South Tyneside Metropolitan Borough Council v K & Ors

On 25 September 2002 South Tyneside Metropolitan Borough Council, the local authority, applied for a Care Order in respect of Cade E-K, born on 7 May 2002. He was then less than 5 months old. He is now 1 ½ years old.

His mother is 37 year old Miss Lisa K. His father is 35 year old Mr Scott E. They met in 2000 and moved in together in April 2001. They married in February 2003, and separated in July. I shall refer to them as the mother and father. Cade is their only child.

The mother has 2 other children, N who is 16 and E who is 4. Their father is Mr L. N lives with her father. Since the proceedings began, E has lived with his maternal grandparents.

The father also has 2 other children, K who is 13 and R who is 10. Both of them live with their mother, Mrs R.

The cause of this application was the third of Cade’s admissions to the South Tyneside District Hospital, “STDH”, in July 2002. He was first admitted on 27 July with a history of vomiting. He was discharged after a few hours. A 3cms bruise was noted to the underside of his chin.

Cade was re-admitted to the hospital in the early hours of 28 July. The vomiting was said to be continuing. A red mark on his arm was noted. He was discharged later the same day.

Finally on 30 July 2002 he was admitted to the Accident and Emergency Department of STDH shortly before 6.00am. He had had found him staring and rigid when the father got up to feed him during the night. An ambulance was called.

Dr Cronin, a consultant paediatrician, noted on admission there was evidence of poor circulation. Cade looked grey, unwell and floppy. He had poor head control and a high cerebral cry. He was treated for possible septicaemia. A bruise to the left arm was noted. He underwent a lumbar puncture to check for meningitis.

That afternoon a CT scan was performed. It was wrongly said to be normal. Cade remained in hospital, sometimes conscious and sometimes not. Further tests were carried out. It included blood and urine testing, an ECG, ultra scan of the abdomen and a chest x-ray. They proved negative.

He was transferred to the Royal Victoria Infirmary, “RVI”, in Newcastle on 5 August. He was seen by Dr Ramesh, a consultant paediatric neurologist from Newcastle General Hospital, “NGH”, on 9 August.

His concerns about Cade related to his persistent vomiting, bouts of irritable crying, and episodes of back arching suggestive of tonic seizures/extensor posturing with developmental regression. He had lost head control and gone floppy. This was in contrast to his parent’s account of excellent head control and being a strong baby before admission.

Cade was moved once more, this time to the care of Dr Ramesh at NGH, on 14 August. The same day an MRI brain scan was carried out. It showed bilateral sub-dural haematomas. The earlier CT scan carried out at STDH was re-examined. It proved consistent with the MRI scan. Cade’s symptoms subsequently settled.

In the absence of any explanation from his parents consistent with those findings, NGH suspected he had been shaken. They informed the local authority of the situation on 19 August. The police became involved. The parents were interviewed by the local authority and the police. They denied responsibility.

On 25 September the local authority applied for a care order. Cade was placed with foster carers on his release from hospital. He remained with them until the beginning of this hearing. There was supervised contact to his parents 4 times a week for an hour.

On 30 June 2003 the father saw the Guardian at his request. For the first time he admitted giving Cade a brief shake in the early hours of 30 July 2002. He said he was feeling isolated, stressed, and very unhappy at the time.

The mother was so upset at learning about the father’s action that she turned him out. The local authority is satisfied that their separation is permanent.

As a result of the admission, and the parents having separated, there was no case against the mother. Accordingly after some delay Cade was returned to her care during the course of the hearing. No order is sought against the mother.

The local authority refer firstly to the minor injuries to Cade noted at the time of his admission to STDH at the end of July 2002, and an earlier injury to Cade’s lip. These were non-accidental injuries they say caused by the father. He denies this. They accept his admission that there was one episode of shaking on 30 July 2002. It may have been brief but significant force was used.

Finally the local authority say that there were 10 occasions when Cade’s health deteriorated whilst in hospital between 30 July and 4 August. Four occurred at STDH and 6 at RVI between 5 and 13 August. The local authority say there is convincing evidence that 7 of these were non-accidental and caused by the father who save for 1 occasion was alone with Cade overnight. They arose from deliberate airway obstruction of Cade. The father denies that there was any occasion on which he deliberately or accidentally obstructed Cade’s airways whilst he was in hospital.

Both at the beginning and the conclusion of the evidence there was discussion about the course the hearing should take. There was already an admission that the father had caused Cade significant harm as a result of one shaking incident. The threshold criteria under s.31 of the Children Act 1989 was thus established. I raised the need for a further hearing in relation to the alleged minor injuries and deliberate airway obstruction by the father.

There was unanimity at the Bar that this was a proper course. Miss Middleton appeared for the local authority, Miss Dodson QC with Miss Routledge represented the father, Mr Rowlands appeared for the mother, and the Guardian was represented by Mr Lowe.

They pointed out that these further incidents were significant. Whilst it was correct that the father was not presently seeking direct contact to Cade, that might change. There was also the question of any future children he might have, though he has had a vasectomy.

The significance it was submitted of these further allegations was important. It was highly relevant that the father had shaken Cade when he had lost control of himself in the early hours of the morning. It was quite another thing if the local authority established that he had subsequently obstructed Cade’s airways deliberately in hospital thereby causing him life-threatening relapses. If the truth of those matters needed to be established in the future that would be difficult.

Miss Dodson did not consent but raised no specific argument in relation to this argument. I was persuaded by the considerations I have set out above. Accordingly I heard evidence over 4 days between 24 and 28 November. I heard submissions on 9 December 2003.

I shall set out the father’s case, the parent’s case, interviews, and consider the minor injuries. I shall then consider the general evidence of the 4 specialists, the nursing evidence, the father’s account and my conclusions.

I have in carrying out this task been much assisted by the written and oral submissions from counsel. Miss Dodson for the father has in a full and clear series of submissions reviewed the evidence and set out the findings which she invites the court to make. The thorough nature of her submissions have been particularly helpful.

Miss Middleton for the local authority has prepared an impressive response. She has emphasised the weight and unanimous nature of the medical views.

Miss Dodson points out that he was never seen to act in a way to cause the minor injuries nor the deliberate acts. His conduct was never said to be other than appropriate for the upsetting circumstances in which Cade was placed in hospital.

The incidents in hospital are as explicable in terms of the head injury that he had received. This cannot be ruled out as a possible cause.

It is wrong to place any weight on generalised allegations that he might have played a part in episodes involving his daughter K some 12 years ago when she had episodes of being without breath. Equally his psychiatric history is of no probative value. I agree with both these submissions.

Finally the local authority are faced with the difficulty that some of the incidents not relied on are close to those upon which they do rely. The difference between them is small and that it is unsafe to reach any adverse finding to the necessary high degree.

Miss Dodson argues that there is insufficient evidence to prove in respect of each of the minor injuries to show they were caused non-accidentally. They do not really raise the index of suspicion. They are not capable either individually or cumulatively, even if they were non-accidental, of amounting to significant harm under s.31 of the Children Act 1989. The reason is that they are not significant.

The Shaking Injury. It is admitted that this was caused by the father in the early hours of 30 July 2002 as a result of a non-accidental violent shaking episode. It is also admitted that the mother was not there or knew that the father had committed this act until his admission to the Guardian in July 2003. It is accepted that it amounted to significant harm.

It is also admitted that the father’s late admission led to difficulties in forming a diagnosis for Cade. It prolonged the medical investigation, some of it invasive.

I find that the effect of the father’s late admission is not confined to these matters. It caused Cade and his half-brother E to be separated from their mother for more than a year. The effect on them and on the mother has not been investigated during this hearing. It is difficult to believe that it is other than substantial and long lasting.

This heading refers to the matters to which I have already referred whilst Cade was in hospital between 30 July and 13 August 2002. It is referred to variously as periods of altered health status or of health deterioration. I shall refer to them as the hospital incidents.

Miss Dodson in her clear and careful submissions raised no questions about the professional standing of Dr Ramesh or Dr Cronin. There are however potential difficulties when both were involved professionally with Cade at the time of the incidents.

She says that Dr Cronin investigated the matter on an intuitive basis which was a less reliable approach. A close examination and analysis of what happened is required. At some stages he was too keen to assume that things had happened on an insufficient basis.

Dr Ramesh had relied on the level of the nurses’ anxiety, for instance, in an incident where one of them reported on a red mark on Cade’s face which the nurse herself was doubtful about. He had changed his mind and his views during the course of his investigations.

He was looking for a pattern by way of explanation; this prevented him noting that the events were different at the beginning from what they were at the end. Dr Cronin on the other hand stated that he was extremely confident with his conclusion. Professor Sibert however did not consider that the last 6 incidents were as significant as Dr Cronin and Dr Ramesh.

This was not a father showing any of the signs that might have been associated with somebody prepared to behave in this way. He did not engage in attention seeking behaviour. He was not acting oddly. His reaction to the events was never considered inappropriate and he provided good care. The high standard of proof has not been met looking at the totality of the evidence.

The police interviewed the mother on 28 August, 25 September and 23 October 2002. In respect of the admission to hospital on 30 July, she said that Cade went to bed between 9.00pm and 10.00pm the previous evening. When he woke at 4.30am it was the father who took him into the front room.

She heard normal whingeing. The father shouted urgently saying that Cade had stopped breathing. When she went in Cade was floppy, his eyes rolling and he was making a horrible growling noise. She told the father to call an ambulance.

The mother said that the red mark to Cade’s arm only lasted a couple of days. She could only think of Cade waving his arms in his cot and touching the bar.

She said that the bruise to his face appeared about 10 days before. The father had telephoned her at work telling her not to be alarmed as her elder son E, born 22 June 1999 had fallen and caught Cade on the face.

The father called a second time to say that Cade had a cut to the inside of his lip when he was carrying him on his shoulder. This happened 2 weeks after the mother returned to work, on 9 July 2002, a few days before his first admission to hospital.

The police interviewed him on 22 August, 25 September, and 16 October. The father agreed that he had taken Cade into the front room at about 4.00am on the morning of 30 July. He described how Cade was flinging himself backwards. He then went rigid. He let out a piercing scream and went limp. His eyes were rolling and his breathing was shallow and he called for the mother.

Subsequently he had a conversation with his former wife Mrs R and his daughter K, now 13 years old. K recalled an incident when she had banged Cade’s head on the window sill whilst getting him out of his basket. This upset K.

In relation to the bruise to the chin, the father confirmed that it was caused by E. He also thought that the red mark to Cade’s arm was caused by his hitting his arms on the side of his cot.

I shall start by considering shortly the evidence in relation to each of the 3 matters relied upon by the local authority. I do that separately from the admitted shaking injury and any conclusions that I might reach in relation to the hospital incidents.

It was noted on his admission on 27 July. It was noted again on 28 July, and by Dr Jones on 30 July when she examined Cade. She described it as a bruise to underside of Cade’s chin. She was told that a three year old sibling had fallen on to Cade when he was lying on the floor. “This story was seen as plausible and no further intervention regarding the bruise was taken”.

Staff Nurse Gibson described it as “a bruise to his left side jaw area approx. 3cms long, it was thin in shape”. The father gave a detailed explanation in his interview on 27 August 2002.

He was changing Cade on the floor and told E not to run round the table. He did so. He fell on the edge of the changing mat and caught Cade on the side of his face. He thought it was with the shin part of his leg. Cade had a small bruise on the left side of his face.

The father repeated this explanation in his statement of July 2003 and in his evidence. The mother told the police in her interview that the father had phoned her at work. He had given her the same explanation.

Dr Cronin was very sceptical about this in evidence. Professor Sibert told me that he was suspicious, but the explanation was not impossible and was accepted by the junior doctor.

The father’s explanation is consistent with the mark. It has not varied to an extent that I regard as significant despite Miss Middleton’s argument to the contrary.

Staff Nurse Gibson, who did not give evidence, said in a statement that she had seen Cade on 28 July 2002. He had a red area to his right lower forearm. The father said that the 3 year old boisterous brother had fallen on Cade. “The bruise looked fairly new so I accepted the explanation”.

Dr Shivram on 30 July recorded it as “bruise left forearm”. Nurse Brownless who gave evidence noted at the time that he had a bruise on his right arm. In evidence she said that she did not know if the mark was there, it had gone when she looked again.

In his statement of 14 July 2003, the father described it as a small thin red line. It was not there the night before (27 July 2002), but the mother pointed it out to him the next morning. He thought it was when he moved in his cot. If it was not he could only suspect the occasion when E fell on Cade.

He said in evidence that he did mention it on 28 July. It was very possibly a separate injury from the bruise to the chin. It was not there when they went to bed as he had said earlier but they saw it when they got up.

Miss Dodson says that what started as a red mark might have been observed as a bruise afterwards. There was only one injury. It was consistent with the explanation given.

I accept that there was only one mark. It was not consistent with the explanation given because of its appearance overnight on such a young baby. The essential element of the father’s evidence is that it was separate from the incident when E was involved. If that is not so, then he says it was E in falling over Cade.

The mother said in the same interview to the police on 23 October 2002 that the father would ring if anything like the bruise to his chin had happened. She remembered one other occasion. The father had been carrying Cade around and, with his head being a little bit floppy “he’d sort of like bashed his lip a little”.

It was a little bit cut on the inside of his gum, just a tiny bit of bleeding. The father had been carrying Cade on his shoulder, he literally just sort of banged his head forward. It was not long after she had gone back to work which it is accepted was on 9 July.

The father in his statement of July 2003 said that he was holding Cade over his shoulder trying to wind him. It was a few weeks before his admission to hospital.

“I did not hold his head steady and his face banged off my shoulder. His lip was not cut ……… part of his lip did redden and swell for a long time. I telephoned Lisa …….. I do not remember using the word cut or describing any blood”.

In evidence he described it as a slightly swollen lip, possibly a graze. He said that possibly he was not supporting Cade’s head. The swelling was down by the end of the day, this was 7 to 10 days before Cade was admitted to hospital.

Dr Cronin in a letter of 15 July pointed out that generally babies of this age do not have teeth. It is unusual therefore to have a cut to the lip. It mostly requires a sharp edge and a hard surface or 2 sharp edges.

In evidence he said that the father’s explanation was a difficult one to accept. The shoulder does not have part like a metal button. Professor Sibert in evidence pointed out that apparently only the father saw this though he felt the mother would have seen it.

I am satisfied that the mother’s account of what she was told by the father is probable. This means that there was a minor cut or graze. The father’s account of how it happened is difficult to reconcile with the injury. It was not seen by any one else.

Babies of less than 3 months do not bruise themselves. A mark or bruise is therefore a result of trauma. That trauma may be accidental or non-accidental. It is for the local authority to prove their case based on cogent evidence.

An account which clearly does not provide an explanation may be cogent evidence. Cade suffered 3 injuries in different places in a short period of time. That raises the incidence of suspicion. I consider them separately from the shaking incident.

The injury to the lip only arises from the father’s admission. It is strange that there is no mention of it by the mother.

In each case the father has given an explanation mostly consistent with accidental injury. The explanation about E was accepted at the time. The mark on the arm was short lived.

I am troubled by these incidents. I accept that they were not hidden by the father who always gave an explanation. The one in relation to the chin was possible. The one about the mark on the arm is less possible if it was not there the day before. The injury to the lip relates only to a phone call by the father, as no one else saw it.

I am left with considerable concern about what was happening to Cade. There is a real possibility that it was deliberate harm, but I cannot say despite my suspicions that there is cogent evidence. I find these allegations are not proved, though I am worried about them.

It is helpful to look at the general evidence of the 4 specialists, 3 of whom gave evidence. This is to see what would have been Cade’s expected symptoms on his admission to hospital on 30 July following his shaking injury.

It is then necessary to look at the 3 options which it is generally accepted could have led to the accepted changes in Cade’s medical progress. They were set out by Dr Ramesh and Dr Cronin.

They are firstly an epileptic seizure as a result of the damage to the brain. Secondly it is the effect of raised inter-cranial pressure. Thirdly it is what they describe as deliberate harm by a third party.

Mr Punt, a recently retired paediatric neurosurgeon, wrote a report in relation to Cade’s subdural haematomas dated 30 April 2003. At p.28 he said –

“The generally held view is that contained in an international textbook of paediatric neurosurgery (Duhaime & Christian 1999, Reference 7): ‘While controversy still exists as to the exact mechanism, most authors now agree that the forces necessary to cause this type of injury are far from trivial and, in fact, are considerable….. This sort of injury is unlikely to be inflicted accidentally by well-meaning carers who do not know that their behaviour can be injurious’.

Any inflicted shaking injury would not necessarily have been prolonged, but it would have been more vigorous than could possibly have represented appropriate handling, especially in the context of the cultural and intuitive gentle handling of infants. It would have been clear to a reasonable, responsible, average carer that such handling was inappropriate, and capable of causing distress or even harm to the baby. It would have been apparent, both to a perpetrator and to an observer, that such handling was inappropriate……

The immediate effect of any inflicted shaking-impact injury would have been a change in the baby’s behaviour. The nature and extent of the change in behaviour would be a reflection of the extent of any associated injury to, or dysfunction of, the brain.

At the most mild end of the spectrum, the baby would have been extremely irritable and inconsolable. At the most severe end of the spectrum, the baby would have lost consciousness and displayed severe abnormalities of breathing and heart rate. In between these extremes, the baby might have displayed alteration in muscular tone, becoming abnormally stiff or abnormally floppy, or fluctuating between the two states; there might have been vomiting, pallor, or epileptic fits……

I defer to Dr. Ramesh as to whether the episodes were consistent with epileptic seizures consequent upon the injury that I consider to have occurred on 30 July 2002. I defer to Dr. Ramesh and to Dr. Cronin as to whether the episodes may have been induced by the actions of an adult.

From the position of a paediatric neurosurgeon, the episodes described by the nursing staff were very abrupt in onset and very profound in their nature, indicating a very abrupt change in health status. I also note that the episodes have ceased up to the date on which I last had information regarding Cade, namely 16 October 2002.

The episodes were almost certainly not due to raised intracranial pressure due to the subdural collections, as it would be extremely unusual for such moderate sized collections to have such profound effects.”

Dr Ramesh and Dr Cronin met together as 2 treating physicians on 3 September 2003. They went through each of the 10 episodes whilst Cade was in hospital having identified the 3 possible causes for the hospital incidents.

They were in agreement that there was insufficient information to reach a conclusion on the 1^st. They agreed episodes 3, 4, 5, 7, 8, 9 and 10 were caused by a deliberate act. They disagreed on episode 2.

Professor Sibert, a paediatrician, academic, and a child care expert, who gave evidence said in his report of 16 November 2003 –

“In addition to this series of injuries, there is also the possibility that there were also episodes of deliberate non-accidental upper airway obstruction. These happened on the Ward at South Tyneside. The father was the only person in the room at the time. Dr Stephen Cronin concludes that he was seriously concerned that: ‘Cade was experiencing some form of injury whilst on the Ward. Obstruction of the airways would fit this pattern well’.

I think this level of serious concern probably puts the situation quite well. There were no episodes where Mr E was observed smothering the baby. However the descriptions of the nurses are suggestive.

I do not believe that these episodes were diagnostic of abuse by themselves, and epileptic fits are a serious differential diagnosis. A clear epileptic fit was observed when Cade was at the RVI, although the EEG was negative. However they should not be considered separately and from a medical point of view be taken into consideration with the other injuries.”

In relation to the hospital incidents, he said at a joint meeting on 18 November–

“These episodes, I don’t think by myself are diagnostic of imposed airway obstruction. I think nobody observed them, the child did have a subdural at the time, but on the other hand I think you put it in your Report… Cade was experiencing some form of injury whilst on the ward, obstruction of the airways would fit this pattern well. I think it does fit the pattern well, but I don’t think it’s diagnostic.”

At the same meeting, Dr Cronin, a paediatrician, and Professor Sibert, both of whom gave evidence, said –

“Dr Cronin: Ramesh and I sat down with each of these episodes and to our interpretation, and I accept this is only our interpretation, we felt that there were two distinct types of episodes. That the witnessed fit did not involve any systemic deterioration in the child; this child did not become hypertensive, blue, and did not take an extended period of time to recover. But the episode that had concerned me throughout, and also concerned Ramesh were episodes which tended to involve a sudden cry, the child being brought to our attention, and the child’s been looking limp and often cyanosed and taken an extended period of time to recover.

There was, in those episodes, and I think they are separate, there is no history of twitching, and there is no twitching with this. What’s seen is a child that is either stiff and blue or limp and blue. Now, therefore, Ramesh and I read through all the details of each of those episodes, we correlated the medical recordings of those episodes with the nursing record of those episodes, and they did not appear to be seizure like episodes. And as Professor Sibert has confirmed, there is no EEG confirmation of epilepsy in this child, although that obviously is not conclusive, it’s just informative to the process.

I don’t think neither Ramesh nor I were trying to say we knew what had occurred on these episodes, and I do think they fit with an overall story and that are highly suggestive to me, and I’m afraid I personally still believe that these episodes involve injury.

Prof. Sibert: That might well be the case. All I’m saying is I don’t think you can go to the court and say that beyond all reasonable doubt there were….

Dr Cronin: I agree.

Prof. Sibert: I think you could say that probably on the balance of probabilities, taking everything, they probably are.”

There is therefore agreement in the reports that there was deliberate trauma whilst Cade was in hospital. Professor Sibert was less emphatic but supported that conclusion in particular on episodes 3 and 4.

He started his evidence by saying that epilepsy and raised cranial pressure were what he described as the bread and butter of his practice. He said that inter-cranial pressure can rise after a patient is admitted to hospital. It would take weeks before the pressure goes down. A brain insult can generate epilepsy, and such patients often present with seizures.

He explained that inter-cranial pressure is raised because the blood in the brain space exerts pressure and draws in water. That is sub-dural effusion. The signs of this are irritability, vomiting, and the head enlarging in size which leads to a miserable child.

He said that the higher level stays for several weeks unless it is relieved, and the blood resolves naturally and lower pressure results. It can go even higher during periods of cries or strains.

It can compress the brain stem and that is when the heart and breathing are affected. The child stiffens and holds its breath. It seems like an epileptic seizure and is sometimes called a spasm.

If someone holds a baby’s chest so it cannot breathe, within one minute you have anoxia which initially hits the brain stem. It looks like a seizure.

In order to determine what had happened to the baby the questions to ask are –

He explained that usually after 1 to 1 ½ minutes you have toxic extensor. There is a high pitched cry, the baby goes beyond being flaccid and into a coma having lost consciousness.

The child is no more than irritable unless the pressure rises. There may be fluctuations in the inter-cranial pressure but the baby cannot go into death throes. Going floppy can be the second stage. It is easier to diagnose after a time because anti-seizure medicine is given.

Usually the heart rate increases during a fit, it does not dip. If a baby has an epileptic fit it is knocked out, but if the baby recovers within 10 minutes then it is because the life threatening act has come to a stop.

He said that he went in to consider Cade’s case with an open mind. He was looking for a neurological cause.

Cade’s EEG was normal. It does not eliminate the prospect of seizures, it gives supporting evidence. There can be normal EEG in about 20% of those having epileptic fits.

He described Cade as chugging along except at times of the incidents when he was trying to find an explanation for what was happening. He said that crying, coughing, straining to move bowels, vomiting and reflux can raise inter-cranial pressure and anything painful can do it.

But it is a modest rise in inter-cranial pressure, not a major one, and not life-threatening episodes. That would need a major intervention, for instance taking blood.

The sort of intervention which would stop breathing would be a hand over the face or squeezing of the chest. The effect can happen very quickly but not before one minute.

He explained that he took overall responsibility for Cade’s care when he was in STDH and after his return in August 2002. He was looking for a neurological cause.

He said that short-lived seizures did not harm children. Cade was happy and feeding during the stay. He was reasonably perky but he had lost some milestones and then he deteriorated.

He explained that an epileptic seizure is one brought about by an electrical instability. A non-epileptic seizure comes about without any change in the brain. He said in relation to the collapse episodes as he called them that there was no twitch though this was not essential, the heart-rate went down not up, and Cade did not go grey, sweating and limp as with epileptic fits.

The episodes he was looking at were not isolated seizures but life threatening episodes. He said that the 2 EEGs were normal which would not be so if Cade had long-term epilepsy. You could get epileptic and non-epileptic seizures from the same injury.

Part of anoxia is to see the child stiffen and then floppiness. Haematomas resolve over time. Raised inter-cranial pressure did not lead to brain stem anoxia. Lack of oxygen could cause a collapse.

He said that in the hospital discussion Dr Cronin felt that it is more likely to be suffocation. He pointed out that Cade was quite an ill baby when he had undiagnosed subdurals. No one had observed the father doing this. There was a possibility they were fits, not un-associated with brain injury.

Once Cade was at the RVI, when he fitted the EEG did not show it. There was a likelihood but he did not think it a strong one that it was suffocation.

He explained that subdural haematomas used to be thought to be the key to the damage, they are now regarded as a marker. It is now thought they can damage the respiratory centre to stop breathing.

Imposed airway obstruction is most likely. Dr Ramesh has particular expertise in this area whereas he was a generalist. Cade would cry and then go floppy moments after airway obstruction and often quite irritable afterwards. Dr Ramesh had greater experience on epilepsy than he did.

Dr Cronin was extremely confident. There was a difference in emphasis. He was not extreme. He was probable but not certain.

There was serious differential diagnosis between the 3 identified by Dr Ramesh and Dr Cronin. There were quite a few pointers to obstructed airways. They all produced serious concerns though they are not diagnostic. Mechanically he thought it was squeezing.

The evidence relating to these 10 episodes, 7 of which the local authority relies upon are to be found in the hospital and nursing notes, the evidence of the individual nurses, notes of a meeting held between Dr Cronin and Dr Ramesh on 3 September 2003, their statements and evidence, and the over-view of Professor Sibert. I remind myself at the beginning that there is no direct evidence against the father.

Furthermore Cade was a seriously ill child as a result of the subdural haematomas. What was observed might be an epileptic seizure, a raising of inter-cranial pressure, or insufficient information for any specialist to make a credible diagnosis.

Even when allowance is made for all those matters, I have to bear in mind the inherent improbability that the father would act in this way. It therefore requires strong evidence to establish the allegation that is made. Whilst my decision is on the balance of probabilities, given the background, I repeat that I can only make an adverse finding if I am satisfied that there is cogent evidence compelling that conclusion.

This was the day after Cade was admitted. Dr Cronin recorded that the father thought that Cade was that day back to his normal self, laughing and giggling and moving all limbs as well as feeding well.

At 18.30 it is recorded – “further vomit. Baby very pale and floppy. Retching when vomiting. ………… 20.00 observations recorded – seem satisfactory……….. 20.30 vomited moderate amount. A baby appears more alert though still pale”.

Dr Cronin recorded in his statement of 24 September ……. “we did not have a clear explanation for the alteration in conscious level nor for the variation of the pattern of vomiting ………. Later that evening between 6.30 and 7.15 dad was caring for Cade and he suddenly became limp, pale and floppy”.

A similar observation was noted by Staff Nurse Brownless. Both she and Dr Cronin noted that Cade improved overnight.

At the meeting on 3 September 2003 neither Dr Cronin nor Dr Ramesh “felt that there was enough information available to give an opinion re this episode”. I am not invited to make an adverse finding.

Staff Nurse Brownless was a witness to both this event and the next one just under 12 hours later at 7.30 on the morning of 2 August 2002. She is a nurse of 25 years experience, 11 of them with children. She was an impressive and reliable witness.

At this time the mother was noted to be looking after other family members and it was only the father who stayed every night. This was except for 2 August when the mother stayed.

In her statement of 11 September 2002 Staff Nurse Brownless said that during the day Cade had improved. He had fed well at 18.00. At 20.00 he deteriorated and medical staff were alerted.

The hospital notes record that he had a large vomit, looked grey and was very un-responsive. Staff Nurse Brownless recorded – “Cade’s colour grey – became limp. Eyes staring at ceiling – last 3 to 4 minutes then had high-pitched cry. When settled Cade limp and vacant”.

In evidence she could not remember if it was a cry or an alarm that made her go into Cade’s room. The father was over his cot. Cade was in some form of respiratory distress. She thought there was a red mark but it disappeared so quickly that she wasn’t certain.

She was very concerned. This was Cade’s third admission and he was noted to have bruises and he was so ill. She was concerned enough to mention it to the consultant on the ward round. Overnight Cade she said continued to vomit but slowly improved.

Dr Cronin and Dr Ramesh differ in their conclusions about this episode. Dr Cronin did not believe it was raised inter-cranial pressure given 2 lucid periods and 48 hours since Cade’s admission. He considered it a deliberate act.

Dr Ramesh accepted that a deliberate act was arguable but still felt it could be either an epileptic seizure or raising of the inter-cranial pressure. Dr Ramesh considered that the shaking episode could provide an explanation for this incident.

With Professor Sibert acknowledging Dr Ramesh’s particular expertise in the area of fitting and epilepsy, I am not satisfied that I can conclude in isolation that this episode has been established by cogent evidence as proved. It is very suspicious but that is not enough.

Staff Nurse Brownless went into Cade’s room having been alerted either by an alarm or a call from the father. The room was in darkness. She switched on the lights. The father was standing over Cade’s cot. Cade was in her words vacant, floppy and grey. She thought there was a faint red mark across his cheek.

In a later statement she recalled the father speaking. He said something like “he’s doing it again”’

In evidence she told me that she was very concerned on 2 August. Cade had slept all night, he was stable and yet he woke up ill in a flat condition. It was very unusual in her professional experience for a baby to need resuscitation after sleeping all night. She remembered a very high-pitched cry which she recognised as being characteristic of a head injury or illness.

She remembered him as being vacant, floppy and grey. The eyes were un-focussed. She had a suspicion of a non-accidental occurrence, there was the red mark.

Both Dr Cronin and Dr Ramesh agreed in their diagnosis that it was a deliberate act. Professor Sibert considered that this was one of the 2 events where a deliberate act (imposed airway obstruction) was probable but not definite. He said you have to look at the whole pattern.

In evidence Dr Ramesh pointed to the fact that Cade had been relatively stable throughout the night and suddenly something happened. He looked for an explanation for this. He put together the nurses anxiety, the possible mark on the face and the father leaning over the cot. In his view the balance of probabilities were that Cade had been interfered with.

He described it as a life-threatening episode. He attributed the floppiness, vacant eyes and greyness to anoxia of the basic brain stem. It was a serious episode where there was seen to be spontaneous recovery without treatment.

It was noted that Cade’s EEG remained normal. Dr Ramesh said it did not eliminate the prospect of it being seizures as this can happen in 20% of epileptic seizures but it does give supportive evidence.

He noted the rapid recovery without treatment. This would not happen with a seizure.

Staff Nurse Hildrew was sitting about 12 feet away. She heard Cade crying. It was an ordinary kind of cry, it suddenly stopped.

She assumed Cade had settled. As she went to do a ward check the father came out with Cade in his arms saying in a distressed voice “nurse, nurse he’s doing it again”.

The father sat on the bed holding Cade who was pale, stiff at first and then went floppy. She gave oxygen to Cade and called for a doctor. After medical treatment his condition improved fairly quickly.

“In my opinion as a nurse I was puzzled as to the reason for Cade’s sudden collapse and then spontaneous recovery. I can say I have never seen a baby deteriorate so suddenly without any indication of cause being found”.

As a paediatric Staff Nurse with 18 years of experience with children she said that she had seen seizures before. She had never seen anything like this episode. She had seen epileptic seizures before.

When Dr Cronin and Dr Ramesh met in September 2003 they both concluded that the cause of Cade’s sudden collapse was a deliberate act. However in a letter on 7 July 2003 Dr Ramesh had said that it was probably an epileptic seizure.

He explained his change of view by saying that at the time he was looking at the crucial event as being 30 July and he was not thinking that there were other events subsequently. It was only when he put all the events together between him and Dr Cronin when he was looking for a pattern but not seeing him that he reached his conclusion.

Miss Middleton argues that this is another occasion when the father was alone with Cade. He had fed at 22.00 well but vomited soon afterwards. He had settled quickly and was sleeping soundly. Staff Nurse Hildrew with all her experience had not seen a baby deteriorate so suddenly and recover so quickly. According to Prof. Sibert, she was likely to have seen fitting but unlikely to have seen a deliberate act.

This occurred on the day after Cade moved to RVI. It is described by Staff Nurse Ruddick. Cade woke about 7.00am crying. She went to get him a bottle. On her return Cade had a high pitched cry. By then he was in his father’s arms, his cries intensified, his body went stiff, his back arched and his limbs were jerky. He was placed in a cot and given oxygen but he continued to fit for approximately 15 to 20 minutes.

His heart rate was noted to reduce. This was unlikely had it been an epileptic seizure. Dr Ramesh again said that an epileptic seizure knocks you out. If however there is a recovery within 10 minutes it is because a life-threatening action has come to a stop.

Dr Ramesh noted the reduced heart rate and said that it was not usually part of an epileptic seizure. Prof. Sibert thought it was a significant incident. Both Dr Cronin and Dr Ramesh considered it was a deliberate act.

The incident was recorded by an unknown doctor who was walking past the window. He noticed Cade drawing his legs up violently towards his abdomen on numerous occasions. His eyes were slightly dazed. It lasted for about 2 minutes.

Dr Ramesh and Dr Cronin considered that this could be an epileptic fit. Miss Dodson makes the sound point that if there can be a fit like this amidst incidents which are said not to be fits then it throws doubts on those other diagnoses which become that much less likely.

I am not satisfied that any deliberate act has been established. It is based on an entry by an unknown doctor where the motions observed could describe an epileptic seizure.

The last five episodes were not considered by Prof. Sibert as of particular concern. He said when he read the notes that he did not think there was very much at the RVI. There was quite a lot at the hospital before. All but one were however considered by Dr Cronin and Dr Ramesh as deliberate acts.

Staff Nurse Jauncey was on duty. She made a statement on 29 September 2002. She describes how the father was present taking care of Cade’s feeding and changing.

She was present in the room with Cade and his father when Cade, in his cot, gave a high pitched cry. This was after he had gone quite rigid. He then continued an intermittent cry and then silence. Doctors attention was brought to this. He had been stable overnight.

Dr Ramesh had first thought that it was a deliberate act. When it was put to him that the nurse was present, he thought that this was unlikely.

Dr Cronin thought it an interesting episode without the severity of the others. It did not alter the confidence he felt in relation to the others where he described himself as extremely confident. Prof. Sibert did not think it a significant episode at all.

According to Dr Ramesh as I accept it would have been necessary to have blocked the airways for a minute. In the circumstances I am not satisfied that this was a deliberate act.

Staff Nurse Ingram had 2 ½ years nursing of children. She went into Cade’s room when the emergency buzzer went. She saw the father standing close to his cot with Cade in his arms. The father said that Cade was fitting again and she took him and placed him in his cot. As she did so Cade had a very high pitched cry and his body was quite rigid. Another nurse came in and she contacted the Registrar on duty. She thought it was a seizure or a fit.

Dr Cronin and Dr Ramesh thought that it was a deliberate act. Dr Ramesh accepted that it was sometimes difficult to tell if it was an epileptic fit but he maintained his conclusion. He pointed out that to prevent the expansion of a baby’s chest was enough. It would need 60 to 90 seconds but there would then be a cascade of events with rigidity and a shriek.

Prof. Sibert did not think on the other hand that it did sound like restricted airways. He did not think there was anything very much about this episode. He did not regard episode 7 to 10 as particularly significant.

The evidence of this is short. In the history sheet it is described as a brief episode of stiffness of upper and lower limbs. In the ward round with Dr Snowdon it was said that at 4.00am he went stiff and vomited a huge amount afterwards. He fed well at 7.00am. Again Dr Cronin and Dr Ramesh thought it was a deliberate act.

This episode involved Nurse Lord a Staff Nurse who had qualified 4 years ago. She described Cade starting to cry at about 9.30. He was with his father. He started a high pitched scream. She went to the kitchen to get another bottle. On her return Cade was still screaming.

The father did not think he was alright. He was placed in the cot and he was starting to go rigid. He was then relaxing and going rigid but screaming in the meantime. She was only out for less than a minute.

Whilst Prof. Sibert included this as an episode without particular significance, Dr Cronin and Dr Ramesh thought that it was that a deliberate act was most likely. They added that there could be another explanation not covered in the options.

Dr Ramesh in evidence would not say that he was confident about a third party intervention. Dr Cronin said it was not to the severity of other episodes but if the nurse had been out for even a short time then there could have been for instance a chest squeeze. Prof. Sibert thought it a minor matter.

This is another instance where on re-reading the evidence and the submissions suspicions are raised. I am however not satisfied however that the local authority has established cogent evidence for a deliberate act.

He made a statement on 14 July 2003. He set out his background including a 13 year relationship by which he had a daughter K who is 13 and a son R who is 10.

He had suffered from depression. He had been sexually abused by a man when he was 14 and his step-father was physically abusive to him, his mother and brothers. He had anti-depressant medication in 1995 and counselling for over a year ending in January 1999.

He had had a difficult relationship with the mother. This was because of her existing marriage when the relationship began, her parents instant dislike to him, and difficulty and altercations with her husband.

Cade’s birth itself had been difficult. The mother had needed time to recover but she returned to work after 6 weeks. He remains very proud of Cade, loving him dearly and delighted that he was caring for him. However he became increasingly stressed. He was isolated and found himself very tired when his 2 older children came to stay in July 2002.

He explained how he lost control shortly after 4.00am on 30 July when he could not settle him. He shook him. “I knew that something was badly wrong. He went rigid and then floppy, as if he were having a fit. He let out a horrendous scream. He lay limp in my arms and I thought he was dead”.

He went on to say that he never harmed Cade in hospital except by allowing unnecessary tests and procedures. He was deeply sorry and ashamed for his dishonesty following the shaking. He wants to play a part in Cade’s life. He is prepared to take part in any necessary assessments. In evidence he did not seek to disagree with any of the nurses evidence so far as he could recall events.

He confirmed that he had been at the hospital day and night with the mother there for much of the day. He repeated that he had not done anything to Cade in hospital.

The local authority rely upon a number of factors. First of all they point to the father’s dishonesty.

The dishonesty related not just to the concealment of the cause of the subdural haematomas for nearly a year. The father withheld his knowledge and responsibility for what had happened in the face of Cade’s protracted stay in a series of hospitals whilst undergoing medical treatment, some of it invasive. He lied to the mother, to medical specialists, social workers, and the police.

He expressed astonishment on learning of the subdural haematomas in unusually graphic terms in his interview with the police –

“Q: What did you think about that?

A: We was gob smacked, absolutely couldn’t believe it to think the last couple of weeks we had been looking, well the doctors had been looking for some sort of illness then this came out of it as if someone had punched me in the face. Major huge shock.”

Furthermore he told the police lies implicating his daughter K. He said she had hit Cade’s head on a windowsill by way of an explanation.

There are also the unusual circumstances around the allegations of the father’s conduct in hospital. Though the mother was present during the day and for one or two nights, the incidents happened only when the father was alone with Cade at quiet times of day or night.

Cade’s sudden collapses are not explained by natural causes. They were not caused by his original shaking injury.

The nursing evidence, five of whom were called, was clear, reliable, and is compelling evidence of the nature and extent of the collapses experienced by Cade. It was not suggested in cross-examination to be exaggerated or in heightened emotional terms.

Finally there is unanimous medical evidence. The opinion of Dr Cronin was very confident. It adds to the weight to be given to his evidence that he was the paediatrician in charge during Cade’s initial and most serious events.

Dr Ramesh supports Dr Cronin. He had the advantage of being called in to explain features of Cade’s illness for which a reason could not be found at the time.

Prof. Sibert was an independent expert. He formed his view on the same basis as the other 2 specialists namely by reading the detailed medical records and the nurses statements. He concluded –

“Events 3 and 4 which I felt were imposed airway obstruction were certainly a possibility – you have to look at the whole pattern.”

He did not consider ultimately that the 6 episodes at the RVI were airway obstruction.

Reliance is placed upon the evidence of Dr Ramesh where he said –

“If you have survival threatened and brain stem event you go stiff then floppy. This is a classic brain stem event. Heart rate drops. Will arrest, shallow breathing, will go rigid and stiff. Severe oxygen deprivation. Every time event happens only one parent present, whole scenario seemed highly significant when in company of one particular parent. Usually a heart racing with epileptic fit, 130, 140, 150 not usually dropping.”

Miss Middleton relies on that unanimity of the medical evidence, differing only in its strength rather than in its conclusions. I was referred to the speech of Lord Browne-Wilkinson in Bolitho (deceased) v City and Hackney Health Authority (1998) AC 232 where he said at p.243:

“In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion…… But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasize that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable…… It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such an opinion will not provide the bench mark by reference to which the defendant’s conduct falls to be assessed.”

Miss Dodson’s defence of the father was backed by a detailed skeleton argument, the value of which is well emphasized by my judgment. She does so both by looking at the detail as well stepping back to look at the overall position.

She says the person of the father and his situation must be considered. Unhappily concerns about K many years ago and police concerns have been permitted to cast a shadow over the father’s standing which is not justified. I agree that those matters are not relevant.

It is one thing to find a father prone to depression for understandable reasons and feeling unusually isolated having a moment of inexcusable violence when under stress. It led him to shake Cade in the middle of the night when there were difficulties settling him. It is quite another when, as a caring parent whose conduct is not criticised in hospital, he is then alleged to have partially suffocated Cade on a number of occasions.

It is not just the wholly improbable nature of his conduct. It is that, if correct, he was able to carry it out well enough to ensure Cade’s collapse but ensuring that he would recover on each occasion.

This is extraordinary and obsessional behaviour. She argues that the father has none of the characteristics that might be expected of such a parent. Having had the courage to admit one seriously wrongful act, it is unlikely that he would not make an admission about what had happened later.

These are telling points. It is most unusual behaviour. In looking at the episodes by themselves as I consider is right to begin with, I do not attach weight either to the shaking incident, allegations in relation to K, nor his depression and isolation.

Equally the fact that he lied about his conduct convincingly does not add to the allegations by the local authority of deliberate acts in hospital. That is unless those acts by themselves sufficiently withstand detailed scrutiny such that they can be regarded as proved independently and by cogent evidence.

I then turn to the next unusual aspect of the case. Dr Cronin and Dr Ramesh were engaged in Cade’s care at a relevant time. Neither made any adverse conclusions about the father until some time later. Their evidence cannot be regarded as cogent where it is said on behalf of the father -

I accept that at the heart of this hearing is the quality of the nursing records and evidence. If that is not by itself sufficiently persuasive, then any medical opinions founded upon it must fail.

I have been deeply impressed by the quality of the nursing evidence. It was largely unchallenged. I cannot recall a case where the reliability, dedication and experience of the nursing evidence reached such a level. They were anxious to ensure that any doubts they had were brought out, as with Staff Nurse Brownless and the red mark. They were not inexperienced or over cautious. They sought doctors’ assistance only when it was called for.

They did not seek to distinguish between an epileptic fit and a baby collapsing because its breathing had been impeded. They were however used to babies having epileptic fits and coping with them. What was happening to Cade was in particular for the very experienced Nurse Brownless and Nurse Hildrew something which they had not seen before. They would not draw to a specialists attention an ordinary seizure or express themselves in such terms unless it was well justified.

I have reviewed their statements, the nursing records, and their evidence. I am satisfied that they provide a sure foundation in fact upon which I can rely with confidence.

I am not troubled by the subsequent reaction of Dr Cronin and Dr Ramesh rather than their immediate conclusion at the time. Through a mis-read scan, they were trying to diagnose the condition of a baby whose pattern fitted into one with which they were unfamiliar. There were 2 possible reasons for this. Either it was because they understandably thought they could ignore brain injury as a possible cause, or it was this coupled with unnatural life threatening episodes.

I bear in mind the criticisms levelled against Dr Cronin and Dr Ramesh. I think it probable that Dr Cronin’s clear views were formed at a relatively early stage when he had the information about the subdural haematomas. I bear in mind also that Dr Ramesh was prepared to be persuaded by both Dr Cronin and other matters as is shown by my review of his evidence.

I do not consider that either of them either leapt to conclusions or was unduly influenced by the anxiety and concerns of the nursing staff. They made allowances in their evidence for instance by not placing the same weight on the first incident. Their conclusions were neither rash nor outside of recognised medical approach appropriate to specialists of their status. They have both seen many sick babies and babies having seizures. They pooled their individual observations and reading and came to well-formed opinions upon which I am entitled to and do place reliance.

However in this situation I am grateful to have the reassurance from Prof. Sibert and the support of Mr Punt. It is of particular assistance to have specialists of their standing who stand back from the day to day difficulties and problems with which the other 2 specialists were faced. When Prof. Sibert reaches the same conclusion in relation to 2 of the incidents though with less conviction, I am satisfied I am treading on firm ground.

Save as I have otherwise indicated, I accept the submissions of the local authority. I only do so having given careful considerations to all the points made by Miss Dodson.

I am deeply suspicious over all 10 of the incidents with which I have been concerned. There is a pattern to them, to the nurses’ reaction, and to the unusual feature of the father being alone with Cade which raises grave concern.

I bear in mind that in such an important and unusual situation it is only on the firmest ground that I should tread. I have reached the conclusion that I should find that it was the 3^rd and 4^th episodes which were caused by the deliberate act of the father.

The others are of varying degrees of persuasiveness. I have however taken a cautious view in reaching my conclusion. It is one on which I am sure.

The persuasive points which lead to that conclusion include the following. They are in no particular order –

Finally, I have borne in mind Miss Dodson’s careful submission in relation to Dr Cronin and Dr Ramesh, though their evidence does not stand alone. They were both closely involved in Cade’s treatment and the diagnosis at the time and later.

Where expert medical witnesses have been involved in a child’s treatment in hospital, who is later the subject of proceedings, there may be reservations about their conclusions. This could arise if for instance their wish to support the views of their staff reduces their capacity to form an objective judgment.

A similar situation might arise if they had too close an involvement in a difficult and emotional situation. Equally the immediacy of such worrying incidents might tend to make initial impressions carry too great a weight. The ability to stand back and view each incident carefully and objectively could for those reasons become less focussed and ultimately suspect.

In my judgment considerations of this kind and others mentioned by Miss Dodson require careful consideration by the court whenever reliance is sought to be placed on the conclusions of treating specialists. It is not because their conclusions should be treated as suspect. It is because the court should be alive to the possibilities to which I have referred.

I bear in mind that the Court of Appeal have emphasized that an expert treating a child should not make a forensic contribution (Re: B (Sexual Abuse: Expert’s Report) (2001) 1 FLR 871). That case concerned therapeutic work leading to a conclusion on probable sexual abuse.

I am satisfied that the circumstances here are different. Provided I give due weight to the matters to which I have referred above as I have done, I consider I can safely rely on the evidence of Dr Cronin and Dr Ramesh.

It is however helpful but not necessarily essential to have the opinions of other specialists who have not been directly involved. I have the conclusions of Mr Punt and Professor Sibert.

In this case I have regard to the range of potential concerns. I have reached my conclusions based on the quality of the nursing records, the views of the specialists, and the father’s evidence. It all leads me to a clear and sure answer on the 2 hospital incidents which I have set out.

Accordingly I find that the local authority have proved the threshold criteria in respect of Cade. It is because of the father’s admitted shaking of Cade on 30 July 2000.

It is also because he obstructed Cade’s airway to the extent that Cade collapsed on 2 and 4 August 2002. The mother was in no way involved nor knew of these incidents at the time.