expert evidence that L should have had an MRI scan within 3 to 5 days of the CT scan. The scan showed significant subdural bleeding as well as the abnormal vein on the right side.

Dr Kabole at court provided a key document to the parties. It was a letter from Phil Rich at St George’s hospital, dated 17^th November 2014 and it could not have been any clearer: the recommendation was an MRI scan and a referral to a paediatric neurologist. It is clear that such further investigations were needed for both clinical and forensic reasons.

That letter was not disclosed before the hearing and it does not appear to have been part of L’s hospital records at Worthing Hospital. It was in Dr Kabole’s possession. Dr Kabole wrote to the Local Authority on 10^th December 2014 and quoted the review word for word. However she omitted to include the specific recommendation for an MRI scan or a neurology review.

Dr Kabole recognised the desirability of an MRI scan, and it is clear that she made efforts to follow up this line of enquiry. However she did not. Her reasons in summary appear from her evidence to have been that L improved and recovered, from a clinical point of view, so that the scan was not ultimately required.

No follow-up CT scan, preferably enhanced, was performed either, which on the evidence of Mr Jayamohan would have been indicated.

At the time of the CT scan, L appeared to have a thrombosed vein in his head. An MRI scan was not undertaken until April. As between Mr Jayamohan and Dr Sprigg, the issue of whether the vein was a thrombosed vein or a clot from the subdural haemorrhage which had adhered to the vein is unresolved. This vein, from its appearance, whether thrombosed or not, was identified by the CT scan and was a highly unusual finding. Had an MRI or MRV scan been carried out at the relevant time, the issue may well have been determined. I add that as between the two differing views, a court is in an unenviable position in terms of establishing likelihood, given the lack of potentially determinative and reliable evidence. Both experts have clearly articulated this dilemma.

Further, two different types of fluids were seen on L’s brain from the CT scan. The two competing possibilities are that there was chronic subdural fluid, which may have collected from two weeks to two months previous to the scan, or acute blood, together with an acute traumatic effusion. If there had been a chronic subdural bleed, there was the potential for a re-bleed with minimal trauma and normal handling, or which could even have occurred spontaneously, explaining the acute bleeding. However this would not have explained the retinal haemorrhages. Had an MRI scan been performed, that may have allowed for the important differentiation between the two types of fluid seen to have been made. As the evidence stands there is no way of determining the significance of what was seen in the CT scan with any degree of certainty.

A helpful chart has been carefully prepared from the body of the medical evidence setting out the measurements of L’s head. It was measured after his birth. However at his 6 week check, Dr Hazell the GP did not measure it. The Health Visitor Gina Ford thought that this was the task of the GP. Neither had a paper tape measure for L. The GP surgery had not been supplied with paper tapes and there no tape measure accompanied L’s Red Book. Disposable paper tape measures avoid cross-contamination.

Both Mr Jayamohan and Dr Cartlidge stated that L’s head circumference measurement should have been taken at Worthing Hospital once it was established that he was suffering from encephalopathy on 3^rd November 2014. However, it was not measured, or at least no measurement is recorded until 6^th November 2014. The net result is that there is no available evidence to show whether L’s head circumference had suddenly increased or whether it had been growing slowly. This is directly connected to the issue of whether L suffered a chronic subdural bleed.

Dr Williams, the consultant haematologist instructed in the case took the view that the blood testing carried out at Worthing Hospital was inadequate. The range of outstanding tests he recommended were, like the MRI scan, carried out within these proceedings. These ruled out a bleeding or clotting disorder as the cause of the retinal and subdural haemorrhages.

As indicated above the report from St George’s hospital dated 17^th November which contained a significant recommendation was not on the L’s record. It is quite clear that it should have been there. Dr Kabole referred his case to that hospital because of their specialist facilities, but the clearest of advice was not followed. Her attempts to arrange for an MRI scan were not recorded.

The pattern of admission and discharge from 31^st October on is recorded above. Mr Jayamohan’s evidence was that the fact that L had returned to hospital within 24 hours of discharge on 2^nd November should have automatically led to the hospital keeping L in for full and proper observations, and he should not have been discharged on 3^rd November. Mr Jayamohan stated that the hospital failed to notice and act on the obvious signs of a growing neurological problem in L: his floppiness, and his arched back.

Once L had been admitted on 3^rd November, when he had fitted, he was clearly very unwell. Mr Jayamohan called the lack of an MRI scan or follow –up CT scan “a missed opportunity”.

The lack of head circumference measurement is described as a basic failure by the experts. It should have been measured on 3^rd November and monitored thereafter.

The lack of Retcam imagery is raised. Mr Morrison was not concerned by this as in his opinion the recordings were competent and detailed. His evidence was that in only 10% of cases nationally are Retcam images available.

As between the experts, Mr Morrison and Dr Sprigg were, as the Local Authority put it “less troubled by the unknown cause scenario”. I was certainly troubled by it and the question repeatedly came to mind: where eminent and highly experienced experts can only say that the case is beyond them, at what point can a lay judge go further without completely cogent evidence to support a positive finding? That was the position facing the court following the evidence of Mr Jayamohan and Dr Cartlidge.

Mr Jayamohan was absolutely frank about his inability to assist the court in this case beyond what was known to him and I am very grateful to him. He deliberately and helpfully avoided shoehorning the case into what is known to him. He was concerned by the significant gaps in the evidence and the “unfathomable” elements in the medical evidence. He was not prepared to propose any cause for the injuries to L. He rated an unknown cause alongside trauma, but said that the decision was up to the Court. Dr Cartlidge too was unable to consolidate his view in favour of trauma and included the unknown into the equation.

It would have been open to me to require the parents and their witnesses to give evidence. However in my judgment there was sufficient for me to elect not to do so. There are no significant concerns about them anywhere in the evidence – their presentation was at all times consistent and appropriate but by the time L came along they were both settled and happy parents. They were doing well as first-time parents and had very good support from the Health Visitor and GP. The index of concern rises from a baseline of zero only marginally in my view on what is known about their past history. What is evident is that mother was rightly dogged and persistent in her pursuit of medical assistance for L. She twice pursued his re-admittance on the same day when he continued to appear unwell to her. She asked that he be kept in on the night of 1^st to 2^nd November when medical staff felt he was fit for discharge. Her instincts about her son and his condition appear to have been more attuned than those professionals dealing with L – it is clear that she really knew that something was wrong with him. She made notes at the time and requested additional testing, and it is fair to say that her protective instincts appear to have kept her alert to the possibility that there was something more going on with her baby than was being diagnosed at the time.

There is very full evidence from the parents available. Cross-examination would have taken this case not one iota further forward.

I have looked together and separately at the experts’ views to evaluate whether it remains open to me to found a decision in relation to causation on what I now have and I have concluded that it is impossible. To do so would in essence be to fill in the gaps myself, to discount or favour one discipline over another and to ignore the powerful range of unresolved evidential features in the case.

Having taken an overview, and reminded myself of the seriousness of this case in all aspects, and the need from L’s perspective to ensure his safety and protection, nevertheless, it is quite clear to me that the court is not likely to be in a position to make a finding against either parent or both. The balance tips well away from the pivot of probability in this case and on the basis of the medical evidence there is no available safe route for the court to tread. Faced with the real possibility of an unknown cause. I fully accept Mr Jayamohan’s reservations about the available evidence (describing it as shaky) and the difficulties caused by the missing information. I am precluded in the circumstances from accepting the initial view of Worthing Hospital that this was a case of non-accidental injury because that opinion has been seriously undermined by the expert evidence, and in any event that is not a course which I have been invited at any time to follow by the Local Authority who accept the weight of the expert evidence.

Any human rights arguments need to be brought to the court’s attention at the earliest possible opportunity (Footnote: ⁵). The argument raised in relation to the strategy meeting was dropped into the mix at the eleventh hour albeit this may have been “the earliest possible opportunity” given the way the evidence emerged. The intention to take human rights points was raised in outline at the close of the evidence. The substance became clearer when written submissions were subsequently lodged I might have paid more attention to the theme myself had I been on notice of it and certainly the other parties would have been entitled to respond as they saw in a timely way and in the case of the local authority to call evidence.

I am forcefully invited to look at the impact on the rights engaged in this case and how they may have been infringed on the basis of what is now known. There is no freestanding application, but there is no novelty to such arguments being raised within Children Act Applications, which this is and remains. Merely because this is an application to withdraw and the outcome is a happy one, I am not relieved of my duty towards those involved to consider if I am able to do so fairly whether an infringement has occurred.

In my judgment, whether or not the local authority had sought to withdraw the application at this stage, the door to consideration was opened further by the interference with the rights engaged which occurred in this case when L was removed.

I am however clear that given the way the issue has been launched by the parents, I cannot fully match up to their expectations, because to do so would be to trespass upon the rights of others where no opportunity has been afforded them to fully answer the points relied upon, and the court should not be drawn in this way where the obvious potential for unfairness lies.

There are therefore serious limitations on this aspect of the case in terms of the right to reply.

Much has emerged in this case: however, hindsight must be carefully applied.

The arguments advanced are twofold: Firstly that the parents should have been invited to either a whole or a part of the strategy meeting on 5^th November when they say that the decision was taken to separate the parents from L, and secondly that the Trust was instrumental in causing that breach because the opinion given at that meeting was so far from the whole picture as to be untruthful. The two arguments are linked by the fact that the local authority relied upon the information they were given at the meeting to initiate proceedings. It follows that the parents are suggesting that I have sufficient evidence upon which to follow their arguments to their desired conclusions.

In relation to the first point, Mr Storey relies upon the case of Re G [2003] 2 FLR 42, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings. Miss Crowley adds into this her argument that the information that the father was believed to have shaken L was fed into the meeting.

Mr Storey sets his stall out in terms of the failures identified in this case, all of which have been considered fully above, as amounting to failures by the Trust which “individually and cumulatively offend Article 8 and the right of all this family (the parents and L) to respect for family life.”

Miss Crowley who supports this argument asks me to find that the failure to include the parents where misleading information was given was likely to have influenced the initial decision-making process, including the lack of any impetus to conduct further investigations including MRI scanning which was inexcusable.

Inevitably they require me to answer the question as to whether the opinion provided both at the meeting and subsequently to the court by Dr Kabole was fundamentally wrong because it was unambiguous and rendered unfair by omission, because it is obvious that without that information, which at the relevant time was unqualified, the consequences for L might have been different.

I accept Miss Taylor’s argument that the Local Authority was not put on notice in relation to the attack launched by the parents as regards the strategy discussion on 5^th November. She was not able to call evidence in rebuttal and no other party explored this discussion substantially in evidence with others who had been there, particularly with Dr Kabole, who is effectively blamed for providing an incomplete forensic picture.

In effect the parents have opened a new combat arena where I am hampered by a lack of the full picture and the local authority is hampered by being unable to respond in evidence. Ros Sims, Amanda Cole and Sally Orton from the department were at the meeting. The court has not had the opportunity to explore the evidential basis for what did or did not occur at that meeting. All I have are a few pages of brief notes, largely unsupplemented by any evidence from those who were present as to what occurred what decisions were taken beyond those recorded.

Miss McKenna had held a cautious position, but she agrees that had the differential diagnosis been available from the outset, things might have unfolded very differently for L.

The Trust have been disbarred from making any representations on this point because I refused to join them as parties. I am unable to follow the requirements of Mr Storey and Miss Crowley on the parents’ behalf, I am satisfied that to do so without affording them the opportunity of a properly evidenced defence would be wrong. The Trust only had notice of the situation when they received a copy of the submissions. Whilst the actions of the local authority could fall to be considered in the case, those of the Trust cannot be so considered fairly.

Furthermore, I have been mindful of the overriding objective in refusing the application for the Trust to be joined as it features in these care proceedings. I have been charged with determining a serious application in a care case, and have kept that in mind throughout as my focus.

Whilst I intend to consider below the arguments raised, I am not able in this case to reach a concluded view which goes beyond the evidence available to me as it emerged in this case.

The Strategy Discussion

In a case such as this, the decision to initiate a statutory s 47 inquiry (set out above) is taken following a strategy meeting held with relevant interested representatives of social services and external agencies such as the police, GPs and other medical personnel, schools, carers and, in appropriate cases, more specialised individuals. No more than and no less than that occurred in this case.

The document generated by the meeting on 5^th November is headed “Record of Strategy Discussion.” I see that It was called for as follows: “Referral from hospital this morning L had been admitted on two occasions. L has subdural bleeds of different ages. Suggestion non accidental injury. Possible shaken baby”.

The proceedings hare was set running on what appears to have been the basis of the single clinical view provided at that meeting. There were a number of doctors at the meeting – Dr Cooke, Dr Kabole and Dr Shute in particular.

These meetings are familiar to the Court. There is a protocol locally in operation across the three local authorities which sets out the normal parameters for such a discussion, which in short includes those who should “generally” be involved. It reads “all participants should be aware that a strategy Discussion/Meeting is a confidential professionals meeting and as such, notes of the meeting should not be shared within anyone without the permission of the chair”.

It was chaired by Amanda Cole but I do not know who made the record. Its accuracy has been explored by the parties with Dr Hazell who gave her input over the phone. I have to say that the list of negatives does not quite coincide with Dr Hazell’s more nuanced evidence but I make nothing of that.

The Social Worker Ros Sims told the court in her statement that L’s injuries were confirmed at the strategy meeting by the consultant paediatricians who attended as non-accidental injuries and consistent with L having been shaken and have resulted in the significant harm that has been medically evidence. The entire case stood on the information available to West Sussex County Council. It was the only thing which supported his removal. The initial stated belief of the local authority was that “L had experienced significant harm from one or more of his carers”.

It was known that the parents were to be arrested and interviewed because it is recorded. The only planning in relation to further action by the local authority was that they were to make a decision regarding legal proceedings. In Re G [2003] 2 FLR 42 the first of the identified requirements upon a Local Authority is to inform parents of their plans. The recorded plan was to move to a decision in relation to legal proceedings. That is all.

The issue is whether in this case, as distinct from other cases where parents would not normally be included in a confidential professionals meeting, the mother and father should have been invited.

Mr Storey argues that on the basis of Re G, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings, this particular strategy discussion should be considered as part of that inclusive roll call to say that he fact that the mother and father were not invited to the Strategy Discussion was an incursion into that right because to was a decision to separate the mother from the child.

Looking again at that decision. I am mindful that what has to be determined is whether, having regard to the particular circumstances of the case, and notably the serious nature of the decisions to be taken, the parents were involved in the decision making as a whole, to a degree sufficient to protect their interests. If not this would amount to a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.”

Mr Storey takes that decision at its highest, and sets it as the first rule in every case, to mean that this particular decision was part of the trial process and the parents were entitled to participate without qualification. If that is the case, then potentially parents would be entitled to be present at every strategy discussion, and the essentially confidential nature of the discussions would be lost.

Like the experts in L’s case I am really hampered. All I have are the recordings. All I know is that the wheels had been set in motion prior to that meeting because there was a plan to arrest the parents and the social workers were going to refer the case to their legal department. It was technically not a decision to separate the parents from L, as far as I can tell from the notes. They are not likely to reflect the whole of the discussions. However I do not have the benefit of the evidence of those present: they have not been required to set out their evidence as to what occurred and why.

It would not have been the practise to invite parents. Nothing in the notes says that they have denied harming L, although they had spoken to Dr Kabole about this. It would have been helpful to hear their version of events, and for all I know the meeting was told this, but it is not in the notes.

To reach any conclusion as regards an infringement of the parents’ rights due to not being invited, a court would at the very least have to ask the following question; Was the omission to invite the parents to a confidential professionals’ discussion, where the case was extremely serious in terms of what was being advanced medically, where their accounts appear not been given to the discussion, an infringement?

The evidential basis for answering those questions with care and fairness is not available to me. To really understand what occurred and why, a court would at the very least need a detailed response from the local authority, and evidence from the key participants which could be fairly and properly tested. I cannot therefore take this point any further.

What does concern me however is the medical information which was given then and later which tended so strongly to characterise this case as a case of inflicted injury as opposed to there having been another possible identifiable cause as of 4^th November and indeed throughout. That alternative possibility has never gone away during this case. The Local Authority assumed that to be the only available diagnosis at the start of the case and the court only had the single view upon which to proceed.

The medical information provided to the Local Authority at the Strategy Discussion

I am inhibited in several respects in considering this aspect of the case. Firstly, Dr Kabole was not cross-examined with any particularity as to what was said at the strategy meeting and has had no opportunity to account for herself. The other Doctors involved have not been called and likewise have provided no evidence.

Even so what has emerged from the evidence is troubling because the clinical background to the opinion that this was a case of non-accidental head injury was by no means as categorical or straightforward, and there was conflicting information.

Firstly, there was already the differential diagnosis of Dr Hinchcliffe available. Neither advanced non-accidental injury and the unusual nature of L’s CT scan results was very clearly a highly relevant consideration.

Secondly whilst that morning the registrar at St George’s appears to have confirmed to Dr Ruffles that the abnormal vein was not significant, that opinion had not been confirmed at consultant level. Unfortunately Dr Ruffles was not called to clarify, even though he attended court. I am not able to agree with Mr Storey that Dr Ruffles must have spoken to the author of the subsequent report who is recorded as Dr Rich.

It appears that the existence of the critical differential diagnoses was not part of the medical profile supplied at the outset to the Local Authority. Both Dr Hinchcliffe and Dr Murray were without a shadow of a doubt highly concerned and confused by their findings and both were in favour of an MRI scan. It does not appear that the identified need for an MRI scan was raised at the meeting.

Had those matters been conveyed to the Local Authority, they might have taken a different view as to the correct way to proceed in L’s case. The fact is that in the first written report they received from Dr Kabole dated the 6^th November she repeats the information that the vein was unlikely to be of clinical significance in this condition, and provides her conclusion that “It is my opinion that on balance, L’s injuries are due to a non-accidental head injury”.

Significantly however her view that an MRI scan was indicated, and which she was trying to obtain, was not before the meeting as far as I can see from the notes.

Of course it is right that had wider information and the question of an MRI scan had been available at this critical stage, the parents would have been better able to ask the kind of questions and mount the kind of response which subsequently denied them. I say that with some caution because as I have indicated I am not satisfied that this issue has been capable of proper and fair exploration. Any further exploration will have to take place in another forum.

On what I have heard, there are some irrefutable givens in this case which require re-statement, because they have had direct consequences for L and his family. In different circumstances, L might have returned to his family many months ago.

The given is that the information provided to the local authority on 5^th November which informed their subsequent action was not the full clinical picture available, rather a concluded opinion.

That concluded opinion was repeated unmodified into the report of Dr Kabole 6^th November, which in turn found its way to the court on 10^th November, again, unmodified.

The fundamental complexity of the case, the evident existence of a differential diagnosis and the recognised need for an MRI scan, had they been clearly included in the information given by Dr Kabole are likely to have resulted in a far different approach than was available to the parties.

Even with the recorded opinion from St George’s the case was clearly forensically complex from the reports of Dr Hinchcliffe and Dr Murray. St George’s was only reporting on the results of the CT head scan. I do not know if they had the notes from the 30^th October which would have added L’s presentation to the whole picture but it seems unlikely given that communication appears to have been largely by phone on 4^th November. The simplification of the complexities by a Registrar appears to have been accepted by those at Worthing, in the absence of a definitive view from a consultant there.

The fact remains that Worthing had a patient with a seriously complex differential diagnosis which Dr Kabole chose on clinical grounds not to pursue on that patient’s behalf. Despite the view from St George’s in the notes, Dr Rich gave a clear and concerned differential diagnosis and recommendation which was available and known to Dr Kabole well before the date she received the paper report. The recommendation was known only to her and Dr Rich until the start of this hearing. It ran contrary to the previous note.

It seems highly likely that St George’s would have undertaken the recommended investigations. Although the contents of that note were conveyed later by Dr Kabole, (without the recommendation), I cannot grasp why it was not communicated as soon as available to the local authority. Even if they had by that time obtained an interim care order, an MRI scan could have been sought long before April on the basis of the clear recommendation. Had that scan been done it would have allowed for an earlier view of what had occurred and the presence or absence of membranes would have been known.

Whilst I recognise that it is likely that Dr Kabole and possibly others based the single conclusion on the note from St George’s, whether or not it is correctly recorded, the fact remains that important competing information in the form of the differential diagnosis was unavailable to either the parents, the Local Authority or the court at the critical decision making stage, where the consequences for L were so catastrophic.

This has been a significantly challenging case for all concerned including the Bar, who have set the highest standards of advocacy and preparation and assisted the court at every turn.

However the real challenge has been for L’s family. His mother and father have suffered the agonies of separation from their child, but worse still have gone through the trauma of their own relationship succumbing to the pressure of these circumstances. L has been well-cared for, but over half his life has been spent without the love and affection of his own parents, despite frequent contact.

I am satisfied that on the information they had the local authority had no alternative but to issues proceedings when they did, and also that the local authority have rightly and properly sought to withdraw their case.

I also conclude on all the evidence and with the benefit of thorough expert opinion, that despite the various obstacles I have heard about, L’s case demanded more thorough investigation than he received. The requirement to provide a complete forensic picture where there was such a high degree of risk to the parents and L in terms of his future was not met.

I am pleased to see that every support will be afforded the mother in caring for L who is a baby who has some health issues independent of the difficulties evidenced last year.

Leave to withdraw is the only proper and proportionate order available to me.

I am also very reassured to know that due to the identified concerns in relation to the care offered to L at Worthing Hospital, the matter will be referred to the Safeguarding Board and probably to the serious case review group, and that there will be a direct approach to the Safeguarding Board’s designated doctor who would join the serious review group to oversee the enquiry. Worthing Hospital’s leadership team are on notice about the concerns.

If there are any wider lessons to be learned, it seems to me that the disclosure of expert reports to Health Trusts or their employees when treating children who have been the subject of further expert evidence should be more widely practised.

Since writing this judgment but before handing it down, I received representations from Capsticks, solicitors, on behalf of the Trust, by email today, 6^th July 2015. I record I view this as an inappropriate course of action. I wish to record that this judgment has not been in any way influenced by the contents of that inappropriate correspondence by a non-party, and I deplore the timing of this approach to the court.