CD (A Child : Re Hearing of Fact-Finding)

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CD was born on [a date in] 2017. On [a date], when he was only 15 days old, he was admitted to the Y Hospital as an emergency following telephone calls made by his mother, PT to 111 and 999. CT scans showed that he had suffered extensive injury to his brain. His treating clinicians were unsure how this had occurred. A blood sample grew a streptococcus B culture raising the possibility that the injuries were a result of infection. However, the clinicians also identified aspects of the injuries that were not consistent with infection but were consistent with traumatic injury, in particular a shaking injury. Approximately a day after his admission CD’s father, RD, told Dr P

Care proceedings commenced and CD and BC, his older sister, were placed with foster carers. Although for a period of time CD’s life hung in the balance, he pulled through, albeit he continues to suffer with the consequences of the brain injury he sustained. He suffers from right-sided hemiplegia and since his discharge from hospital has required very extensive medical input. In June and July 2017, the designated family judge sitting as a deputy High Court judge heard care proceedings brought by A Council. Over 11 days he heard from five medical experts together with the mother, father, and other witnesses of fact. The local authority’s case was that CD had been shaken by his father and that this was responsible for the injuries he had sustained; or at best there had been both an infection and a serious shaking incident with the shaking causing the more severe injuries. The designated family judge was presented with a schedule recording what the medical experts were agreed and not agreed upon. The first item on that schedule recorded that all the experts agreed that CD had group B streptococcal septicaemia. However some of the experts concluded that significant parts of the injuries seen in CD were not consistent with injuries caused by streptococcal septicaemia but rather were consistent with a shaking injury.

Having heard from the medical experts and from the other witnesses the designated family judge concluded:

By the time the judgment was delivered, CD and BC had returned to live with their mother. As the father had been exonerated by the judgment, the parents resumed their relationship and began to live as a family again. On 17 November 2017 the mother took CD to her GP as she was concerned that his right arm was swollen around the elbow. Her GP referred her on to hospital where x-rays were taken and the mother was told that they showed no damage and that it was likely CD had sprained his arm.

On 23 November 2017 A Council again applied for care orders in respect of CD and BC. CD was placed with the foster carer who had looked after him during the earlier proceedings. BC remained with the mother, who was by now pregnant, and they were in due course placed in a mother and baby foster care placement. On 31 January 2018 the local authority issued an application seeking to reopen the findings made by the designated family judge in July 2017 on the basis that the conclusions of Professor Klein as to the unlikelihood of CD’s injuries being due to infection and the further injury to CD amounted to solid evidence that cast doubt upon the accuracy of the original finding and justified revisiting them. On 12 February 2018 HHJ M allocated the application to be heard by a High Court judge. On 6 July 2018 I granted the local authority’s application to reopen the findings of the designated family judge and listed the case for a fact-finding hearing to determine two central issues:

On 3 August 2018 DD was born. Care proceedings were initiated. He joined BC with his mother in the foster placement.

The threshold schedule filed on behalf of the local authority in respect of the head injury was originally filed on 6 June 2017 and was responded to on behalf of the father and mother later that month. The threshold in respect of the arm fracture was contained within the application for a care order and was responded to by the mother on 20 August 2018. The father’s response was contained in a position statement filed by him before this hearing commenced.

At the conclusion of the evidence the local authority provided an amended schedule of findings as set out below.

There was some considerable debate in submissions about the content of paragraph 11 of the amended schedule. The local authority and the Guardian took the view that such findings would inform the ongoing assessment process and were entirely usual and appropriate. In particular on behalf of the mother, Mr Sampson submitted that it would be wholly inappropriate for the court to make such findings which were more properly reserved to the next stage of the case if it was reached. As I indicated in submissions it seems inevitable that I would have to consider and reach a view on some of the issues raised within paragraph 11 although whether they would formally constitute findings of fact for threshold purposes is another matter.

The local authority contended that the father was responsible for CD’s head injury through shaking him. The father denies shaking him. Although under no legal burden to provide an alternative explanation he says that his injuries must arise from either an infection, or a low-level fall, or a combination of the two or from an unknown aetiology. The mother’s position in relation to CD’s head injury in legal terms was that she supported neither the local authority nor the father’s positions, being essentially neutral. In human terms she was obviously desperate for an answer.

The local authority originally contended that either the mother or the father caused CD’s humeral fracture. After the evidence had concluded the local authority withdrew any allegation against the mother and asserted that the father was responsible for the fracture. The father denies being responsible for the fracture. Although under no legal burden to provide an alternative explanation, the father contends that the fracture most likely arose from CD trapping his arm in the bars of the court and the mother’s efforts to free it. The mother denied deliberately causing the fracture but contended, both

CD and BC’s Guardian has been neutral as to causation.

Although as a result of the local authority’s change of position in relation to whether the mother was responsible for CD’s fracture the possibility of permanent separation of the children from both of their parents has now largely disappeared my determination of these issues will clearly have profound implications for all three children. Most particularly in relation to their father it will determine whether he caused a very serious injury to his 15-day-old son through shaking him and whether he fractured his 10-month-old son’s arm through yanking it or whether CD’s injuries were sustained without culpability on the father’s part. The determination of this issue will dictate whether CD, BC and DD return to something close to normal family life with their father or whether their relationship might be severely restricted due to the risk that he might pose to them. However even though the local authority no longer seeks findings that the mother was responsible for CD’s fracture, if I determine that the father was responsible for either or both of CD’s injuries the threshold for state intervention in the family will have been crossed and inevitably further consideration will need to be given to their future and in particular the mother’s commitment and ability to protect them from the father. I should say that the mother has been very clear in her unwavering commitment to putting her children first. She said, and I believe her, that she would die rather than see her children harmed.

Over 10 days I have considered evidence from eight medical experts, the mother, the father and two of CD’s treating health professionals in order to determine whether the local authority have proved their case against the father. I’m grateful to all of those involved in the case for the assistance they have given me in determining what has been a difficult case.

In respect of the task of determining whether the ‘facts’ have been proven the following points must be borne in mind as referred to in the guidance given by Baker J in Re L and M (Children) [2013] EWHC 1569(Fam confirmed by the President of the Family Division in In the Matter of X (Children) (No 3) [2015] EWHC 3651 at paragraphs 20 – 24. See also the judgment of Lord Justice Aikens in Re J and Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26

The burden of proof is on the local authority. It is for the local authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing and the court must be careful to ensure that it does not reverse the burden of proof. As Mostyn J said in [Lancashire vR 2013] EWHC 3064 (Fam), there is no pseudo-burden upon a parent to come up with alternative explanations [paragraph 8(vi)].

The standard to which the local authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred [Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph 15]. Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not [Re B at paragraph 2]. If a matter is not proved to have happened I approach the case on the basis that it did not happen.

Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors [A County Council v A Mother, A Father and X,Y and Z [2005] EWHC 31 (Fam)].

The court is not limited to considering the expert evidence alone. Rather, it must take account of a wide range of matters which include the expert evidence but also include, for example, its assessment of the credibility of the witnesses and the inferences that can properly be drawn from the evidence. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to a conclusion.

Thus, the opinions of medical experts need to be considered in the context of all of the other evidence. While 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. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision. Cases involving an allegation of non-accidental injury often 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. When considering the medical evidence in cases where there is a disputed aetiology giving rise to significant harm, the court must bear in mind, to the extent appropriate in each case, the possibility of the unknown cause [R v Hendersonand Butler and Others [2010] EWCA Crim 126 and Re R (Care Proceedings:Causation) [2011] EWHC 1715 (Fam)]. Today's medical certainty may be discarded by the next generation of experts. Scientific research may throw a light into corners that are at present dark. 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 on the balance of probabilities."

The evidence of the parents and of 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 [Re W and Another (Non-Accidental Injury) [2003] FCR 346].

When seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is a perpetrator is the balance of probabilities [Re S-B(Children) [2009] UKSC 17]. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child. 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, neither can be excluded from the pool and the judge should not strain to do so [Re D(Children) [2009] 2 FLR 668] and [Re S-B (Children)]. Where a perpetrator cannot be identified, the court should seek to identify the pool of possible perpetrators on the basis of the real possibility test, namely that if the evidence is not such as to establish responsibility on the balance of probabilities, it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case [Re S-B (Children) at paragraph 43].

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 at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything [R v Lucas [1981] QB 720]. It is important to note that, in line with the principles outlined in R v Lucas, it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child [H v City and Council of Swansea and Others [2011] EWCA Civ 195].

The family court should also take care to ensure that it does not rely upon the conclusion that an individual has lied on a material issue as direct proof of guilt but should rather adopt the approach of the criminal court, namely that a lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth [Re H-C (Children) [2016] EWCA Civ 136 at paragraphs 97-100].

In Lancashire County Council v The Children [2014] EWFC 3 (Fam), at paragraph 9 of his judgment and having directed himself on the relevant law, Jackson J (as he then was) said:

“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 stop 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 accounts. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one-person hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural - a process that might in elegantly be described as ‘story-creep’ - may occur without any necessary inference of bad faith.”

All the evidence is admissible notwithstanding its hearsay nature, including local authority case records or social work chronologies which are hearsay, often second or third-hand hearsay. The court should give it the weight it considers appropriate: Children Act 1989 s.96(3); [Children (Admissibility of Hearsay Evidence) Order 1993]; [Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703].

When I turn to the evidence, I bear all these factors in mind in reaching my conclusions on whether the Local Authority have proved that the father shook CD and thus caused the brain injury he sustained on 23 January 2017, and whether the local authority have proved that the father caused CD’s fracture in November 2017 by pulling and twisting his arm.

During this hearing I have been undertaking the third of the three-stage approach set out by Mr Justice Charles in [Birmingham City Council v H; H & S [2005] EWHC 2885]; an approach that has been endorsed by Sir James Munby P in [Re-ZZ andothers [2014] EWFC 9] and Lord Justice Peter Jackson in [St Helen’s Counsel v M &F (Baby with Multiple Fractures – Rehearing) [2018] EWFC 1]. Having decided that the decision reached by the designated family judge should be re-opened and having determined that the process should involve a complete rehearing of the evidence I am not bound by the findings previously made by the designated family judge. I do not think this judgment is the time or the place to explore the perhaps subtle differences in approach to the previous fact-finding judgment evident between Sir James Munby P in re ZZ (above) and McFarlane J (as he then was but now the President) in Birmingham City Council the H and others [2006] EWHC 3062 (Birmingham No 2). I of course have regard to the fact that following a lengthy and detailed consideration of the evidence in July 2017 the designated family judge reached the conclusions that he did for the reasons set out in his judgment. But having determined that that decision should be reopened because there was a solid case for doing so I have approached this case on the basis of considering the case afresh where the burden lies on the local authority to establish its case.

I have been provided with the equivalent of some 20 lever arch files of evidence. I have also been provided with a detailed case summary from the local authority, a summary of the law relevant to fact-finding hearings from the father’s team (agreed by all parties), a schedule of expert evidence (again I think agreed by all parties or at least on which they have had the opportunity to comment), a medical chronology, a schedule of antibiotics administered, a schedule of telephone calls (drawn from the telephone records), and a family photo album.

I heard evidence from eight medical experts, from three of CD’s treating team and from the mother and father. Many of them gave evidence by video link which in the main worked surprisingly well.

The trial template for the ten-day hearing which had been agreed by the parties provided for the evidence to conclude at the end of day eight and for submissions to be given on day nine. Somewhat to my surprise the template provided for me to give judgment on the morning of day ten. Not being in possession of Hermione Granger’s ‘Time Turner’ (strictly speaking she had it on loan from Professor Dumbledore) I indicated to the parties that I might need a little more time to digest and evaluate the written and oral evidence, to consider the submissions, and to prepare a judgment. I therefore reserved my judgment at the end of day nine. Although it has been said on many occasions before it bears repeating again; trial time estimates must be given on the basis that they incorporate all elements of the court-based process, including sufficient time for judicial pre-reading, oral evidence, the preparation of written/oral submissions and, finally, preparation and delivery of the judgment. In a ten-day case, which would almost certainly have taken the advocates many long hours of preparation, the idea that any judge could do justice to the parties by the delivery of a judgment with almost no preparation time was wholly unrealistic. In overstretched family courts up and down the country it is not fair to either the parties or to the judges to provide unrealistic trial templates which require a judgment to be delivered either off-the-cuff, or to be reserved to be fitted in around the inevitably over-full diaries of judges already coping with very heavy workloads. Although at the end of the day the case did not overrun its trial estimate, better use of the allocated time might have been made had it been possible for specific days to be set aside/found for the preparation of closing submissions and the delivery/handing-down of the judgment, together with any directions that needed to be given consequential to the judgment. Obviously such matters need to be considered at the earliest possible stage in terms of case management.

The Chronology at Appendix A sets out those parts of the evidence which I consider it necessary to set the detailed context for this judgment. It cannot of course rehearse all of the evidence that I have heard or consider to be relevant to my findings.

The Table of Medical Evidence at Appendix B sets out the parts of the experts’ evidence which I consider to be of central relevance to the determination of the issues before me. Again it is but a poor summary of the totality of their very extensive individual and collective opinion. The minutes of the experts meeting held on the 29 May 2018 contain an extremely helpful discussion which was plainly of great value both to the experts themselves in achieving clarification of various points and in allowing them to air, discuss and test their respective opinions. I’m also very grateful to the parties for providing me with an agreed schedule which set out the conclusions reached by each of the six experts in the original and these proceedings.

In assessing the credibility of the parties, I have regard to the consistency of their evidence with previous accounts they have given, how internally consistent it is and its consistency with other evidence and known facts. I take into account whether any witness has any motive to give evidence which is other than truthful. I also have regard to their presentation in giving their oral evidence as well as the content of what they said.

The mother gave evidence over the course of two days. By the end of the first day she was clearly very tired and was at that point just embarking on her evidence about 23 January 2017. I adjourned and she resumed the following morning to deal with that aspect of her evidence.

The mother was I thought open and frank in the evidence she gave me. The extent of her devotion to the children was palpable. She is clearly highly empathetic and her concern about the impact of events on the children was at the forefront of the evidence. She clearly put their needs and welfare before her own. Her description of how upsetting the changes had been for BC and how confused she had been by separation, reunification and separation from CD, together with her expression of how she would rather it had been she who suffered the brain injury rather than CD were both delivered in a way which demonstrated a real connection with her children’s emotional and physical well-being.

During her evidence Mother at times struggled to describe the events of the afternoon of 23 January finding it easier to refer to what she had previously said in statements or in evidence. When I urged her to try to take herself back to that day to recall what happened she became very distressed and told me how she found it very difficult to do so because she just pictured CD lying in hospital and her being terrified that he was going to die. The overall impression that I gained from her evidence in relation to the afternoon was that until she took CD from Father she had been relatively unconcerned about his condition. That is hardly a surprise as Father had not told her that anything significant had happened limiting his explanation to saying that CD had vomited and had not been himself and that he was worried. He therefore completely disarmed Mother from being able to make any true assessment of the seriousness of the situation between 14:12 when he called her and about 15:00 when she herself took CD from him. At that point she appears to have appreciated that CD was very poorly and in her oral evidence she accepted that this was so. The content of her calls to 111 and 999 contain some aspects which would suggest that CD was not in such a serious condition. At one point in her evidence she described him having his eyes open at one stage which on Mr Richards evidence would be entirely inconsistent with him having suffered a serious brain injury unless it was simply the eyelids moving up due to gravity whilst CD was on his back. The totality of her descriptions and the evidence of others in my view demonstrates that at no time in the mother’s presence was CD conscious. When she was asked about her understanding of unconsciousness in relation to the calls to 111 and 999 Mother described how she didn’t believe somebody could be unconscious and moving and thus her description to 111 of him not going to sleep was almost certainly inaccurate. The picture which emerges from the mother’s evidence, from her mother’s evidence, from the father’s evidence and from the 999 calls is of the mother becoming increasingly panicked and frantic as CD continued to experience what almost certainly were fits and as his breathing and condition deteriorated. To the extent that the records of the 111 and 999 calls paint a less serious picture of CD’s condition, or perhaps better described an inconsistent picture of CD’s condition, I conclude that this is attributable to the mother’s propensity to under rather than over exaggerate, her innate desire for everything to be fine both of which were based upon the fact that as far as she was concerned nothing had occurred to CD which would give rise to any reason for concern. This being her second child and she having gone through all of the new parent anxiety in relation to her first child, I have little doubt that she originally thought this was nothing really to worry about. Had she known that CD had in fact been subject to at least a fall and if not something much worse she would no doubt have called 999 shortly after 14:12

The father was an altogether different witness. I note that the designated family judge concluded at paragraph 61 of his judgment that the father came across as a quiet, gentle man, a man who refused to be riled in cross examination. He noted that he was a man who had been described as chilled and that was the impression the designated family judge got. In the early part of his evidence he was indeed measured, controlled and undemonstrative. He did not at any stage show any obvious emotion when describing what happened to CD or the consequences for CD. However as the questioning went on a different picture emerged and quiet gentle and chilled was not the impression I got. In the witness box he was forthright, argumentative and selfjustificatory. Much of his evidence appeared more focused on himself and the impact of events on him than on CD; in distinct contrast to the mother. He accepted that he had a temper although he denied ever being violent. He did not seem to think there was anything wrong in having threatened to kick another parent in the maternity ward; rather he considered himself fully justified. He clearly was needled by Mr Goodwin QC’s cross examination of him, particularly when an inconsistency was pointed out. There were aspects of his evidence which were both very hard to follow because they changed but also extraordinary. This was particularly so in relation to his account as to why he did not call 999 after he dropped CD and witnessed him fitting but also in relation to his explanation for why he did not tell the mother, the paramedics, or any of the hospital staff about what he said had happened to CD. His attempts to justify not calling 999 ranged from not knowing their number through to not being able to obtain their number from the Internet through to not thinking to ask the mother or anyone else in the block of flats or outside for help. He also suggested that for cultural reasons he was wary of the emergency services including the ambulance. His explanation for not telling the mother was rather more straightforward; he thought that she would not trust him to look after CD any more. He didn’t seem to appreciate that in not telling her he had completely disabled her from making any sensible judgment as to how seriously ill CD was. In his police interview he told them that he had told Mother that CD had hit his head on his arm; that of course was untrue. His explanation for not telling the treating doctors about what had happened there also was highly variable. At one point in his evidence he seemed to be saying that he hadn’t understood the importance of telling doctors what had happened; at another he seemed to be saying this was for cultural reasons. However he finally accepted that he had appreciated how important it was for doctors to be told what had happened so that they could make informed decisions. He accepted that he had known this on 23 January 2017. His only explanation then as to why he had not told the treating doctors was that he was worried about how this would make him look. Given that by early evening on 23 January 2017 or at the latest by midnight, he was aware that his son was in a critical state where he might die and where he knew that it was important that doctors understood what had happened to

The evidence of Dr H, Ms R and Ms K was given in a straightforward fashion as one would expect of health professionals. Their notes were made either contemporaneously or shortly after the appointments. They are likely therefore to be a reasonably accurate record of what occurred.

My detailed rehearsal of the relevant facts is contained in the chronology as Appendix A.

My detailed summary of the medical evidence is contained in the schedule at Appendix B. Each of the experts instructed were specialists in their fields and highly renowned within their specialisation. The minutes of the experts’ meeting provide a fascinating and informative record of the joint discussion which ranged far and wide over the issues engaged in this case. It was a constructive and objective discussion with each expert listening to, deferring to and taking on board the views of the others and exploring the case from all angles. From my perspective it is an invaluable tool to

In determining whether the local authority has proved on the balance of probabilities that the father shook CD thus causing the severe brain injuries he sustained in January 2017 and later in November 2017 that he injured CD’s right arm by pulling and/or twisting it, I have attempted to draw all of the strands of the evidence together; the parties accounts, the contemporaneous and other documentary evidence and the medical evidence in order to generate a comprehensive and broadly based evaluation of what can be established. In undertaking this exercise, I have cautioned myself about relying too heavily on the medical evidence but rather have placed that in the context of the history which emerges from the parties and other contemporaneous documents. In terms of tying in the parties accounts I have of course brought to bear my assessment of their credibility; which in itself in part is linked to how their account fits in with the contemporaneous evidence as well as the medical and other evidence.

Mr Goodwin QC on behalf of the local authority has placed very considerable emphasis on the medical evidence both in relation to the head injury but also in relation to the fracture. He is of course entitled to do so and does not have the benefit in making his submissions of having in mind the conclusions I have reached as to the credibility of the parties or the overall historical picture. In relation to the head injury he points to the fact that the overall picture which emerges from the medical experts is that the head injury is not consistent with infection but is consistent with the culture being contaminated and the injuries arising from trauma. He urges me to focus on the process by which the injuries could have occurred physio-pathologically but to weave that into the witness evidence and to avoid compartmentalisation of the medical evidence. In particular he emphasises that the prodrome (the period during which symptoms emerged) or the history given, in reality creates a picture during which CD was seriously unwell from the moment the mother first saw him when she returned home. This he submits is not consistent with an infective process which should be progressive and would demonstrate worsening illness in the course of the day. He pointed out that by the conclusion of his evidence Dr Cartlidge, who had relied heavily on a protracted deterioration as supporting infection, accepted that the shorter period actually involved was more consistent with trauma. Mr Goodwin placed particular emphasis on Professor Klein’s evidence, in particular how long it would take for an infection to develop and cross over the blood-brain barrier (20 to 24 hours) and how the CRP could not be normal on admission if a very serious infection causing extensive damage was present at that point in time. He emphasised that the evidence provided from Professor Stivaros in relation to the multi-compartmental bleeds in the subdural space, the bleeding in the ventricles, the blood in the subarachnoid space, the diffusion pattern in the hypoxic-ischaemic injury, the absence of inflammation of the meninges or evidence of vasculitis were all inconsistent with infection and consistent with trauma. He pointed out that spinal bleeding was agreed by Mr Richards and Dr Cartlidge to be likely to result from trauma. He also laid considerable emphasis on the evidence from Mr Newman that the multiple haemorrhages seen in the eye were not consistent either with infection or with a short fall. Mr Goodwin invited me to conclude that the combined evidence from the mother, the father, the ambulance service and the paramedics pointed to CD being very seriously unwell from soon after 14:00 and that Mr Richards, who along with Dr Cartlidge had the greatest reservations about the explanation, said that the mother’s account suggested CD was severely encephalopathic in the course of the afternoon. Mr Goodwin suggested that the father was inexperienced, tired and there was credible evidence of him having a short temper and that his lies (including his failure to disclose) provided a real basis upon which one could conclude that it was more likely than not that he had shaken CD.

In relation to the fracture Mr Goodwin submitted that the medical evidence from Dr Halliday and Dr Rylance was completely inconsistent with the injury being sustained by anything to do with the cot bars. I did not interpret their evidence as being quite so absolute. In any event to adopt this approach would be to in effect adopt a linear approach and to exclude any other cause which would disregard any other evidence and would be contrary to the proper approach of placing medical evidence in the context of other evidence. Mr Goodwin QC did emphasise that metaphyseal fractures of this sort in non-mobile children are in the vast majority of cases associated with inflicted or non-accidental injury. He emphasised the sort of forces which are engaged to cause such injuries and that Dr Halliday was clear that there was no evidence of bone weakness caused by the steroid medication CD had been taking. He submitted that the father clearly had the opportunity, the temperament, and (dependent on my finding in relation to the head injury) the propensity to injure CD. He submitted that the lack of a close bond that the father felt for CD also made it more likely that he had injured him. The local authority also relied on the likelihood that the father had lied in various ways as establishing the probability that he had caused the injury. I remind myself that lies insofar as they support a conclusion that an individual has caused an injury could have some direct causal connection with that incident. The fact that the father lied in relation to the January incident does not support a conclusion that he caused the November injury. On the other hand lies about the November injury, if without any other reasonable explanation for them, might do so.

On behalf of the mother Mr Sampson took particular issue with the inclusion by Mr Goodwin of paragraph 11 in the amended schedule. He urged me to be very cautious in my approach to the mother’s attitude towards the father and to what extent I could hold the matters outlined in paragraphs 11(a) to (f) against her. He emphasised the evidence of those professionals who have had dealings with the mother that supported the conclusion that she was a good mother. He also emphasised that the independent social work assessment reached a similar conclusion. He emphasised that there was nothing to show that the father had a propensity to violence and that the mother’s experience of the father caring for the children had been that he was taking to it albeit still lacking in experience.

In relation to the fracture Mr Sampson emphasised that Dr Rylance had, contrary to Mr Goodwin’s assertion, accepted the possibility that a cot related incident might explain CD’s injury. He noted that Dr Rylance accepted that the mechanism of extracting CD’s arm could potentially be consistent with the injury and that whilst it might be at the margins the court must acknowledge that medicine is not a precise

Mr Kirk QC on behalf of the father submitted that the prodrome period which was so important for the experts in reaching their conclusions was wholly inconsistent with a serious shaking injury which on Mr Richards assessment ought to have led immediately to CD being in a coma. This assessment of the impact of a shaking event which had caused such extensive injury was supported by Dr Cartlidge. Mr Kirk emphasised that both the father’s own account of CD after about 14:00, taken together with the mother’s observations (supported by what she said to the ambulance service in the 111 and 999 calls) and those of the paramedics were just not consistent with CD having suffered a very serious brain injury through shaking. Rather he submitted the progress across the course of the afternoon was more consistent with an infection. He submitted that Dr Cartlidge, a consultant paediatrician with huge experience of infection in neonates, had never come across contamination of a blood culture by Streptococcus B. He noted that, as Dr Cartlidge pointed out, Mr Newman’s evidence about the significance of bilateral retinal haemorrhages had to be viewed in the context of the reporting bias. He reminded me that Professor Stivaros accepted that the venous sinus thrombosis was more consistent with infection and would commonly develop later in trauma. Overall, Mr Kirk submitted that the father’s description of CD vomiting and arching his back, falling to the floor and banging himself indicated that CD was indeed suffering from an infection which caused him to vomit and that the fall to the floor had resulted in a combination of infection and trauma causing the injuries. He submitted that the evidence about the father himself suggested that he was a man who loved his son and who cared for him and thus was highly unlikely to have shaken him in the way alleged. He submitted that the designated family judge had found the father to be quiet and gentle, or chilled and that his inexperience as a father to a new born should not be held against him. It is something that every first-time parent has to adjust to. Mr Kirk QC realistically accepted that the father had not been honest to the mother or professionals. He invited me to conclude that this was through a combination of fear and shame. Fear that the mother would not let him look after CD again and shame that he had dropped his own son on one of the first occasions he was left alone to care for him. Mr Kirk QC said that the father now could see that his failure to be frank was completely wrong and that his actions in withholding the information was explained by fear. He urged me to therefore accept that this was a case where the father had a good explanation for his dishonesty and that I should not hold it against him or infer that he must have done something because he lied about it.

In relation to the fracture Mr Kirk QC invited me to conclude that on the balance of probabilities the injury to CD’s arm was caused by a cot related incident. He submitted that the medical evidence suggested that the injury had occurred between 3

Miss Warner on behalf of the Guardian advanced no positive case in relation to either the head injury or the fracture. She invited me in particular to focus on the parents’ evidence of the history in relation to both injuries and to focus on what was clear or uncontentious from the expert evidence and she reminded me that it was possible that CD didn’t react in the way that would commonly be expected but that there was some knowledge of an individual rallying after the immediate injury and then deteriorating.

Everyone accepts that CD was essentially well up until about 14:00 on 23 January 2017. Apart from the mother noticing that he had some bogeys around his nose when he went to bed on the 22 November 2017 which were still present when she left at about 9 AM on the 23 November 2017 he was well. He had fed well, he had slept, he was not unsettled or whingy he had no temperature; in short there was nothing to suggest that he was anything other than a well baby on the morning of 23 January 2017. The father fed him his mid-morning feed and he then settled himself to sleep in his bouncy chair before waking for his lunchtime feed around 13:30. The father describes him taking his bottle in the usual way and the first sign of difficulty was when CD vomited. I note that the father’s account of whether he vomited after 1 ounce or only at the end of his feed differs over time but I don’t find any significance in this.

It is also clear that by 18:22 when the CT scan was taken that CD had sustained a very severe injury to his brain. The totality of the clinical notes from YH from his arrival there at 16:46 show a seriously unwell baby described as floppy, unresponsive, twitching and with a Glasgow coma score of 3/15. The one reference to him being alert appears in a letter written some time afterwards and I conclude that this is an erroneous reference. The evidence from the ambulance crew starting at 16:39 are consistent with the hospital observations. CD was not then responsive to stimulus, had irregular breathing, irregular heart rate and was observed to be twitching. The blanching rash observed could not be GBS related. So what was CD’s condition between about 14:00 and 16:39? The records of the 111 calls the first of which was made at 15:36 shows that the mother was in large measure reporting what the father had told her, hence references to him being sick about 11 AM, and him vomiting his feed. The mother was obviously relaying information the father had given to her. What does emerge is that he was twitching or randomly moving his arms and legs and thus in all probability having seizures resulting from damage to his brain. It also emerges that he was making a weird breathing noise. The mothers account of how she described him as not being unconscious was clearly linked to her belief that in order to be unconscious one had to be still. Her description of his eyes being closed but him not being asleep, his arms twitching, his legs twitching and him feeling cold are all suggestive of him being very seriously unwell at that point. The fact that he would not feed or make any attempt to suck his dummy or to spit it out also suggest that he had by that time sustained a serious injury to his brain. Given that the mother had no reason to suppose anything had happened to CD whilst she had been out I conclude it is more likely given her general personality that she was if anything underreporting his condition. The mothers evidence is that there had been no real change in CD’s condition between her first observing that something was wrong at around shortly before 15:00 and the call to 111. When she came in at about 14:45 she had no reason to suppose that anything was wrong. All she could see of CD was him lying across the father’s shoulder apparently asleep. That she then gave BC her snack and put her shopping away all suggest she was unconcerned, and of course she had no reason particularly to be concerned. She thought that the father was getting in a tizz. However as soon as she took CD and saw him twitching she became worried and hence she called her mother at 15:04 mentioning that CD was struggling to breathe. All of this suggests that by no later than 14:45 CD was seriously ill. That therefore leaves the period between 14:00 and 14:45.

The medical evidence is not all one-way traffic. However there are aspects of it which do seem to emerge clearly. All of the experts who were able to comment on the issue accepted that one had to look for a process which explained physio-pathologically how the damage to CD’s brain could have occurred. The evidence ruled out disseminated intravascular coagulation, a congenital bleeding disorder or an acquired disorder of coagulation. The only remaining process which would explain the bleeding in a case of infection is vasculitis but there was no evidence of vasculitis whether from an imaging perspective or otherwise. In particular Professor Klein and Dr Williams were clear (and ultimately Dr Cartlidge did not disagree) in order to have caused such severe brain injury the vasculitis would have to have been detectable by imaging and would inevitably have been accompanied by a raised C-reactive protein reading. In addition some components of the injuries CD sustained are not consistent with an infective process.

However the medical experts were all of the opinion that the history as they had understood it of a stuttering or deteriorating baby was not consistent at all with a shaking injury of the sort which had caused this degree of brain injury. It was more consistent by far with an infective process being underway. This aspect of the medical evidence though is of course dependent upon how one interprets both the parents’ account and the contemporaneous records. But reduced to the most basic functions, CD was a baby who lived from 14:00 until admission at 17:00 and was breathing and crying, not a child who was obviously floppy, unresponsive or in a coma. As Dr Cartlidge said these things are usually not subtle they are immediately apparent to a carer.

The father’s own account is that from shortly after 14:00, CD was throwing a fit, kicking his arms and legs in a strange way. The father in his police interview described CD making a strange noise and then going quiet or relaxing. It seems to be significant that the father himself noticed a very sudden change in CD’s behaviour rather than a gradual deterioration. This in itself points more to trauma than to infection.

The totality of the medical evidence overwhelmingly dismisses as an explanation for these injuries a low-level fall. The multicompartment bleeding, the bilateral retinal haemorrhaging the lumbosacral spinal bleed are all inconsistent with a low-level fall on its own. Furthermore the medical evidence, in particular that of Dr Williams and Professor Klein is that an infection together with a low-level fall could not explain the injuries because in order for a low-level fall to have contributed in any way it would have had to be in combination with a highly advanced infection where vasculitis would be evident both in imaging and in the blood tests. If an infection could not be evidenced then it could not have been of a severity which could in any way have combined with a low-level fall to cause the injuries seen.

I have to then ask myself whether the father’s failure to tell the mother what had happened or to tell any of the treating professionals what had happened between 14:00 on the 23 January 2017 and about 17:00 on the 24 January 2017is of any significance. Was his lie to the mother and to the treating professionals that nothing had happened other than CD bumping his head against his arm a lie which was understandable and explicable or was it something told in order to cover up a far more sinister truth? Is the failure explicable by reference to the father’s fear of the mother’s reaction or his shame at being labelled an incapable father? In some circumstances a court might readily conclude that a lie of this sort was explicable by fear or shame and that no inference should be drawn from it. However in a situation where from about 17:00 on the 23^rd it appeared that CD’s life hung in the balance and where the father knew that the medics needed to know what had happened to CD his failure to tell them his account of CD falling and banging his head becomes very hard to rationalise in any way. To only offer the account to the police in interview strongly suggests the father protecting himself rather than protecting his son. When your child’s life is at risk for most, indeed I would suggest all, parents the child’s welfare becomes the absolute priority and all personal considerations take second place. Thus any shame or fear of dropping a baby would be overcome by the desperate urgency of the baby’s health. What might not overcome that desperate urgency is the shame or fear of the personal consequences of having done something which would merit a far, far higher level of condemnation or indeed criminal liability. I therefore consider in this case

It is of course the case that Professor Klein is very clearly of the opinion that the Streptococcus B culture that was grown from the blood sample taken at 17:20 on the 23 January was a contaminant. All of the other experts have deferred to his opinion although that is not determinative from the courts point of view. Dr Cartlidge of course was of the view that he had never in his professional career treated a blood test result finding of GBS as anything other than a genuine one and which warranted antibiotic intervention. However that of course is quite different to whether a GBS culture was a true reflection of an infection which might lead to septicaemia and/or meningitis. Professor Klein’s opinion is of course based on an evaluation of all of the components that he would expect to find in an infection case and their absence in this leads to the conclusion that this was a contaminant. The presence of another contaminating organism supports his conclusion but is not essential to it; he reached that conclusion before he had seen that there was another contaminating organism in the blood sample. He thought it was significant that the prodrome was in his view not at all consistent with an infective process.

On the basis of my conclusions as to CD’s condition from about 14:00 on 23 January 2017 and that he suddenly became very seriously unwell with evidence of fitting and altered consciousness which was observed by the mother from about 15:00 onwards and which is verified by her accounts during the 111 and 999 calls and subsequently verified by the paramedics and the admitting team I conclude that CD suffered some serious injury to his brain at around 14:00. The medical evidence looked at in its overall effect, adding the various components and weighing explanations which are more consistent with infection, shaking, or dual pathology overwhelmingly point away from infection as an explanation and towards a traumatic shaking injury. The fact that CD did not immediately experience a lights out, immediate coma state may be explicable by the rallying thesis advanced by Dr Cartlidge or maybe a reflection of some strength of his constitution. The evidence as to CD’s sudden deterioration and condition from about 14:00, taken together with the overall picture created by the medical evidence including the likelihood of contamination and absence of infection together with the father’s dishonesty over what had happened to CD at around 14:00 all coalesce to generate the conclusion that it is far more likely than not that the father subjected CD to a serious shaking incident at about that time. Given the father’s failure to come clean about what happened one can only speculate as to what caused him to behave in that way. Having seen him and accepting that he would not willingly or deliberately harm his child I conclude that a combination of tiredness, and/or frustration and/or, shortness of temper and something which occurred whilst he was caring for CD caused him to pick CD up and losing self-control to subject him to a severe shaking which caused immediate injuries to CD’s brain which progressed over the course of the afternoon until identified by the CT scan which showed such severe injury. He then failed to tell anyone what he had done because he well understood that the symptoms CD was exhibiting were a result of him shaking CD and that there would be serious repercussions for him had he disclosed the truth of what he had done. He no doubt hoped against hope that he had not seriously injured CD and hence did not immediately seek medical attention. Perhaps CD rallying or his innate constitutional strength reassured the father to some degree and fortified his instinctive decision to protect himself rather than seeking immediate medical attention. However as time passed and it became clear that CD was very seriously unwell, perhaps close to death, his failure to disclose the truth or even his version of it was shameful. I therefore find that the local authority have established to the appropriate degree paragraphs 1, 2, and 3 of the amended schedule.

Turning then to the fracture that CD sustained in November 2017. Have the local authority established on the balance of probabilities that the fracture was inflicted non-accidentally by the father between the 3 and 13 November 2017 by pulling and/or twisting the limb with excessive force? Can they establish that the bruises observed were also inflicted by the father on an unknown date through the application of rough and excessive force when handling CD?

The medical evidence is that the fracture was caused at the latest by 13 November 2017 but more probably more likely to be between the 3 November 2017 and 12 November 2017. The nature of the fracture is that it is caused by pulling and/or twisting movement operating on the distal end of the bone. The force used to cause it is considerably more than would be used in normal handling. In non-mobile children the vast majority (80% plus) of these injuries are caused in a non-accidental manner; usually by an adult yanking on a child’s arm or swinging them by the arm or some similar mechanism. However, these fractures are not associated with much of a pain response.

The picture of CD’s presentation in relation to this injury could not be more starkly in contrast to that which was the case in January 2017. Far from an injury suddenly becoming apparent this injury remained unobserved, on the mother’s case until Thursday, 16 November 2017. On the father’s case he was aware of an injury, namely swelling, on 12 November 2017. During the period from 3 November 2017 through to 17 November 2017, CD saw some six health professionals including a specialist in paediatric neuro rehabilitation and a physiotherapist. None of them noted CD experiencing any difficulty with his right arm or experiencing pain. Until the mother raised the issue with Miss R and then her health visitor and GP nobody had picked anything up. And yet we know for a fact that at some point between the 3 and 13 November 2017, CD suffered a fracture to the distal end of his right humerus. The local authority asserts that the injury must have been caused by the father pulling and/or twisting CD’s arm. Although the father maintains that he would not have had the opportunity to do this, still less the inclination, the evidence demonstrates that for considerable periods of time he was at home with CD either with or without the mother. It would take very little time to perpetrate the deed and on the evidence of Dr Rylance CD might not have shown distress even at the time of the injury being sustained still less afterwards.

The evidence clearly establishes that CD experienced issues connected with the use of his right arm. Both Dr H and Ms R noted the issues with his awareness of his arm and his use of it. Ms R noted that he was neglectful of his arm and could get it into awkward positions but was seemingly unaware of this. Other professionals including Ms K were aware, as described by both the mother and father of CD appearing to have altered sensation or experience of pain in some respects.

The contemporaneous records appear to corroborate the parents’ account of CD experiencing issues with putting his arms and or feet through the cot bars. This was

The evidence from the mother, Ms K, and VA taken together all point to there having been an incident when CD got his arm stuck in between the cot bars on Sunday, 12 November 2017. The mother’s account is more consistent with Ms K and VA’s accounts than the father’s and given that I consider her to be a more reliable historian anyway I’m satisfied that there was an incident on the evening of Sunday, 12

It seems from the mother’s description of the incident and in particular Ms K’s recall of how the mother had seemed panicked and had spoken of taking a saw to the cot that this was something that was enough to make this mother seriously worried. Given what she had already been through and her familiarity with childcare I do not get the impression that she is someone easily rattled. Thus, for her to be describing feeling panicked suggests she was really quite worried. Whilst children might commonly put their arms and legs out through cot bars, hence cot bumpers and nets, it is most unusual for them to get a limb stuck. Hence it is almost unheard of in the medical literature of reported cases for a child to suffer an injury including a fracture from this sort of mechanism.

So, it appears that there was one incident of CD getting his arm stuck on Sunday evening. The medical evidence from Dr Rylance is that metaphyseal fractures aren’t associated with much of a pain response. Given that Ms R was able to manipulate CD’s right arm during a physiotherapy session without generating any pain response from him it is entirely conceivable that any person caring for CD might have been unaware through normal activity that he was carrying a fracture at some point prior to 18 November 2017.

Given the contemporaneous evidence from 17 November 2017 together with the account of the mother I’m satisfied that there was a further incident with CD getting his arm stuck in the cot on Wednesday, 15 November 2017 which also took considerable effort, including the deployment of bubble bath, to free.

So, which of the two options placed before the court seems more probable? Although the father is not obliged to offer any explanation and it is for the local authority to establish their case on the preponderance of probabilities I do have an alternative explanation as to how this injury might have been sustained.

It is right that the father’s account of CD’s injury has been inconsistent and indeed I conclude that he has probably lied about aspects of it. His assertion that he begged the mother to take CD to hospital on Sunday 12 November 2017 or Monday 13 November 2017 simply does not ring true. His account of CD’s arm getting stuck on the Saturday and he seeing swelling on the Sunday is inconsistent with the balance of the other evidence. However, his general account of their being issues to do with CD experiencing difficulties with getting his limbs through the bars of the cot and getting them stuck is generally consistent with the mothers account; it is the timing and what was seen and done that is the issue. In this respect I conclude that the father’s inaccuracy is a product not of dishonesty but of unreliability as a historian tinged with a desire to present himself in the most favourable light as somebody who cared for CD. In respect of his lies is this a case where I ought to infer guilt? In this respect I do not feel the same compelling reasons for inferring anything from the father’s lies as I did in respect of the head injury. Having gone through care proceedings from January to July 2017 the father was acutely aware in respect of any injury (as indeed was the mother) that social services would be involved and the finger of suspicion might be pointed at him. For him to give an account seeking to show himself in a favourable light as a concerned parent is understandable. Given he is not the most honest of witnesses his adding some embellishment to present himself in a good light does not lead to the inevitable or likely conclusion that he was lying to cover up his own reprehensible actions.

True it is that he is capable of losing his temper, that he was less skilled in settling CD who was capable of having tantrums with carers other than his mum, that he was not as connected to his son as the mother was and true it is that he had previously injured his son and so might be said to have a propensity to injure him again. The medical evidence does indeed demonstrate that the very significant majority of this sort of injury is inflicted by an adult using excessive force by pulling or yanking their arm or swinging them by their arm. Does all this in combination demonstrate that it is more likely than not that the father caused CD’s injuries in November 2017? This cannot be answered in a vacuum. The other possible alternative explanation must also be brought into account and both considered alongside each other to determine which seems the more probable.

We know that CD experienced two episodes of getting his arm caught in between the bars of the cot. The first of those episodes appears to me to have been the more significant although both involved the arm truly being stuck. If CD’s arm was stuck in the bars it seems to me that the most likely place would be just above or around the elbow as the soft tissue (fat) would allow it to move unhindered but at the point of the elbow which is the widest part of the bony structures, it could become stuck or might not pass easily through the bars particularly if at an angle. The mechanism is certainly consistent with the medical evidence as to the mechanics of such injuries. The issue which troubles me is the force that Dr Halliday and Dr Rylance both said would be necessary. Both thought it unlikely that sufficient force could be generated by freeing the arm albeit Dr Rylance considered the possibility was at the margins of what medically was conceivable. However, the medical evidence alone does not determine the matter. I have to take account of the bigger picture. It seems to me that if the arm

The medical evidence was that the fracture and the bruising/swelling above and below the elbow were unlikely to be connected. This was not a case of a fracture causing bleeding into the surrounding tissues and thus swelling. So there were two separate incidents either two incidents of trauma or two other incidents whereby injury could have been caused. The mother describes a second incident when CD got his arm stuck in the bars on Wednesday 15 November 2017. It was sufficiently stuck to require baby lotion to free it. The bruising and swelling could not be dated but this second incident of the mother having to use some degree of force to free his stuck arm might have been the cause. It would be surprising if CD had two episodes of trapping his arm in the cot bars around the elbow which might potentially have caused bruising and swelling but which did not; and at the same time to have been subjected to an assault of some sort which did cause such bruising along with an earlier assault which caused the fracture.

Taking all of the evidence into account, the parents’ accounts, the medical evidence, contemporaneous documentary evidence and stepping back and seeking to evaluate all of that in the round I conclude that it is more likely than not that CD accidentally sustained a fracture on the Sunday night as a result of trapping his arm in the cot bars, twisting into an awkward position and the mother having to use a degree of force to free it. No culpability attaches to her whatsoever; she did not use excessive force. It was an unlucky combination, perhaps a unique combination of circumstances. I also conclude that it is more likely than not that CD accidentally sustained some mild bruising and swelling around his elbow as a result of getting his arm trapped again between the bars on the Wednesday night. Again no culpability attaches to the mother. The bruising and swelling was relatively minor in nature but in combination with the underlying fracture in the course of Thursday, CD began to demonstrate through crying when he rolled onto his side and through crying when dressed or undressed that there was a problem with his right arm. The mother acted promptly in relation to this by arranging a GP’s appointment for the Friday morning. She acted entirely appropriately. In tandem with this, self-evidently I conclude that it is less likely that CD sustained the arm fracture by having his arm pulled or twisted with excessive force by his father sometime between the 3 and 13 November 2017. I also conclude that it is less likely that CD sustained the bruising around his elbow as a result of the application of rough and excessive force when the father was handling CD. I therefore do not find that paragraphs 5 to 8 of the amended schedule are established by the local authority.

I hope it is apparent from this judgment taken as a whole that I regard the mother as someone who cares deeply for her children and has their best interests very much at heart. I have made clear that I consider that she puts their interests before her own.

I therefore conclude that:

It seems likely that some further assessment of the mother may be required in relation to her response to these findings and her attitude to the father consequent upon this judgment. Plainly further assessment of the father will be necessary.

That is my judgment.

CHRONOLOGY: Appendix A

Metaphyseal fracture of the right humerus