A (Child) Fact Finding Hearing, Re

On 13 September 2024 the Child arrived at a London Hospital by ambulance. Doctors discovered a subdural haematoma. The Child then suffered seizures. Expert medical opinion has been obtained and suggests the seizures were brought on by the bleed with the bleed likely sustained non-accidentally. Within this fact finding hearing I have been asked to investigate the Applicant’s concern that these injuries were sustained as a result of the Mother’s actions. The case centres on a suggestion that the Child was shaken. In this judgment I will continue to refer to ‘shaking’ as a generic term for a mechanism of rapid acceleration/deceleration during which the head of the Child changes direction with resultant forces leading to the injury in question. I keep in mind the mechanism does not need to be an actual shake.

I have considered the documents in the hearing bundle together with a range of additional documents provided to me during the course of the hearing. I heard evidence from four expert witnesses and from a number of lay witnesses including the Mother. Finally, I have listened with care to the submissions made by counsel for all parties. I keep all of this evidence in mind whether or not I specifically refer to it within this judgment.

The Mother is 26 years of age. She was born in country X and has a limited grasp of English and was assisted by an interpreter throughout this hearing. She entered this jurisdiction in January 2023 on a 17-month student visa without access to public funds. On 4 November 2023 she made an asylum claim. The Child’s father (“the Father”) is not part of this fact-finding hearing. There is no suggestion he had any role in any circumstances that may have caused the injury under investigation. Efforts have been made to serve him with notice of these proceedings but they have been unsuccessful to date. He is 40 years of age and also comes from country X. He came to this country in 2008 and appears to have an outstanding appeal against a decision which refused him a right to remain in the jurisdiction.

I have limited background details in this case. The Child was born in December 2023 and thus conceived in around March 2023. It can be seen the parents must have formed their relationship shortly after the Mother came to this country. The relationship broke down and in November 2023 the Mother applied for and obtained an injunction order against the Father. The Order continued until November 2024. There is no suggestion or evidence of breach of this order or of further contact between the parents. By September 2024 the Mother was living in Home Office temporary accommodation.

The Child had no material ill-health concerns. The Mother reports the Child vomiting on a series of occasion on 12 September 2024. He is reported to have had a fever and she gave him a sugar/salt mix aimed at rebalancing his hydration and she planned a trip to A&E if matters worsened. The next morning his condition is reported to have improved. He was not vomiting and his fever had subsided. Then at about 1.15pm he was noted to be acting unusually squeezing his hands with ‘big eyes’. This is described as a seizure and the Mother sought assistance.

At 1.24pm a call was made to the London Ambulance Service (LAS). This call lasted for about 11 minutes and it appears the LAS arrived promptly at the Child’s location [1094]. I have a transcript of the call [1107-1115] which was made by a Home Officer employee working at the hotel. It reported ‘they’ had heard ‘shouting from the second floor’ and when they came up the baby was not breathing. A separate individual on the phone reports seizure like behaviour with the Child’s hands curved and legs and hands shaking. The Child was then reported to be breathing, albeit unusually. Shortly after the Child was reported to have his hands held upwards. The call ends on the arrival of the LAS at it seems 1.35pm. It appears the LAS were with the Child at the scene for about 12 minutes before conveying him to hospital. The relevant notes suggest seizure type activity on route. Handover to hospital is timed at about 2.22pm [1096-1106].

At hospital the Child underwent an urgent CT scan which showed a left subdural haematoma. The seizures were considered secondary to an underlying condition likely linked to the bleeds. Further tests excluded vascular malformation or aneurysm. Extensive multi-disciplinary discussions followed with his blood tests showing no underlying coagulation defect. Metabolic investigations were normal and an ophthalmology examination proved normal. A skeletal survey showed no fractures and an MRI brain scan showed no signs suggestive of underlying neurological disorder likely causative of spontaneous haemorrhages [443: paediatrician].

It is now understood the Child suffered multi-focal subdural haematoma (bleeding on the left and right) with greater prominence on the left. It is unlikely there is any blood disorder [466: Experts statement of agreed matters]. The evidence warranted further blood testing to rule out potential explanations but on further review these do not suggest any explanation for the symptoms and presentation.

The Court has received expert evidence from a haematologist, neuroradiologist, neurosurgeon and paediatrician. The Court also has the hospital treatment and opinion. There is no suggested conflict in this case between the two. There is broad agreement between the experts. By the end of the expert evidence, it was clear there was little if any dispute as to their evidence. The focus has turned as to what event led to this presentation.

In summary the expert evidence is:

The parties agree the Child suffered the relevant injury as a result of a ‘shaking’ event. The factual dispute is as to who shook the child.

The foundation of any fact-finding hearing is the recognition that it is for the Applicant who is making the allegation to prove it and that they will do so if they establish the event claimed is more likely than not to have happened. It is not for the Mother to disprove the allegation and no burden or responsibility falls on that party. Equally it is not for the Mother to establish a satisfactory account of how the injury may have occurred. That being said any explanation offered by the Mother, and her evidence more widely, must be considered with care. The Mother’s evidence is central to my analysis and requires appropriate robust and careful scrutiny.

Alongside this I must pay regard to all the relevant and material evidence put before me. I should give proper account to the wide canvas of evidence which whilst not directly related to the events in question may shed light on the inherent likelihood of the injury occurring as suggested. In considering the evidence I may be asked to conclude a witness has lied and it may be said this has impact on whether I make a finding or not. It is important to keep in mind that witnesses may lie for all sorts of reasons, including embarrassment or to hide an irrelevant matter. A lie is only probative to the issue under consideration if it is told deliberately, relates to the issue, and was not told for an extraneous reason which does not point towards culpability.

Turning to the weight to be attached to medical evidence it is important to keep in mind that there are no certainties in science and that today’s accepted medical understanding may come to be jettisoned in future. Further, a Court should always keep in mind the potential for a causative explanation which falls outside of current understanding. Ultimately it is for the expert to advise the Court and the Court to make decisions. All of that being said the Court should give appropriate respect to medical opinion and particularly so where it rests on a settled body of understanding. If a Court is minded to reach conclusions contrary to expert opinion then it should set out with appropriate clarity why it has taken this course of action.

The Mother reports the Child being unwell on 12 September 2024 and vomiting on a number of occasions. By lunch time on 13 September 2024 his presentation had improved and at about 12.45pm she left her room to go to collect her lunch from the food area on the ground floor. Once there she collected her lunch with the intention of taking it to her room. On the way back she spent a few moments in company with other guests of the hotel before taking the lift to her floor and returning to eat her lunch. The evidence suggests she would have been back in her room by 1.00pm at the latest.

As noted above shortly afterwards (suggested about 1.15pm) the Mother became very concerned for the Child who had become unresponsive. She went into the corridor outside her room and was in an emotional state. This drew the attention of two members of the cleaning team who were either in the room next door or proximate to the Mother’s room. There were also two guests of the hotel in close proximity who also were drawn to the Mother.

It is clear all present were concerned for the Child who remained unresponsive. The Reception were informed as to what was happening and they notified Home Office Employees (in these premises the hotel is responsible for the cleaning and management of the building whereas the Home Office manages the guests and their general welfare) who went immediately to the Mother.

On arrival the Home Office staff were clear medical care was required without delay and an emergency call was made. The evidence tells me this was made at 1.24pm. The staff were given medical advice from the 999 handler whilst they awaited the LAS. On their arrival they took over and took the Child to hospital.

On the medical evidence the injury was likely sustained after the Mother returned to her room. There is no suggestion or evidence to suggest it occurred in the common areas of the hotel. As noted above, although with no exactitude this would after about 1.00pm. It is also agreed or accepted that the Child has sustained the injury by the point at which the 999 call was made. There is no suggestion of any shaking after this point. This is a period of less than 25 minutes.

The Applicant’s argues the injury was sustained in the approximate 15 minutes between the Mother returning to her room and leaving it seeking help. They contend during this period for reasons only known to the Mother she shook the Child causing the injury in question.

The Child’s Guardian’s position has appeared closely aligned with that of the Applicant throughout the hearing before me.

The Mother’s case is that when she left her room the Child was unresponsive. She had not shaken him in any way. One of the cleaning staff took him from her and in an attempt to revive him carried out a resuscitative shake.

The evidential dispute in this case has centred on whether it was the Mother or a third person who caused the injury by shaking the Child. For the avoidance of doubt, no direct criticism has been made of the cleaner who is suggested to have shaken the Child. It is put on the basis this was an understandable and well-intentioned action to assist the Child.

I do not intend to repeat all the evidence put before me. I will only note those points which are directly relevant to the decision I have to reach.

The medical experts were clear the Applicant’s case fitted with the medical presentation. Under this account the collapse is seen as a function of the shaking incident with any surrounding symptoms being a feature of the resultant brain injury. In this sense the medical evidence is both consistent and fits with the Applicant’s key allegation.

However, in cross-examination the expert evidence accepted the potential for an earlier collapse for reasons unrelated to any shaking and possibly linked to the child being generally unwell in the preceding two days, followed by a resuscitative shake which led to the resultant injuries. Under this narrative the features behind the initial collapse would not be related to the brain injury.

It was clear this latter account was not the favoured position of the experts but they were clear the determination of which of these plausible accounts was correct would ultimately turn on the factual determination of the dispute detailed above. The Paediatrician accepted there was a potential for unresponsive periods arising separate to a shake including as a virus passes through a child. She told me it was difficult to distinguish between the two suggested scenarios and that a factual determination had to be made.

The Mother stood by her account detailing the Child being unwell on the previous day. She gave a detailed account of what she did when she got back to the room and the preparation of a drink for the child and herself. She left the Child taking his drink and then saw him stand on the bed holding the drink before sitting or falling down. She went to him and he was unresponsive. She picked him up. She then described going out into the hall and seeing the guests and cleaners. She was crying and saying something had happened to her baby. She accepted help from the cleaner and gave her the Child.

The Mother then went to get her phone. She had been in contact with two family members about the Child being unwell and wanted to get their help. I have seen screenshots of various communications between the three. I should note I heard evidence from one of the two family members. She is a medical professional. The Mother described a process of holding her phone so her relatives could see what was happening. In this period, she claims the Child was shaken by the cleaner.

The Mother separately produced a video demonstration of the shake she references above. In this video she uses a doll prop. She proceeds to show the doll being patted robustly on the back when held to the shoulder before being held out in front and shaken robustly back and forward 2-3 times. This is then repeated two further times.

The mother’s witness confirms viewing these events and seeing a shake albeit her evidence was that the scene was confused and not entirely clear. The witness was examined as to the timing of the call in which she saw the shake. She said this was at 1.29pm. The call was blurry but the shaking appeared robust. She couldn’t see what was happening well and the quality kept ‘blipping’. It looked like he was being shaken.

This witness also confirmed a second call during the period when the Child had been returned to her room by the Home Office staff.

The Mother states the Home Office worker then arrived and took the baby and proceeded to go into her room and followed the 999 guidance before the LAS arrived. I note there were 2-3 Home Office employees involved but it is not suggested they did anything that might explain the injury sustained.

I heard from two members of the cleaning team. They both agree they were present with the Mother and Child in the corridor prior to the arrival of the Home Office staff. Each denied holding the Child although one suggested the other had held the Child. They both claimed the Child had in fact been held by one of the other hotel guests mentioned above prior to the Home Office staff members arriving. They saw no shake although both recount seeing the Child having his back patted when held to the shoulder (this was demonstrated on a number of occasions). Each denied shaking the Child. In examination the Mother through questioning identified the cleaner who she considered had shaken the Child. This was the cleaner who said the other had held the Child.

The Applicant called the main staff member from the Home Office. She was first to the scene and had taken the Child into the bedroom. When she arrived, the Child was being held by a cleaner from the hotel. She took the Child from the cleaner and took the Child into the bedroom. She couldn’t identify the cleaner as she was focused on the Child but she repeatedly confirmed it was a cleaner who held the Child. Later one of the cleaners suggested she was passing responsibility from the hotel guests. This witness saw no shake. She agreed there were others present.

When at hospital the Child was scanned and the bleed was noted. The Mother was spoken to by a doctor who asked her for any events which might have caused the injury. He gave evidence and told me he had a range of considerations including non-accidental injury. By the time of speaking to the Mother he had seen the CT Scan and there was a strong suspicion of shaking. The Mother gave a narrative including when she left the bedroom with the Child a member of the hotel ‘shook him to help him breathe again’. The Doctor told me that this did not appear to be a likely explanation given the child was unresponsive in the bedroom and so had likely suffered any insult prior to leaving the room. The Doctor sought no further details about the shake. In her evidence the Mother told me she had showed the Doctor. He told me he had not been shown a shake and had not been shown a shake as suggested in the video.

A police officer gave evidence. She spoke to the Mother later with a colleague present and a social worker. The Mother explained what had happened including that a cleaner had patted the Child on the back and shook him to get a response from him. She didn’t ask for any details of the shake and it appears no further details were given. In a later interview in January 2025 the officer did not ask about the shake and the Mother gave no further account. I note at the point where the Mother was giving her free-flowing account [690] and mentioned the Child being taken and having his back patted she was interrupted by the officer to confirm the Child had his back patted. When she continued she moved on to the arrival of the staff member. The officer said the Mother was fully co-operative and appropriate in this voluntary interview.

This is an unusual case. There is very little dispute with respect to the medical evidence and agreement that the likely explanation for this injury is a shaking incident. I am being asked to consider a relatively contained period of time (probably no more than 25 minutes between around 1.00pm to 1.25pm) when the Child was either shaken by the Mother in the room or shaken by another well intentioned bystander outside of the room.

I will focus on the key evidential points highlighted by the parties together with features that I have found helpful. I do not intend to travel outside of these matters. I will explain why I find certain points helpful and why I find others less helpful. I will then explain where my conclusions lead me.

I found all the professional witnesses to be both helpful and genuine in their evidence. There was no suggestion of dogmatism on the part of any expert witness and they demonstrated a willingness to be flexible in their thinking considering other potentials. I am grateful to each of these witnesses for helping me. Without such experts the Family Court could not function. My judgment should be copied to them as per the Rules.

I equally found both the attending doctor and police officer helpful and honest. There was no evasion and each gave short but straightforward evidence.

This case really turns on my assessment of the evidence surrounding the lay witnesses. The mother and her family member, the cleaning staff and the Home Office employee. In considering their evidence I agree with counsel for the Mother that regard must be given to the circumstances in which all of this evidence has been laid down in the minds of each witness. Whilst I come to assess what took place in the cold environment of the Court room many months later and with evidence set down in a witness bundle. I must not lose sight of the reality of the moments which occurred and from which each of these witnesses have to draw their best recollection and account.

This was a highly emotional situation for all involved. The Mother (whatever happened) was in a deep sense of distress as her Child was unresponsive in her arms. There is good evidence of her emotional presentation and no suggestion this was in any way contrived. Those who came to the scene did so without preparation and not knowing what they would find. They found an unresponsive child and had to do something about it as the Mother was demanding their help. None of these people appear to have any training or expertise to deal with the situation and this must have been a shocking situation for them as well. Furthermore, this was a contained hallway as in any hotel corridor. There were 6 people (including the Child) and later several more. This all added up to a potentially confused event and it is perhaps beyond reality to expect individuals from this event to be able to piece together each component of what happened after the event. This means the assessment of witnesses must be mindful of this reality and understanding of a degree of disagreement and even error in the recollection. A clear example is of the cleaner talking of the Mother taking the Child and returning her to the room and putting the Child on the bed. It is clear this was in fact the Home Office employee. But this is an error and no more.

I have no doubt the Home Office employee gave wholly truthful evidence and to the best of her ability. She was plainly nervous and as with all the lay witnesses called by the Applicant has stated in her prepared statement that she did not want to go to Court. She had no reason to be nervous as the evidence tells me she conducted herself very well on the day of the incident. She stepped into a very difficult situation and did her best to help the Child. She deserved and received the thanks of the Court. Nonetheless it was clear to me that she was very worried when she came to give evidence. I am asked to question the reliability of her evidence when she claims a cleaner was holding the Child but that she can give no description. I bear this in mind. It is clear her focus was on the Child and it is likely this aspect of her recollection will take over above other extraneous features which did not matter so much. But this does not mean she was wrong. I certainly do not agree she was passing blame as was suggested.

I found the Mother to be a largely consistent witness. She did not appear evasive and was appropriately emotional in her evidence. In general, I found her helpful and had no basis to question her evidence by reason of the manner in which it was given. I consider her evidence will also be naturally shaped by what happened – on any case. Aspects of the evidence may be exaggerated in her mind or may be cleaned from her memory altogether. I was though struck by the fact that a number of points within her account, which were not agreed, were later shown to be correct by other witnesses. This feature gave her account an added sense of consistency and cogency. I give two examples. The Mother spoke of video calling her family members during the incident in the corridor. The Applicant challenged the account of a call during this period. Yet both cleaners separately and without prompting confirmed the Mother was filming, or appearing to film, the event when it was happening. I will have to decide whether this was the call mentioned by the Mother but it was a point of note. Secondly, the Mother was tested as to why she had not continued to repeat the shaking allegation after first mentioning it to the treating doctor. She explained she had been told this could not explain what had happened as it post-dated the collapse in the room. There was some scepticism expressed in response to this suggestion. I did point out that this aligned with the position taken by everyone in the case until the expert evidence conceded the possibility but this seemed lost on the Applicant. Nonetheless, when the doctor gave evidence he effectively confirmed the Mother’s evidence making clear at that exact point in time he did not consider it could provide an explanation due to the timeline.

The family member was not involved in the incident in any direct manner and so some of the points made above do not apply to her with such force. However, they do still apply and to an extent – if her evidence is to be believed – there are additional points that come into play. She of course would not be captured by quite the emotion surrounding the event but she would be in a helpless position dependent on the Mother holding the camera and this has the potential to create a meaningful impact on such a witness. Furthermore, whatever she could have seen, or did see, would be through the lens of a phone being held by a person in a state of some shock. It would be expected such a view would be less than satisfactory and limited in its extent. There are very good grounds for believing that any account obtained through such a process has the potential to be confused and to include errors. I bear in mind this is said to be a three-way communication and as a result it is likely the visible event would be accordingly reduced for the witness viewing.

Yet I found her to be a witness who did not demonstrate any features that would cause me to have concerns as to the authenticity of her evidence. As with the cleaners (see below) my assessment is not assisted by some of the approach taken to her by the Applicant in examination. The witness is a nurse and aspects of the questioning appeared aimed at suggesting that she might have failed in her professional duty or contravened her duties in the manner she acted. I found this questioning irrelevant and could not follow the point being made. The problem was that thereafter the witness to an extent retreated as to the detail of the evidence she was giving. I am left having to assess the relevance of this and to ask myself whether this was a consequence of the form of questioning rather than a forensic breakthrough. This is not a helpful position for a Judge to be put in and those asking questions should be mindful of the potential complication that may arise.

Turning to the cleaners next. One challenge of their evidence was that their statements were very short and limited in detail. Their evidence has to be seen in the light of the very same difficulties noted above. It needs to be said that on any case they would not deserve criticism. At its highest one of them in an attempt to help the Child may have shaken him. But this was, if it occurred, plainly well intentioned. Indeed, the police officer in short evidence volunteered the notion of someone doing just this thing. When she was told about the shake by the Mother she was not alarmed and felt this was a natural reaction from an untrained bystander. I do note that both cleaners in their written evidence gave an almost very similar account of what happened. This may be because they witnessed and remembered the same event correctly. But it may be that over time their accounts have combined through natural discussion about the event. I note that one statement was only taken days before the resumed final hearing whereas the other was taken in March 2025. There are some significant discrepancies. In written evidence there was no mentioning of touching the Child yet both appear to have accepted they did so in live evidence. In written evidence both speak of not holding the Child yet in live evidence cleaner 1 said cleaner 2 had held the Child. There is also the conflict with the Applicant’s other lay witness who confirmed a cleaner was holding the Child. I will have to work out whether this is significant or simply part of the confusion of the moment. I heard from the police officer that attempts had been made to speak to the cleaners but there was no co-operation. A cleaner had been called but put the phone down when hearing it was the police. Both of the cleaners denied any contact from the police.

Having said this it was also clear to me the cleaners were nervous about giving evidence and I had the strong sense (as with the Home Office employee) that they had a fear that they were in trouble. Counsel for the Mother made it clear this was not the case and it was not her client’s case that they had acted wrongly. This point was again undermined when in response to an intervention from me counsel for the Applicant made a number of observations in open hearing of one of the cleaners (who was giving evidence) including that the Mother was ‘pointing the finger at [the cleaner]’. This was an ill-judged observation, was overly emotive and albeit factually correct did not do justice to the approach being taken. It was most unhelpful an already anxious witness had to hear this. I will again have to bring this into my assessment.

I fully accept the medical evidence. The injury under consideration arose out of a shaking incident on 13 September 2024. It is likely this arose after about 1pm when the Mother and Child returned to their bedroom. There is no evidence or suggestion of anything happening untoward on the return to the room. The same would be highly implausible with the child in a pram and the mother carrying her lunch. The injury was sustained by 1.24pm when the 999 call was made but probably a few minutes earlier than that to account for the arrival of the Home Office employee and call to the 999. I am confident nothing untoward happened once the Home Office employee had sight of the group of individuals in the corridor.

I accept the overall medical picture fits with a shake taking place in the bedroom (and thus by the Mother). But I also accept that a later shake in the corridor with the earlier collapse being unrelated is not outside the medical opinion placed before me. Whilst it might not be the preferred narrative it is a potential narrative. I accept the expert evidence that the determination of this is a factual matter for me and that a finding on either account is not ‘ruled out’ by a medical feature of the case.

There is some obvious approximation in what follows but I judge it is appropriate to gain some sense of the likely timings in this case. I have reached the following conclusions on balance:

I have the account given by the Mother. It is a plausible and logical account of the process the Mother would have gone through on returning to her room with her lunch. Her timing of events appears likely. On her case matters deteriorated very shortly before she left the room. She gives an account of a relatively speedy departure. The question for me will be as to whether she is telling the truth in her account? When considering this below I will also have to at least reflect on the likelihood of the Mother returning with her lunch and without any obviously apparent sense of frustration, anger or related emotion and within a short period of time for reasons unknown shaking the Child. I will have to consider this in the light of the evidence that she was expressing concern for his welfare in the previous period and in the light of the wide canvas of evidence. Plainly there is window of opportunity in which this could have happened. The question for me is whether it likely happened? It is important to at least record that there is no evidence of the Mother acting erratically in the previous period or of any disturbance being overheard that might support a loss of control.

It is clear, and I accept, that prior to the arrival of the Home Office staff there were 6 people present. These were the two hotel guests, the two-cleaning staff and the Mother and Child. There is no doubt the Mother passed physical care of the Child to another. All witnesses before me agree to this. There is good evidence of someone patting the Child on the back when holding him. Both the Mother and a cleaner agree to this although they disagree as to who was doing the patting.

The Mother says the person holding the Child was a cleaner. The Home Office employee says the person holding the Child was a cleaner. Neither have an obvious reason to deliberately mislead me on this point. The argument made by the Mother would be equally valid if it were one of the guests who had acted as suggested. The Mother explains why it was a cleaner she saw and one might imagine she would be able to distinguish between cleaners and guests having lived in the accommodation. I note the cleaners recognised the Mother and the Mother identified the cleaner when she came to Court. The combination of these features makes a reasonable case that the person was a cleaner. I note the family member also notes clothing worn by ‘the person’ holding the child consistent with the black dress code of the cleaners.

The cleaners deny the same although one states the other held the Child (I accept she wavered on this point to an extent but it was given gratuitously in live evidence). The cleaners were clearly anxious and I sensed worried they might be in trouble. There are obvious reasons why they might want to distance themselves from holding the Child as they wished to distance themselves from the investigation.

Of course, it may be the cleaner is right and the focus should be on the guest instead. It is noteworthy that it was only in live evidence that one of the cleaners told me she could identify the guest who was still being accommodated. The Applicant had attempted to find this individual and the cleaner (with whom they had met) had not disclosed this knowledge. Was this an act of distancing from the event?

I have reached the conclusion on balance that a cleaner held the Child. The Mother says it was the first cleaner to give evidence. She may be right or wrong on this as to the detail but I find this was the case. It may be in all of this that in fact the Child was at some point also held by a guest (it appears they may have preceded the cleaners to the corridor) but I find a cleaner held the Child and passed the Child to the Home Office employee on her arrival. I therefore find that there was an ‘opportunity’ for the shake to occur as suggested by the Mother.

I am asked to assess this having regard to the video demonstration provided by the Mother. It is plainly a vigorous repeated shake. The Applicant makes a number of points supported by the Guardian. I am asked to conclude anyone present would remember this; I am asked to consider the likelihood of the Mother not bringing this detail to the attention of the Police/Doctor as she did to the Court if it happened; I am asked to weigh up the likely additional impact this would have had on the Child compared to a lesser shake and I am asked to consider whether such a shake would have been dropped by the Mother, if this is what happened, because the doctor did not consider it happened at the right point in time.

Counsel for the Mother asks me to take a realistic approach to this evidence and that I should remind myself to guard against the potential for ‘story creep’ affecting the account. This argument strongly implied the video account might be an exaggerated account of what in fact took place, albeit not with an intention to mislead. The Applicant was very clear when I asked in submissions: That I should view the Mother’s case as this account of the shake or nothing. I did raise whether this amounted to a subtle reversal of the burden of proof but was told this was not the case.

The video depiction is certainly striking. I do not agree it is this or nothing. I consider that approach does not sit comfortably with the law on fact finding. The Mother does not need to give an explanation and a failure to do so will not mean the allegation is proven. But, if she does give an explanation then she does not need to prove that account and is not bound to the terms of the account. The Court is plainly entitled to review the account and accept the generality of it without accepting every detail. Of course, the Court can make a completely different finding consistent with the evidence heard.

In this case there are some very important features which I take into account in addressing this key question:

I am therefore not persuaded so much turns on the failure of the Mother to demonstrate what happened to the doctor or police. I agree she told me she also showed the doctor what happened. I do not believe she did. I consider if she had of done so then the doctor would have recorded the same and might have had some pause for thought if she had demonstrated as to me. I do not believe this finding is a significant feature of the case.

I have reached the conclusion it is unlikely the Child was shaken in the manner suggested. I appreciate there is no clear correlation between the mechanism of a shake (i.e. the force) and the resultant harm suffered. But I also accept the expert evidence of there being loose association with a less harmful impact likely being associated with a lower level of forces. The multi-shake depicted by the Mother to an unresponsive child would in my assessment likely be associated with a more significant impact than the relatively limited impact suffered by this child. In any event the shake itself was depicted as a very controlled process which I do not find likely in the context of the emotive situation in the corridor – were I to find the same. But this does not mean I consider the Mother is deliberately misleading. If she saw a shake then this was in a moment of high emotion and stress and this may well have had the impact of leaving a more exaggerated sense of the action than would have been taken away by an objective and uninformed bystander. I agree there may be some story creep in this regard. This may in part explain why it was not demonstrated at hospital.

But a curiosity of the argument made by the Applicant is that whereas they suggest she should have been making more of the point if it happened they have failed to consider the potential relevance of the fact she was not doing so if it did not happen. If it happened and she was told it was not relevant then it maybe she put it to one side until a more experienced legal team noted the point and drew attention to its relevance. However, if it didn’t happen and she was inventing the shake then it does beg the question for what purpose and if so why she would then stop raising it as an issue? In my assessment her somewhat equivocal approach to it as an explanatory factor in the case sits on the side of supporting it as having happened. If she knew the child had become unwell after she had shaken him then surely she would have an understanding her shake caused the injury and be more likely to maintain her account of a shake if she was distancing herself from the likely cause?

There are wide canvas factors that come into this part of the assessment. The Mother is reported to have shown affection to the Child and there is evidence as to her worries for his health the day before the hearing. The Home Office worker spoke positively as to their interactions and the police officer spoke as to her appropriate interaction. The Mother has no issues with drink or drugs and she acted appropriately to safeguard herself and the Child against domestic violence in her adult relationship. There is no problematic partner. There are no reports from the accommodation of challenging or erratic behaviour. There is no evidence of loss of anger with the Child or worrying words or behaviour. I acknowledge in cases of this sort one is often confronted by parents who have such positive features and yet they have still acted as suggested. Yet it would be wrong not to have regard to the same.

I am mindful of the timeline in this case as set out above. I consider it offers some insight into the question I am seeking to answer. On the Applicant’s case the Mother returned to her room with her lunch and with no obvious surrounding difficulties. But within about 15 minutes for reasons unknown she had lost control and shaken her Child. There is no evidence of anyone hearing anything untoward during this period. The Mother gives a plausible mundane account of what she was doing. She ’walks’ me through this period in a manner which is cogent. Her account of a collapse is not without a level of expert acceptance. Whilst one must be cautious as to how much weight can be attached to the inherent probability of something happening it does appear to me there are some challenges with this sudden change in mood or behaviour with a resultant shake. This was not for instance a tired parent in the middle of the night. This was a Mother who was sitting down to have her lunch. I do not lose sight of the potential for unexpected events to occur and for the potential of a rapid deterioration in mood. However, this does not jump out of the evidence as a likely chain of events and may give way to an alternative more plausible account.

I turn to the corridor and what took place there. I have, contrary to the cleaner evidence, found a cleaner was holding the Child. On my findings the Child was unresponsive, the Mother was in distress and the relevant cleaner poorly placed to deal with the situation. The Mother says the cleaner shook the Child. I have to say this is an inherently plausible set of events. The police officer made this very point. But did this happen? The cleaners deny the same. However, their account must be seen in the context of some worry about their own position and their hesitation to be involved. It also needs to be seen in their denial of holding the Child although I find this was the case. It is noteworthy the cleaner whom the Mother identified as being the one who shook the Child was the same one who suggested in live evidence that it was the other cleaner who held the Child.

I go back to the purported shake in the video. It is said if that happened then this would have been obvious to those present. Whilst I have explained my view as to the shake it is of course the case that those present are said to include those in the group of two said to have undertaken the shake. Of course, on this case one of the cleaners did not shake the child. Why would that one not have witnessed and reported the shake? That is a point but sits with the question why would they not have reported a cleaner holding the Child and why did they deny the same? There are many reasons why they might have chosen to take this approach including worry of being blamed or prosecuted. In the case the Mother’s case is being sent to the CPS. Might a cleaner in such a situation be worried as to the implications were they to admit to shaking the Child?

I set out the timing points above. I have explained the window of opportunity available to the cleaner. In reality this need only be a minute or two for a worry to build and a decision to shake to be taken. There was sufficient time.

This is a puzzling feature of the case which I have found difficult to reconcile. The Mother claims to have video messaged what was happening in the corridor and the family member reports seeing what happened including a shake. The Applicant points to the call log and argues this simply could not have happened.

I note the following:

Is the family member lying / making this up to support the Mother? Does this demonstrate the Mother is colluding to cover up her own actions?

I have reached the conclusion on balance the Mother was involved in some form of video calling at the relevant point. I am persuaded this was with a family member. The fact this was being done is not probative of a shake of itself. The video calling was not as a result of a shake but due to the developing crisis. It would have occurred whether or not a shake occurred in the corridor.

I found the actual evidence of the family member to be such as to justify caution. The circumstances of any viewing would be bound to be problematic and limited as to quality and scale. The event itself was confused and at one point I was told she was viewing the ‘cleaner’ from behind. I consider in any event there is a risk that what was seen has been fitted to the events later described by the Mother. By that I mean the Mother may have witnessed a shake and informed her family member and this has led what was seen to be understood in that way whether or not it was clear to the family member. As such I do not consider this account is so helpful as first imagined.

Ultimately whilst I am persuaded the Mother did message what was happening I am not persuaded I can on balance rely on the evidence of the family member when determining what happened in the corridor. Importantly, I do not find this evidence demonstrate the Mother is lying about the shake or that it fundamentally undermines the conclusions I have reached.

I agree with counsel for the Mother. This is a case which first appeared to have strong footings but over time the land has moved and the structure of the Applicant’s case is now fractured and no longer stable.

At the original PTR having read the papers and having identified the key issues it struck me the Mother had a very much up hill case to make. At face value the likely cause of the injury was a shake and the explanations she was then offering were most unlikely to explain what happened. At that PTR junior counsel in the face of robust questioning from me maintained her case that the Mother had received poor representation previously but that there were elements of the case which had been overlooked and needed a close focus. With some reluctance I permitted further case management directions which would not endanger the fact-finding hearing. Ms Sayed was right to take this approach and the Mother should be very grateful for this representation, as she should to that provided by Ms Branigan KC. Out of this difficult situation a meaningful case has been put forward.

The Court is involved in an inquisitorial process. All involved should be willing to reflect on evidence that does not fit with the picture that had to that point built for the case. Such flexibility of thinking is crucial to do full justice to the case. As I have listened to care to this case I have found a number of pieces of the jigsaw fall into place. At the outset much of the jigsaw was in place and I thought I could ascertain the picture. However, as the extra pieces have been put in place the picture has changed.

In my judgment, I find there was a shake in the corridor. I prefer the combined evidence of the Mother and Home Office employee as to (a) a cleaner holding the Child and (b) that cleaner in a perfectly understandable wish to help the Child shaking him. No criticism is made of the cleaner for doing so. It was ill judged but there was a context.

In reaching this conclusion I have placed weight on the consistent reporting of the Mother and the wide canvas. Ultimately either of the accounts was medically plausible. I explain why it is that I have found the notion of the Mother acting in this manner to be inconsistent with the other features of the case. At the same time there is an alternative account which is itself inherently plausible.

In summary the evidence tells me the Child was well at 1.00pm. For reasons unknown the Child suffered a collapse shortly before the Mother left her room at about 1.15pm. Others came to help and a cleaner took hold of the child and shook him. This led to the limited bleed in the case. A very significant shake was not required. An objective bystander may have been shocked to see this but everyone in the moment was caught by the perceived urgency of the situation. Thereafter the Mother consistently reported what had taken place but stopped when told this was not likely to be relevant until her legal team drew attention to its relevance, as conceded by the experts in the case.

The evidence of the cleaner holding the child is supported by the evidence of the Mother and the Applicant’s own witness. The shake is supported by the evidence of the Mother, which I prefer over that of the cleaner. The fact of this shake is supported by the consistent reporting afterwards.

I therefore do not find the allegation proven.

I will hand the judgment down later this afternoon and will consider the next steps forward.