D (A Child), Re (Rev 1)

On 19 April 2016 a four month old child, M, suffered a catastrophic collapse at the home which she shared with her parents. At the time she was in the sole care of her father in a bedroom at the property. She stopped breathing for a period of about six minutes and had to be revived on a table in the kitchen where her father administered cardiopulmonary resuscitation. She was taken to hospital by ambulance following a 999 call which was made by her mother. She was subsequently found to have a number of injuries including extensive bilateral, multilayer retinal haemorrhaging; fresh subdural haemorrhages in all three intracranial compartments; and a moderate degree of encephalopathy. In addition, there were a number of petechial bruises on her body which were mapped and charted on photographs. These were considered by her treating clinicians at the time to be related to the brain injury she had sustained.

Over the course of ten days, I have been dealing with a fact finding enquiry into the cause of those injuries. The local authority now shares parental authority for M as a result of an interim care order which was made the day after M’s admission to hospital. It is accepted by the local authority that M’s mother played no part in causing these injuries to her daughter. The issue which I have to determine is whether and, if so, to what extent, they were caused by M’s father who had sole charge of his daughter when she suffered the sudden and potentially fatal collapse on 19 April 2016. He denies doing anything which might have caused M’s injuries. Because of the course which this litigation has taken, we are some eighteen months further on in terms of planning for M’s future. Happily, she has made what appears to be a complete recovery from her injuries and the prognosis for the future is good. That has come as a huge relief to each of her parents for whom I accept the shock of the events of 19 April 2016 continues to resonate. Although she spent almost six months in a temporary foster placement following her discharge from hospital, M was returned to the care of her mother in October last year (2016). There she has thrived and is apparently flourishing in the home which she currently shares with her mother and her maternal grandparents.

M continues to see her father with whom she has developed a close and affectionate bond. For the time being, and until there has been a final resolution of the ongoing care proceedings, M’s grandmother is present during M’s periods of contact with her father. That is a position which has been approved by the local authority which acknowledges the extent of the attachment which M has with her father. The parents have reunited as a couple. Although they do not live together at present, they wish to pursue a family life within which they can share a home with M and raise their daughter as normal parents free from the present constraints which the current care proceedings have generated. The local authority has not ruled that out as an option but seeks clear findings in relation to the nature and extent of the father’s role, if any, in causing the serious injuries which M sustained in April 2016. The process of formal risk assessment in relation to his future involvement with M is already underway and he has had a number of sessions with a range of professionals who have been instructed to assist the local authority and the court in relation to future planning for M. Subject to the satisfactory outcome of the work which it is intended both parents should complete, the current care plan envisages the eventual reunification of the family under the auspices of a care order which it is hoped will be of limited duration.

The course which this litigation has taken has not been straightforward. Over the course of two weeks in September and October 2016, His Honour Judge Cleary, sitting as a deputy High Court Judge of the Family Division, conducted a fact finding hearing. At its conclusion, the father was exonerated by the judge from any blame in relation to causing M’s injuries on the basis of a finding that the local authority had failed to prove its case against him on the balance of probabilities. During that hearing he heard oral evidence from a number of medical experts from different disciplines. Each had prepared a detailed report about M’s injuries and the possible cause or causes for her sudden collapse.

The local authority appealed the judge’s findings of fact.

The full appeal was heard on 15 February 2017 by Lady Justice Black, Lady Justice King and Moylan J (prior to the elevation of two of those judges to the Supreme Court and the Court of Appeal respectively). On 29 March this year, the Court of Appeal handed down judgment. The leading judgment was given by Lady Justice Black. Her Ladyship overturned the judgment, set aside the findings of fact, and directed that the matter should be remitted for a fresh hearing wherein the facts relating to the causation of M’s injuries could be considered de novo. The judgment is reported as D (A Child) [2017] EWCA Civ 196. In terms, the Court of Appeal found that the judge had failed to carry out an overall analysis of the medical evidence such as would have enabled him properly to balance his conclusions in relation to the expert evidence against the lay evidence as to the events leading up to the collapse of M whilst in her father’s sole care.

That fresh hearing was duly listed before me at the beginning of May this year (2017) whilst I was sitting in the Family Court at Nottingham. However, by that stage, the parents had identified as a possible cause for M’s presentation on 19 April 2016 a gene deficiency or abnormality associated with a condition known as Ehlers Danlos Syndrome (EDS). Dr Anand Saggar, a consultant in Clinical Genetics, had reviewed the case on instructions from the father’s solicitors. On the basis of the maternal family medical history which was suggestive of easy bruising, he strongly recommended that a connective tissue panel gene test was undertaken to ascertain whether or not M carried genes associated with COL4A1 related disorders, including vascular EDS.

That application was supported by Miss Shaw, M’s Guardian. Because Dr Saggar had agreed to undertake this work rapidly, and on the basis that M was by then reunited with her parents and in her mother’s full-time care, I allowed a short adjournment in order that the test could be undertaken. The local authority did not seek to oppose that adjournment. It shared the view of the Guardian: if M did indeed suffer from a genetic disorder which might provide an alternative explanation for the petechial bruising and/or which might cast some light on the cause of the subdural brain and/or retinal haemorrhages which were identified following M’s admission to hospital, then it was in her interests for that to be established.

Dr Saggar was provided with full copies of all the expert medical evidence which was before His Honour Judge Cleary and the Court of Appeal. In addition he was sent copies of the case files, the police disclosure and the medical records. He examined M when she attended a consultation with her parents on 16 May 2017. His final report was received in July 2017. His conclusions were recorded in these terms:-

“30.

….. Clinical examination by others and myself has not identified any evidence of such a connective tissue disease. The gene panel test for the genes associated with Ehlers Danlos Syndrome (EDS) has not identified any abnormality. The petechial type of bruising seen in this child is not typical of the type of familial bruising seen in families in the general population.

40.

I am not able to identify any evidence of an underlying (genetic) susceptibility condition that might have predisposed this young girl to greater injury for any lesser force or normal handling. The findings as found and described [in the medical reports] are extremely unlikely to have occurred spontaneously and without any forceful precipitant event.”

…..

“50.

I am not able to identify any other genetic susceptibility that would explain the injuries identified. The history of bruising in the mother and the child are findings that are common in the general population. This family history of bruising described by the mother in herself and her child is in my opinion, insufficient to explain the catastrophic presentation of this child. It is my opinion that the findings of haemorrhage in the brain and retinae must represent some acute form of force or event and would not have occurred spontaneously. It is obviously for the court to determine if such a force or event can be identified.”

On 11 August 2017 I made further case management directions in anticipation of this hearing. The medical experts who had given oral evidence at the earlier fact finding enquiry had confirmed that there was no further evidence which they could usefully add to their previous written and oral evidence. Full transcripts of their oral evidence were available. In these circumstances it was agreed amongst the advocates that none of the experts would be called to give oral evidence at this hearing. The local authority was directed to produce an agreed composite schedule of the medical evidence with input from the mother’s and father’s legal teams. That schedule, together with two bundles of written transcripts, has been agreed and is before the court. The advocates in the case have worked together to agree a detailed chronology of the events leading up to M’s admission to hospital last year and developments thereafter.

Thus, as this hearing began, I had a wealth of material contained in seven bundles of documents. In addition to all the material which was before the court at the earlier fact finding hearing, I had the report from Dr Saggar (to which I have referred above). I had detailed reports from two psychologists. Dr Tanya Garrett, a clinical forensic psychologist, carried out a risk assessment of the father. Her report was prepared in July 2017. She has attended court to give evidence in relation to her ongoing assessment of the father. Dr Jane Cornwall, a chartered counselling psychologist, was instructed by the local authority to work with the father on a therapeutic basis. Her report, completed shortly before this hearing, is the result of six sessions which she has undertaken with him on a one to one basis. I have read an earlier parenting assessment carried out in September 2016 by Victoria Robinson.

Much of the professional work was undertaken in 2017 with a view to concluding not only the fact finding aspect of this hearing but also the disposal of the care proceedings. It is agreed that I should deal with both in the context of the present hearing. I have had full position statements from the parties setting out their respective cases both in the event that findings are made against the father and in the event that he is exonerated from any involvement in causing M’s injuries. I shall address those positions in due course.

In terms of my obligation to investigate the facts, and pursuant to the direction of the Court of Appeal in March this year, this is a fresh hearing. As I made plain to the parents, I am not conducting a review of the decision made by His Honour Judge Cleary. That task has already been performed by the Court of Appeal. I start with a completely clean sheet. Whilst I have not had the benefit of hearing directly from the medical experts who have been involved in the case, I have read with great care the full transcripts of their evidence, including the robust cross-examination to which each has already been subjected, and responded. The professional credentials of the expert witnesses in this case are unimpeachable. Each of the medical experts who was called is recognised as pre-eminent in his respective field of expertise. Each has confirmed that he has nothing to add to the evidence which is already before the court in the transcripts. They are agreed to be a complete and accurate record of the evidence which was given in the first fact finding hearing. None of the advocates in the case wished to ask any additional questions save those which have already been put in writing to the experts. Thus, whilst I have not had the advantage of listening to the expert evidence at first hand, I have had the benefit of being able to read and carefully digest the expert evidence without the need to transpose that evidence into writing.

I have heard oral evidence from the parents and have thus been able to reach conclusions of my own in relation to their presentation as witnesses of the truth. The father gave his evidence over the course of two (incomplete) days. In the context of the wide canvas of evidence which is now before the court, I know a great deal about the father’s background and his early and adolescent experience of life as a result of his own reportage to Dr Garrett. I was able to observe his demeanour whilst he continued to maintain that he did nothing on 19 April 2016 or at any point before that date which might have caused or contributed to the collapse of his daughter in such distressing circumstances. To the extent that he was probably instrumental in saving her life by his swift actions in administering effective CPR after her collapse, I accept that the events of that day have left a deep psychological impression upon him. However, my task in the context of fact finding is not focused on what happened after M’s collapse; rather it is focused on the origin or origins of that potentially life threatening event.

The father is 26 years old. He is one of four siblings born to Lithuanian parents. He came to England from Lithuania in late 2009 or early 2010. He has been living in this jurisdiction ever since and appears to have been employed throughout, most recently as a warehouse operative working night shifts from 10pm to 7am or 8am each morning on six days a week.

M was not his first child. In April 2013 his younger daughter, A, was born whilst he was in a relationship with her mother, another Lithuanian woman who was living in England. That relationship ended when A was two years old. A returned with her mother to live in Lithuania and, since then, the father has had no contact with his elder daughter. The reasons for the fracture in that relationship are not entirely clear. There was a suggestion in the papers that A’s mother had refused to allow contact. Nonetheless, he appears to accept that he must shoulder some of the responsibility for the loss of contact. There is certainly no evidence that he made any effort to establish contact by Skype or any other indirect means and he has not been back to Lithuania to see his daughter since the demise of his relationship with her mother.

M’s mother is 28 years old. She, too, is a Lithuanian national. When she met the father in 2013, she had recently experienced the loss of miscarriage. Her previous relationship had ended and, initially, she formed a platonic friendship with the father. She describes them as “really good friends” over a two year period. In April 2015, their friendship developed into a more intimate bond. They commenced a sexual relationship. The circumstances in which those developments occurred are not entirely clear. The father told Dr Garrett that the mother had never fully recovered from her miscarriage. She wanted a child but had no partner. On the father’s case, they appear to have agreed to have sexual intercourse in order that she might become pregnant. Once the pregnancy was confirmed, however, they decided they would “be a family”. However, all was not entirely well. The father had sexual intercourse with another woman on two occasions. The first occurred whilst the mother was in the later stages of pregnancy and the second following M’s birth.

The mother was plainly insecure about her position. Even prior to her discovery of the father’s infidelity on Christmas Eve 2015, it is clear to me that their personal relationship was neither committed nor stable. It appears that they separated in October 2015 and the mother was subsequently to tell the police that they had in fact ended their relationship as a couple some nine or ten times over the previous six months. In November 2015, M’s maternal grandfather arrived in England from Lithuania in order to provide the mother, his daughter, with some moral and practical support in the latter stages of her pregnancy. He moved into the mother’s rented property. The “on off” nature of the relationship appears to have continued after she moved into the father’s accommodation shortly before M’s birth. That accommodation was a house which was divided into six separate “bedsits” or studio rooms with shared or communal kitchen and bathroom facilities. There were no other “families” with children living in that property, albeit that one of the other rooms was occupied by the father’s brother and his girlfriend.

M was born on 7 December 2015, some four weeks before her due delivery date. It was a normal delivery and mother and baby were discharged home the following day. They returned to the father’s accommodation. When the mother made contact with the midwife 48 hours after M’s birth, she reported that she had no partner but was staying with a friend. Apart from an initial failure to put on weight, no concerns for M were noted by the midwife on subsequent visits although the mother’s housing arrangements were mentioned as an issue from the outset. By the end of December 2015, M was feeding well, had gained weight, and was discharged into the ongoing care of the local community health visitor.

By this stage, the maternal grandmother had travelled from Lithuania to lend additional support to the mother and M. It seems that during this period, the maternal grandparents stayed at the mother’s rented accommodation whilst she and M spent most of their time in the father’s accommodation. He was working six nights a week and was thus absent throughout the nights and asleep for part of the day. The mother continued to report to the health visitor her wish to move to separate accommodation and there is an entry in the records at the beginning of March 2016 expressing her concerns about her current housing arrangements. She confirmed at that point that she and the father were separated but co-existing reasonably amicably in the room they continued to share. The mother told me that she would spend significant parts of her days with M away from the property although M would always be put to bed in her Moses basket in the room she shared with the father. Apart from the kitchen and bathroom facilities at the property, there were no other communal rooms available to the residents and it seems that mother and child spent time in the father’s room at various points in the day watching the television whilst he rested or slept before leaving for his night shifts.

Thus in my judgment it would not be an understatement to characterise the relationship between M’s parents throughout as “fairly fluid”. It was certainly unsettled. Indeed, it became apparent during the course of their oral evidence that each may have had slightly different expectations in terms of the direction of travel of their relationship and for the prospects of a shared life together in the future. The mother told me in her oral evidence that she regarded them as a couple prior to her discovery in December 2015 of the father’s infidelity, albeit that they argued frequently. By the beginning of 2016 and throughout the period prior to the events of 19 April 2016, she described a situation where they were “occupying the same space rather than living as partners”. Whilst she had been at pains to stress that the father treated her decently and they remained friends, there is also evidence in the papers (which she confirmed during her oral evidence) that there was a period when they hardly to spoke to one another for over a month, albeit that they continued to occupy the same room. Perhaps it was the father’s absence throughout the weekday nights which made this arrangement tenable from the mother’s point of view. I know not and I do not speculate, but she told me that there were frequent and continuing arguments between them. What I do know is that even before M’s birth, the mother had made an application to be rehoused and that application was live and ongoing throughout the weeks leading up to 19 April 2016. She confirmed that there were tensions between them over the father’s apparent lack of involvement in M’s day to day care. As she put it to me,

“He wasn’t being the hands on Dad he said he would be.”

She had expanded upon these difficulties earlier in these proceedings during a police interview which took place the day after M was admitted to hospital. She told the interviewing officer that he had tried to be a father to M and had tried to make time to spend with his daughter even during the month when they had co-existed in the house together whilst not on speaking terms.

She further confirmed that there was no intention in April 2016 that they would move together into any new property which the mother secured. The plan at that stage was that she would move with M and the maternal grandmother would relocate from Lithuania in order to help with the child care arrangements whilst the mother returned to work. Her case has always been that the father was aware from the outset that she had made an application for rehousing and had supported her wish to move on the basis that she had made it plain he could see M whenever he wished. She said that his support for those plans was evidenced by his offer to help her with the practical side of moving and to assist with any decoration which was required when she found a new home.

On one view, the father appeared to be slightly dismissive of the problems in the relationship as they were described by the mother. He confirmed that there were frequent “fallings out” between them but he seemed to regard these as no more than part of the wear and tear of daily living with a partner. He told me that they resolved these episodes swiftly. Dr Garrett’s report includes his self-reporting that there were arguments which revolved in the main around the mother’s anxiety about his relationships with other women. When he tried to “walk away” on these occasions, she would become even more distressed and they would “separate temporarily”. He was to tell Dr Garrett that he felt as though the mother was more focused on the baby than on him. It was certainly used by the father inferentially as partial justification for his infidelity on one occasion after M’s birth. During his police interview on the day following M’s collapse, he continued to refer to the mother throughout as his “missus” rather than as M’s mother or, for example, his former partner.

There is only one recorded incident when these altercations erupted into some form of physical confrontation. It occurred in August 2016 during a period when M was in temporary foster care following her discharge from hospital. It was no doubt a very stressful period for both parties. Shortly before 5am on Sunday, 21 August 2016, the mother called the police and alleged that she had been assaulted by the father who had “grabbed her around the throat” in an attempt to strangle her. She was subsequently to retract this allegation. It is clear from her evidence at the earlier fact finding hearing that she had been drinking over the course of that night. The parents had been out with friends at a club in the local town and returned at about 3am on the Sunday morning. For the first time, she had challenged the father about what had happened to M. She said that since she knew that she had no involvement in causing M’s injuries, logic dictated to her that he must have been implicated in some way. She said,

“It happened like the bubble was blown out, it exploded and then we talked things through and the next morning everything was okay.”

She described how the father had taken hold of her by the back of her neck and pulled her towards him in order to calm her down. That was an account which was also advanced by the father in relation to the events of that early Sunday morning. He said that he believed the mother had no cause to contact the police. When the mother was interviewed by the police the day after M’s admission into hospital, she was asked about the logged police call on 21 August 2016 and the father’s temperament. She told the police that, over the years during which she had known him, the father had in the past been a person “who very fast pissed can be pissed off someone” [sic]. (She has since clarified that she intended to convey an impression of the father as someone who lost control easily when provoked.) She described how, if M was crying when he returned from a night shift, he used to run a lot or go to the gym. His involvement in the routine child care appears to have increased as M became older and the mother described how, whilst she was unsettled during teething, he would often take the baby and tell her to take a break whilst he looked after the child. That said, it appears to be common ground that he did not have a great deal of experience when it came to handling M whilst she was fractious or teething. There were certain aspects of her day to day care in which he accepts he was not involved, such a nappy changing.

There is reference in Dr Garrett’s report to a description which the mother gave of the father as being “ill tempered” and “short fused”. Having heard the mother in the witness box, I am not persuaded that those were her exact words; rather, I suspect they are Dr Garrett’s interpretation of what she has said to third parties about the father. (I have quoted the mother’s exact words above.) The social worker, Miss OH, has also been on the ‘receiving end’ of some angry and aggressive conversations with the father. Whilst he has undoubtedly felt frustrated at times by the lack of progress of these proceedings, his reference to this professional woman as “a bitch” is some indication of the barely repressed resentment which he feels about the involvement of the local authority in his family life.

The father himself provided a candid account to Dr Garrett of some earlier incidents of violence in which he was involved whilst living in Lithuania. He has two criminal convictions for assaults involving an element of violence. At the age of 14, and having fallen into what he described as “bad company”, he was allegedly pressured into mugging someone at gun point. He was sentenced to two years ‘house arrest’ for that crime. When he was 16 years old, he assaulted a man whom he claimed had attacked his friend. He told Dr Garret that he had wanted to break the man’s neck but had been prevented from doing so by his friend. Instead he had “hit him a few times and put dirt in his mouth”.

He has a further conviction in the United Kingdom for assault occasioning actual bodily harm. The incident giving rise to that conviction occurred in March 2012 when he claims to have fought back against a group of men who assaulted his friend in a nightclub. He also described to Dr Garrett a separate incident when he “almost killed someone”. His victim on this occasion had attacked one of his friends. The punches delivered by the father on that occasion had broken the man’s cheekbone in three places and, according to the father, “his nose was gone”. More recently, he told Dr Garrett that someone had threatened his brother in a supermarket with a knife at which point he struck his brother’s assailant with an unopened can of beer. These incidents and the father’s “significant history of physical violence towards others” led Dr Garrett to conclude that, even if the allegation that he caused M’s injuries was excluded, his risk profile in terms of violence was high and directly relevant to future risk management strategies.

There is a further episode of violence on the part of the father which was not covered in Dr Garrett’s report because it occurred after she had completed her risk assessment. On 19 August this year (2017) whilst these proceedings were ongoing, the mother and father went out on a Saturday night to a club in their local town centre. They were involved in an altercation with others in the early hours of Sunday morning (20 August). These events were recorded on a closed circuit TV camera. The police attended and I have statements from the two police officers who arrested the father. I have also watched the CCTV footage taken on that night. It shows the parents, both in a state of apparent intoxication, involved in a confrontation with a group of youths. The mother can be seen staggering before collapsing into the doorway of a local shop. It is agreed by the advocates that, before falling, she had hit her head. The father can be seen standing over her. As the other youths passed by, he smashed his fist into the side window of the shopfront. The glass broke. The father injured his hand which was observed by the police officers to be bleeding. When he was searched after being handcuffed by the police, a pill was found in his pocket which was tested and confirmed to be methylenedioxymethylamphetamine (MDMA, more commonly known as ‘Ecstasy’). To the father’s credit, he had volunteered to the police that he was in possession of a pill which he had acquired in the night club. The mother, when asked about this, told police that the father had lent someone his mobile telephone in the club and the pill might have been handed back to the father when his ‘phone was returned. Whether or not that was her honest belief, it is nonetheless an explanation which appears to be inconsistent with the father’s volunteering this information when confronted by the police with the prospect of a search of his person

Perhaps of greater significance is the fact that neither of the parents volunteered this information to anyone prior to this hearing. The information only came to light when the father said in his oral evidence that he had moved home and was currently living at a different address with his brother and his girlfriend. This caused the local authority to instigate further enquiries as a result of which the social worker, Miss OH, was informed by the police about the arrest and the events which had unfolded over the course of 20 August 2017. The father said that he had informed the local authority about his change of address although he did not seek to suggest that the social worker knew about his most recent arrest. Whilst I did not hear direct evidence from the social worker, I accept through Mr Sampson her instructions to him that she had been completely unaware of either prior to making her enquiries of the police in the middle of this hearing. When she spoke to the father subsequently about these events, he told the social worker that he had punched the shop window “to scare the lads away”.

Notwithstanding these incidents and the history which was recounted to Dr Garrett, the father appears to have been making positive progress as a result of his sessions with Dr Cornwall. He was able to acknowledge to her that it had been helpful for him to gain some insight and understanding into his current psychological issues. He reported that the mother had found him “calmer” since he had engaged in therapy. However, in her most recent discussion with Dr Garrett, Dr Cornwall acknowledged that he had a tendency to try to justify his behaviour rather than accepting responsibility for his actions. She took the view that he had a tendency “to compartmentalise” events and was “psychologically well defended against his emotions”.

Dr Garrett was made aware of these recent developments when she attended court on day seven of the hearing. She confirmed during the course of her oral evidence that she had not been made aware of these matters prior to attending court. As a result arrangements were made at court for her to view the CCTV video evidence. She watched the footage twice. She told me that the father’s account did not sit happily with what she had observed. Dr Garrett’s observations accord with my own. As I have already observed, he told the police that he had punched the window to scare the youths who had, on his case, been threatening them. It appears, on the contrary, that he was trying to engage the youths in a fight but was prevented from doing so by the mother who was pulling him away. Dr Garrett saw this as further evidence of “impulsivity” on his part. It reinforced her concerns that the father had a tendency to allow matters to escalate when confronted by potentially challenging situations and has not yet learned to diffuse tensions by walking away.

As to the parents’ response to this incident, the father now accepts that he demonstrated impulsive behaviour on that occasion. He further accepts that he did not tell anyone about the incident and minimised its relevance within the context of these proceedings. The mother, for her part, accepts that she was unable to restrain the father and sustained an injury on that occasion when she hit her head. She, too, accepts that she kept the incident from the professionals and was disingenuous in her responses.

It is against that background that I return to events as they unfolded on 19 April 2016. It is important to stress that the father’s self-reportage to Dr Garrett and his previous involvement in violent altercations is not evidence which can, or should, lead to the conclusion that he was in some way responsible for causing harm to M. The father has made it plain that he will always spring to the defence of family or friends if he believes they are under threat. There were aspects of his childhood which were plainly difficult. He accepts that he fell in with the wrong crowd when he was an adolescent. He has suffered significant distress at the recent loss of his father. The fact that he has been able to discuss these issues with Dr Garrett whilst knowing himself to be under scrutiny in these proceedings is a very positive indicator. The parents are now presenting a united front in terms of the restoration of their personal relationship and their ongoing commitment to one another. However, that was not how matters between them stood eighteen months ago when M sustained her near fatal collapse. Whatever perceptions the father may then have had about the state of the relationship between them, it is clear to me, and I so find, that, as of 19 April 2016 when M sustained the injuries I have recorded, the mother’s clear intention was to leave the home she shared with the father and move into separate accommodation of her own. That much is clear from the events which occurred in the hours leading up to M’s collapse.

The 19 April 2016 had been a long day for M and her mother. The following facts surrounding that day are not in dispute. The maternal grandmother had planned to return home to Lithuania and the mother had offered to accompany her to the airport where she was due to board an early flight. M was woken at 4am for an early morning feed. The mother left the house with M shortly after 5am. She was accompanied by IO, the girlfriend of the father’s brother who was also a resident in the property which they shared with others. The two women knew one another and IO had been living at the property since before the birth of M. Some thirty minutes later, all four were on a train to the local airport. Having said goodbye at the airport, the mother, M and IO took a train back to their home town and arrived at the property shortly before 8am. The father returned from work and, on his case, all three of them took the opportunity to sleep. The mother’s evidence is that she went to a local shop to pick up something she needed leaving M in the father’s care for a short while. The child was sleeping when she returned but woke shortly thereafter. After playing with her mother, she was returned to her Moses basket and all three slept until approximately 11am when the mother went down to the kitchen to make up a bottle for M’s next feed.

At some point during the day, the father left the house to help a friend with some repairs to his motor car. The mother’s account puts that event at some point during the morning; the father stated that he slept until about 2pm that afternoon before receiving a call from his friend. Whatever may be the resolution of those inconsistent accounts, it is common ground that he returned later that afternoon shortly before the mother was about to start the preparations for their evening meal.

At this point, nothing was amiss: neither parent described anything untoward in terms of M’s presentation. The mother describes how M had appeared “a bit grumpier” during the feed she took at 2pm that afternoon but was “happy and babbling away” at 4pm when, on her case, the father fed her having returned from fixing his friend’s car. During the course of her oral evidence, the mother told me that M had been “unusually whingey and harder to settle” for the previous two days. However, she confirmed that when she left M with her father in the bedroom shortly after 4pm, there was nothing about M which gave her any cause for worry or concern. When pressed on this by Mr Sampson, who appeared for the local authority, she confirmed specifically that there was nothing to suggest that M was unwell or that there might have been any underlying cause for the collapse she was to suffer in less than an hour’s time. She told me that the father was “in a good mood on that day”.

IO was with her in the communal kitchen whilst she started to prepare their evening meal. At some point during the day, the mother received a telephone call from a local authority housing officer. I was left with no clear impression about precisely when the incoming call was made. At one point she appeared to suggest that she returned the call straightaway. We know that her own call was made shortly before 5pm. In the first fact finding hearing, she told the judge that she had received the voicemail shortly before lunchtime. In any event, she was anxious to speak to the caller from the housing officer before the office closed for the day. During the course of that telephone call, she was told that separate accommodation had become available and she, with M, would be able to take up occupation shortly. She was invited to view the new flat at the end of the week. She shared this news with IO. Although there is no evidence of a specific discussion on that afternoon between M’s parents about the proposal for an imminent move, she told Mr Vater QC, leading counsel for the father, that he was fully supportive of that plan. She said that the news that she was moving out would not in any event have created a situation of stress since he had previously offered his support for the move. She told me that she was conscious that it was not feasible for all three of them to continue living in what was effectively “a bedsit” (to use the mother’s term) and, by implication, she appeared to suggest that he held a similar view.

It seems clear from the evidence which is agreed that the mother returned to the upstairs bedroom from the kitchen on at least two occasions following the father’s return to the house that afternoon. He was with M throughout. On neither occasion did she notice anything which caused her concern in relation to M’s presentation. She took the father a cup of coffee. M was lying on his knees whilst he was propped up on pillows on the bed. She demonstrated to me how he was moving his legs, bent at the knees, from side to side in an attempt to settle M whilst he watched television. M appeared quite content. She went up to the room a few minutes later to tell the father that she had forgotten to turn on the oven and the roast chicken which she was preparing for their supper would be slightly later than planned. This last visit to the bedroom appears to have taken place about ten to fifteen minutes before the child’s collapse. Neither of the child’s parents says that she was anything other than completely well at that point in time. The evidence points to her being unsettled but certainly not unwell; the father appears to have brushed off in a seemingly light-hearted manner the mother’s attempt to soothe M to sleep by stroking her cheek. That fond gesture on her part appears to have roused M who was then drifting off to sleep on her father’s knees. The mother described to me how the father was holding his mobile telephone in one hand although he was not speaking to anyone. The mother suspected he was probably checking his Facebook account or looking at some other social media platform. That was her last sight of her daughter prior to the child’s collapse. She was lying peacefully on the father’s crooked knees (Footnote: ¹) with her head towards the top of his knees, her face towards her father’s face and her legs and feet resting on his torso.

Some minutes later he rushed into the kitchen with M in his arms shouting, “Baby, she has stopped breathing and I don’t know what has happened”.

At 17:39 the mother made an emergency 999 call during which she was reported to be crying and shouting. Having given her address to the operator, she stated that her four month old daughter had stopped breathing. If not hysterical, she was clearly in a state of extreme distress and had to be calmed by the police operator. It was clear from what the mother said during the very early part of that telephone call that the father was already administering CPR to the child. After a few minutes, the log of the call reveals that M started to cry. She was breathing. She continued to breathe after she was rolled onto her side.

Before that call concluded, the ambulance had arrived and paramedics were attending to the baby.

The father has consistently denied doing anything which might explain why his four month old daughter collapsed on 19 April 2016. He accepts that he knows of nothing which happened before that date which might explain the injuries with which she presented on admission to hospital later that afternoon. Whilst he supported the genetic testing which was undertaken by Dr Saggar in July this year, he does not seek to challenge the findings of that expert evidence save insofar as the doctor expresses a view as to the likely cause of the injuries which M sustained. That absence of an explanation is not a failing on his part in the context of the fact finding process on which I am embarked. As I shall make clear when I come to deal with the law, it is the local authority which bears the burden of proof in this case. The father is under no obligation to disprove the case which is alleged against him, nor does the burden of proof shift at any stage so as to require him to provide the court with a credible or plausible explanation of what probably happened to his child in terms of the injuries with which she presented at the hospital on 19 April 2016.

He accepts that after the mother left the room for the last time before M’s collapse, he removed the child from the position in which she had been lying on his legs and put her in her cot (by which he means her Moses basket which was positioned at the side of the bed). I have seen a photograph of the bedroom which was taken by the police the following day. It shows the position of the double bed to the right of the door leading into the bedroom. To the left hand side of the bed and between the bed and the door is the Moses basket. The bed is positioned in the corner of the room with the pillows flush with the wall at the top of the bed. There is no headboard. The left hand side of the bed (from the perspective of someone occupying that space) is completely flush with the wall. The Moses basket is positioned approximately a foot away from the right hand side of the bed and, if the father had been sitting with his back against the pillows propped up against the wall as they appear in the photograph, within touching distance of the bed. The Moses basket is mounted on a wooden frame which, as the father explained, enabled it to be rocked from side to side.

According to the father, there was nothing untoward in M’s presentation after he had placed her in the Moses basket. She appeared to be asleep. He was about to drink what remained in the cup of coffee which the mother had brought up to him when M started to cry. Whilst she was still in the Moses basket, he placed her dummy in her mouth and tried to comfort her. She spat out her dummy and began to cry again. He picked her up and cradled her with her head on his shoulder and her body against his. He says that whilst he was rocking and swaying with her, she made a noise. “It sounded like she had water. It was really deep breathing. Then [M] became floppy.” He held the child’s body away from his own; her eyes opened a little “but she felt like she did not have any bones” (Footnote: ²).

That is the only written account in the three statements which the father has made in these proceedings of the events which led to M’s collapse.

The following day (20 April 2016) he was interviewed by the police and gave this account of what had transpired (Footnote: ³):-

“So after I finished [work] it I was like between quarter to four I come back home my missus was with [M] upstairs and then my missus ask me I want coffee or eat I said yeah then she went downstairs bring me a coffee she was like trying to play with [M] she start like become grumpy and then I take her calm her down it was everything alright then my missus come back again and then forget to put the oven on and she was like laughing and we were making a joke. So then she went downstairs again I put [M] back in the basket because she was looking like asleepy. I start drinking my coffee I drink like half of the cup then she start like being grumpy start crying I like *inaudible* took her out my hands put her head next to my shoulder and start like moving like this and in some point she like coughed or like something like that and like fainted and then straight away I was like thinking what to do to put her on the bed and run downstairs to my missus or take her and run downstairs with her and for some reason I just took her my hand and run downstairs to the kitchen to say my missus to call the ambulance because the daughter is not breathing and then I do a CPR.”

When that account was probed further by the police, the father said that he was on his own with M for that last time for a maximum of ten minutes. He described M during that period as being “not sleepy but she’s not awake as well and she’s like grumpy. Crying and I don’t know how to say that properly but she’s like not hysterically crying but it’s in the middle … and I thought something wrong”. He then describes how he picked her up and walked with her in circles around the bottom of the Moses basket for five or ten minutes until she calmed down and fell asleep “but this time she fell asleep really hard” with the consequence that the father had to administer CPR (Footnote: ⁴). In relation to her dummy, the father describes putting the dummy in M’s mouth whilst she was still lying on her back in the Moses basket. When she spat it out, she started screaming. He confirmed that when he tried to put the dummy back in, she was screaming and spat it out again. It seems that he must have attempted to put the dummy back in again because he said that the dummy stayed in M’s mouth whilst she was cradled against the left side of his body with one of his hands under her bottom and the other across the back of her neck. She spat it out again, coughed and then lost consciousness (Footnote: ⁵). He describes her eyes as being half closed. He called her name but she failed to respond and became floppy.

The father was interviewed again on 10 August 2016 in the presence of his solicitor after the medical evidence became available. It was put to him that M had collapsed in circumstances where he had sole charge of his daughter. It was made plain to him that the police regarded him as the likely perpetrator in the light of the medical evidence that her injuries were likely to have been non-accidental. He continued to deny causing her any harm although he accepted that he might have been responsible for the marks to her chest and neck during his attempts to resuscitate the child. He insisted to the police that she was “okay. Until that moment when she got floppy” (Footnote: ⁶).

The father gave me direct evidence of what had occurred in the bedroom whilst he gave his oral evidence. He told me that after the mother had brought him a cup of coffee, he was watching ‘Top Gear’ on television whilst he sat on the bed with M on his outstretched legs. She was “a bit whingey but generally okay”. He said that both he and the mother had noticed that she was a little more unsettled (“more grumpy than usual”) after her recent immunisations and because she was teething. (The medical records record that she was immunised on 29 March 2016, some three weeks before.) This was how he described what happened next:

“I was rocking her on my knees. She was looking like she was sleeping. Her eyes were drooping. I put her into the Moses basket next to the bed. Suddenly she opened her eyes. I picked her up and put her against my chest … my shoulder. I got off the bed and walked her around the room. I hadn’t tried to put her in her Moses basket before that. I felt she was falling asleep, so I put her in her Moses basket. [At that point he described to me how the basket could be rocked on its wooden frame.] She looked as though she had gone to sleep until she spat her dummy out about a minute or two later. It was very quick.”

He told me that she had screamed one or two minutes later, after she first spat out her dummy. He described her cry as being “different from usual”. He said, “she had never cried like that before”. He told me that he had tried on more than one occasiob to give her the dummy and to get her to keep it in her mouth. She kept spitting it out. At this point, she was not crying but “moaning”. He told me that there was nothing he did in putting her into her Moses basket which could have caused her any injury. He confirmed that her airways had appeared clear. When he had first picked her up from where she was lying in the basket, the child’s muscle tone had felt “normal”. However, “within a few minutes, she just flopped”. He said, “She gave a cough and went limp”. He confirmed that, by the time he left the bedroom to carry her downstairs, the child was no longer breathing.

The only other account given by the father in relation to what happened on that afternoon is to be found in the transcript of the oral evidence which he gave to the judge at the first fact finding hearing on 11 October 2016. He was asked about his attempts to put the dummy back in M’s mouth. He said that she had spat out the dummy and started to scream before he lifted her out of the Moses basket. When he was asked whether he carried on trying to put the dummy back in her mouth after he had picked her up, the father said he did not. The judge was clearly confused by his response as the transcript demonstrates (and I reproduce the relevant passage of the transcript in full below):-

“Q. Did you carry on putting the dummy in so that she later spat it on the floor and you left it there ?

A.

I was like taking the dummy later on, like, two minutes. I don’t remember exactly what time.

Q. After you were holding her ?

A. Yeah.

JUDGE CLEARY: I am sorry, I am confused. “I did not carry on trying to put the dummy in her mouth ----“

A.

I was carrying the dummy ----

Q. “---- but then two minutes later I did.”

A. ---- in my hand.

Q. Pardon ?

MR SAMPSON: Right, so you kept it in your hand ?

A.

I was having the dummy in my hands when I was having her.

JUDGE CLEARY: You are carrying her round the room ----

A.

Yes.

Q. ---- in the way you have described, right hand holding her neck ----

A. Yes.

Q. ---- next to your neck, left hand underneath her behind.

A. Yeah.

Q. Which hand is holding the dummy ?

A. My thumb.

Q. Your thumb ?

A. Yeah.

Q. Oh, you mean you were using your thumb as a dummy ?

A. No. My thumb was holding the dummy.

Q. Between your thumb and forefinger ?

A. No, it’s like a ring on the dummy ----

Q. Oh, I see.

A. ---- and I was holding with the thumb.

Q. And that is your right hand ?

A. Yes.

Q. The one that is holding her neck ?

A. Yeah.

Q. But you tried to have that put in her mouth ?

A. I wasn’t trying to.

Q. You were not trying to ?

A. I wasn’t. I was just holding.

Q. You were just holding her ?

A. (No verbal response)

JUDGE CLEARY: Right, that is where I was confused.

MR SAMPSON: So after she screamed, you are walking round the room, does she carry on screaming for a while ?

A.

She was, like, not screaming, she was, like “aaah, aaah” like making the noises and then she calmed down.

Q. She what ?

A. And then she calm.

Q. She calmed down ?

A. Yeah.

Q. You tried to put the dummy back in ?

A. No.

JUDGE CLEARY: Okay, you have to make sure that he understood that question.

MR SAMPSON: Can I be clear ? I will ask you just so that I am absolutely clear.

“She is like crying.” – This is 235 in your police interview. I will read it out.

“She is like crying and like calm down and just settle like” – the noise like you just made, [….].

As his evidence before me concluded, the father continued to maintain that he did not lose control on that afternoon and did nothing which might have caused or accounted for his daughter’s complete collapse.

Before turning to analyse the father’s evidence in the light of the expert medical evidence, I need to factor into the wider canvas of evidence the other lay evidence which is before the court.

I have already referred to the mother’s evidence. She cannot assist me in relation to what might have happened during the crucial ten to fifteen minute interval during which M was left alone upstairs in her father’s care. She was able to assist me with the background history underpinning her relationship with the father and the events of 19 April 2016 insofar as they are known to her and provide context for my analysis of the facts.

As part of the wider police investigation into these matters, statements were taken from the maternal grandparents, Mr and Mrs JD, on 10 May 2016. Mr J D confirmed that he had been living in England for about 6 months having come here to provide financial and emotional support for his daughter who was then seven months pregnant. He was then living with his wife, Mrs JD, at the property which the mother had previously been renting which she had apparently maintained after she moved into the father’s home shortly before M’s birth. He described how he first met the father on the day of his arrival in the UK, 14 November 2015, when he was met by M’s parents at the airport. (This struck me as somewhat inconsistent with the mother’s evidence that she was separated from the father at this point in time and intended to raise her unborn baby as a single parent. It may be that the two were then on reasonably friendly terms with one another and she wanted to introduce Mr JD to her child’s father.) Mr JD described the father as “a hard worker” who was always pleasant in his manner. He told the police he had never seen him angry and had no concerns about his daughter’s relationship with M’s father. That observation was made in the context of what was, on any view, a fairly fleeting acquaintance with the father. In his police statement Mr JD confirmed that he had only met him twice before M’s birth: once on the day of his arrival, the second occasion being the following day when the parents visited him at the mother’s property where he was staying. It was Mr JD who accompanied his daughter to hospital in an ambulance when she went into premature spontaneous labour. He recounts how pleased the father appeared to be when he arrived at the hospital and was able to hold his newly born daughter. He describes how “he didn’t want to let go of the baby”. Mr JD was working at the time but he visited the baby and her parents at the father’s home the day after her birth. Thereafter he describes how the father was often absent on his visits because of the irregular pattern of his shift work at the time.

He describes his daughter as a good mother, “a natural” to use his words. He recounts how M herself was a contented child who was “always happy and smiling”. He told the police that his daughter had shown him a photograph which she had taken of M and her father sleeping peacefully together. Of the relationship which his daughter had with M’s father, Mr JD told the police that he was aware of “some disagreements” between them and that his daughter, the mother, was “moody” as a result. By and large, he and his wife chose not to become involved in their personal relationship although he confirmed that he had never witnessed any violence or anger between them or towards M.

Mr JD can add little, if anything, to the narrative of the events of 19 April 2016. He had left for work before M was taken to hospital that afternoon. Because of the mother’s arrest and detention in police custody, it was two days before he was able to reach her by telephone. The distressed account which she had then given to him adds little more to the factual matrix over and above that which I have set out already.

Mrs JD, the maternal grandmother, provided further detail about the circumstances in which her daughter had arrived in the United Kingdom. She told the police that her daughter had secured academic qualifications in Lithuania but could not find work and accepted an invitation from her cousin to stay with him and find work here in the North of England. She recounts how the mother met the father in a bar and formed a friendship before, as she puts it, her daughter “fell in love” with him. They were living together by the time M was conceived and, as far as Mrs JD was aware, the father was very pleased to discover her daughter was pregnant. Mrs JD never observed any rows or arguments between the couple although at this point in time she was still living in Lithuania and maintaining contact with the mother by Skype. She learned that the couple had separated in September 2015 and that her daughter intended to raise her unborn baby as a single parent. It was this development which prompted the decision that Mr JD would travel to England to provide support and assistance for their daughter who was then worried that there might be complications in the pregnancy. Mrs JD confirms that thereafter she and her husband did not seek to interfere in the relationship between the mother and the father. She recounts that Mr JD told her that the father appeared to be “in a good mood” and looking forward to the birth of the baby.

Mrs JD’s account to the police of their relationship following the discharge of mother and baby from hospital is as follows:-

“So [the father] offered [the mother] to raise the baby together. And after the child’s birth they started to live together. … After the baby was born [their] relationship got better. [The father] said that the baby was born on his anniversary [i.e. his birthday]; he said it was a sign that they must be together. [He] loves the baby a lot, he calls her my Thumbelina.”

She confirms in her police statement that the relationship between M’s mother and father appeared to be good and that it was mainly her daughter who took care of the baby. Her knowledge of what happened on 19 April 2016 is limited to an account of what she was told by the mother since she was by then back at her home in Lithuania.

In terms of M’s health in the weeks leading up to 19 April 2016, Mrs JD recalls being concerned about the effect on her granddaughter of her third set of immunisations on 25 March 2016. She describes her as dribbling more frequently (the translator used the word “salivate” which I take to be dribbling) and her gums were sore because she was teething. Whilst in the first week after her immunisations she was feeding normally and did not appear to be crying or distressed, Mrs JD said that her granddaughter was “anxious”. She also noticed that the baby had “posseted her food twice in a fountain like manner”. However, by the time she travelled with the mother to say goodbye to Mrs JD at the airport in the early morning of 19 April 2016, Mrs JD reports that all appeared well with her granddaughter. M was “laughing” as she kissed her goodbye.

IO, the father’s brother’s girlfriend who was also living at the property with the parents on 19 April 2016, made a statement to the police and gave evidence at the first fact finding hearing. I have a copy of the former and an agreed transcript of the latter.

She describes the events immediately preceding M’s collapse on 19 April 2016 in this way. She had returned home from work to the house which they shared at about 3pm. She joined the mother in the kitchen where they were both preparing food for an evening meal. M was in the kitchen in her pram. IO noticed nothing untoward or concerning about the child’s presentation. The father arrived back but “went outside to wash someone’s car”. IO stayed in the kitchen with the mother and M. The baby started to cry. At about 3.30pm, the mother took her from the kitchen and went upstairs to the bedroom they shared with the father. IO assumed that he must by then have returned to the house because after about five minutes the mother reappeared in the kitchen having left M upstairs. IO did not see the child again until about 4.30pm when the father rushed into the kitchen carrying the child against his left shoulder. He stated that M was not breathing and immediately commenced CPR. The child turned blue but had started breathing again by the time the paramedics arrived.

As to the relationship between the mother and the father, IO told the police that they got along well and did not argue. She said that M was not a planned baby but she was aware that the mother had wanted a child for a long time.

The substance of IO’s statement to the police was reflected in the oral evidence which she gave to His Honour Judge Cleary at the first fact finding hearing in October last year. She was actively involved in the attempts to resuscitate M in that she was holding the child’s head whilst the father was engaged in CPR. She confirmed that the mother had told her that she was looking for alternative accommodation and that “the council had found a house for her”. I know not what IO made of this information, and I do not speculate, but it appears to be inconsistent with her previous impression of these parents as “a couple who lived together” and the fact that the mother had never previously spoken to her about difficulties in their relationship. For the purposes of this fact finding exercise, perhaps what is of greater significance is her evidence that on the afternoon of 19 April 2016 M presented as perfectly well and happy when she saw her in the kitchen following her return from work at 3pm. She describes a baby who was happily smiling and engaged in play with her boyfriend, DL.

His statement to the police describes M as a quiet baby who did not disturb the other residents in the property. He recalls the child being in her pram in the kitchen that afternoon, “awake and happy”. He played with her for five or ten minutes and noticed nothing which concerned him about her presentation. He did not see the father at all that afternoon and his evidence assists no further in the events which were to unfold.

The other lay witness who gave evidence to the police was MF, the father’s line manager at the warehouse where he was employed. He confirmed that the father had worked night shifts on Sunday 17^th and Monday 18^th April 2016 without any apparent incident. He can add little to the court’s investigation into the facts with which it is concerned since his relationship with the father was confined to work and he knew nothing of his personal circumstances save for the reasons for his absence from work in the immediate aftermath of the events of 19 April 2016.

All of this evidence has to be considered as part of the wider canvas of the case when it is examined in the context of the medical evidence. It is to that evidence that I now turn.

KC, a solo first responder, arrived at the property at 5.45pm on 19 April 2016. M was breathing again by that stage. The father told the paramedic that she had been crying in her cot upstairs. He had picked her up; she had a coughing fit after which she had become floppy and unresponsive,

The ambulance crew arrived at the property just before 6pm on 19 April 2016. M was transported to hospital where she arrived at 18:39. The paediatric team was waiting for her. The medical records prepared at the time note the presence of a spreading petechial rash across her chest; shaking movement bilaterally, upper and lower limbs; and eyes deviating to the right. M was given oxygen and lorazepam to control the seizure activity which the treating clinicians had observed. A computerised tomography (CT) scan was taken about two hours after M’s admission to hospital. That scan showed bilateral low attenuation subdural collections anteriorly. Within these collections were visible areas of higher attenuation in keeping with acute haemorrhages. The radiologist who reported on the scan interpreted the images as “bilateral subdural haematoma of differing ages. He flagged up non-accidental injury as a possible cause. A magnetic resonance imaging (MRI) scan of the child’s spine was clear with nothing to suggest the presence of haemorrhage in the spine.

Dr Ann Callaghan, the consultant paediatrician on duty at the hospital that evening, prepared a preliminary report which she dictated the same evening for the local police child protection team. She confirmed in that report that the CT scan was sent electronically to Birmingham Children’s hospital where it was reviewed by a neurological consultant, Mr Walsh. He agreed that the scan showed subdural haemorrhages and that non-accidental injury was the most likely cause. The parents were informed that a referral was being made to both social services and the local police.

Dr Callaghan concluded her preliminary report in this way:

“It is my current opinion that [M] sustained a violent assault which led to her collapse immediately prior to becoming unwell. This would account for her extreme unwellness on 19/04/2016 and is further supported by the evolution of her petechial rash soon after she arrived at hospital.”

The following day M was examined by Mrs Fiona Dean, a consultant ophthalmologist. She identified the presence of retinal haemorrhages in both eyes. Her notes record that “These haemorrhages are compatible with those seen in acceleration / deceleration injury and subdural haemorrhages”.

M had a further MRI scan of her brain on 22 April 2016. A consultant neuroradiologist, Dr Sherlala, reported on that second scan in these terms:-

“Comparison with the previous CT scan and allowing for the different technique continues to show the bilateral subdural collections. This collection does not show significant high signal changes to suggest that there is marked haemorrhage but the appearances would be consistent with bilateral subdural CSF effusions with a tinge of haemorrhagic changes. The brain parenchyma show no features of glutaric aciduria. No parenchymal lesions identified.

The presence of the bilateral subdural collection is highly suggestive of non accidental injury.”

The expert medical evidence before the court consists, as it did at the last fact finding hearing, of reports from the following jointly instructed experts:-

Before turning to my analysis of the expert medical evidence, it will be helpful to record at this juncture a passage of the judgment delivered by Lady Justice Black in the Court of Appeal on 29 March 2017. Of the five experts and the two hospital doctors who had expressed a view as to causation in this case, each was of the opinion that the injuries sustained by M were most likely to have been caused by the child having been shaken shortly before she collapsed on 19 April 2016 whilst in the sole care of her father. In order to understand the potential significance of the evidence in respect of the retinal haemorrhages which were observed to be present, her Ladyship reviewed the impact of the medical evidence in this way at [1/B:114-115]:-

“18.

Given that the totality of the medical opinion was that the injuries to ML’s brain were caused shortly before her admission to hospital, much of the medical evidence focused on the age of the subdural haemorrhages identified in the scans taken of ML. When reading a scan which reveals subdural haemorrhaging, the ageing of those findings is estimated by reference to their appearance on the scan; acute blood shows as ‘bright’ or ‘white’ and older bleeds as ‘darker’ or ‘grey’. A clinician reading the scan may identify bright blood as recent/acute and darker blood as old/chronic.

19.

It is generally accepted that where there is an existing chronic subdural haematoma, then a relatively minor (or indeed no) incident of a benign nature can cause a so-called re-bleed within the existing subdural effusion. Where there has been a re-bleed, both old and fresh blood can be seen in the same area within the brain with the acute blood being visible within the old bleed. If however acute blood is seen in a geographically different area of the brain from the darker blood, then that is regarded as indicative of there having been two or more separate episodes of trauma having led to the haemorrhages, of different ages, there being no source of ‘old’ blood to generate a ‘re-bleed’. Each of the treating clinicians were of the view that they were seeing both old and new haemorrhages of different ages indicating separate traumatic incidents rather than a ‘re-bleed’.

20.

Inevitably, with an organ as complex as the brain, that is not the end of the matter; there is an alternative explanation for areas of darker fluid seen in head injury cases. When the arachnoid membrane is damaged at the time of a head injury, dark cerebral spinal fluid (CSF) can leak from the subarachnoid space into the subdural space and either collect there or dilute acute blood that is present. It can therefore be the case that what is observed on a scan is not a chronic subdural haemorrhage at all but a mixture of blood and CSF which has a similar grey, dark appearance as is seen in a subdural haemorrhage. This phenomenon is known as acute traumatic effusion, and is part of an acute or recent injury.

21.

If what were seen on ML’s brain were acute traumatic effusions and not chronic subdural haemorrhages, then it follows that there was only one, recent, traumatic event. As chronic subdural haemorrhages resolve, membranes form within them as part of the healing process. If these membranes can be seen on a scan, then that is good supportive evidence that what is seen is a chronic subdural haemorrhage and not an acute traumatic effusion. However, the absence of membranes is not diagnostic of acute traumatic effusion; the experts must draw on other aspects of their findings and indeed their experience and expertise in order to reach a conclusion as to whether what is seen is, or is not, a chronic collection.

22.

Subdural haemorrhages occur at birth in something like 50% of the population. Research is limited but seems to suggest that any subdural haemorrhages have largely cleared by four weeks and have completely cleared by three months. [ML] was four months old. Dr Stoodley gave his evidence by reference to four weeks and Dr Cartlidge and Mr Richards to three months.

23.

Regardless of the date by which they would have expected any birth subdural haemorrhages to be resolved, both Dr Stoodley and Mr Richards were of the view that what they saw on the scans were not chronic subdural haemorrhages (whether dating back to birth or otherwise) but acute effusions and therefore indicative of recent trauma. Further, each was clear that, regardless of whether the darker density in fact revealed chronic subdural haemorrhage or acute traumatic effusion, an explanation would still be required to account for the presence of acute bilateral retinal haemorrhages which were found by Mr Newman to be no more than 17 days old and which, it was accepted by common consent, were unconnected with the subdural haemorrhaging.

24.

From this crude outline of the issues thrown up by the medical evidence, it can be seen that in circumstances where the clinicians (as opposed to the court appointed experts) had referred to “chronic subdural haemorrhages of various ages” and where there were no membranes visible on the scars, there was ample material for cross-examination on behalf of the parents. If what was seen were chronic subdural haemorrhages, rather than acute traumatic effusions, that opened up a line of cross-examination as to whether these may have been birth injuries. Further, if Mr Richards’ rather than Dr Stoodley’s observations as to the precise location of blood were accepted then all the acute blood identified on the scans could be attributed to ‘re-bleed’ into an old subdural haemorrhage, notwithstanding the clinicians’ reference to more than one incident of trauma.

25.

Each of the experts was extensively cross-examined. There was a considerable amount of evidence in relation to ML’s head circumference and the significance of seizures, which it is not necessary to examine for the purposes of this appeal. A number of possible alternative explanations for the head injuries were put to each of the experts (including the birth subdural haemorrhage). Mr Vater described these, admittedly remote, possibilities as outliers (an expression which when used in statistics means, (per the OED), “an observation whose value lies outside the set of values considered likely according to some hypothesis, usually one based on other observations). Each of the possible outliers put to the experts was rejected by them, they used in response expressions such as ‘never say never’ and ‘I can’t exclude it but it is highly unlikely’ or ‘improbable’.”

…….

“27.

…. Accordingly, at the conclusion of their evidence:

i)

Each of Mr Richards, Dr Stoodley and Dr Cartlidge was of the view that the imaging was more likely to represent fresh blood and acute traumatic effusion rather than fresh blood and a chronic collection.

ii)

Mr Newman’s opinion in relation to the retinal haemorrhages was that:

“In the absence of an identifiable medical condition or history of significant trauma, the retinal haemorrhages identified in ML remain unexplained but in my opinion would be most consistent with those found following a shaking or shaking with impact injury.”

iii)

It was common ground and was, and is, accepted by Mr Vater that a chronic injury could not account for the retinal haemorrhages.

iv)

All of the experts remained of the view that there was nothing in the parents’ accounts that explained [M]’s collapse, the encephalopathy, and the injuries subsequently found.

v)

The court appointed experts were of the view that the combined effect of: ML’s presentation, the injuries themselves and the absence of a plausible explanation, meant that it was most likely that ML had been injured by a shaking/ shaking impact injury in a manner that one or more of her carers had chosen to conceal.

28.

It was against the backdrop of this medical evidence that the judge went on to hear the parties give evidence to the effect that they could offer no explanation for [M]’s sudden and unexpected collapse whilst in her father’s care.”

Thus, the basis of the decision which the Court of Appeal reached and which resulted in the original findings being set aside was the judge’s failure to consider the inherent improbability of the case being put to the doctors by leading counsel for the parents in terms of the constellation of medical evidence which their case demanded. His subsequent failure to factor in the further factor of the retinal haemorrhages identified by Mr Newman as both acute and unconnected to any birth injury or hypothetical ‘rebleed’ emanating from a chronic subdural collection had resulted in a flawed approach. Whilst the judge was entitled to have regard to Mr Newman’s proper acceptance that the retinal haemorrhaging could not be regarded as a conclusive piece of evidence (‘a trump card’), he had failed to consider in his judgment what impact the presence of the retinal haemorrhages had upon his overall assessment of causation.

As I have been careful to stress to the parents, my function in this hearing is not to review the original conclusions which His Honour Judge Cleary reached. I start anew in my quest for where the truth lies. Nonetheless, I cannot, and do not, ignore the ‘pitfall’ which was identified by the Court of Appeal as a deficiency in the earlier judgment in relation to the judge’s analysis of the medical evidence: it seems to me that the presence of the retinal haemorrhages is a separate factor which has to be considered as part of the evidential landscape which has been put before the court.

In this context it is important to bear well in mind that nothing has changed in terms of the medical evidence which was before the Court of Appeal in March this year and that which is before me now. None of the court appointed experts or treating clinicians has been called to supplement his or her evidence, or to re-submit themselves to further cross-examination. Each has confirmed that their opinions remain unchanged. None seeks to alter the views expressed in their respective reports or during their oral evidence to the court. Mr Newman was asked a specific question in relation to causation and, in particular, what he intended the court to understand from his evidence when he agreed with the proposition that the presence and his view of the aetiology of retinal haemorrhages should not be regarded as ‘the trump card’. On 14 April 2017, he provided the following written response:-

“I do not use the term ‘trump card’; this arose from a cross examination a number of years ago and first in a published judgment in 2014 in Re: B; this term is now regularly put to me by Counsel.

My position is that

•

In a young child where birth is not the cause retinal haemorrhages are always abnormal;

•

The mere presence of retinal haemorrhages does not give rise to a diagnosis but a need to investigate searching for a diagnosis;

•

Non accidental head injury as a cause of retinal haemorrhages is a matter requiring review of the whole clinical history, findings laboratory and radiological findings and not alone [sic];

•

that a differential diagnosis process must include not only known causes but also the possibilities of outliers and unknowns;

•

there is no particular retinal appearance that means a child must have been subjected to an inflicted shaking injury;

•

I accept that the Court may come to a different conclusion to my expert report for reasons that the Court is usually expected to outline in the Judgement.

In summary:

Retinal haemorrhages not related to birth are always abnormal. However their presence as a clinical finding does not outrank/surpass or have importance overriding other findings but must be seen in the context of the individual child, the findings and the circumstances. I believe I explained this in my report in a number of places including at 1801 on page 60.”

It is agreed by all the advocates in the case that to have taken a different course and to have recalled each of the medical experts for the purposes of this second fact finding hearing would have been entirely disproportionate in the light of the experts’ current positions. Thus, the summary of one aspect of the medical evidence provided by Lady Justice Black as I have set it out above remains entirely apposite to the fact finding exercise on which I am currently embarked. The medical evidence is but one aspect of the wider canvas of evidence which I have to survey in reaching my conclusions as to what happened to M on 19 April last year, but it is nevertheless an important piece of evidence when taken as a whole.

As I have already said, because it was known by the time of the directions hearing on 11 August 2017 that there would be no live evidence from the medical experts at this hearing, at the invitation of the advocates I directed them to produce an agreed schedule of the principal points to emerge from that expert evidence. It was agreed that neither of Dr Saggar (the geneticist) and Dr Keenan (the consultant paediatric haemotologist) would be required to give oral evidence. On all the points which are agreed to be material and/or relevant to my decision in relation to the facts, the schedule is now agreed in its entirety. I have already indicated that I have read with care the entire transcripts of the oral evidence which was given by each of the experts at the previous fact finding hearing. Whilst I shall need to analyse by reference to that evidence the submissions which I have heard from counsel, I have not wished to burden this judgment with an extensive narrative exposition of the evidence which, by agreement, has been distilled into the single composite schedule prepared and agreed by counsel. Accordingly, I append it to this judgment by way of an ‘Agreed Schedule of Medical Evidence’. It forms an integral part of my judgment and should be read as such by way of a fuller understanding of the whole clinical picture and those aspects of the expert medical evidence to which I shall refer.

In this case there is a consensus between the experts both in relation to the nature of the injuries they observed and in relation to how those injuries were likely to have been caused. On the basis of the appearance of the injuries themselves and in the absence of any plausible alternative explanation, the platform of consensus amongst the experts is that the injuries were probably caused in an (as yet) undisclosed and inflicted incident shortly before M’s collapse on 19 April 2016.

Mr Newman is a consultant paediatric ophthalmologist. His evidence is that the retinal photographs which were taken on 22 April 2016, whilst not of good quality, confirm the clinical findings identified on 20 April 2016 by Dr Fiona Dean. Mr Newman described those retinal haemorrhages as multi-layered in all four quadrants extending from around the optic disc to beyond the vascular arcades. The haemorrhages were more numerous in the left eye than in the right. In his opinion, they cannot be related to the child’s birth and are likely to have been caused within no more than 17 days prior to their identification (i.e. from 5 April 2016). Their appearance was, in his view, consistent with having occurred at about the same time M became acutely unwell. Mr Newman further discounted the possibility that the haemorrhages were caused by a spontaneous re-bleed of a hypothetical chronic subdural collection. Even if it were to be the case that the sub-dural bleeding which was present on the scans was a re-bleed of a chronic collection, that would not account for the retinal haemorrhaging which he considered to be caused by a trauma of some description. His evidence was that neither the CPR administered by the father nor the isolated raised intercranial pressure and/or seizures would have been likely to have caused these haemorrhages. Indeed, he dismissed the possibility as ‘very unlikely’. There was nothing in his review of the evidence which would explain these haemorrhages on the basis of an underlying disorder or deficiency. He further ruled out any adverse effects from the immunisation which had occurred some three weeks earlier. In conclusion, he said, “The retinal haemorrhages as documented are in my opinion not related to minor trauma, vomiting, hypertension, immunisations or raised intercranial pressure.” As to the likely cause of retinal haemorrhages in a non-specific context, he said this:-

“The current view, and I agree with that view, is that it is a multiple-faceted injury, partly caused by rotational forces and the rotation of the gel within the eye. Partly caused by the hypoxic and change in the blood vessels’ flow and probably likely due to trauma within the orbit, that’s behind the eye and where the blood vessels actually go into the eye, and it’s likely that there is some haemorrhage that occurs within that.”

In terms of his assessment of the possibility that these injuries were caused by some form of shaking trauma, he said that shaking for only a short period of time might be sufficient to cause retinal haemorrhaging. However, the shake would be likely to require significant force to generate the required motion and anyone who was responsible for such a shake would certainly be aware that his handling of the child in this way was inappropriate. He told the court that retinal haemorrhaging is present in 80% of non-accidental shaking injuries. Typically one would observe bleeding within multiple layers of the retina as was the case with M’s eye injuries. As he has since explained in his addendum report, these injuries are not by themselves conclusive in terms of causation but they fall to be considered as part of the whole picture. In Mr Newman’s opinion, the haemorrhages were most consistent with a shaking or shaking with impact injury.

Mr Richards, the consultant paediatric neurosurgeon, told the court that M’s presentation on arrival at the hospital and when attended earlier by paramedics indicated a diagnosis of moderate encephalopathy. In the absence of any identifiable medical disease, a recognised cause of a sudden onset of encephalopathy is a recent episode of head injury. Such an injury might well explain the fresh subdural bleeding which was revealed on the MRI scan which was taken on 22 April 2016, some three days after M’s sudden collapse. It was evident from the scan that there was mixed intensity fluid over the surface of all intercranial compartments which was consistent with a recent episode of head injury. In Mr Richards’ opinion, the combination of (i) the presence of moderate encephalopathy with (ii) the neurological findings (fresh subdural blood in all three intercranial compartments with mixed intensity fluids in these compartments) and (iii) the retinal haemorrhages points to a recent episode of head injury suffered by M as the most likely cause. He accepted that the fluid seen in the subdural space could be either a mixture of fresh blood and cerebrospinal fluid (CSF) or a previous (chronic) subdural haematoma: radiologically, it was often difficult to tell the two apart. However, in M’s case, there were no visible subdural membranes on the scan. It was his expert opinion that that factor, coupled with the absence of any enlarged head circumference or skull fracture, makes it more likely than not that the fluid which was visible on the scan was an acute traumatic effusion. In other words, it can be linked organically to the fresh blood and points to a recent head trauma rather than being chronic in its origin. Whilst he could not rule out the possibility that this was a chronic subdural haematoma, Mr Richard’s evidence was that the most common cause for such an injury (had it existed) would be a shaking injury which had occurred some weeks earlier. However, as he explained, given that she appeared asymptomatic and appeared to be an entirely well child in the days and weeks prior to her admission to hospital, he thought it more likely that the darker fluid which was visible on the scans was an acute traumatic effusion. In his opinion, the point of her collapse on 19 April 2016 was likely to be the point at which she sustained the brain injury.

He acknowledged that birth related bleeds might have caused the subdural bleeding which was evident from the scan but he agreed with Dr Stoodley that “only a tiny majority ever go on to become chronic, whatever the cause may have been”. He could find no clinical evidence to suggest that, in this case, a birth related subdural was still present, had increased in size and re-bled. He was asked about whether the apparent increase in the measurement of M’s head circumference identified by Dr Cartlidge might be indicative of a pre-existing chronic subdural collection. His response was to cast doubt on the accuracy of the measurements which had been recorded since they were so abnormal as a comparison. The abnormal measurement had tended to distort the other readings which did not cross more than one centile and which were entirely consistent with M’s presentation prior to her collapse and admission to hospital. If the abnormal measurement were indeed accurate, the child would have been presenting symptoms of a “significantly ill child”. That description did not accord in any material particular with the descriptions of M given by both her parents in the days and hours leading up to her sudden collapse.

Dr Neil Stoodley, the consultant paediatric neuroradiologist, identified the bright material which was visible from the scan in the posterior hemispheric fissure on both sides as acute subdural blood of no more than seven to ten days in terms of age. He, too, saw no evidence of membranes having formed in the brain. Whilst he said that this could represent either older blood of at least two or three weeks in terms of age, his expert opinion was that it was more likely to be acute traumatic effusion associated with a recent head injury. He was able to identify from the CT scan an area which was probably acute subarachnoid haemorrhage in the right frontal area of M’s brain, an observation which had not been noted by Mr Richards. Having reviewed the MRI scan, he confirmed the presence of what was likely to be acute blood which was suggestive of an injury which occurred between three and seven days prior to the scan and consistent with 19 April 2016 as being the date of injury. There were no membranes visible on the MRI scan either which lends support for his opinion that the darker fluid seen in the subdural space was not a chronic collection but was rather the result of acute traumatic effusion.

Dr Stoodley was cross-examined at some length about the apparent divergence of opinion between his evidence and Mr Richards’ evidence to the effect that the scans revealed potentially dark subdural fluid over all of the cerebral hemispheres and in the posterior fossa in the cerebellum. The issue which separated the two experts was the extent to which the dark subdural fluid was anatomically related to the acute blood which was visible on the scans. In other words, they disagree on where the bright fresh blood is seen and whether it is mingled with the darker fluid or separate from it. They also disagree on their respective interpretations of the scans as to whether the dark fluid occupies the entirety of the intercranial compartments, including the posterior fossa. The relevance of this debate between the experts is that if Dr Stoodley is right then it is physiologically unlikely that the acute subdural bleed is linked to any chronic subdural collection as a result of its position in the brain. Thus, if he is right in his interpretation of the scans, it is more likely than not that the darker fluid is indeed an acute traumatic effusion linked to a recent event and is not a chronic subdural collection. Dr Stoodley’s conclusion was this:

“… on the basis of the imaging given there are two possible explanations. On the basis of the neuroimaging appearances, the uniformity both on the CT and MRI of those collections, the lack of membranes, which is not an absolute point. And the fact as far as I am aware that there is only one episode described of any possible acute neurological disturbance in terms of the history. On a balance of probability in my view the dark collection seen on CT over the frontal convexities on both sides and confirmed on the MRI are more likely to represent acute traumatic effusions [than] chronic subdural haematomas. But I can’t exclude the possibility …”

He accepted the proposition which was put to him by Mr Vater on behalf of the father that a chronic subdural haematoma may represent a predisposition towards acute subdural bleeding into that chronic subdural haematoma. However, he did not agree that there was a body of opinion in favour of a proposition that an enlargement of the subarachnoid spaces amounts to a predisposition towards acute subdural bleeding in the case of a minor, or lesser, trauma.

At the end of the day, the divergence between these two experts as to their respective interpretations of the scans may be of less relevance than their conclusions. Although they reached their conclusions by a slightly different route, both Dr Stoodley and Mr Richards agree that it is far more likely than not that the darker fluid is in fact an acute traumatic effusion and not an underlying chronic subdural collection. Both are agreed that there are no clinical symptoms of a developing chronic subdural such as might become evident with a widening of the sutures or rapid increases in the measurement of M’s head circumference. M did not present as a child who had a developing subdural collection. As Mr Richards pointed out, she recovered quickly in her foster placement following her discharge from hospital and the encephalopathic with which she presented on admission resolved rapidly.

Dr Cartlidge, the consultant paediatrician, agreed with Mr Richards and Dr Stoodley that the fluid collections which were visible on the scans were more likely to be acute traumatic effusions than chronic subdurals. He, too, cast doubt on the accuracy of the ‘disputed’ head circumference reading and said that it was not a pattern of growth which he would expect to see, particularly in circumstances where subsequent readings showed a reduced measurement. In my judgment and in the light of the evidence from all three experts, it is unlikely that the reading which they regarded as an aberration was accurate when it was taken and I can safely disregard it as evidentially supportive of a developing chronic subdural.

In his closing submissions, Mr Sampson contended on behalf of the local authority that if the subdural collection which was observed were to be chronic in origin, then it too must have had a cause and, whilst it is hypothetically possible to have stemmed from birth, the experts are in unison in agreeing that this is an unlikely and improbable explanation. If that is right, any chronic subdural collection which did exist is itself more likely than not to have been caused by a trauma of some sort rather than having a benign origin. There is nothing in the parents’ accounts or the child’s medical history or her presentation to suggest the existence of an earlier trauma or injury. Thus, he submits, whilst a chronic subdural collection is not impossible, it is unlikely and, if not unlikely, raises the question of what was the cause of the chronic subdural in the first place.

Before I proceed to analyse the wider canvas of evidence through the prism of the medical evidence, I need to direct myself in relation to the law. I have been referred to several authorities from which emerge the appropriate legal principles to be applied to a fact finding exercise such as this.

I take as my starting point the decision of Baker J in Re JS [2012] EWHC 1370 (Fam). In paragraphs 36 to 45, his Lordship set out a succinct series of principles which I have found extremely helpful as a distillation of the relevant law. I can do no better than to set out those principles in full:-

“36.

…. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them.

37.

Secondly, the standard of proof is the balance of probabilities (Re B [2008] UKHL 35). If the local authority proves on the balance of probabilities that J has sustained non-accidental injuries inflicted by one of his parents, this court will treat that fact as established and all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that J was injured by one of his parents, the court will disregard the allegation completely. As Lord Hoffman observed in Re B:

“If a legal rule requires the facts to be proved (a ‘fact in issue’) a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1.”

38.

Third, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (fact-finding hearing: Speculation) [2011] EWCA Civ 12:

“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.”

39.

Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

40.

Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council v K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from thatreached by the medical experts.

41.

Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S [2009] EWHC 2115 Fam).

42.

Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).

43.

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

44.

Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam:

“There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established is established on the balance of probabilities.”

The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.

45.

Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators, is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desiureable, where possible, for the perpetrator of non-accidental injuries to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161.”

In this case, it is accepted and agreed that there is only one possible perpetrator in respect of the injuries sustained by M and that is the father. The mother has now been ruled out and thus my focus must be on all the evidence which points in one direction or the other so far as he is concerned. In Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20 (Fam), [2004] 2 FLR 200 at paragraph 24, Bracewell J observed that,

“… all the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened. …. The [alleged perpetrator] has made no admissions of any kind and has always denied harming her child. The cogency of the circumstantial evidence depends on its quality. It can range from the peripheral and unhelpful to compelling and cogent, and therefore it is necessary to test the various elements.”

So, too, I remind myself of the careful guidance given by Mostyn J in Lancashire County Council v R and W [2013] EWHC 3064 (Fam). In paragraph 8 of his judgment, his Lordship distilled the principles (including those which I have noted above) but added these important points:-

“ix)

The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark: Re U (Serious Injury: Standard of Proof): Re B [20044] 2 FLR 263 at para [24(v)]. Scientific certainties of a past age are often proved conclusively wrong by later generations: A County Council v M and F [2012] 2 FLR 939 at para [251(iv)]. Today’s orthodoxy may become tomorrow’s outdated learning: R v Holdsworth [2008] EWCA Crim 971 at para [57].

x)

Evidence of propensity or a psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a purely factual issue: Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211. However, the assessment of a parent’s core personality and the extent to which damage resulting from his early life experiences was disabling and permanent was primarily for the experts: Re M (Residence) [2002] 2 FLR 1059.

xi)

The assessment of credibility generally involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore contemporaneous documents are always of the utmost importance: Onassis v Calogeropolous v Vergottis [1968] 2 Lloyd’s Rep 403, per Lord Pearce; A County Council v M and F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939 at paras [29] and [30].”

The reference to memory and reported discrepancies in accounts offered by an alleged perpetrator has a particular resonance in this case because of its litigation history. These parents have already endured one lengthy fact finding hearing and the subsequent journey of this case to the Court of Appeal. A second fact finding hearing in May this year was postponed to enable them to instruct an expert geneticist. When it became clear that M’s injuries could not be explained on the basis of a genetic defect, we have proceeded to this second fact finding hearing. More than eighteen months have elapsed since M was rushed to hospital as a very unwell child and the father has been interrogated on a number of occasions about what happened to cause her sudden collapse by the police, doctors, the local authority, the lawyers and the mother. I bear well in mind the wise words of Peter Jackson J (as he then was) in Lancashire County Council v The Children [2014] EWHC 3 (Fam). At paragraph 9 of his judgment, and having directed himself on the relevant law, he said this:-

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

On the issue of causation, Mr Storey reminds me of what was said by Charles J in Lancashire County Council v D & E [2008] EWHC 832 (Fam). In that case his Lordship had to determine whether either one of a six week old baby’s parents had caused the brain and head injuries and the eye haemorrhages with which the child presented when taken to hospital. At paragraph 35, he said this:

“A natural progression of reasoning is to consider first what injuries there are, then to consider whether they were inflicted, and thus the range of possible causes. Those steps are not conducted by reference only to the medical opinion, albeit that there may often be no other relevant evidence as to the existence of injuries and consequent illness. Causation is different because as to that an important factor is the consideration of how, when and by whom an injury could have been inflicted becomes a necessary part of the analysis. To take an easy example: if a well-reasoned medical analysis leads to a conclusion that a child’s airways were blocked at a particular time, but it can be shown from a video, or third party personal surveillance that no one did or could have blocked the child’s airways during that period, that conclusion has to be revisited. I make this point because in my view at times the approach of both the local authority and the Guardian in this case came perilously close to an approach which, on the basis of the expert medical evidence, proceeded on the basis that: ‘R’ was the victim of a shaking injury because the medical opinion was that this was the most likely cause of his injuries, and the relevant exercise was to consider whether, given their care, and thus the opportunity they had to so injure ‘R’, the parents could show that they did not injure him.”

Having warned against the temptation to speculate about whether the harm which has befallen a child can be explained as an accident, and, if so, what sort of accident where no such explanation has been advanced by a parent or carer who was looking after a child, Charles J said at paragraph 43:-

“It may be that in such a situation the court would often be driven to conclude on the balance of probabilities that the mechanism and cause of the injuries is that identified as most likely by the medical experts, because that situation is reached if the court concludes that the possible perpetrators are not providing a full account, and therefore it would be difficult to say what they are hiding, or to conclude on an evidential basis that the medical view is not more likely than not to be the cause.”

Much has been said in this case by the advocates for the parents about the possibility of M’s injuries being attributable to an unknown cause. In this context I bear well in mind, as I must, the possibility that the cause of M’s injuries could simply be “not presently known or understood”: per Hedley J in R (A Child) [2010] EWHC 1715 (Fam). In that case, Hedley J cited Moses LJ in the case of R v Henderson & Others [2010] EWCA Crim 1269, CA:

“There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative causes, it is tempting to conclude that the prosecution has proved its case. Such temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause.”

That passage was extracted from a judgment in the Court of Appeal in which Moses LJ was dealing with a criminal case where the standard of proof is different. However, Hedley J in R (A Child) stated that a conclusion of “unknown aetiology” was not a professional or forensic failure; it simply recognises that there is much we do not know and that it is wrong to infer non-accidental injury merely from the absence of any other understood mechanisms. Thus, in cases where that possibility is realistic, a finding of “unknown cause or aetiology” remains an option for the fact finder and in this context I bear well in mind the need to distinguish between that which may be relied upon and that which should be rejected.

Finally in relation to the law I remind myself of the seminal statement of Lord Nicholls in Re H & R (Sexual Abuse: Standard of Proof) [1996] AC 563 as the same was considered by the House of Lords in Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 at paragraphs 70 and 73 where Baroness Hale said :

“the standard of proof in finding the facts necessary to establish the threshold under s.31(2) or the welfare considerations in s.1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent improbabilities are simply something to be taken into account, where relevant, in deciding where the truth lies … It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what happened to the child, it ceases to be improbable. Someone looking after the child must have done it. The simple balance of probabilities test should be applied.”

I have had the benefit of lengthy and detailed written closing submissions from each of the advocates and I am grateful to them for the care which has been taken in the preparation of these documents.

On behalf of the local authority, Mr Sampson poses the following question as the central issue in this case: whether it is more probable than not that M sustained retinal and subdural haemorrhaging and suffered an encephalopathic episode as a result of being shaken by her father in a loss of control on 19 April 2016 ? In assessing whether the lay and expert evidence which I have read and heard leads me that conclusion, he submits that in my assessment of evidential sufficiency, it is not necessary to dispel from my mind all doubts or uncertainty. My quest is for the most likely or most probable set of facts and that, as I have said, includes the possibility of ‘unknown cause’.

The injuries which M sustained are likely to have been the result of, or had their origin in, one of the following: a trauma of some sort; an organic origin such as a disease; or an unknown cause. The local authority seeks findings that each of the injuries (subdural haemorrhaging, retinal haemorrhaging and encephalopathy) was the result of trauma. Whilst Mr Sampson accepts that this so-called “triad” of injuries can never be conclusive in terms of a diagnosis, the presence of all three different injuries may indicate that M was harmed as a result of some form of shaking injury. I have to consider the medical evidence and the lay evidence in the round as part and parcel of the wide canvas of evidence which has been put before the court. However, in relation to the medical evidence, Mr Sampson submits that the interrelationship between the injuries is capable of assisting the court in relation to likely causation and timing overall. In this context it is highly relevant, in my judgment, that the retinal haemorrhages are confirmed by the medical evidence to be unconnected with the subdural haemorrhages and the associated encephalopathy. The expert medical evidence when taken as a whole points towards the strong probability of these injuries having been sustained as the result of a single shaking episode. The debate between Mr Richards and Dr Stoodley to which I have already referred (i.e. as to precisely what the scans showed) does not dilute the consistency of the expert medical opinion in relation to the likely or probable cause of M’s injuries to the brain. Each of these two experts agrees that it is far more likely than not that the darker fluid which each observed was an acute traumatic effusion and not an underlying chronic subdural collection. In other words, the darker fluid is linked organically to the fresh blood which was observed on the scans and is likely to have been caused by a recent trauma. Whilst the existence of a chronic (i.e. existing) subdural collection cannot be ruled out conclusively, it is unlikely or, in forensic terms, improbable that it was present on 19 April 2016. There were no clinical symptoms to support the existence of an underlying chronic condition save for the aberrant head measurement which I am satisfied can be rejected in terms of any probative evidential value. The mild to moderate encephalopathy which the clinicians observed on M’s admission to hospital is accepted by the medical expert evidence to be inconsistent with a re-bleed from an existing collection. In relation to the encephalopathy, Mr Richards and Dr Cartlidge are agreed that the acute subdural bleeding which is linked to M’s sudden collapse is likely to have occurred in the period immediately prior to that collapse. M appears to have presented as ‘lifeless’ and unconscious a matter of minutes before the mother made the 999 call at 17:39 on 19 April 2016. Her sudden collapse occurred, as I find, in the bedroom in the moments before the father rushed down the stairs to the kitchen with the child in his arms.

Similarly, it is agreed by the medical experts that the multi-layered bilateral retinal haemorrhages which are unrelated to the brain injury are unlikely to have been caused when M was born because any such symptoms are statistically likely to have resolved at the latest within three months of birth. Nor, as the experts agree, are they likely to be the result of raised inter-cranial pressure or a spontaneous re-bleed of a chronic subdural collection in the unlikely event that such a collection existed. In my judgment it is significant there is nothing within M’s medical records before 19 April 2016 which might be suggestive of any previous trauma or accident which might support the existence of an underlying medical condition. Neither the parents nor the grandparents (who saw her regularly) suggest that she was anything other than a normal healthy baby, albeit one who was suffering from the usual ailments associated with teething.

The evidence of the health visitor, RW, who visited the mother and M on 2 March 2016 (some six weeks earlier) suggested nothing untoward in terms of M’s presentation. RW had been a regular visitor at the home since the end of 2015 and her notes of those visits raised no concerns whatsoever once the early difficulties of the baby’s failure to gain weight were addressed. She had been discharged from the care of the community midwife on 28 December 2015. By this stage, M had out on weight and had been observed the previous week looking “pink and warm”. The midwife, SB, observed that “at each point of contact with me, [M] appeared to be well kept and appropriately dressed”. The mother had attended all the appointments made for her and the baby on time.

On the basis of the medical evidence, I reject as highly improbable any suggestion that the retinal haemorrhaging was caused or exacerbated by raised intercranial pressure, by the father’s attempts on the kitchen table to resuscitate M, or by an attempt to restore her to full consciousness whilst she was in a collapsed state. Mr Newman’s evidence was clear: none of these potential mechanisms is the likely cause of the injuries inside M’s eyes and the retinal haemorrhaging which is evident from the retcam images is most consistent with non-accidental trauma. In other words, in his opinion non-accidental trauma is the most probable cause of these injuries which he confirmed were present in c. 80% (i.e. the clear majority) of babies and children presenting with shaking injuries. I do not disagree with Mr Vater who submits that this statistic does not necessarily preclude a finding that M falls into the 20% of cases where the presence of retinal haemorrhaging is not symptomatic of trauma. Nevertheless I am searching for the truth in order to establish the facts within the territory of probabilities taking into account the entire vista of the evidence which has been put before the court.

This leaves me with a scenario where an apparently well and happy child who was last seen by her mother no more than ten or fifteen minutes earlier lying contentedly on her father’s knees in the bedroom was delivered in an apparently lifeless state into the kitchen by her highly distressed and agitated father who immediately began CPR in what he must have recognised to be a life-threatening situation. The evidence of the mother and IO is that M had been playing happily in the kitchen in her pram that afternoon without any hint or suggestion of the collapse which was to come. Her maternal grandmother had noted nothing untoward when she saw M earlier that morning during the journey to, and whilst saying goodbye at, the airport. She reported that M was happy and smiling when she kissed her goodbye. It therefore follows that, on the balance of probabilities, M sustained the injuries which are described by the medical experts between the time the mother left her after her final visit to the bedroom and the moment when the father left the bedroom to carry his daughter downstairs in an apparently lifeless state. He told me, and I accept, that she had stopped breathing before he left the bedroom. For that reason alone, I feel able to discount as improbable the hypothesis which was advanced on his behalf that M might have been injured during the journey down the stairs, either as a result of banging her head on the wall or as a result of being shaken during the father’s descent. He did not advance that case in his evidence and his description of the manner in which he was holding the child would suggest that this is little more than speculation. It is not supported by the expert medical evidence; it is not relied on by the father; and it does not accord with my finding that M’s injuries and her immediate collapse had occurred prior to her being carried from the bedroom. Whilst Mr Storey has urged me to consider all possible ‘outliers’ as a potential cause of M’s injuries, the evidence will not support a finding in this case that M’s collapse resulted from a trauma or injury sustained or exacerbated whilst held in her father’s arms as he ran down the stairs.

The father has consistently denied doing anything which might have caused or contributed to M’s injuries. There is nevertheless an inconsistency in the detail of the accounts he has given of what transpired in the bedroom on that afternoon. I have already set out in some detail the accounts which he has given on various occasions but it is worth, here, repeating the substance of those accounts against the background of the medical evidence. M appeared to be perfectly well when he lifted her off his knees and placed her in the Moses basket. After a short interval, she started to cry. He put the dummy in her mouth; she spat it out. He picked her up and cradled her on his shoulder. She made a noise which “sounded like she had water”, started breathing really deeply and then became floppy and unresponsive. That was his one and only written account of events which he gave in his statement dated 9 June 2016 some seven weeks after M was admitted to hospital. He was later to tell the police that she had been ‘grumpy’ and had screamed when she first spat out her dummy in the Moses basket. When he picked her up, she “coughed” and “fainted”. He described walking in circles at the bottom of the Moses basket for five to ten minutes before she “fell asleep really hard”. During this interview, he stated that he attempted to place the dummy in her mouth on at least two occasions.

When he gave his evidence to me, he confirmed that he had repeatedly tried to put the dummy in M’s mouth and that by this point the child was “moaning”. He described how she had previously “screamed” in a way he had never heard her cry before. She gave a cough and became entirely limp.

When he was cross-examined at the first fact finding hearing in October last year, he specifically denied making repeated attempts to put the dummy in M’s mouth despite the inconsistency in his police interview having been pointed out to him. His account then was that he was holding the dummy through the ring on the thumb of his right hand. He accepted when it was put to him that he “gets pissed off quickly” and “could lose it quickly” even though he later regained control of his emotions.

In this context, I remind myself that the passage of time can be unforgiving in terms of a detailed recall of events, even when those events had such a profound impact on this father, as I accept they did. I also bear in mind that English is not his first, or mother, tongue. Whilst I suspect his language skills have improved over the past eighteen months as he has continued to live and work in this country, he is still not fluent in spoken English notwithstanding that he did not feel the need for an interpreter throughout this hearing. The fact that he accepts that he has a temper and can “lose it” quickly is an admission which confirms my own observations. I saw for myself on the CCTV video evidence taken in August this year how the father can react swiftly and with violence to situations of external stress. But none of that is evidence of any propensity to behave violently towards a small defenceless baby of 4 months. His previous antecedent criminal history has never involved the use or threat of violence towards a child and M was plainly a loved child to whom the father felt a deep emotional attachment. That much is evidenced by his shock at finding he was holding an apparently lifeless child in his arms and his urgent response in his efforts to resuscitate her on the kitchen table.

I am also conscious that, if the father has not been entirely truthful in every element of the several accounts he has given, he may well have forgotten some of the detail. He is almost certainly likely to have been in a state of panic as he realised that M was not responding to his attempts to rouse her in the bedroom. He may have been genuinely fearful of the consequences of some momentary loss of control, if that is indeed what happened, as he sat at the police station under intense scrutiny and questioning after what was probably a fairly sleepless night.

It is true that he was not used to handling M when she was fractious. That much is conceded by Mr Vater. I accept that the majority of the primary care of M was undertaken on a day to day basis by the mother. However, she plainly had no concerns about leaving M in his sole care for short periods whilst she worked downstairs in the kitchen.

What has troubled me most about life in the household at this point in time is the true state of the relationship between these parents. I have been left wondering about whether the extent to which the apparently peaceful co-existence in the “bedsit” they shared was as free from stress as each would have me believe. I accept that there is the account of IO who shared the same property and noticed nothing untoward in terms of overt hostility or rows between them. Nevertheless, it is clear from the mother’s own account that during this period there were frequent arguments going on behind closed doors. Whilst they continued to share a room (which provided their living and sleeping accommodation), the mother has spoken of continual rifts and separations between them almost from the outset. She wanted to leave the father and move out into accommodation of her own. The evidence, which is unchallenged, demonstrates that:-

She spoke of dinner that evening becoming something of a celebration because of the news she had received. I have to say that I did not entirely understand this aspect of her evidence. In her written statement dated 2 June 2016, she had said this about the father’s return from work on 19 April 2016:-

“When [he] arrived home at about 4pm, he played with [M] and about 20-30 minutes later I made up a bottle for her downstairs in the kitchen. [He] fed [M] in the bedroom whilst I went back downstairs to start cooking. This was due to be our last night at the house so I was cooking a nice, celebratory meal. I would nip upstairs every now and then to check on [M] and see if [he] needed anything. Whenever I went in, [M] was happy and babbling away….”.

The mother’s account that the night of 19 April 2016 was to be the last night she and M would spend at the property was plainly not true. She only knew for certain that there was accommodation available for her to view in the hour before M’s collapse. None of the practical arrangements for a move had been put in place. In short, this was not her last night in the property; she was not moving out the next day. She accepted in cross-examination in this hearing that the ‘celebratory meal’ to which was she had referred was, in fact, food which she had previously bought and which was in the refridgerator for that evening’s meal before she received the call from the local council. Perhaps this aberration by itself might make little difference in my assessment of the overall credibility or accuracy of the mother’s and father’s accounts. However, I am concerned that her evidence in October 2016 during the first fact finding hearing was that she had told the father in the hour before M’s collapse that she had secured separate accommodation of her own. There were 34 minutes between the time of her telephone call to the council when the news of the availability of separate accommodation was relayed to her and the time when she made the emergency call to the ambulance service following M’s collapse. The transcript of her evidence at that hearing records the following exchange between the mother and Mr Sampson:-

“MR SAMPSON: … During that 34 minutes did you go back up to the bedroom ?

A.

Yes, I was.

Q. Did you tell [the father] about the fact that you had got a property ?

A. If I’m not mistaken, yes, I said.

Q. Your view, please: do you think [he] was pleased about that ?

A. I think that, yes, because immediately he said that he would help any way he can.

Q. Because that would mean that not only you but also his daughter was leaving the property ?

A. Yes, but to the better conditions.

Q. Without him ?

A.

So yes.”

There is a further discrepancy in their accounts in that the father told His Honour Judge Cleary in October 2016 that his account given to the police during his interview as to his movements on 19 April 2016 was not entirely accurate. He explained that he had been out earlier that morning to help his friend to fix his car. This appears to be in connection with some scratches or damage to the bodywork. He said he had returned to the property at about 3.45pm. In is written statement (June 2016), he said he had gone to bed at 9am after returning from his nightshift and woken at 3pm that afternoon in order to help his friend with the car, that friend having driven round to the property and parked next to the house. At that point in time, he stated that M and her mother were in the kitchen with IO. All appeared well; the baby was happy and playing contentedly in her buggy. Contrary to what he told the police, he said he had gone up to the bedroom first and the mother had subsequently brought M up to him with a bottle before going downstairs to make him a cup of coffee. Significantly, there is no reference anywhere in the father’s written or oral evidence or in his police interview to a specific conversation between these parents about the mother having received a telephone call from the council during that crucial hour before M was injured. His written and oral evidence is silent on the point. He does not speak of any celebration, planned or otherwise, to mark her departure from the property with M. He may well have been aware of her wish to find alternative accommodation; he may well have offered to provide some practical support in the event of a physical separation and change of living arrangements. But I question why he did not mention to anyone in the context of the detailed investigation which followed M’s admission to hospital that, as a couple, these parents were on the verge of separation. If the mother’s evidence is truthful, I find it difficult to believe that he would have forgotten that conversation.

What assistance do this history and these inconsistencies provide in assessing the reliability of the evidence which I heard and read from the parents ? The first and obvious point to make is that there is no suggestion whatsoever that the mother was implicated in any way with the injuries which M sustained on 19 April 2016. That much is accepted by the local authority, the Guardian and by the father. The next observation to make is that I appreciate that the meaning and nuance of questions may well be lost when put and responded to in a language which was not the first language for either of these parents. Nevertheless, the substance of their evidence is tolerably clear and, in part, it is both internally and mutually inconsistent. I struggle to understand why, if there was such a conversation about her imminent removal from the property, the father said nothing about the mother’s intention to move out with M. She says that this conversation happened within an hour of the emergency call which she made on the afternoon of 19 April 2016. I cannot speculate about whether that conversation ever took place or, if it did, what reasons the father might have for not telling me about it. What I can legitimately collect from all of this evidence, in my judgment, is the fact that during a period of often stressful co-existence over many weeks, there were likely to have been unresolved tensions within the home environment in which all three were living. The mother had plainly determined to leave the relationship; the father was certainly less than committed to the mother. Whist he referred to her as “his missus” when he was interviewed by the police, he was on any view ambivalent about the relationship. He had been sexually unfaithful to her when M was little more than a new born infant and was to repeat his infidelity with the same woman in the early part of 2016 during their apparent estrangement as partners.

On one view, such ambivalence might appear to suggest that the imminent fracture of the family unit which the mother says she announced that afternoon would have made little impression on the father. On the other hand, if the mother is telling the truth, it is of concern that the father chose to conceal that knowledge in circumstances where he must have known that the circumstances surrounding M’s collapse would be the subject of intense scrutiny.

I am reinforced in my conclusions about the overall reliability of the father’s evidence, in particular, by the events which unfolded in August this year. The father says that he had told the social worker (whom he accepts he did not like and to whom he had previously referred as “a bitch”) that he had moved out of his previous property and was living at a different address with his brother. I have already accepted that this was not true. Perhaps of greater significance is the fact that when this information prompted an enquiry by that social worker of the local police, she learned for the first time about the incident which had been captured on CCTV on 20 August this year. The fact that the father had been arrested in connection with charges of criminal damage and possession of a Class A drug was withheld from this court until several days into the hearing. Neither of the parents had said anything about it to the local authority, the social worker, Dr Garrett or Dr Cornwall. In the context of the important therapeutic work which was then underway, this was a surprising and concerning omission. The father has since accepted that he demonstrated impulsive behaviour on that occasion and that he has minimised his account of these events. For her part, the mother accepts that she did not tell anyone about the incident and was disingenuous in her responses.

In term of the findings which are sought, it is important to stress that it is no part of the local authority’s case that the father deliberately caused harm to M or that, if he did do anything to cause the injuries which I have described, it was anything more than a momentary loss of control which he swiftly regretted when he appreciated the consequences of his actions. It was clear to me from a number of his responses to questions put to him that he lacks full insight into the extent to which physical and/or emotional damage which he may have suffered as a child or adolescent has a resonance in the present. He sees little or no correlation between the history he has given to Drs Garrett and Cornwall and the planning which is now in place for M’s future although he has recognised that “opening the box of my past makes me think more about my own future”. He told me he thought it was “ridiculous” that so much time was being invested in trawling over questions about his past life in Lithuania. He accepts that he has found it helpful to unburden himself in respect of some of his feelings and emotions to Dr Cornwall; he described it as “like a rock dropping”. He is willing to undergo some relationship work with the mother although he candidly admitted that he was not sure whether this was necessary.

I am led inexorably to the following conclusions: (i) I cannot safely rely on the father’s evidence as a wholly consistent, complete and credible account of the totality of what happened during that crucial window on 19 April 2016 when he was left with the sole care of M; and (ii) he has demonstrated through his subsequent actions and omissions that he is capable of withholding potentially relevant information from those who have a role in determining the future plans for M. I bear well in mind that it was he who initiated the discussion with Dr Garrett about the extent of his criminal behaviour whilst living in Lithuania, and I take into account the fact that he may well have been fearful of disclosing the information about the August incident because of some perceived threat to the ongoing progress of his rehabilitation with his daughter. He may well have been concerned that, with this fresh fact finding hearing on the horizon, any admission by him of a further violent outburst or momentary loss of control might have prejudiced his case in relation to his denial of having harmed M. I know not but any findings I might make as to his potential unreliability as a witness have to be factored into my wider survey of all the other evidence in this case, including the unanimous opinion of the medical experts as to the probable causation of M’s injuries.

On behalf of the father, Mr Vater submits that the coincidence of medical opinion as to causation does not and cannot preclude a finding that the father is telling the truth when he denies having inflicted that trauma. That is a proposition which I accept without reservation. Dr Garrett’s report lays considerable stress on many of the positive aspects of this father’s relationship with his daughter. If the experts are right in their collective conclusions, the case is put no higher by the local authority than that any actions on his part which resulted in harm to M were likely to be totally out of character. The experts have properly confined their observations, opinions and conclusions to matters which properly fall within the compass of their respective expertise. I have borne well in mind that I cannot, and must not, submit to the temptation to treat the unanimity of the experts and the absence of an explanation from the father as sufficient proof that he was probably the cause of M’s injuries. On behalf of the father, Mr Vater has accepted throughout that the medical evidence points in a single direction and that, in determining the probable cause of M’s injuries, I must approach the question of probabilities through the prism of the medical evidence. In terms of the aetiology of these injuries having presented as a result of an “unknown cause”, I have reminded myself that I have to give due weight and consideration to the possibility, if not probability, that – to use Mr Vater’s words – this “might be the one in a million case”.

In relation to his client’s obvious capacity on occasions to lose his self-control, Mr Vater asks rhetorically why he should offer as much information as he has about his criminal antecedants in Lithuania if he was attempting to withhold inculpatory evidence from the court. He submits that I should discount any suggestion that acts of aggression or violence in his past should now be held up as some form of evidence of propensity particularly in circumstances where he has never lost his control with a child, far less a vulnerable infant who is his own child. In this context he points to the fact that, if relevance is to be attributed to his account to Dr Garrett of the extent of the injuries he has inflicted on his alleged assailants in the past in moments when he has lost control, why did the experts not observe more extensive injuries to M ?

In this context, I have already set out the law as stated in Re CB and JB (Care Proceedings; Guidelines) and Re M (Residence). I remind myself that the expert report from Dr Garrett has been prepared for the purposes of evaluating the management of future risk (if any) to M at the hands of her father. It has not been prepared as a tool or vehicle for any (impermissible) assessment of propensity on his part notwithstanding that Dr Garrett has identified a number of ‘high’ risk triggers which will require work if the family is to be successfully reunited as they wish.

In his closing submissions, Mr Vater puts his case in this way:-

“16.

The father has never denied that there have been occasions when he has lost his temper and ‘lashed out’. He has never denied that when he has lashed out, he has been violent. But the question in this case is not whether the father has a propensity, under some perceived threat, to attack a perceived adult assailant. The question here is whether he attacked his baby daughter, whom all the evidence suggests he loved, apparently because she was crying and he could not settle her. The fact the father has some history of fighting with other men, and lashing out in that context, is irrelevant to the fact in issue. There is a world of difference between that sort of behaviour and a man attacking his own defenceless baby.

17.

It might be submitted that Dr Garrett’s evidence demonstrates that the father has a propensity to react disproportionately and with extreme violence once he has lost control, without having any idea what he is doing. But whilst the facts of this case might support the hypothesis that [M] was injured as a consequence of a momentary loss of self control, they do not point in the direction of a sustained attack upon a tiny baby by a man standing over six feet tall in the grip of a violent rage:

i)

there are no bruises or grip marks whether on the head or trunk;

ii)

there are no fractured ribs;

iii)

there are no fractured long bones;

iv)

there are no metaphyseal fractures;

v)

there is no damage to the cranio-cervical junction;

vi)

there is no spinal subdural or subarachnoid bleeding;

vii)

there is no traumatic axonal injury;

viii)

there is no injury to the parenchyma, in the form of contusions, clefts or lesions of any other kind;

ix)

there is no hypoxic/ischaemic brain damage;

x)

there is no brain swelling;

xi)

there are no macular folds.”

Mr Storey makes a similar submission about the so-called ‘missing injuries’ (see paragraph 43 of his closing submissions). In these circumstances, asks Mr Vater rhetorically, how did M survive the alleged assault “so relatively unscathed” ?

It seems to me that this is to ignore the basis upon which the local authority puts its case against the father. It is not alleged that this was a sustained attack by a man in the grip of a violent and uncontrolled rage. It is said that the probable, or most likely, explanation for M’s injuries was a momentary loss of control on the father’s part which resulted in some sort of shaking injury which was sufficient in terms of the biomechanical force deployed to result in the child’s spontaneous, or near spontaneous, collapse as a result of the injuries which were subsequently observed and documented by the treating clinicians at the hospital. The presence of the retinal haemorrhages, the subdural bleeds and the encephalopathy is confirmed unanimously by the medical experts. Mr Vater seeks to persuade me that there is very little evidence that, at the time M sustained these injuries, this was a family under any particular pressure. I disagree for the reasons I have set out above. Whilst I accept that these parents were communicating with one another on 19 April 2016, the mother’s evidence is that she regarded her imminent departure with M to an independent life separate and apart from a shared existence with the father as a cause for ‘celebration’. Whilst there may at that point in time have been an element of ‘civility’ between them, the history of their cohabitation from the later stages of her pregnancy was not a happy one. The undercurrents and tensions which flowed from the mother’s distress at the father’s lack of commitment to her, his admitted infidelity and her unhappiness at the limited role he was prepared to undertake in relation to M’s care during the early months of the child’s life point collectively to an unstable and potentially insecure environment for both mother and child. I do not regard the uninformed observations of others, such as IO, to add much, if any, evidential weight to the clear picture which emerges from a holistic overview of the evidence which I have heard and read. The maternal grandparents were alive to the difficulties in the relationship but chose not to become involved over and above the support which they were providing in practical terms to the mother and M. The health professionals were aware of the problems and the potential fracture in the parents’ relationship. The local housing authority was aware that this mother was seeking accommodation where she might live with her child independently of the father and it plainly regarded her application as having merit in terms of its assessment of her needs at the time.

I accept that the expert evidence does not preclude an unknown or innocent cause for M’s collapse and her injuries. My role in this fact finding process is to examine all the evidence in the light of what is probable. That M sustained the injuries described in the medical expert evidence is not in issue and the father does not seek to challenge the conclusions of the experts in terms of their clinical observations. The issue at the heart of this case is causation. I must decide whether they were inflicted injuries and the answer to this question involves a consideration of the range of possible causes for the injuries observed including accident and “unknown cause”. It is in the search for an answer to this latter question that I must look to all the evidence which is currently before the court. The mother is eliminated in terms of a possible perpetrator: that much is agreed. Thus, if these injuries were inflicted, it is only the father who remains as a potential perpetrator. In circumstances where I have found that his evidence to the court cannot be considered to be entirely reliable or truthful because of inconsistency or the withholding of otherwise relevant information, I must nevertheless go on to assess the probability of an inflicted injury against the competing and positive aspects of his attributes as a parent to M. My focus in discharging this task must be based on my assessment of the evidence as I find it to be at the time when the injuries occurred. I have to ask myself whether, taking all the evidence I have considered into account including the expert medical and the lay and circumstantial evidence, this is a case where M’s injuries were more likely than not to have been caused by a sudden shaking injury, the details of which the father has chosen to withhold from this court. In discharging this task, I am entitled to examine what the ‘constellation’ of expert medical evidence tells me is ‘probable’ in the light of the absence of any alternative explanation. That is not in any sense to impose an evidential burden on the father to provide such an explanation. Rather, the absence of anything which might explain the cause of M’s injuries absent some shaking force or movement is a factor which has to be weighed in the scales of my overall assessment of what is likely to have happened on the simple balance of probabilities.

The child herself was unsettled during periods of the day on 19 April 2016. She had been woken early to accompany her mother on a trip to the airport to say goodbye to her grandmother. There are inconsistent accounts of her presentation throughout the course of the day. I have the mother’s account of a happy, babbling playful child who was engaging contentedly with the adults around her. I have the parents’ accounts of her being fractious on occasions because of her teething pains. I have the evidence of both the mother and the father that when M was left on her own with the father on the last occasion but minutes before her collapse, there was nothing which gave either of them any concerns whatsoever in terms of her presentation.

Thus I am left with the following alternatives:-

In my judgment any accident which had occurred to this 4 month old child and which was sufficiently serious to cause the injuries she sustained would have been observed. She was with either her father or her mother throughout the day in question. The mother reports nothing which might possibly be construed as an accident and certainly none which might conceivably explain the injuries which M sustained. The father’s evidence cannot be interpreted as any evidential foundation for a suggestion that an accident befell this child whilst she was upstairs in his care. He describes nothing in relation to his handling of her or in his removing her from his knees and placing her into the Moses basket which could possibly be construed as an accident causing her injuries of the sort described in the various medical reports.

Thus I am driven to the inevitable conclusion that either this was one of those rare cases postulated by Mr Vater where these injuries probably had an unknown cause or origin, or as the experts consider likely, M was subjected to some form of shaking injury during a moment when the father suffered a loss of control. Mr Vater candidly accepts on behalf of the father that, in seeking to exculpate his client, he is driven to rely upon “a coincidence of improbabilities” just as he recognises that the constellation of the agreed medical evidence is “a coincidence of probabilities”.

In my judgment, all the evidence in this case militates against the probability of M’s injuries having arisen as a result of an unknown cause. I have to bear in mind the nature and extent of the injuries this child sustained and the fact that the retinal haemorrhages which were bilateral and multi-layered were unrelated to the injuries to her brain. I am not persuaded by Mr Vater’s argument that the absence of more extensive injuries to other parts of the child’s body should lead me to conclude that the father can safely be exonerated. I observe that more or less precisely the same catalogue of “missing injuries” did not prevent Keehan J from making a finding against the father in the case of A Local Authority v DB, RB and SM (see paragraph 73 of his Lordship’s judgment). Of course every case turns on its own facts including the body of expert medical opinion as it is applied to any given set of facts. None of the experts in this case was dissuaded from his opinion by reason of the absence of more extensive injury to the child. As I have said, it is no part of the local authority’s case that this was in any sense a sustained attack but merely a momentary loss of control on the part of the father. I cannot speculate on precisely what happened. I do not trespass into the realms of asking myself whether he became frustrated when he could not pacify his fractious child with the dummy when she continued to spit it out. What I do know is that within the space of no more than a few minutes a child who had up to that point presented as perfectly well had stopped breathing.

The expert evidence of Mr Newman in relation to the retinal haemorrhages renders it significantly less probable (or more unlikely) that the subdural haemorrhages observed in M’s brain were the result of a chronic injury as that sort of injury would not have accounted for the presence of the retinal haemorrhages in both eyes on 19 April 2016. Their presence, in my judgment, lends weight and value to the evidence of Dr Stoodley, Dr Cartlidge and Mr Richards who are unanimous in their expert assessment of what they were likely to be observing on the scans. Each has confirmed the view of the others that what they saw are highly likely to be acute traumatic effusions and not evidence of a pre-existing injury. If acute traumatic effusions were present, that presents the court with reliable and highly persuasive expert evidence and a clear pointer towards the probable, or likely, existence of some form of trauma immediately prior to M’s collapse.

The medical evidence in this case is not, and cannot be, conclusive. However, when measured against the unreliability of the father’s evidence and the domestic circumstances of the family at the time, I have reached the clear conclusion that the possibility of these injuries being the result of an unknown cause is sufficiently remote that it can be excluded. I am satisfied that the most likely, or probable, cause of the injury to M’s brain was trauma. On the balance of probabilities, I find that the father inflicted that trauma through some form of shaking. Such shaking resulted in the subdural bleeds and the multi-layered bilateral retinal haemorrhages which I accept were probably caused at the same time and by the same means, together with the ensuing encephalopathy. Those injuries were sustained, as I find, at some point during the period when he had sole charge of the child in the ten or fifteen minutes after the mother had left the room and before her 999 call to the ambulance service which was timed at 16:49. The child most probably sustained these injuries whilst in his care in the bedroom. Since she had stopped breathing before the father left the bedroom, I discount on the balance of probabilities the possibility that the injuries were caused during his descent down the stairs to the kitchen. Mr Storey sought to persuade me that the absence of a spinal subdural is significant in this context and points away from the likelihood of a shaking injury and towards harm arising as a result of rotational forces such as might be applied during the father’s swift run down the stairs. For reasons I have already explained, I have rejected that theory (and it is no more than that) for the reasons given. M was already exhibiting symptoms of collapse before she was carried through the bedroom door and the father himself did not seek to run a case that she was somehow injured as he carried her down the stairs. It follows that I reject as implausible and inherently improbable the father’s account that this child (who was reportedly well, alert, responsive and making good eye contact whilst her mother was present in the bedroom) would scream, spit out her dummy, cough and immediately collapse “as if she had no bones” and would subsequently present at the hospital less than an hour later with serious brain and retinal injuries (albeit that those injuries were only confirmed in the hours subsequent to her admission).

Thus, in terms of the findings sought by the local authority, these are my conclusions:-

There is a consensus between all parties that if the pleaded findings are made, as they have been (with some very slight modification), then it will be in M’s best interests for the court to endorse the local authority’s final care plan. The parents accept that, in this event, the threshold in s 31(2) of the Children Act 1989 will have been met, a view I endorse. There is no support amongst the parties and/or their advocates for an interim care order at this stage of the proceedings; it is agreed that I should make a final care order on the basis that therapeutic work with these parents will continue with a view to a further risk assessment in relation to rehabilitation and the eventual discharge of the care order. I take the view that a final care order is now both proportionate and necessary to protect and promote M’s welfare and her best interests. The present intention is that a final assessment should be undertaken prior to the next LAC review which is scheduled for February 2018. By that stage the remaining nine sessions (it may now be eight) which the father is due to have with Dr Cornwall will have taken place and work on the parents’ relationship will have begun.

The final care plan is supported by M’s Guardian, Miss Shaw. In her final welfare analysis dated 24 October 2017, she refers to a number of “positives” which have emerged from the work which has been undertaken with the father over the past few months. The local authority has agreed to fund the ongoing work which is still required. Miss Shaw speaks in her analysis of the very positive relationships which M has formed with each of her parents and her maternal grandparents. Those bonds have been confirmed by the professionals who have seen M within her family situation. Looking to the future, Miss Shaw has remarked on the distress which M is reported to experience when the father leaves the family home after seeing his daughter. She was encouraged by the meeting which she had at court on 7 November 2016 with Dr Garrett and the social worker. Through counsel, Mr Turner, she has expressed to the court her view that Dr Garrett’s ongoing intervention in these proceedings has provided both clarity and direction in terms of future progress. There is now a plan to assess both the father and the mother in relation to the latter’s ability to protect M from any future risk, a decision which is underpinned in part by the new evidence in relation to the events which occurred on 20 August 2017.

The parents are engaged in the ongoing work which is envisaged. That is much to their credit. It is work which is needed in my judgment. Despite the chequered history of their relationship, they presented in court as a united couple who intend to make a future together with their child. If they succeed in that ambition, it will be very much in M’s interests to grow up in a home which she shares with both parents without the need for further external intervention. However, it is important that the parents maintain their commitment to the work which lies ahead. I am conscious of the fact that they have yet to experience a shared life together under the same roof in the context of a stable and settled relationship. The counselling which has been recommended to assist them in terms of the previous difficulties in their relationship will be vital work and each needs to make a personal investment in the support which will be made available. They need to engage fully with the social workers who will continue to have legal responsibility for M until such time as their involvement with M ceases. I have been impressed by the highly professional work which has been undertaken to date by the social work team led by Miss OH; it is work which needs to be acknowledged by these parents. I am satisfied that the local authority’s commitment to a rehabilitation of this family as a single unit is real. It has invested time and hard pressed financial resources in the ongoing exercise of that rehabilitation. If that commitment is matched by these parents, and subject always to a final assessment of risk, I can see no reason why the care order which I am making should not be discharged within the time frame which is envisaged.

The mother told me during the course of her evidence that she had now closed her mind to the possibility that the father could have harmed their child in any way. I hope that she will reflect upon my judgment, my conclusions and the reasons for the findings which I have made. She had previously expressed her position in different terms: should findings be made against the father, she intended to raise M in a separate household and end her relationship with him. I accept that her approach as she explained it to me may well have been informed by the fact that she has been in an ongoing relationship with the father for over 12 months in circumstances where a judge has previously absolved him of any role in the harm which befell their much loved daughter in April 2016. My reversal of that position will, I know, be difficult for her to absorb, just as it will be for the father.