CC (Fact Finding: Head Injury), Re

The clinical evidence

On presentation to hospital CC was found to have a bulging anterior fontanelle with prominent scalp veins E135. His head circumference was noted to have increased to between the 75th and 98th centiles E119, having formerly been noted to be at the 25th centile at birth E119 and at the 50th centile at his 8-week developmental check… K24.

A CT scan was carried out on 8 March 2024 at Hospital A. Later that day CC was transferred to Hospital B and further scans were carried out as follows –

• 9 March 2024 – MRI brain and spine scan

• 11 March 2024 – skeletal survey (Part 1)

• 20 March 2024 – CT head scan

• 26 March 2024 – cranial ultrasound scan

• 27 March 2024 – skeletal survey (Part 2)

• 27 March 2024 – CT head scan

• 8 April 2024 – CT head scan

• 15 April 2024 – CT head scan

The imaging confirmed that CC had sustained the following injuries –

• Multi-compartmental bilateral subdural collections containing haemorrhage surrounding the brain E167, E121; and

• Two lucencies (linear discontinuities in bone) of the R parietal bone of the skull with no associated scalp swelling E132

There was no underlying medical cause identified for these injuries, there was no history of any accidental injury provided by either M or FC, and these injuries were not considered by treating clinicians to have been caused by accidental injury.

CC was born on [] November 2023 via emergency caesarean section at 38 weeks’ gestation. Apgar scores were 10 at 1 minute after birth indicating that he was born in good condition. Head circumference measured 34 cm at birth. He was discharged home…

…

On 08 December 2023, CC was seen by the Health Visitor in a routine home visit. No concerns were noted.

On 03 January 2024, CC was seen by the GP with both parents because of a rash on his lower abdomen. Advice and guidance were given.

On 18 January 2024, CC was seen for a routine review by the Health Visitor where no concerns were raised.

On 23 January 2024, CC was seen for his routine…check at the GP. There were no concerns on examination. Head circumference measured 39 cm.

On 05 February 2024, CC was seen by the GP and diagnosed with a viral upper respiratory tract infection after presenting with a cough, an episode of vomiting after coughing, and being more sleepy than usual.

CC received routine immunisations on 23 January and 20 February 2024.

On 29 February 2024, CC’s dad called NHS 111 with concerns about diarrhoea for 2 days and vomiting that day.

On 01 March 2024, CC was taken by his mum to the GP with a 4-day history of vomiting, refusing food, and loose stools. On examination, the anterior fontanelle was described as ‘normotensive’. The anterior fontanelle is the gap between skull bones used to assess intracranial pressure.

Later that day on 01 March 2024, CC was brought to A&E at Hospital A by his mother with a similar history of vomiting. The Paediatric Assessment Unit (PAU) clerking by the paediatric junior doctor noted a 2-day history vomiting which started after he received Calpol for teething. Additionally, a history of loose stool and being a bit sleepier was recorded. CC was able to take 5 oz of feed without vomiting whilst observed in PAU. On examination a normal fontanelle was noted. A viral infection was suspected and advice given. Senior review by the paediatric registrar also noted a soft anterior fontanelle and agreed with the diagnosis of a likely viral illness.

On 04 March 2024, CC was taken by his mum to the GP with persistent vomiting. The GP recorded a history of lethargy and reduced feeding. The GP made a referral to paediatrics. CC was seen later that day in PAU where he was observed, noted to be passing urine well and tolerating feeds. The suspected diagnosis of an upper respiratory tract infection was given, and he was discharged.

…

CC was brought back to PAU on 08 March 2024 with persistent vomiting after being reviewed by the GP. The PAU clerking by the junior doctor noted vomiting after feeds 5 or 6 times per day, and that he had not been himself described as irritable and sleepy. CC’s mum had also noted a blotchy red dry skin on his forehead that had resolved. On examination he was noted to be alert and settled. His fontanelle was noted to feel full (suggestive of raised intracranial pressure). Head circumference measured 42 cm. This was noted to be on the 98th centile representing an increase from the 25th centile at birth and the 50th centile during the…baby check. Senior review by the paediatric registrar…noted a similar history of vomiting for 10 days and that he was otherwise well in himself. He was described as looking macrocephalic (having an enlarged head).

A CT scan was performed on 08 March 2024 and reported as showing fractures of the right parietal bone and small volume hyperdense haemorrhage overlying the frontal lobe. This was discussed with the regional neurosurgery team in Hospital B who advised urgent transfer for specialist care.

C was transferred to Hospital B on 09 March 2024 [in fact it was late on 8 March 2024 - see Dr Cartlidge [E181]]. Initial paediatric assessment noted a history from mum that CC had head-butted dad a few days ago, after he had already started vomiting, and that there was no other history of trauma. Mum noted that CC was sleepier than normal.

CC was assessed by the Paediatric Registrar…who on examination found that CC was sleepy but rousable, had dilated scalp veins and a bulging, pulsatile, and tense anterior fontanelle. Head circumference measured 43 cm. He was described as having good head control but unable to fix and follow with his eyes. No other abnormal findings were noted on examination and there were no external signs of injury.

Soon after arriving, he underwent a trans-fontanelle tap of the subdural collection, which is a procedure performed at the bedside where a needle is inserted via the gap between skull bones to drain the subdural collection. 21 ml of blood-stained cerebrospinal fluid (CSF) was drained. This was tested for infection and no evidence of infection was found.

During the review by the Paediatric Neurosurgery Team on 09 March ...further history was obtained from mum including that CC had been vomiting since mum was admitted to Hospital A for treatment of a chest infection on 27 to 28 February. Prior to this he was not

vomiting, was feeding well, and not distressed. Mum denied that there have been any problems with CC’s eyes such as a squint or difficulty looking up, nor problems with moving his limbs. She reported that the scalp veins were prominent but was not sure when that started.

MRI on 09 March 2024 was reported as showing large bilateral subdural fluid collections with evidence of haemorrhage, shallow right-sided posterior fossa subdural collection, and no evidence of injury to the brain substance. The spine MRI was reported as normal.

Ophthalmology review on 09 March 2024 found a normal examination with no evidence of retinal haemorrhages or disc swelling.

On 10 March 2024, CC was described as much brighter and to be feeding well although he still continued to vomit.

Head circumference measured 43.6 cm on 12 March 2024.

CC was reviewed by Consultant Neurosurgeon…on 12 March 2024 who noted that CC had responded to a single fontanelle tap and that although his fontanelle remained full, he was not showing clinical signs of raised intracranial pressure. He provided an opinion on the presenting CT scan describing lucencies in the parietal bone that might be fractures or possibly accessory sutures.

CC was repatriated from Hospital B to Hospital A on 13 March 2024. He remained well during the rest of his inpatient stay and was discharged into foster care on 19 March.

CC’s mum disclosed to the medical team on 16 March 2024 about an incident when dad was looking after CC, picked him up, moved to the bedroom and then his two siblings heard a loud bang coming from the room and dad was shouting.

CC was readmitted to Hospital B on 20 March 2024 due to an increased head circumference. On initial assessment by the Neurosurgical Registrar his fontanelle was described as full but not as tense as before. He was noted to have been feeding with small vomits that day but otherwise happy and interactive. Head circumference measured 44.5 cm.

CT head on 20 March 2024 was reported as showing a marginal increase in the bilateral subdural collections. The previously seen acute haemorrhage had resolved.

The ventricles were also noted to be slightly larger likely reflecting reduced pressure from the drained subdural collections.

Head circumference measured 44.9 cm on 21 March 2024. His fontanelle was described as full and tense. Consultant Neurosurgeon…performed a trans-fontanelle tap on 21 March with 29 ml of fluid aspirated and described as 'frankly red fluid obtained, under pressure. The fluid was neither clear/xanthochromia nor dark/motor oil appearing. It was "Venetian" red'.

Clinical examination by the Neurosurgery Team on 22 March 2024 found a full fontanelle and concluded that the subdural collections were refilling and therefore decided to insert a surgical drain. This was performed in the operating theatres through a right frontal incision. A drain was inserted into the subdural space and tunnelled out through the skin to drain fluid into a collection bag.

A cranial ultrasound on 26 March 2024 showed similar sized subdural collections as seen previously on the CT.

On 30 March 2024 the subdural drain was noted to be blocked with fresh blood. CT showed a reduction in the size of the subdural collections with some fresh blood related to the drain insertion.

Over the next few days, CC’s head circumference remained stable and he remained clinically well. Intermittent leak from the drain exit site on the head was noted from 04 April 2024. This is a frequent complication of these types of drains.

CT head on 08 April 2024 was reported as showing a reduced volume of subdural fluid with the drain inserted.

The drain was removed in theatre under anaesthesia on 08 April 2024.

CT head on 15 April 2024 showed an increase in the size of the subdural collections. This was discussed with the neurosurgery consultant who considered that further intervention might be required but was content to observe in the first instance.

Over the next few days, CC remained well with no concerns noted from nursing

staff and with a soft fontanelle.

He was discharged on 19 April 2024. Head circumference prior to discharge on 18 April was 44.8 cm.

M response to threshold [A1] and response to Schedule of allegations [Z32];

FC response to threshold [A4] and response to Schedule of allegations [Z53];

Schedule of allegations [A68] and Amended Schedule;

Paediatric haematology report of Dr Keenan dated 28 May 2024 [E53] and addendum after further testing [Z57];

Paediatric neurosurgical report of Mr Jalloh dated 18 June 2024 [E108] and addendum dated 10 October 2024 [Z12];

Paediatric neuroradiology report of Dr Oates dated 1 July 2024 [E132] and informal addendum reported in the Local Authority case summary;

Paediatric report of Dr Cartlidge dated 14 August 2024 [E171] and addendum dated 9 October 2024 [Z1];

Report of Dr Cummings, treating paediatrician [F41];

Witness statement of Jo McDonnell, health visitor [C45];

Transcript of Police interview of M [O24];

Transcript of Police interview of FC [O1] and [O66];

Transcript of Police Achieving Best Evidence (ABE) video recorded interview (VRI) of CA [U1] and the video recording [O548];

ABE VRI of CB [O526];

Police log [O407-O458];

Drugs test of FC 16 April 2024 [E1] and 23 September 2024 [E245];

111 call transcripts [Section S] and the recording of the first call on 29 February 2024 [P1];

Body worn video (BWV) footage of 8 March 2024 [O515-O519];

Phone records (variously in section Z, I will not use the pagination as it relies on M and FC’s initials);

Witness statements of M [C66] and [C109]; and

Witness statement of FC [C75] and [Z53].

A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and

that the harm, or likelihood of harm, is attributable to –

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

the child’s being beyond parental control.

…The principles are conveniently set out in the judgment of Baker J in Re L and M (Children) [2013] EWHC 1569 (Fam), to which I was taken. So far as material for present purposes what Baker J said (and I respectfully agree) was this:

“First, the burden of proof lies at all times with the local authority.

Secondly, the standard of proof is the balance of probabilities.

Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation …

Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.

Fifthly, … Whilst appropriate attention must be paid to the opinion of … experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.

Sixth, … The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.

Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.

Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720 ).” [I address this further below]

To this admirable summary I add three further points.

First, that the legal concept of proof on a balance of probabilities “must be applied with common sense”, as Lord Brandon of Oakbrook said in The Popi M, Rhesa Shipping Co SA v Edmunds , Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948, 956.

Secondly, that the court can have regard to the inherent probabilities: see Lady Hale in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11, para 31. But this does not affect the legal standard of proof, as Lord Hoffmann emphasised in the same case (para 15):

“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely.”

Thirdly, that the fact, if fact it be, that the respondent … fails to prove on a balance of probabilities an affirmative case that she has chosen to set up by way of defence, does not of itself establish the local authority’s case. As His Honour Judge Clifford Bellamy recently said in Re FM (A Child: fractures: bone density) [2015] EWFC B26, para 122, and I respectfully agree:

“It is the local authority that seeks a finding that FM’s injuries are non-accidental. It is for the local authority to prove its case. It is not for the mother to disprove it. In particular it is not for the mother to disprove it by proving how the injuries were in fact sustained. Neither is it for the court to determine how the injuries were sustained. The court’s task is to determine whether the local authority has proved its case on the balance of probability. Where, as here, there is a degree of medical uncertainty and credible evidence of a possible alternative explanation to that contended for by the local authority, the question for the court is not ‘has that possible alternative explanation been proved’ but rather it should ask itself, ‘in the light of that possible alternative explanation can the court be satisfied that the local authority has proved its case on the simple balance of probability’.”

I agree with the judgment of Ward LJ. Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward LJ said, judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption or belief in a doctor however distinguished he or she may be. It is, however, necessary for a judge to give reasons for disagreeing with experts' conclusions or recommendations. That, this judge did. A judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes.

Parties should understand that the court’s approach to witness evidence based on human memory will be in accordance with CPR PD 57AC, Appendix para 1.3.

This states that human memory:

is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.

To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing and relaying the account. The possible effects of delay and questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process which might inelegantly be described as “story creep” – may occur without any inference of bad faith.

Such evidence may demonstrate that each parent has been or is capable of being physically aggressive or emotionally abusive to the other. The potential for harm to a child in such circumstances is self evident but in order to ensure that it is considered in every case, Parliament has enacted an amendment to the 1989 Act to provide for the same: by s 31(9) as introduced by s 120 Adoption and Children Act 2002 harm explicitly includes impairment suffered from seeing or hearing the ill-treatment of another: in colloquial terms, domestic abuse.

However, despite the above, what such incidents do not of themselves demonstrate, is that either parent has the propensity to violence towards small children. A clear distinction is to be drawn between the relevance and admissibility of evidence which describes the harmful circumstances in which a child is being cared for and the same evidence when it is used to suggest that a person has a propensity to commit a particular act. In other words, the evidence will be very relevant to harm or its likelihood in s 31(2) and the court’s assessment of risk in s 1(3)(e) of the 1989 Act but not necessarily to perpetration. It may be forensically unwise for the court to attach much, if any, weight to this evidence if it is directed only to the question of propensity…

No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only ‘what happened in the past?’ but also ‘what may happen in the future?’, a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable.

I therefore respectfully agree with what Macur LJ said in Re M (Children) at [12], with emphasis on the word ‘solely’:

“It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

…

28…There will be cases where the manner in which evidence is given about such personal matters will properly assume prominence. As Munby LJ said in Re A (A Child) (No. 2) [2011] EWCA Civ. 12 said at [104] in a passage described by the Judge as of considerable assistance in the present case:

“Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness - as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core… Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities.”

Still further, demeanour is likely to be of real importance when the court is assessing the recorded interviews or live evidence of children. Here, it is not only entitled but expected to consider the child’s demeanour as part of the process of assessing credibility, and the accumulated experience of listening to children’s accounts sensitises the decision-maker to the many indicators of sound and unsound allegations.

That a witness’s dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments…in formulaic terms:

“that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and/or that they have lied about everything”.

But this formulation leaves open the question: how and when is a witness’s lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire ‘Lucas’ direction as given, when necessary, in criminal trials.

Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:

“1.

A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that:

(1)

it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake;

(2)

it relates to a significant issue;

(3)

it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt.

2.

The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D’s lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …”

Had the local authority proved that the injuries were inflicted as opposed to being accidental?

If the injuries were inflicted, who had the opportunity to cause them?

Of those people, could one person be identified on the balance of probabilities as having inflicted the injuries (a conventional 'known perpetrator' finding)?

If only two people…could have caused the injuries, but the one responsible could not be identified it necessarily followed that there was a real possibility that each of them may have caused the injuries (an 'uncertain perpetrator' finding).

Uncertain perpetrator cases—If the judge cannot identify a perpetrator or perpetrators, it is still important to identify the possible perpetrators by asking whether the evidence establishes that there is a ‘likelihood or real possibility’ that a given person perpetrated the injuries in question (Re S-B (Children) [2010] 1 FLR 1161, SC; North Yorkshire CC v SA [2003] 2 FLR 849, CA). In such circumstances, it is all the more important to scrutinise the evidence carefully and consider whether anyone, and if so who, should be included as a possible perpetrator (Re S (A Child) [2014] 1 FLR 739, CA). However, it is not helpful for the judge to give an indication of percentages as to the likelihood that one or other of the possible perpetrators was responsible and judges should be cautious about amplifying in this way a judgment in which they have been unable to identify a specific perpetrator (Re S-B (Children) [2010] 1 FLR 1161, SC).

In A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 the Court of Appeal reiterated that the evaluation of the facts which will enable a court to identify the perpetrator of an inflicted injury to a child will be determined on the simple balance of probabilities and nothing more. In this context, the Court of Appeal stated that judges should no longer direct themselves not to ‘strain’ to identify the perpetrator as the unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.

In Re B (A Child) [2018] EWCA Civ 2127, and Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, the Court of Appeal gave further consideration to so called ‘uncertain perpetrator’ cases. In Re B (Children: Uncertain Perpetrator), the Court of Appeal urged a change of terminology from ‘pool’ to ‘list’. The following principles can be drawn from the two authorities:

The concept of a ‘pool’ of perpetrators is one that seeks to strike a fair balance between the rights of the individual, including those of the child, and the imperatives of child protection;

A decision by a court to place a person in a ‘pool’ of possible perpetrators does not constitute a finding of fact in the conventional sense in that that person is not proven to be a perpetrator but is rather a possible perpetrator;

Where there are a number of people who might have caused the harm to the child, it is for the local authority to show that in relation to each of them there is a real possibility that they did so;

Within this context, the question is whether it has been demonstrated to the requisite standard that a person is a possible perpetrator. Approaching the matter by considering who could be excluded from a ‘pool’ of possible perpetrators is to risk reversing the burden of proof. The court must consider the strength of the possibility that the person was involved as part of the overall circumstances of the case;

In doing so, in future the court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury;

The court should then consider whether it can identify the actual perpetrator on the balance of probability and should seek to do so. At this stage, the correct legal approach is to survey the evidence as a whole as it relates to each individual in order to arrive at a conclusion about whether the allegation has been made out in relation to one or other on a balance of probability. Evidentially, this will involve considering the individuals separately and together and comparing the probabilities in respect of each of them. Within this context, the right question is not ‘who is the more likely?’ but rather ‘does the evidence establish that this individual probably caused this injury?’ In a case where there are more than two possible perpetrators, the Court of Appeal highlighted a clear danger in identifying an individual simply because they are the likeliest candidate, as this can lead to an identification on evidence that falls short of a probability;

Only if the court cannot identify the perpetrator to the civil standard of proof should it then go on to ask of each of those on the list whether there was a likelihood or real possibility that they caused the injuries. Only if there is, should that person be considered a possible perpetrator;

It is important to note that the court remains under a duty to consider the welfare of the child under ChA 1989, s 1(3) where that child has suffered injury and thereby significant harm, even where it is not possible to say who the perpetrator of harm is (Re S (A Child)). Note that the Court of Appeal has suggested that, in the context of the requirements of the Children Act 1989, s 31(2), the terms ‘non-accidental’ and ‘accidental’ injury are, in addition to being tautologous and oxymoronic, unhelpful, the threshold criteria not being concerned with intent or blame but rather with an objective standard of care (Re S (Split Hearing) [2014] 1 FLR 1421, CA). Where the court is satisfied that the child has suffered significant harm, the threshold conditions under ChA 1989, s 31(2)(b)(i) will be met in relation to that child even though the court is unable to identify who within the pool of possible perpetrators inflicted the harm: Lancashire County Council v B [2000] 1 FLR 583, HL, in which helpful guidance is given as to how evidence needs to be tested to establish the threshold criteria for the purposes of s 31 where the perpetrator is uncertain. In determining whether a person is properly included in the pool of potential perpetrators, it is essential that the court weighs any lies told by that person against any evidence that points away from them having been responsible for the injuries (H v City and Council of Swansea and Others [2011] EWCA Civ 195). In these ‘uncertain perpetrator’ cases, the correct approach is for the case to proceed at the welfare stage on the basis that each of the possible perpetrators is treated as such (Re O and N: Re B [2003] 1 FLR 1169, HL). The House of Lords held in that case that it would be grotesque if, because neither parent had been proved to be the perpetrator, the court had to proceed at the welfare stage as though the child were not at risk from either parent, even though one or other of them was the perpetrator of significant harm. The judge conducting the welfare hearing should have regard to the facts found at the preliminary hearing when they leave open the possibility that a parent or carer was a perpetrator of proved harm and that conclusion should not be excluded from consideration.

That said, and considering the authorities set out above, the Report of the Inquiry into child abuse in Cleveland 1987 Cm 412 and Report of the Inquiry into the Removal of Children from Orkney in February 1991 among others and the contents of the current ABE Guidance, I am satisfied that this court can take judicial notice of the following matters:

Children, and especially young children, are suggestible.

Memory is prone to error and easily influenced by the environment in which recall is invited.

Memories can be confabulated from imagined experiences, it is possible to induce false memories and children can speak sincerely and emotionally about events that did not in fact occur.

Allegations made by children may emerge in a piecemeal fashion, with children often not reporting events in a linear history, reporting them in a partial way and revisiting topics.

The wider circumstances of the child’s life may influence, explain or colour what the child is saying.

Factors affecting when a child says something will include their capacity to understand their world and their role within it, requiring caution when interpreting children’s references to behaviour or parts of the body through the prism of adult learning or reading.

Accounts given by children are susceptible to influence by leading or otherwise suggestive questions, repetition, pressure, threats, negative stereotyping and encouragement, reward or praise.

Accounts given by children are susceptible to influence as the result of bias or preconceived ideas on the part of the interlocutor.

Accounts given by children are susceptible to contamination by the statements of others, which contamination may influence a child’s responses.

Children may embellish or overlay a general theme with apparently convincing detail which can appear highly credible and be very difficult to detect, even for those who are experienced in dealing with children.

Video-recorded interviews with children are hearsay evidence but may be admitted as evidence

of truth of the statement in family proceedings. Such interviews should be conducted in accordance with the detailed guidance in Achieving Best Evidence in Criminal Proceedings (ABE) (latest edition 2022) although this guidance is non-statutory. The court can make findings based on ABE evidence so long as it is alive to the hearsay nature of the evidence and the age of the children at the time of interview (Re M (Sexual Abuse: Evidence) [2010] EWCA Civ 1030). In TW v A City Council [2011] 1 FLR 1597, CA, the Court of Appeal found that the inadequacies of the ABE interview were so manifest, even allowing for a broad margin of latitude to anyone conducting such an interview, that no evidential weight could be placed on it. In particular, it was not sufficient for a judge to rely primarily on the fact that a child might be able to stand up to and overcome a thoroughly unsatisfactory interview; rather, a clear analysis of all the evidence was required and the child’s interview had to be assessed in that context. In Re W; Re F (Children) [2015] EWCA Civ 1300, the forensic value of the ABE interviews was found to be minimal such that the trial judge had been wrong to attach any weight to them. Whether the flaws in ABE evidence are so fundamental as to render the interviews wholly unreliable is a matter for the trial judge who must analyse the process thoroughly to evaluate whether any of the allegations made in such inter views can be relied upon (see Re E (A Child) (Evidence) [2017] 1 FLR 1675, CA, Re M-Y (Children) [2019] 1 FLR 79, CA and Re C (A Child) (Fact-Finding) [2022] EWCA Civ 584 where the Court of Appeal dismissed a father’s appeal against findings in care proceedings where criticisms were made of ABE interviews).

Hearsay evidence is admissible as a matter of law, but…this evidence and use to which it is put has to be handled with the greatest care and in such a way that, unless the interest of the child make it necessary, the rules of natural justice and the rights of the parents are fully and properly observed.

In considering the extent to which, if at all, a judge would rely on the statements of a child made

to others, the age of the child, the context in which the statement was made, the surrounding circumstances, previous behaviour of the child, opportunities for the child to have knowledge from other sources, any knowledge, as in this case, of a child’s predisposition to tell untruths or to fantasise, are among the relevant considerations.

The reliability of the person relating what the child said is of vital importance.

4 Considerations relevant to weighing of hearsay evidence.

CC was born in November 2023 by an emergency Caesarean Section during which no instrumentation was used. At birth his head circumference was noted to be on the 25th centile.

CC was born by Caesarean Section during which no obstetric instrumentation was used.

On 8 March 2023 [in fact it was 23 January 2024] CC was examined during his 8 week developmental check and his head circumference was noted to have increased to the 50th centile.

On presentation and examination at the paediatric assessment unit at A Hospital, 8 March 2024, CC was found to have a bulging anterior fontanelle with prominent scalp veins. His head circumference was noted to have increased to between the 75th and 98th centiles.

The following scans were taken in respect of CC (all except the 8/3/24 CT scan taken at Hospital B)–

• 8/3/24 – CT head scan (Hospital A)

• 9/3/24 – MRI brain and spine scan

• 11/3/24 – skeletal survey (Part 1)

• 20/3/24 – CT head scan

• 26/3/24 – cranial ultrasound scan

• 27/3/24 – skeletal survey (Part 2)

• 27/3/24 – CT head scan [in fact on 30 March 2024 per Dr Oates’ oral evidence]

• 8/4/24 – CT head scan

• 15/4/24 – CT head scan

There is no radiological evidence to suggest CC has or had a predisposition to fracturing.

The skull fractures were not caused by any underlying organic features or any medical condition capable of causing significant bone fragility.

The skull fractures were not caused by CC [] because he would have had insufficient mobility to self-sustain fractures.

It is not likely that the skull fractures [] were caused by a ‘clashing heads incident’ (as described by FC) because the forces involved in such an incident would be too trivial and would not have generated enough force to cause a skull fracture []. Such an incident could not have caused the skull fractures [] because it is very unlikely that a child of CC’s age [] would have been able to generate sufficient force to cause the severity of the injury.

Group 1: Subdural collections

CC presented with the following injuries-

Multi-compartmental bilateral subdural collections containing haemorrhage surrounding the brain.

Group 2: Skull fracture

CC presented with the following injuries-

two lucencies (linear discontinuities in bone) of the R parietal bone of the skull with no associated scalp swelling.

It is most likely that the lucencies are two separate R parietal fractures to the skull because-

both lucencies are unilateral and widen towards an established major suture,

they undergo a healing response over the course of the CT scans, and

other normal variants which are present are unchanged.

Group 3: Skull fracture dating

It is likely that the skull fractures were caused in the period between 26 January - 8 March 2024 because the progressive healing response between the CT head scans shows that the skull fractures were most likely to have been not more than approximately 6 weeks old at the date of presentation on 8 March.

However, the absence of scalp swelling on either clinical or radiological examination is most consistent with any fractures being more than about 10 days old on 8 March 2024.

The skull fractures were therefore most likely to have been caused in the approximate period 26 January – 28 February 2024.

It is likely that the skull fractures occurred at the same or a similar time to the subdural collections by the same mechanism, or in the alternative it is likely that the skull fractures [I think this should read sub-dural collections] were caused by a separate shaking-type mechanism, or in the alternative it is possible that the skull fractures were caused after two separate impact events.

The skull fractures were likely to have occurred after significant and memorable events to anyone in attendance at the time.

Group 4: Subdural collections dating

It is most likely that CC’s intra-cranial injuries were caused by an episode or episodes of non-accidental injury on or about 27 February 2024 E108 but it is possible that they were between one and three weeks old at presentation on 8 March 2024 (ie: in the period 16 February - 1 March 2024) E132. The subdural collections were most likely to have been caused on or within a few days before 27 February 2024 and after the time that CC was last completely well, feeding and handling normally.

The intra-cranial injury was most likely to have been sustained at the time when CC started to be sleepy and sick on 27 Feb 2024.

Group 5: Skull fracture mechanism

The skull fractures were not caused by birth-related trauma or injury.

CC has no identified underlying blood clotting disorder that could have caused the skull fractures.

The parents have not disclosed or described any episode of accidental trauma which could have caused the skull fractures.

It is most likely that the skull fractures were caused non-accidentally by a significant impact injury to the head involving blunt impact force with a hard surface during a forceful event that involved greater handling than encountered in normal life.

It is most likely that shaking and an impact were aspects of a single causal mechanism, namely a single head injury.

Group 6: Subdural collections mechanism

The large multifocal subdural collections were not caused by birth trauma.

CC has no identified underlying blood clotting disorder that could have caused the subdural bleeding.

It is not likely that the subdural collections were caused by an underlying brain abnormality, brain infection or a structural brain abnormality.

It is not likely that [] the subdural bleeding were caused by a ‘clashing heads incident’ (as described by FC) because the forces involved in such an incident would be too trivial and would not have generated enough force to cause [] the multi-focal subdural bleeding. Such an incident could not have caused [] the brain injuries because it is very unlikely that a child of CC’s age (3 months 10 days) would have been able to generate sufficient force to cause the severity of the injury.

The brain injuries were more likely to have been caused by a rapid/repetitive acceleration/deceleration (for example, shaking), rather than an impact injury, because of the multifocal nature of the injuries or alternatively, although such a significant impact event may have been sufficient to cause the diffuse subdural collections (if there were associated excessive acceleration/deceleration forces), this would be atypical, and a co-existing abusive, shaking-type injury remains a possibility.

The substantial impact with an unyielding object with sufficient force to have caused the skull fractures could also have caused some, if not all, subdural bleeding.

It is not likely that that an accidental trauma could have caused the brain injuries.

Trauma is the most likely cause of the subdural collections.

It is most likely that shaking and an impact were aspects of a single causal mechanism, namely a single head injury.

Group 7: Perpetrators

On 27 February 2024 FC had taken drugs and/or alcohol whilst caring for the three children alone.

The injuries to CC were caused by FC on or about 27 February 2024 whilst in FC’s sole care.

Group 8: Observers

The level of force needed to cause the skull fractures and/or the subdural bleeding would have been obviously excessive to a normally competent and responsible person.

The skull fractures would have been initially very painful, typically for about ten minutes (unless CC was rendered unconscious by the causal event).

FC would have realised that CC had been hurt.

As the person not witnessing the event and caring for him, M might have found him to be fractious, but would not have realised the cause unless or until a scalp swelling was found.

[C15]

At the re-strategy meetings held on 11th March 2024 and 13th March 2024, the safeguarding nurse reported that nursing staff on [] Ward had noted that M was not always attentive to CC’s needs. M required prompting at times to change his nappy and respond when he was crying.

He was asked who a particular person referred to in text messages was and denied knowing anyone by that name except Maternal Grandfather. Later he said he also knew someone’s ex-partner by that name and he had been “mistaken”;

He was asked if he was “trying to set up a sexual liaison on more than one occasion after CC was born” and he acknowledged he had done so on 9 March as evidenced by text messages but then had to accept it was in fact on more than one occasion;

He agreed M was right to call him a liar in relation to his liaisons with other women;

He agreed he allowed M to believe she was “going a bit crazy imagining” he was seeing other women;

On the first day of his oral evidence he said he never drank alcohol when he had care of the children. On the second day he said he did not drink when looking after the children, he agreed that was an absolute rule. He had told the police in interview on 18 March 2024 he would not be drunk in charge of looking after CC but agreed he might have 2-3 cans [O80]. His only explanation for the difference was he told the police it was a “possibility” but of course it would not have been a possibility if it was an absolute rule. When taken to an earlier part of the interview in which he had said he was with the kids and “it would be a few, few beers” [O76] he said he did not mean it was when he had sole care of the children. In any event, at the end of his cross-examination he came to accept that his memory was “utterly impaired” on the night of 27 February 2024 and it was “quite possible” he had drunk so much he could not remember the events of that night when all three children were in his care and it was a lie to have said he never drank whilst the children were in his sole care;

He said he did not think there had been allegations of domestic abuse in his relationship with his current girlfriend; he was asked if there had been an incident involving damage to her property and said there had been a party and “a window got broken and we were all questioned”. There was no mention of a party in the police record at [Z261] which described him kicking and punching the glass after an argument; when taken to it he accepted that was in fact true, he shouted at her through the door and kicked and punched the glass, he agreed the fact the police were called was nothing to do with a party, he then agreed that shouting, punching and kicking the glass was domestic abuse;

He was asked if that was the only time he had been in trouble for an incident with criminal damage and said as far as he could remember it was, but when confronted with a report from October 2022 [O141] it “came back” to him that he had an argument with a previous girlfriend. He evaded answering whether this was controlling behaviour by saying he accepted the messages alleged to have been sent were sent. When pressed he agreed it was and agreed he had changed his view over the 20 seconds of cross-examination that preceded it; when confronted by the report that he was “screaming at her and began to damage her property” he agreed he had broken a mirror and said “now we are talking about it I remember” another incident of criminal damage;

In cross-examination he was asked about treatment for drug and alcohol addiction. He said he had “possibly made calls” to set up addiction counselling in the last month yet in his statement of 15 April 2024 [C54], repeated in a revised version of 17 May 2024 he said he was “seeking assistance from Turning Point or similar” [C77]. When I asked him why he had not mentioned that in oral evidence he said he sought help and then stopped but could not give an explanation for not giving that oral evidence;

He accepted in cross-examination that he had an alcohol addiction but in his statement he had said “drug and alcohol use…was purely on a recreational basis” [C54/5]. His explanation was he meant that cocaine use was recreational not alcohol use but that is plainly not how the statement is worded and he confirmed its contents at the outset of his oral evidence;

He accepted that when first spoken to by the police on 9 March 2024 he lied in saying he did not use drugs [O205];

He accepted that when he spoke to the social worker on 14 March 2024 he lied when he said cocaine use was “in his past and it has never been around the children” [F62]. He later agreed it was in fact a possibility he used cocaine in the bathroom at home, he would “put it on a card and snort it”;

He accepted that in interview by the police on 18 March 2024 he lied in saying “I’ve tried cocaine a few times” as his use was more regular and ongoing [O77];

He accepted that in the same interview he lied in saying he last used drugs “like, three, three months ago” [O78];

He accepted in the same interview he lied when he said, in relation to CA and CB’s allegation they had heard a thud and FC swearing when CC was in his care in early February, “that definitely wouldn’t have happened. No, No.” [O79] and “there was no…there was no swearing” [[O80]. He told me “I’m holding my hands up to say I have lied to the police”;

He accepted he lied in his hair strand test declaration on 8 April 2024 by saying he used cocaine “occasionally”, when it was more than occasionally [E6];

He accepted he lied in his hair strand test declaration on 5 September 2024 saying he used cocaine “a couple of times over four months” when he was still a heavy user [E249] and he under declared his alcohol use at 6-12 cans of beer in a typical week. FC had significant difficulty explaining what the true picture was; first he said “sometimes over 6 in a week”, then “it could be way more than that” then said up to 20 cans a week, then some weeks it could be over 20 cans and eventually said “between 20 and 30”;

He was asked in relation to drinking alcohol when it was that his speech would start to slur and he said “after about 6 cans” but when he was taken to his police interview on 18 March 2024 he had said his voice changes after “one or two beers” [O79];

He was asked about arranging a drug delivery on 2 March 2024 and he said it was to arrange a delivery to a friend, but could not initially explain why there were no messages from him to the friend then a few moments later said he “may have used my iPad” to message him and when I asked why he had not mentioned that earlier he said he “didn’t think it was necessary”;

He was asked where he kept his cocaine and initially said he did not store it anywhere. When it was put to him he was found in possession of drugs in 2022 he said in his pocket; he denied he would have it in the home except for traces in baggies in his pocket. But he could not explain why he would carry empty baggies, and in answer to my question agreed he would use it before returning home. But in almost the next exchange he agreed there were times when his dealer would in fact deliver to the home, then in answer to a later question said there might have been cocaine in the home when M was in hospital and agreed he had lied. He said that he should not have said there would only be empty baggies and said he would keep partial or full baggies in his clothes cupboard or trouser pockets. He could not give an explanation for lying about it in court under oath;

He accepted his description of what happened during the 111 call on 29 February 2024, as given to the police on 9 March 2024 [O204], was quite possibly “nonsense”. He accepted his statement of 14 October 2024 in relation to what happened whilst on the call was largely incorrect;

He eventually accepted what he told the police about M having rung him on 8 March 2024 saying CC was “coughing up bile” [O205] was “nonsense” and lies; there was no call at all and therefore he had not “insisted” that M try to get a doctor’s appointment;

In a series of questions towards the end of cross-examination he made the following admissions:

In relation to cocaine use he initially said he would use drugs before returning home and that even when he could not resist the craving for alcohol he was able to resist the craving for cocaine that would follow drinking alcohol. I find that very difficult to accept;

When asked whether he had been impaired by alcohol or drugs when he prepared his most recent statement he agreed he “was pissed” when it was made; and

He repeatedly said he could not remember events at Hospital A on 8 March 2024. He was spoken to with M at 20.33 [L31-L32]. He said “I was drunk” by way of explanation for not remembering, yet the police attended the family home where he was present with the children at 21.37 [O519] and he was able to have lucid conversations and gave no appearance at all of being drunk in the BWV. He could not give an explanation for having gone from so drunk he could not remember to being lucid.

[E138]

Based on this single CT appearance, the lucencies may reflect normal variant accessory sutures/fissures or alternatively fractures to the skull bones. However, given the evolution in appearance of the lucencies over multiple follow-up CT scans, I believe they are most likely to reflect skull fractures.

[E145]

• Of note, the previously described two discrete linear lucencies extending through the right parietal bone are now becoming indistinct.

o In addition, there is evidence of faint, bone-like material traversing the fractures site.

▪ This is despite the sutures remaining widely patent.

o I believe this finding, and the continued evolution over the subsequent CT scans of 30/03/2024, 08/04/2024 and 15/04/2024, leads me to conclude that the lucencies are most likely to reflect fractures.

[E157]

Based on the appearance over the course of the 5 CT scans, I believe it is most likely that lucencies are skull fractures. I say this because both lucencies are unilateral (i.e. only one side of the skull) and widen towards an established major suture, but most importantly they undergo a healing response over the course of the CT’s…I cannot say with absolute certainty that they are skull fractures (as opposed to normal variants) but I would not anticipate the latter to “heal” in such a manner even with the potential variable of the fluctuating intracranial pressures due to the subdural collections. (Of note, the other normal variants evident e.g. bilateral occipital foramen and small sagittal membranous fissures are unchanged).

[O415]

FC first noticed something was wrong with CC approx. 9 days ago. He had been at work all day and when he returned CC appeared normal...On recommendation from the Dr that when babies teeth they can have Calpol, they gave CC some Calpol quite quickly after this feed. Immediately CC projectile vomited so they rang 111. Whilst on the phone CC became rigid. FC demonstrated

this by holding his arms in the air. FC stated he could not get CC’s arms to go down and this lasted for 10-15seconds.

[O416]

…FC said CC has been sleeping too much…

[O417]

Last Tuesday [27 February 2024] CC started vomiting, so I took him to my local GP [] on FRIDAY 1ST MARCH 2024 because CC was vomiting a lot…

…

I took CC to [] MEDICAL CENTRE again on TUESDAY 5TH MARCH 2024 because CC was still throwing up…

[E163]

Ultimately, given the rapid evolution between CT scans, I believe the skull fractures were unlikely to be longstanding and I would estimate not more than approximately 6 weeks old at presentation (and possibly much more recent).

[E126/4.44]

Invariably, skull fractures caused by trauma are associated with scalp swelling which is not always obvious clinically but would be seen on CT and is typically visible for at least 2 weeks.

[E127/4.46]

The absence of scalp swelling implies the skull fracture would be at least 2 weeks old by the time of the CT scan on 08 March 2024 i.e., caused by an episode of trauma on or before 23 February.

[E126]

CC’s clinical presentation with vomiting, macrocephaly (enlarged head circumference with separation of the skull sutures) and tense fontanelle is consistent with the relatively large subdural fluid collections, which continued to increase in volume during the early part of his inpatient stay. The enlarged head circumference and separation of skull sutures occurs when the skull compartment is gradually expanded to accommodate the fluid. The gradual accumulation of fluid is likely to occur over the course of days (or even weeks) rather than hours. A more rapid accumulation of fluid would squash the brain rather than expand the skull, leading to a rapid collapse.

In summary, CC’s vomiting was primarily due to raised intracranial pressure caused by progressively enlarging subdural collections and possibly encephalopathy caused by an episode of trauma. His vomiting was first reported to healthcare on 29 February 2024. On 01 March he was noted by the GP and paediatric registrar to have a normal fontanelle consistent with subdural collections that had not yet reached a critical size. On balance, the subdural collections were likely caused on or within a few days before the 29 February, and after the Court finds that CC was completely well, feeding and handling normally.

[E127]

4.46…In my opinion, it is possible that the subdural collections were caused by an episode of trauma on or within a few days of 23 February with vomiting only becoming apparent when progressively enlarging subdural collections had reached a size to become symptomatic (on 29 February).

[E125]

The absence of any visible subdural membranes on the MRI plus the re-accumulation of subdural fluid after initial drainage due to on-going CSF leak, suggests the subdural collections are consistent with a recent episode of trauma rather than long-standing chronic subdural collections.

…it’s the persistence of symptoms, I assumed the symptoms persisted as low level lethargic, not quite right manner and you want to find out why and the only thing we found out was a subdural collection developing

[Sleepiness] is much more likely symptoms of chronic subdural [than something innocuous]

[E165]

I find it very unlikely that a 3-month-old infant will be able to generate sufficient force to cause the severity of injury as seen.

[E122]

The CT showed a lucency (gap) in the parietal bone which is either a skull fracture or an accessory suture (a variant of normal that infants are born with and not caused by trauma). It can be difficult to differentiate between these two particularly in the absence of any scalp swelling, which was not reported on CC’s scans.

[E124]

If the Court finds that CC has a skull fracture, then an episode of non-accidental injury involving blunt impact force with a hard surface is a possible cause.

…

4.31…An episode or episodes of non-accidental injury is the most likely cause.

[E125]

4.33…Normal handling and minor domestic accidents would not be expected to cause any injury at all.

[E192]

• The timing of the event is consistent with the medical ageing of the probable skull fractures (and the intracranial injuries).

• The description of the event lacks sufficient detail to assess whether a force equivalent to a free-fall of at least 50 cm [see discussion at [E190/4.3.5] for this measurement’s genesis] onto an unyielding object could have been generated. Yet, I think such a force would not be generated by CC’s head wobbling around because he lacked developmental maturity to have good head control.

• The description of the event lacks sufficient detail to assess whether CC was as distressed by the impact as I would expect.

• The movement of the head of such a young infant is primarily wobbling back and forth. Any impact would usually be against the forehead or a temple. Yet, the probable skull fractures to CC were at the back-right of the head.

In my opinion, this event did not cause any skull fractures.

[E163]

Ultimately reviewing the entirety of the findings, I believe it is most likely that CC has sustained a significant impact injury to the head to cause the skull fractures. This impact event may have also been sufficient to cause the diffuse subdural collections (if there were associated excessive acceleration/deceleration forces). However, this would be atypical, and the possibility of a coexisting abusive, shaking-type injury remains a possibility.

Any traumatic event is a spectrum, the absence of other shaking symptoms may reflect there is a spectrum and the anchor point is there’s definitely been the impact injury and if hit the floor causing 2 fractures is that sufficient to move the brain backwards and forwards? I can’t exclude that possibility.

[E165]

I find it very unlikely that a 3-month-old infant will be able to generate sufficient force to cause the severity of injury as seen.

My clinical experience and there are other publications indicate to me that infant falls from household falls from furniture or carer are common, sometimes produce a head injury and normally a skull fracture which is sometimes associated with a small amount of acute blood and this paper doesn’t do anything to change my understanding of that type of injury but that is different from large subdural chronic subdural that we see in this case, we don’t see focal injuries becoming multifocal chronic subdural.

[E124]

An episode of non-accidental injury involving rapid/repetitive acceleration-deceleration (i.e., shaking-type injury) is a possible cause of the subdural collections. Other evidence of a shaking-type injury such as retinal haemorrhages or rib fractures were not found but this does not reduce the likelihood of this mechanism.

…

4.31…An episode or episodes of non-accidental injury is the most likely cause.

[E125]

4.33…Normal handling and minor domestic accidents would not be expected to cause any injury at all.

[E128/4.51]

The level of force would be significant, greater than that encountered through every day or even accidentally rough handling, typically associated with a loss of control by the caregiver.

[E201]

• I think that an impact sufficient to cause the probable skull fractures could have also caused at least some of the subdural bleeding. Yet, there was subdural bleeding at multiple sites, some of which were distant to the fractures. These are features more commonly associated with a shaking mechanism than with impact alone.

• Shaking and an impact could have been aspects of a single causal mechanism, for example if CC was shaken and his head hit an unyielding object during the same action.

[O421]

In regards to his mum he said that she is a fun and caring person who is really easy to talk to and they can talk for hours easily about anything. The best thing about his mum is her cooking and her roast dinners are the best especially her potatoes. What he likes the least is that she gets angry and irritate recently trying to manage the three children and the baby being sick, but he said nothing of concern other then she will shout at them. [sic]

[O551]

Conversations with Paternal Grandmother discussing lack of support from FC, Feeling low, lonely and isolated due to not working, stating her job kept her distracted from 'nasty thoughts' and suggestions of how to work through these feelings.

Drink would fuel me up and cocaine level up

Drink would make me feel angry

Cocaine levelled me out

[O422]

He was also asked if he could think of anything recently which made have made CC and his head poorly and the only thing he could think of was a few days ago he picked him up and CC’s head flopped back a bit CC kept smiling and gurgling like he always does. He could not think of anything else.

[O421]

When asked directly about how CC might have hurt his head, she said she didn't know and that maybe he was born with it.

[C115/40]

Whilst I was at Hospital A I spoke to my children and asked them to have a think if anything might have happened to CC when I was in hospital. My son CA said to me that when I was in hospital FC was drunk at home and picked CC up from his swing chair and he had gone into the bedroom with CC and CA and CB both heard a loud bang and they heard FC saying, “Oh fuck”.

– while doing observations on CC. Mum wanted to speak privately away from CC and support worker to talk about recent events. Mum said her two children (older children) informed her of what biological dad has done when Baby CC was 9/10 weeks. Dad and 2 kids initially in living room together, dad went into bedroom. 2 kids heard loud bang and f**k after from dad. During this time mum was in hospital 5 day admission. Mum thinks head injury resulted from this incident…

[O447]

Mum arranged to go home from Hospital A in order to collect some new clean clothes and then return to hospital, where CC is an inpatient. Around this time, CA (her eldest son) decided to update Mum and tell her some further information that he had not previously disclosed to her…

CA made the following disclosure to Mum. He stated that whilst Mum was previously in hospital with Pneumonia, FC (Mum’s boyfriend) had been drinking. He picked up CC and took CC into Mum’s Bedroom. CA and CB then heard a very loud bang, after they heard FC say “Oh fuck”. CA described the bang as sounding like a wall bang according to Mum. CB also heard the bang.

CB was present when CA was making this new disclosure to Mum. Both CA and CB apologised to Mum for not telling her the truth earlier and they both said that they thought FC was the cause of the injuries to CC. Mum told the children that in future that they needed to be truthful. CA told Mum that he had not made his disclosure to her as he did not want to get anyone into trouble.

CA confirmed that the incident took place during the 5 days when Mum was in hospital with pneumonia.

[O436]

Phonecall Received

Call Summary: STAFF MEMBER AT HOSP HAS BEEN TOLD THE FOLLOWING INFORMATION BY M. M ASKED THE CHILDREN HOW CC WAS HURT. CHILDREN HAVE TOLD HER THAT WHEN M WENT OUT THE CHILDREN WERE LEFT WITH FC. HE WAS DRUNK AND ON DRUGS. FC PICKED UP CC FROM THE ROCKING CHAIR, TOOK HIM INTO THE BEDROOM. THE CHILDREN HEARD A THUMP AND FC SHOUTING 'OH FUCK'

[O442]

M disclosed that on Saturday 16th March 2024, whilst in the car driving on the way back from being picked up at hospital, her children CA and CB (but mainly CA) told her about an incident with FC and CC where they heard a loud noise and FC say 'OH FUCK'

[O229] and [O440-O441]

CA stated that he heard a bang from FC and Mum's bedroom

He heard FC say "Ah. fuck".

He and his sibling CB were in The Front Room of their H/A.

The incident was at night time and he thinks over a weekend.

FC (Mum's boyfriend) was holding CC and then FC walked into Mum's bedroom with CC after picking CC out of her chair in The Living Room.

CA confirmed that FC was really drunk. He was slurring his words and his voice changes when he is drunk. He was stumbling slightly.

Mum mentioned that she didn't want to be with FC anymore.

The incident took place during the time that Mum…was in hospital with Pneumonia and Covid.

CA was unable to recall whether CC was crying or not as a result of the incident.

[O229] and [O441]

FC was drunk and he picked CC up and took him into Mum's bedroom.

Although CB did not see the incident, she commented that she thought that FC banged CC’s head owing to her hearing a loud bang. FC then said the "F" word.

CB described hearing a thud, which FC at some point told her was a head butt, but CB did not believe him.

CB could not be certain as to whether CB heard CC crying after the thud.

CB thought that she and her Brother thought the bang sound was near the wall or door in Mum's room.

At the time of the bang, she and CA were in the Front Room chilling.

She said "Be saw nothing" (referring to the actual cause of the bang).

The incident took place maybe 10 oclock ish at night on a Friday or Saturday.

[O446]

CB said that she was on her phone on the sofa and CA was sitting on the floor playing GTA 5 on the playstation in the front room with CC who was in his little chair. It was about 10pm, which she knew as she had looked at her phone and it was sometime after 10pm. Mum’s boyfriend FC came to pick up CC but he was drunk. He picked up CC and walked out the room into mum and his room. Mum was in hospital at this time with pneumonia and covid, there was no one else in the house. She heard a loud bang, like a thump bang, and FC said ‘AH’ and then ‘said the F word’. When she heard the noise she said to CA ‘DID YOU HEAR THAT’ and CA said ‘YEAH I DID’, and that was all they said before FC came back into the room with CC approx. a minute after the bang. FC then put CC back in his crib in the front room.

When asked what happened when they came back into the front room she didn’t remember. She didn’t notice anything different about CC or see any injuries. CB said ‘WE CAN’T REMEMBER IF CC WAS CRYING AND ALL THAT’, and that she ‘THINK[S] CC MAY HAVE SMACKED HIS HEAD ON THE DOOR OR DROPPED DOWN AND FELL, BUT I DON’T KNOW’. When asked how long CC was back in the crib in the front room for or what else happened that night she said she didn’t know. When asked what FC did after putting CC back in his crib she said he just sat back down on his phone watching and playing a game, and they carried on for the night. He didn’t say anything about CC and she didn’t see him make any phone calls. FC seemed stressed and tired when he came back in the front room, she didn’t know why. They went to bed at around 11.

She didn’t know why FC picked up CC. She said FC normally lives with them. She demonstrated how FC picked up CC and when asked how tight he was holding CC she said ‘I THINK LOOSELY’. When asked how she knows FC took CC into the hallway and then mum’s bedroom she said ‘WE JUST KNOW THAT’S WHAT HAPPENED, WE’RE SMART, WE’RE DETECTIVES. WE DIDN’T SEE BUT WE KNOW WHAT MUM’S DOOR SOUNDS LIKE. I SAW FC’s FOOT GO INTO MUM’S ROOM’. She

said she was still in the living room but saw FC’s foot go into the bedroom. When asked how the front room door leading into the hallway was open or closed, CB said the door was open but he moved it a bit. She didn’t know why.

She said CC started puking after the bang, ‘MORE THAN USUAL AND BIGGER’, on the same night. She said FC cleaned the sick and ‘THAT’S ALL I KNOW’ and did not elaborate on this further.

When asked what she meant by FC being drunk she said ‘HE WAS DRINKING BEER’. She thought he was drinking a fosters beer, but then said she saw him drinking a grey or green can in the front room that wasn’t the fosters. She knew it was a beer as ‘I KNOW THAT HE DRINKS BEER ALL THE TIME’.

…

[O447]

…

CB mentioned an incident taking place before this that she wasn’t present for where CC flung his head backwards and so FC accidentally bumped heads with CC. She said ‘I DO BELIEVE THAT HAPPENED BUT I DON’T BELIEVE THAT’S WHAT GAVE CC A FRACTURED SKULL AND BRAIN BLEED’.

[O447]

Following completion of both children's VRIs, when I was speaking with SW Vicky Tobutt who had been present in the waiting room throughout, Vicky said that after CB came out of her VRI

she said to Vicky in the waiting room "GRANDDAD TOLD ME WHAT HAPPENED AND THAT FC HURT CC". Vicky said she asked CB to expand on what she meant and CB said she didn't want to talk about it so they didn't speak about it further.

[U6]

21 CA: Er, so it was late at night, like, ten to 11, er, me and CB were in the front room

22 and FC, mum’s boyfriend, was drunk.

23 DC SL: Mm-hmm?

24 CA: Erm, he’s picked up CC out of his chair and then walked into their bedroom

25 which is then we heard, like, a loud bang, er, FC swear, and then he, erm, came

26 back, like, a few minutes later, came back with CC and put him back in the chair.

[U8]

9 CA: But when we heard the bang, FC said, “Oh, fuck,” [inaudible 00:08:32] when,

10 this is, like, when the bang happened, he said that.

[U10]

7 CA: Er, well, he was, like, slurring slightly, like, his voice sounded a lot different than

8 what he sounds like when he’s sober—

9 DC SL: Mm-hmm?

10 CA: —and he stumbled slightly.

11 DC SL: Stumbled slightly?

12 CA: Yes.

13 DC SL: Okay, and what do you mean by “stumbling”?

14 CA: So when he was walking, he, like, kind of, you know, was, like, slightly swaying

15 a little bit.

[U11]

12 DC SL: Why did he pick up CC?

13 CA: Erm, I think CC had just been sick a little bit so he was going to, like, go and

14 clean him in the bedroom and then that’s when he walked into Mum’s room.

15 DC SL: So he’d been sick a little bit?

16 CA: Yeah, I’m... I’m... I don’t exactly know.

…

28 CA: I think he either needed, like, his diaper changed or he was sick a little bit.

[U16]

13 DC SL: —and how... in terms of, roughly in terms of time, after he’s gone into the bedroom

14 with CC, FC, how soon was the bang?

15 CA: Like, a few seconds later.

16 DC SL: Mm, and what do you mean by “a bang”? I mean, a bang could mean lots of things

17 to different people, couldn’t it?

18 CA: It was, like, a wood... so I think it was, like, on the wooden floor [inaudible

19 00:19:27] wooden flooring in their room. It was, like, a wood... it was, like, a—

20 DC SL: Wooden flooring?

21 CA: Yeah, it was, like, a bang—

22 DC SL: Okay.

23 CA: —on that or something—

24 DC SL: Right.

25 CA: —if not the wall.

26 DC SL: Okay.

27 CA: [Inaudible 00:19:36] I think it was definitely the door though.

28 DC SL: Mm-hmm, but did you—

29 CA: Sorry, not the door, er, floor.

1 DC SL: Why do you think it was definitely the floor?

2 CA: It was, like, a wooden-type sounding bang and it was quite loud so—

3 DC SL: Okay, thank you, that’s helpful. You said that the bedroom’s got wooden floors?

4 CA: Yes.

5 DC SL: Okay, and after the bang, how many bangs were there?

6 CA: One.

7 DC SL: One bang?

8 CA: Yeah.

[U18]

7 CA: Erm, he then... we... CB actually asked him what the... because

8 asked her to, erm, ask him what the bang was and he said that he

9 Mum because she wasn’t picking up but that’s all he told us.

[U19]

3 CA: —and then he said, “Oh, er, I was just trying to get hold of your mum and she

4 wasn’t answering the phone so I hit the wall.”

[U22]

11 CA: Erm, she said, “Oh, FC just said that he couldn’t get, he couldn’t get hold of

12 mum, she wasn’t picking up the phone so he just hit the wall.”

[U33]

24 DC SL: …All right, and what kind of prompted or, well… first

25 of all, about this, all this thud noise and what’s happened to CC on that night—

26 CA: Mm-hmm [nods].

27 DC SL: —who did you first tell about all that?

28 CA: Er, I’ve told my granddad first and my—

[U34]

10 DC SL: Mm, when did you tell [Maternal Grandfather]?

11 CA: Er, it was a night where I was at his house—

12 DC SL: Yes?

13 CA: —I don’t know exactly when but I was at his house and I told him about it.

14 DC SL: Yes, thank you for sharing that, and what did [Maternal Grandfather] say?

15 CA: Er, he said, he just agreed with me and said, “That’s probably what happened.”

16 DC SL: Right, [inaudible 00:45:30]—

17 CA: Like, that’s probably why CC’s in hospital because he thinks that FC, er,

18 maybe fell or dropped him.

19 DC SL: Mm-hmm, and why would [Maternal Grandfather] think that?

20 CA: Er, it’s because the doctors said that the injury on CC’s head was due to head

21 trauma—

22 DC SL: Right.

23 CA: —so that must be… so they said that was caused by a drop or something like that.

[U37]

9 DC SL: Mm-hmm, okay. So why didn’t you tell your mum straight away after the

10 incident?

11 CA: Er, I didn’t want to think that she thought... I didn’t want her to think that I was

12 lying and—

13 DC SL: Mm-hmm, why would she think that then, that you were lying?

14 CA: Because, er, we didn’t see it so of course she might just think that we’re trying to

15 lie and that maybe we did something like dropped him—

16 DC SL: Mm-hmm.

17 CA: —which we didn’t.

[O79]

12 DC KW: You have picked CC up—

13 FC: Mm-hmm.

14 DC KW: —and taken him into the bedroom—

15 FC: Okay.

16 DC KW: —and then they’ve heard a loud thud—

17 FC: Okay.

18 DC KW: —followed by hearing you shout, “Oh, fuck.”

19 FC: No, that definitely wouldn’t have happened. No, no.

[O80]

5 DC MC: Can you think of anything that may have happened that may have led to them

6 thinking like this or anything—

7 FC: I dunno, may-maybe something fell off the bed, like the controller, or something,

8 I don’t know, but, erm, there was no... there was no swearing and then me going

9 back into the front room, so other than that, I can’t think of anything, I’m afraid.

[O81]

2 DC KW: —but when they say a loud thud, can you think of anything that—

3 FC: I can’t, I’m afraid. No.

4 DC KW: —could have been?

5 FC: No. Like I said, unfortunately, I can’t.

6 DC KW: Okay. With saying, “Oh, fuck,” is that something that you would say? Like, do

7 you swear?

8 FC: No, no. No, that’s, that’s quite thrown me, actually.

[C76/2]

The only incident I am aware of is recounted in paragraph 1.11 whereupon CC jolted upwards unexpectedly, and we clashed heads. This was the only explanation I could put forward which might have caused his injuries, as the clash hurt my head.

[C76/3]

At paragraph 1.12, the information provided by CA and CB to their mother suggesting that CC’s injuries were caused by me is incorrect. They were both in my care as was CC for a period of five days when Mother was in Hospital with pneumonia in February of this year. I was not drinking heavily or intoxicated, CC was asleep in his baby rocker and he had done a poo, so I took him to his room and changed his nappy. I do not recall there being a very loud bang, it may have been that his bottle fell off the bed or one of his toys. I swore at the time because he had done a rather large poo, otherwise I don’t usually swear around the house. Nothing happened on that occasion to CC to cause his injuries.

CB was reported by M to have a bad temper and to have been jealous of CC;

There have been occasions when M has returned to a room because CC was crying and CB has been holding CC;

It was not reported at the time;

It was not reported when CC was admitted to hospital;

CA’s explanation for the delay (that M may have thought he was lying) “does not add up”;

In the second pre-interview assessment CB said FC told her the thud “was a head butt” [O441] but this was not CA’s account or an account given earlier by CB, and it differs from CA’s account of what CB told him what FC had said (that it was him hitting the wall [U19]);

After her VRI CB told the social worker “Grandad told me what happened and that FC hurt CC”; and

CB appears to have parroted what she was told by an adult in relation to the head clash incident [O447].

The information appears not to have been prompted;

FC did not suggest CA was lying in his recollection;

M’s oral evidence was that there was no discussion in front of CA and CB about the cause of CC’s injuries prior to 16 March 2024;

M’s oral evidence was that she put CA “on the spot” in the call when the allegation was first made so there was no time to make something up;

FC does now accept there was an occasion when he took CC to his room, changed his nappy and swore [C76/3];

FC does now accept drinking at home and that slurring his words would be consistent with the quantity of alcohol he remembers drinking;

When cross-examined FC was unable to give an explanation for having lied to the police that there had not been such an occasion.

[C113]

On 27^th February 2024 I went to the GP was I was not feeling well. I had collected CB from school. FC and CC were also with me. I was seen by the GP and the GP said I had to go to the hospital. My dad took me to the hospital and FC was at home with all three children. He kept calling me and I could hear CC crying in the background, FC said CC had been crying and that he had been sick and had three diarrhoea nappies. I told FC to comfort CC and reassure him. I was in A&E at that time and there was a long wait.

I was discharged from Hospital A on 28^th February 2024 at 4am. The hospital prescribed me with an inhaler, steroids and more antibiotics.

When I returned home CC was sleeping and when I saw him in the morning he was being sick. I also felt he was a lot more sleepy.

[C77/11]

On 27th February - 28th February 2024 whilst Mother was in Hospital, I contacted her because I was concerned about CC as he had been crying for some time. Nothing happened, he settled and was fine the following day.

[Z54-Z55]

On 27 February 2024 I was concerned about CC as he was not keeping his milk down…

…

On 29th February 2024 when I came home from work, I gave CC his bottle feed after his bath. After that M sat next to him with me in the bedroom. He seemed absolutely fine apart from being grizzly which was due to him teething…put him in his cot in the bedroom. M was still in the room at the time and he went to sleep for a couple of hours. She later took him out of the cot and he started to be sick so she gave some more Calpol. He kept putting his hand in his mouth which we thought was because he was teething. I was in the kitchen or with the other two children in the front room at the time when I heard M say that CC had gone rigid after he’d been sick…

I had heard her call out in panic to me and I had already seen CC vaguely rigid when I came running into the room, then coming out of rigidness, so I decided to call 111 and I told them what we had both seen…

[O204]

Whilst on the phone CC became rigid. FC demonstrated this by holding his arms in the air. FC stated he could not get CC’s arms to go down and this lasted for 10-15 seconds. He was unable to do the checks they were asking him to do because his joints were so rigid. They tried lying him down and this did not change his pose. FC described feeling incredibly scared. He described this on the phone to 111 and they were advised to take CC to hospital.

[O417]

[CB] has become very jealous of CC as he is now the youngest in the family and she states CC get all the attention and he [sic] doesn’t like that cause she feels like she doesn’t get any. CB has also got a very bad temper and doesn’t seem to be a fan of CC…

[O45]

28 DC AL: Is it that you’re suspecting something has happened between CB and CC?

29 JT: It’s possib-possible. She... I don’t want the blame on my daughter, but possibly

30 she might have tried picking him up and bumped his head but she may be too

31 scared to say anything because she’s probably scared that she’s gonna get in

32 trouble, which she wouldn’t, she wouldn’t be in trouble, but it is possible—

FC’s extensive dishonesty set out above and which in significant respects is not explicable, save for him covering for his own misdemeanour: his lies about how much he drank in the home and with the children present;

His evidence that he becomes dysregulated, including angry, when in drink such that he would do things he would not ordinarily do and behave without normal levels of control;

His acceptance that he lacked patience when CC was crying;

His evidence that he was upset by the relatively poorer bond he had with CC than M had;

His evidence that the upset about that bond sometimes caused his alcohol abuse to get worse;

The reported comment about M trying to blame him for shaking CC when the same had not by then been raised by the hospital, coupled with FC’s evidence that he could not remember because he was too drunk, when in fact just over an hour later the BWV appeared to show him sober and lucid;

His admission that, in relation to the incident in early February reported by CA and CB, he had lied to protect himself and his own interests;

His willingness to lie at hospital and in his witness statement to make it appear he was the one pushing for medical attention and that there was a time when M was in the room alone with CC before he went rigid on 29 February 2024; and

As counsel for the Mother put it, the invitation to find a culpable accident “does not sit well with…the preponderance of the expert evidence”.

CC has lost vital months of maternal care during the most critical period for the development of his attachments. He may have incurred permanent emotional harm as a consequence. This is all because FC was too cowardly to own his behaviours and accept responsibility for what he did to CC, preferring instead to point a finger at M and keeping silent for months to protect himself. What FC has done is unforgiveable…

[E126]

An impact that causes a skull fracture is painful and associated with an immediate change in behaviour such as crying, irritability, or appearing stunned.

[E187]

The skull fractures would have been initially very painful, typically for about 10 minutes (unless CC was rendered unconscious by the causal event)

[E193]

Skull fractures would have been painful. In my opinion, any person witnessing the causal event(s) would have realised that CC had been hurt.