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Lancashire County Council v R and W [2013] EWHC 3064 (Fam)

Judgment in fact-finding hearing concerning a child who had suffered a serious head injury where the local authority claimed that the father had deliberately injured her and he claimed that the injury was accidental. Held, after hearing several expert witnesses, that that the father’s account was more likely than not to be correct.

This judgment follows a fact-finding hearing relating to a child, N, who had sustained a serious head injury in October 2012.  The single issue for the court was whether the father was to be believed that N's injuries had been caused when he was carrying her and tripped and fell or whether the injuries were the result of a deliberate assault.

Mostyn J begins his judgment by setting out the relevant legal principles that must guide him in reaching his conclusions.  He then goes on to consider both parents' accounts of events of the day on which N was injured.  The judgment also sets out the different parties' interpretations of the accounts given.  The father's account, which was supported by the mother's evidence (although she was asleep at the time of the incident), was that he tripped over a dog toy and fell with N in his arms, following which she began to vomit.  The local authority was of the view that the father had assaulted N as a result of frustration at her crying although the mother, who was found to be a credible witness, had not heard any such crying.

The expert evidence relating to head injuries is also considered in the judgment.  One of the difficult features of the evidence was that N had suffered retinal haemorrhages.  The first expert, a consultant paediatrician (Dr Samuels), reported that while abusive head injury was the most likely causal mechanism he could not rule out the father's explanation as the cause of the combination of subdural and retinal haemorrhages that N had been found to have suffered.  Many of the additional factors that might be expected in a non-accidental head injury of this nature were not present.

The second expert, Professor Wyatt, a neonatologist, regarded the father's explanation as an unlikely but nevertheless possible cause of the injury.  It was now accepted that a single relatively low fall can cause subdural haemorrhages.

The evidence of a consultant paediatric ophthalmologist was that it was unlikely that the retinal haemorrhages could have been caused as described by the father and were likely to be the product of violent shaking.  However, he accepted under cross-examination that he could not say the precise level of force used or other mechanism and he could not exclude the father's account as a cause of the injuries.

The final expert was a Mr Richards, a consultant paediatric neurosurgeon.  His evidence focused on the proposition that only a small number of children who suffer low-level falls undergo specialist neuro-radiological investigation.  Therefore it is possible that the number of children who suffer low-level falls resulting in subdural haemorrhages is underestimated.

Having considered the implications of the expert evidence, Mostyn J was also of the view that the absence of any of the tell-tale concomitant injuries which often feature in shaking cases was significant.  He referred to the 'statistical conundrum' now faced by the medical profession.  He did not accept the negative portrayal of the father's character advanced by the local authority. 

Having weighed up all of the evidence, he concluded that it was more likely than not that the father's account of N's injuries was the correct one, commenting that this was neither a borderline decision nor one that was beyond reasonable doubt.

Summary by Sally Gore, barrister, 14 Gray's Inn Square


_________________

 

Neutral Citation Number: [2013] EWHC 3064 (Fam)

Case No: LA12C0010
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Liverpool Civil Justice Centre
35 Vernon Street
Liverpool, L2 2BX

Date: 11/10/2013

Before :

MR JUSTICE MOSTYN
- - - - - - - - - - - - - - - - - - - - -
Between :

Lancashire County Council Applicant

- and - 

R 1st Respondent

- and -

W 2nd Respondent

- and - 

N
(by her children's guardian Dawn Whittaker) 
3rd Respondent

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Miss Frances Heaton QC and Miss Gaynor Lloyd
(instructed by Lancashire CC) for the Applicant

Mr Alistair MacDonald QC and Miss Sara Lewis
(instructed by Wollen Michelmore Sols) for the 1st Respondent

Mr Paul Storey QC and Mrs Alexa Storey-Rea
(instructed by Edward Hayes LLP) for the 2nd Respondent

Mr Karl Rowley QC and Mr Stuart Martin 
(instructed by Ratcliffe & Bibby Sols) for the 3rd Respondent


Hearing dates: 3-11 October 2013
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


.............................

MR JUSTICE MOSTYN


This judgment is being handed down in private on 11 October 2013.  It consists of 52 paragraphs and has been signed and dated by the judge

The Judge hereby gives leave for it to be reported, in this anonymised form agreed between counsel, as Lancashire County Council v R and W.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates, the solicitors instructing them, or the expert witnesses, may be identified by name or location.  In particular the anonymity of the children and the adult members of their family must be strictly preserved.
 
Mr Justice Mostyn:
1. At about 10:55 on 5 October 2012 N, who had been born 3½ months earlier on 20 June 2012, suffered a serious head injury at her home. At 11:04 her mother, R, dialled 999. The ambulance arrived at 11:18 and very shortly after took N and her parents to the Royal Lancaster Infirmary, arriving at 11:37. On examination N was observed to have a linear abrasion or scratch to the right angle of her right eye and a linear abrasion under her chin to the left side. A CT head scan was undertaken which revealed subdural bleeding. N was transferred to the neurosurgical team at the Royal Manchester Children's Hospital arriving that evening at 23:19. There a MRI scan was undertaken as well as ophthalmological testing. These investigations revealed that N had sustained a right side acute (i.e. recent) subdural bleed; a possible chronic (i.e. not recent) bleed at the frontal lobe of the brain and a plenitude of bilateral intra-retinal haemorrhages. No further injuries to the body or brain were noted.

2. On 23 October 2012 the local authority, Lancashire County Council, commenced care proceedings. In the circumstances it would have been a grave dereliction of their duties had they not done so, for which they could have been rightly criticised. This is my judgment on the preliminary fact finding hearing which the court ordered on 27 June 2013 to take place on 2 October 2013 before me with a time estimate of eight days. It is not clear to me why it took eight months for the fact finding hearing to be ordered but I am satisfied that responsibility for this delay does not fall on any of the parties in the proceedings.

3. The single question I have to resolve is whether N's injuries were the result of an accident when her father, W, tripped and fell when holding her; or whether they were the result of a serious abusive assault by him on her which involved not only violent shaking but impact on a hard surface also. The father utterly denies the allegation of abusive assault. He says that he was and is a devoted, caring, hands-on father who absolutely adored N. In this regard he is supported by the mother and by both sets of parents. The health visitor had observed his appropriate conduct in relation to N.

4. On the other hand, some of the medical evidence suggests that this was an assault, although it is fair to say that the experts do not speak with one voice. The expert consultant paediatric ophthalmologist, Mr Newman, believes it is very much more likely than not that these retinal haemorrhages, both in their type and plenitude, are indicative of non-accidental injury. The expert neonatologist, Professor Wyatt, believes it is more likely than not that this was a non-accidental injury, although his degree of certitude is far less firm. However each of these experts accepts that it is possible that the father's explanation furnishes the true reason for the injuries. The expert paediatrician, Dr Samuels, and the expert paediatric neurosurgeon, Mr Richards, are more equivocal and each believes that the competing scenarios are equally likely.

5. The local authority, who through Miss Heaton QC has conducted its case professionally, coolly, and responsibly, argues also that this was not a case of an assault coming out of a clear blue sky perpetrated by a man of unblemished character. Rather, they say that this father is a man with criminal convictions for unprovoked assaults who had at least once prior to the incident assaulted the mother by placing his hands around her throat. Since the incident he has done the same thing again. He had recently lost his job and they were all living in inadequate cramped accommodation. There were plenty of stressors here, it says, which in combination with the father's aggressive and impulsive personality should lead me to disbelieve him and to conclude in conformity with Mr Newman (in particular) that this was indeed a case of abusive assault.

6. This is not one of those cases where I am going to conclude that I do not know what happened and that therefore the burden of proof should come to my rescue. That was the conclusion I reached in the case of A County Council v M and F [2012] 2 FLR 939, where all of the competing theories for the death of the child in question I found to be highly improbable. Therefore the burden of proof taken in combination with the reasoning of the House of Lords in the famous case of Rhesa Shipping Co SA v Edmond and Another: The Popi M  [1985] 1 WLR 948 led me to acquit the parents of the murder of the child. Here, I am perfectly able to make up my mind. It is agreed that the case really boils down to the question of whether I believe the father or not. If I believe his story that this was an accident where he tripped and fell when holding N then that is the end of it. That story is not incompatible with the expert evidence. Mr Newman, while believing it to be highly unlikely does not rule it out. The other experts, more or less, believe that it is about as likely as the assault theory.

7. It is important for me to note at this early stage that the local authority makes no allegations against the mother of either being a participant in the alleged assault or of having failed to protect N. Nothing is said against her as a mother and I record on an uncontested basis my findings that the mother is completely innocent of any such thing.

8. At this point it is convenient to me to set out in summary form the applicable legal principles for a case such as this which does not involve a pool of possible perpetrators scenario. The principles are these:–

i) The local authority must prove its allegations on the balance of probabilities, no more, no less: Re B (Care Proceedings: Standard of Proof), [2009] 1 AC 11, [2008] 3 WLR 1, [2008] 2 FLR 141, at paras [2] and [70].

ii) The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para [2] per Lord Hoffmann.

iii) The more serious or improbable the allegation the greater the need for evidential 'cogency': Re Dellow's Will Trusts; Lloyd's Bank v Institute of Cancer Research [1964] 1 WLR 451 at 455; Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 2 WLR 8, [1996] 1 FLR 80; Re S-B (Children) (Care Proceedings: Standard of Proof), [2010] 1 AC 678, [2010] 2 WLR 238, [2010] 1 FLR 1161 at para [13]. Evidential cogency is obviously needed where the harmful event is itself disputed. However, where there is no dispute that it happened the improbability of the event is irrelevant: Re B (Care Proceedings: Standard of Proof), at paras [72] and [73].

iv) Sometimes the burden of proof will come to the judge's rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge ought to be able to make up his mind where the truth lies without needing to rely upon the burden of proof: Re B (Care Proceedings: Standard of Proof) at paras [2] and [32]; Rhesa Shipping Co SA v Edmond and Another: The Popi M  [1985] 1 WLR 948.

v) It is impermissible for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event: Rhesa Shipping Co SA v Edmond and Another: The Popi MIde v ATB Sales Ltd; Lexus Financial Services t/a Toyota Financial Services (UK) plc v Russell [2008] EWCA Civ 424 at para [4].

vi) There is no pseudo-burden or obligation cast on the respondents to come up with alternative explanations: Lancashire County Council v D and E [2010] 2 FLR 196 at paras [36] and [37]; Re C and D (Photographs of Injuries) [2011] 1 FLR 990, at para [203].

vii) The judge is the decision maker, the expert is not. An expert is not in any special position and there is no presumption of belief in a doctor, however distinguished he or she may be. It is, however, necessary for the judge to give sound and articulated reasons for disagreeing with experts' conclusions or recommendations: Re B (Care: Expert Witnesses) [1996] 1 FLR 667; Re B (A Child) (Split Hearings: Jurisdiction) [2000] 1 WLR 790, [2000] 1 FLR 334; Re D (Care Order: Evidence) [2011] 1 FLR 447 at para [24].

viii) The expert evidence is part of a wider canvas. It must be weighed against the lay factual evidence and the court's conclusions concerning the credibility of the participants. This holistic forensic process may legitimately lead the court to reach a conclusion which does not accord with the expert evidence: A Local Authority v K, D & L [2005] 1 FLR 851 at paras [39(i)], [39(ii)], [49(iii)] and [63]; A County Council v M and F [2012] 2 FLR 939 at paras [232] and [261].

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 [2004] 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, contemporary documents are always of the utmost importance: Onassis and Calogeropoulos 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].

9. I now turn to some background. The mother is aged 22. She works making sandwiches in a shop. I do not believe that she has before been in a cohabitative relationship. She comes from a stable family and indeed N has been placed with her parents by the local authority where both she and the father have been afforded regular contact. She met the father in June 2011 and they started living together two or three months later. Although a baby was not planned she and the father were pleased when she fell pregnant in September 2011. For nobody does the course of love run true and there were arguments about little things, often concerning her untidiness. When she was 3 to 5 months pregnant, that is to say at some point between December 2011 and March 2012, there was a particularly spirited argument when they were in each other's faces and he got her by the throat and pushed her away. There was no incident like that before or afterwards up to the point where N sustained her injuries. However in March 2013 the parents had an argument about an aspect of this case, which is perhaps not very surprising as they both must have been under a very considerable pressure. In the course of that argument the father put his hand on the mother's throat and pushed her away.

10. However notwithstanding these difficulties the parents remain a couple and I judge them both to have been authentic when they expressed to me their devotion and commitment to each other.

11. The mother gave me evidence, which to my mind was completely true, that these difficulties aside, the father was loving and kind to her. More importantly, perhaps, she confirmed that he never once had displayed any impatience, let alone temper, towards N. Further, for what it is worth, she confirmed that he never once mistreated their little dog, a Jack Russell called D.

12. By her own admission the mother is very shy, quiet, and lacking in confidence. She does not like being in company and I hope she will not mind me describing her as unsophisticated. She struggles with reading. However, she is certainly not stupid and she, perhaps better than anyone, is able to make an informed judgement whether the father committed this alleged terrible act. Of course she cannot know whether he did but her belief is certainly highly relevant especially as I judge her first and foremost priority to be to her daughter. Put another way, I am convinced that if she believed after having heard all the evidence and with the benefit of advice and analysis from her legal team that the father was guilty as charged she would not dissemble in her expression of that belief and would take the necessary steps to separate herself from him. It is to my mind a telling feature that after having heard all the evidence in this case the mother believes that the father's account is true.

13. The father is aged 30. He was in a previous long-term cohabitative relationship which on any view was highly tumultuous and where his partner regularly called the police making complaints. The father describes these as being provocations and falsehoods and in the absence of any convictions or even formal police warnings I do not consider that any relevant conclusion can be drawn from these events. The father's parents are separated. His mother is a radiographer. He has two paternal half brothers with whom he has little contact. He works as a carpet fitter but as I have said at the time of the incident had quite recently lost his job. He has a number of criminal convictions stretching back to 1998 (arson). In more recent times he was convicted in April 2007 of assault where he had in an unprovoked attack head butted the victim; in January 2008 he was convicted of assault occasioning actual bodily harm – here the victim had been subjected to an unprovoked punch in the face knocking out his two front teeth; in October 2009 he was convicted for obstructing a constable; and in October 2010 he was convicted for using threatening behaviour in circumstances where he had been brawling in the street. It is an unedifying catalogue, but it is relevant to observe that his offences relate to adult males and that he has not been convicted of any crime since he began his relationship with the mother.

14. The local authority describes him as loud, controlling, confident, defensive, aggressive, and physically violent. He commits impulsive violent acts, is uncontrolled and lacks inhibition in stressful situations. By way of example they point to his conduct at the Royal Lancaster Infirmary where N was admitted following an undisputed accident a few days earlier on 2 October 2012. The father was in a highly agitated state and it is not disputed that he was rude and unpleasant to the staff about the state of the place and the treatment being given to N. However, he apologised at the time.

15. Having watched him carefully in the witness box I agree with this assessment of his personality but only up to a point. My first observation is that he struck me as an intelligent man with a fine command of language who is perceptive and capable of self-analysis. He recognises his many flaws and as regards his lamentable history is ashamed and embarrassed. I am not sure that I even agree with Mr Rowley QC's description of him as "clearly an awkward man". The local authority does not and cannot challenge the uncontested evidence that he was a devoted and committed father who played a full practical role in the upbringing of N. Further, the local authority accepts that none of those traditional stress indicators that feature in so many of these cases is present here. There was no abuse of drink or drugs. There was no separation of the parents. There was no prior involvement of social services.

16. I now turn to the account of the parents for the day in question, 5 October 2012. The mother cannot remember if during the preceding night N awoke. That morning she remembers, vaguely, waking up and feeding N (who slept in a Moses basket next to their bed). The father then fed N and she went back to sleep, leaving N on the bed beside her. It had been agreed, after a fashion, that she would have a lie-in that morning although nothing exceptional had occurred the evening before. She vaguely remembers the father coming up to use the toilet but other than that her next memory is hearing N give what she described to the police as a "narky" cry. She did not hear any loud bang or crash from downstairs before she heard this cry.

17. The father's account up to this point is as follows. He got up at 07:30 and let the dog out. He then spent about an hour watching television downstairs. He then went back upstairs and found N awake. N was fed but he cannot recall who did that. He went back downstairs to watch more television but after about half an hour he was a bit worried about N being in bed with the mother and so he went back up and found N awake and restless. He took her downstairs where he watched television with her and practised saying vowels to her. After about 40 minutes of this N began to get restless and he formed the view that she wanted her mother.

18. He says that he and N were sitting on the three seat sofa which was directly opposite a two seat sofa which in turn was beside the dog cage which was itself beside a unit or cupboard affixed to the wall. In his carefully prepared witness statement he stated:

"As I was sitting on the sofa, N was propped up to my right hand side. In order to get up, I firstly lent forward from where I was sitting and turned to the right slightly, towards N. I placed my right hand under N's bum and my left hand around her back, I then brought her towards me and held her to the left side of my chest so her legs were straddling the left side of my chest. I then stood up and lifted her with me as I stood up, still holding her to the left side of my chest. As I stood up I stood on [the] dog toy with my right foot."

I interpolate the father's account to observe that the dog toy in question is shaped like an animal's skull and is about 4 inches long and 3 inches high – a fairly substantial object. I continue with the father's account:

"When I stepped on the dog toy I went over on my right ankle and stumbled forward. I put my left foot forward to balance myself, however, with my left foot, I then stood on the baby bouncing chair which was in the middle of the floor and fell forwards. I was still holding N at this point, in the same position to my left hand side. As I was falling forwards, I was worried I was going to fall on N as I was aware she was underneath me, so I tried to twist my body to the right to avoid landing on top of her. As I was falling my left arm was still around N's back and I went to put my right arm round her as well to protect her but did not have time as it happened so fast"

I again interpolate to observe that in his oral evidence the father slightly altered this account to say that when he stood up he did not directly stand on the dog toy but did so as he moved forward. Although Miss Heaton QC places some emphasis on this discrepancy I do not believe that it is a material alteration in his story. I continue with his account:

"As I fell forward the back of my left shoulder and then the left side of my head struck the outside of the arm of the medium sofa and then the top corner of the dog cage. On top of the dog cage was a magazine and baby travel chair. The force of my body weight hit the sofa and dog cage before I hit the floor and N was thrown from my arms. She flicked round as she was thrown from my grasp as I impacted on the furniture. She went from facing me where I had been holding her, during the fall to landed (sic) facedown, facing away from me with both arms close to her side. She landing (sic) close to the dog cage and corner of the porch wall. Her body had turned almost 180° sideways during the fall. The travel chair on top of the cage obstructed my view as I impacted with the cage so I cannot say whether N hit anything as she fell nor did I see her impact with the floor"

In his oral evidence the father slightly enlarged on this account to say that as he fell he felt N's foot go through his left bicep and he tried to clench it. Again Miss Heaton QC places some emphasis on this embellishment (as she would have it) but I place no significance on that –  if anything it is an admission contrary to the father's interests for if this clenching was effective it would have reduced the force of the impact suffered by N.

19. Any fall is obviously a highly complex biomechanical process. I have received no expert biomechanical evidence. However, it is a truism that the fall as described by the father must have generated very considerable forces given his height of 6 foot and weight of 13 stones. As described the forces would have been horizontal, vertical and rotational. Strong rotational force, or torque, can be generated by the human body. One only needs to consider how a punch can kill someone or how hard, fast and far a sportsman can hit a cricket, tennis or golf ball.

20. Mr Rowley QC for the Guardian considered with the father whether there would in fact have been enough space between the sofas for the father to fall as described. If the father had taken a step forward, and given that the distance between the sofas was 1.5m, according to the plan exhibited to the father's statement, then he wondered whether with his height of 1.83m he would have fitted into the space as described. But the father was falling diagonally and while I have not attempted any trigonometric calculation it seems perfectly plausible to me that the space was sufficient for the fall to have happened as described.

21. I now revert to the mother's evidence. As I have said she heard no bang or crash. She first heard N crying – to the police she described it as a narky cry, in oral evidence she said it was just a very loud one. She then heard the father shouting her name. She jumped out of bed and went downstairs and found the father holding N at the bottom of the stairs. N was pale and the father started to cry. She ran upstairs to get her telephone and first rang the doctor, then the health visitor. She told police that she also tried to ring to put credit on the father's telephone although her reason for doing so is completely obscure given that you do not need credit in order to dial 999. The father was telling her, quite crossly, to ring for an ambulance. She did so, and I will deal with the content of that call below.

22. The father's account is more or less identical. He says that he leapt straight up, picked up N and saw that she had marks on her chin and eye. He called out the mother's name three times and went to the bottom of the stairs when N vomited strongly. He agrees that he crossly told her to call for an ambulance when she was ringing the doctor and health visitor.

23. The parents are agreed that prior to making the 999 call the father did not give a full account of the accident to the mother beyond saying that he had tripped over the dog toy and fallen.

24. There is a transcript of the 999 call as well as an audio disc of it, which I have heard. The mother made the call when sitting at the father's feet while he sat on the sofa holding N. In it the mother tells the emergency operator that "my partner had her in his arms and he fell over the dog toy and she's grazed her chin and her eye and she's vomiting really bad" and "he just dropped her on the sofa". Later she corrected this, the father having spoken up, to say that he had dropped her onto the floor. Later in the call the father again spoke up to say "instead of letting her go I kept her close to me". During the call the mother asked the father to stop shaking N. In court the father demonstrated how he was shaking N to provoke a response from her. The mother agreed with his demonstration and all the experts agree that that kind of shaking while cradling her could not have caused the haemorrhages suffered by N. The parents are agreed that at this point N was in very poor shape, pale and unresponsive.

25. At the hospital the father asked the doctor what were the warning signs for brain injury and was told that if N had vomited at least three times then a CT scan would be performed. He volunteered that she had vomited that amount already. And so a CT scan was undertaken. This may be a pointer away from the actions of a guilty man but it may equally be consistent with a guilty man facing up to the enormity of his conduct.

26. By the time N had arrived at the hospital she had improved considerably and it is a significant feature that she displayed no appreciable encephalopathy (i.e. brain injury). This is a quite mystifying feature on either version of events – one would have expected whether this was an accident or an assault that given the forces involved (on each footing) there would have been significant brain injury.

27. The local authority's theory is that this father lost control because of his inability to quieten N who must have been crying persistently. Yet the mother was not awakened by any such crying, and one might have thought that in this very small house her maternal alarm system to such distress would have been functioning when asleep. After all it was a cry and not a crash that woke her up. The theory goes on to postulate that the assault in question must have involved not only violent shaking followed by a throw against a hard surface, or perhaps gripping to the face. Only in this way are the wounds to the face explained (but the wounds are not really consistent with gripping – they are abrasive in appearance). So the alleged actions are in two parts or phases and are extremely brutal. 

28. Mr Storey QC points to a complete absence of any other injuries which are often encountered in cases of this kind. In addition to the absence of appreciable encephalopathy there is an absence of the following:

i) spinal subdural bleeding
ii) damage at the cranio-cervical junction
iii) posterior rib fractures
iv) limb metaphyseal fractures
v) raised intracranial pressure
vi) bruising to trunk or ribs
vii) raising of the fontanels

Further, as Dr Samuels and Mr Richards accepted, the subdural bleeding here was predominantly right-sided and was therefore in keeping with an impact rather than shaking.

29. These absences, and the feature of the subdural bleeding, are all quite striking. I should say that in a late addendum Professor Wyatt postulates a further alternative scenario which is that the fall did indeed take place as the father describes and knocked the child semi-conscious and that the father then, before the mother had arrived on the scene, inappropriately shook her in order to revive her. But this theory was not debated in evidence and all counsel agree that it should be discounted.

30. And so I turn to the expert evidence.

31. Before I look at the individual contributions I wish to make some preliminary observations:-

i) The presence of subdural and retinal haemorrhages, and for that matter encephalopathy (which taken together constitute the famous "triad" referred to in the jurisprudence and the medical literature), do not of themselves prove anything other than the infliction of a head injury. As Mr Richards said, the triad is an indicator of injury only, not of how it occurred.

ii) Inasmuch as the presence of the triad is, or some of its components are, used in the process of forensic proof then this is based on statistical or empirical evidence, which states that there is a high prevalence of these features in many proven cases of abuse. However I was not given evidence as to how many of these cases were proven as a result of the presence of these features, as opposed to those which were proven to be abusive by reference to other evidence, such as confessions. If many were in the former class then of course the process of logical proof may be said to be circular, as Mr Richards pointed out. Further, it is a fact that very many children who present with head injuries arising from an indisputable accident such as a fall are neither scanned nor subjected to ophthalmological testing. They are just patched up and sent home. This is because a CT scan by definition irradiates the brain, which is something to be avoided wherever possible. For a child of more than three months of age a MRI scan requires general anaesthesia – again a procedure not be undertaken unless unavoidable. Ophthalmological testing requires awkward and unpleasant dilation of the pupils. These tests are only likely to be commissioned where there is either a suspicion of abuse or where there are clear symptoms of head injury, such as persistent vomiting. Therefore the data is compiled from a class which has a high prevalence of suspected abusers. Accordingly it might be said, and Mr Richards agreed, that the sample on which the empirical analysis is based is a false or skewed sample.

iii) In the realm of subdural bleeds there seems to have been a relatively recent shift away from the prevailing orthodoxy. Not so very long ago the presence of a subdural haemorrhage in a recently born child was taken to be strongly indicative of abuse unless the birth was especially traumatic. On the basis of this supposition very many children will have been permanently separated from their parents. Yet, authoritative research over the last decade has demonstrated that this supposition is false. The Rooks paper in 2008 was the last of three important pieces of research and showed that no fewer than 46% of normal births caused subdural bleeding. We now know that many appalling miscarriages of justice must have been perpetrated in reliance on the old, now discredited, orthodoxy. Further, current medical and clinical thinking is now prepared to accept that short falls can in many cases cause subdural bleeds; the view that this could only happen exceptionally is now regarded as outdated. As Mr Richards said to me (and this chimes with the judicial opinions cited by me at para 8(ix) above as well as with Secretary Rumsfeld's famous apothegm about unknowns) "the more you know the more you know you don't know".

iv) The ophthalmological world has not undergone an equivalent shift in thinking. Here the view remains that multitudinous bilateral retinal haemorrhages are strongly indicative of abuse and that it will only be exceptionally that they will be the result of an accident. But this is not a unanimous view. Mr Richards told me of the work of Dr Gillian Adams at the Great Ormond Street Hospital who is apparently collating a body of material which she intends to publish which challenges this orthodoxy. Further he referred me to the work of an American pathologist called Dr Lantz who (among other pieces of similar work) has  published an article in the Journal of Forensic Sciences in November 2011 entitled "Fatal Acute Intracranial Injury, Subdural Haematoma, and Retinal Haemorrhages Caused by Stairway Fall". This was a case study concerning a 7¾ month old child who fell down a flight of six stairs through a vertical height of 1.42m at a pitch of 37°. Sadly he died. An autopsy established that he had not only suffered from subdural bleeding but also from extensive bilateral retinal haemorrhages. This led Dr Lantz to conclude:

"These published reports of original data are discordant and controversial, making the correct classification of a young child death following a reported short fall a diagnostic challenge. Most childhood stairway and low-level falls do not cause serious head injuries. Nevertheless, not all seemingly minor falls are minor. This case report refutes a pervasive belief that childhood low height falls are invariably trivial events and cannot cause subdural bleeding, fatal intracranial injuries, and extensive multi-layered retinal haemorrhages. The harmful and potentially devastating consequences for a caregiver or family facing a false allegation of child abuse obligate physicians to thoroughly investigate and accurately classify paediatric accidental head injuries"

32. The first expert witness was Dr Martin Samuels, the well-known and distinguished paediatrician at the University Hospital of North Staffordshire. He is certainly not a campaigner or advocate for wrongly accused parents. In his report he stated that while abusive head injury is statistically the most likely mechanism for the combined findings of retinal and subdural haemorrhages he could not exclude the possibility that the account given by the father led to those injuries. He did not think that the medical findings can provide a definite answer as to whether his story is correct or instead has been used to provide a more plausible explanation for an assault. In his oral testimony he stated that the haemorrhages would have had to have been caused by a very violent shaking and that if that had happened you would have expected additional injury within the brain and spinal column and N would have ended up clinically much more unwell at presentation. But there were no such additional injuries and N did not present as particularly unwell. Further there would have to have been an additional impact before or after shaking to account for the facial injuries. He accepted that in principle short falls do not usually cause retinal haemorrhages; that was based on data where the falls in question were simply vertical drops but here the story involves a fall with propulsion and where at impact rotational forces are generated within the skull. In his opinion this would cause a more serious level of injury than a short vertical drop. He stated under cross-examination that the absence of other injuries was significant. He further stated that the triad of itself was not enough to secure a finding of abuse and here we did not even have the triad. In a written addendum produced after his oral evidence he stated:

"If the injuries sustained by N were non-accidental, i.e. abusive, the injuries on her skin are actually more difficult to explain. Abusive head injury is not as commonly accompanied by a surface injury (or skull fracture for that matter) as accidental injury is. Where there is surface injury, abusive injury will usually have finger markings, hand slaps or punches (e.g. on the scalp or ear), or petechial (pinpoint), or sub-conjuctivical (surface of the eye) haemorrhages. In N's case, abusive head injury might have been accompanied by impact to the side of the eye causing an abrasion. The chin is more difficult to explain as part of an abusive injury, but would also involve some impact or graze. As these are in two different planes, it implies that there were two impacts or that the abuse might have involved rotation too. For abuse to have caused rotation and two injuries, this would have been very violent, with an expectation that more severe cerebral injury would have occurred."

33. It was plain to me that Dr Samuels did not consider that it was more likely than not that N had been subjected to a violent assault by her father.

34. The next witness was Professor Wyatt the well-known neonatologist formerly at University College Hospital in London, who now undertakes academic and educational duties as a neonatologist and is active in research into the mechanisms, prevention, consequences and treatment of brain injuries in newborn babies. In his report he stated that the father's account of an accidental fall was an unlikely (but nevertheless possible) cause of the observed subdural haemorrhages. However he accepted that it is not known precisely what degree of force is required to generate subdural bleeding in young infants. In his oral evidence there was some discussion about the elementary laws of physics which state that the ending speed of an object depends, obviously, on its starting speed (v2 = u2 + 2as; v = u + at). He accepted that most research on haemorrhages caused by short falls were in cases where u = 0, but here u does not equal zero as on the father's description N had been falling under gravity for about a metre by the time that she escaped his grasp and began her own short twisting journey to its impacting conclusion. Further, he pointed out that unlike more mature children and adults a baby will have no protective reflexes and will not have put its arms out to break the fall. He also accepted that many cases are not as extensively investigated as this one for the reasons I have given above. Therefore there were in this case issues of probability and logic. He accepted under cross-examination that the profession was now aware that relatively low falls can cause subdural haemorrhages. As an inevitable corollary he accepted that a single movement can cause such haemorrhages. In answer to a question from me he stated

"I think the balance of evidence is still that in the majority of cases in traumatic injury multiple retinal haemorrhages do not occur unless there is very severe force such as in a road traffic accident but there is a growing awareness of unusual cases being increasingly documented so many experts are now less dogmatic than they used to be and accept that rare things happen rarely".

35. My impression of Professor Wyatt's evidence was that while he remained of the view that it was more likely than not that these injuries were caused by abuse, this was a very close call indeed. He allowed for the real possibility that these injuries were the result of an accident as described by the father.

36. The next witness was Mr William Newman, a consultant paediatric ophthalmologist at the Alder Hey Children's Hospital. In his written evidence be concluded that the father's account was unlikely to be the cause of the retinal haemorrhages. His opinion was based on published research which had concluded that "fall-related injuries carry a very low risk of retinal haemorrhages". One of the largest studies had been published in 2008 and analysed 154 children with a mean age of 10 months who had suffered falls or minor injuries. Of these only three had suffered retinal haemorrhages. This led the study authors to conclude:

"Any cranial trauma from vertical falls in children under the age of two years producing severe epidural bleeding can also cause retinal haemorrhages not related to maltreatment. Nevertheless, these haemorrhages are often unilateral and few in number. Therefore the finding of bilateral and diffuse retinal haemorrhages must continue to point to another cause different from the fall as the origin of the traumatism, and it is still mandatory to rule out to maltreatment"

37. In his oral evidence Mr Newman maintained his opinion, based on the published research, that it was very unlikely that these injuries were caused accidentally in the manner described by the father. Rather, they were the product of violent shaking. However under cross-examination he accepted that he was unable to opine on the precise level of force used or other mechanism and that he could not exclude the father's account as a cause of the injuries.

38. In a written addendum prepared after his oral testimony had been concluded he accepted that not all children who suffer low falls are examined by an ophthalmologist; that there had been cases in court where findings have been made that retinal haemorrhages have been caused by a short falls; and that there may be clinical "outliers" that remain unexplained. However, he referred to a review in this year 2013 by the Royal College of Ophthalmologists which concluded that "short falls are unlikely to cause retinal haemorrhages if the injury is not severe. In rare cases accidental falls, especially those with subdural haematoma may be associated with retinal haemorrhages, but these tend to be unilateral, localised and superficial." Further he referred to the 2013 Cardiff Child Protection Systematic Review Group Report which concluded that "retinal haemorrhages on rare in accidental trauma and, when present, are predominantly unilateral, few in number and in the posterior pole" Both of these 2013 reports were published after he had written his principal report but neither altered his opinion – plainly they fortified his opinion. He accepted he was aware of counter-arguments published by the likes of Dr Lantz, but he remained firmly in the mainstream.

39. Mr Newman, perhaps unsurprisingly, is firmly bonded to the prevailing ophthalmological orthodoxy which says, in reliance on the empirical research to which I have referred, that retinal haemorrhages of the kind suffered by N are highly likely to be the result of abuse rather than accident.

40. The final expert witness was Mr Peter Richards, consultant paediatric neurosurgeon at the John Radcliffe Hospital in Oxford. In his written report he stated that it is generally considered by most paediatric specialists who deal with infant head injury that low level falls described here do not cause acute subdural haemorrhages, and that a similar thinking applied in the ophthalmological world to retinal haemorrhages. Tellingly he stated that 12 months ago he would have agreed with this view but now he has had cause to doubt it. Only a very small percentage of children who suffer low level falls undergo specialist neuro-radiological investigation. Therefore it is possible that the incidence of low level falls causing subdural bleeding has been underestimated. Indeed in his own practice he had a child who fell off a sofa and who was perfectly well but because that child had a shunt in place it was felt prudent to have a CT scan to make sure that the shunt was working properly. To everyone's surprise the CT scan showed a subdural haemorrhage. This case, and other cases encountered by him in his medico-legal practice, have led him to question the view that low level falls of the type described here does not lead to subdural bleeding. While he defers to an ophthalmologist in relation to retinal haemorrhages he drew my attention to the work of Gillian Adams to which I have referred which apparently will show that low level falls may cause significant retinal haemorrhaging. In the circumstances from a medical standpoint he could not determine whether the history as given is true or false on the basis of the medical features alone.

41. I have already recounted above some of the things he stated in his oral testimony. I was particularly struck by his acceptance that the data cohorts or samples on which the research was based may well be false or skewed. And I have recounted his memorable aphorism that the more you know the more you know you don't know. Under cross-examination he was asked to give a possible mechanism for the facial injuries and he postulated a scenario where the child had been held by the father face down and then bashed against a hard surface. I think he accepted that this was extremely implausible.

42. I formed the distinct impression that if anything Mr Richards inclined to the view that if anything it was more likely than not that the father's account was true.

43. Before I turn to my final conclusions I should record that I also received oral evidence from a nurse at the hospital and from the health visitor. Neither contributed anything in oral testimony which in my view contributes to the determination which I have to make.

44. I therefore now state my final conclusions. I am of the opinion that a schism is beginning to form between the subdural and retinal disciplines concerning the forces involved in low level falls. I agree with the submission made by Mr Storey QC that in some respects the medical evidence given on behalf of the respective disciplines is irreconcilable.

45. I remind myself that medical science is always moving on. It was not that long ago that the bleeding of patients and the use of leeches was de rigueur. Given the striking differences of emphasis and approach by the two disciplines it would in my judgment be dangerous for me to judge this case predominantly by reference to the mainstream orthodox opinion of Mr Newman particularly where there is research in the wings which may question that orthodoxy. If Mr Newman had not made his contribution I doubt whether this case would have been pursued after the subdural reports were in. So my overall assessment of the medical evidence looked at in isolation is that it does not provide me with a sure or firm basis on which to conclude that it was more likely than not that these injuries were caused abusively.

46. In my opinion the absence of any of the tell-tale concomitant injuries which so often feature in shaking cases is important in helping me to inform the judgment which I must make.

47. I do not know how the medical profession will resolve the statistical conundrum to which I have referred. Obviously children who have suffered minor falls cannot be routinely scanned and tested ophthalmologically. But until the data referable to these minor falls has been assembled I do not see how a statistically valid survey can be undertaken which can authentically and rationally conclude whether such falls do, or do not, regularly give rise to retinal and subdural haemorrhaging. Further, in order for the empirical work to be sufficiently persuasive to lead to the very serious findings that are sought here there surely has to be a discrimination between short falls from a standing start and the sort of fall described here which must have involved considerable horizontal, vertical and rotational forces. Yet so far as I am aware no such discrimination is made in the medical literature.

48. And so I turn to the credibility of the father. I do not form the same adverse view of him as a man and a parent as that advanced by the local authority. He has very obvious flaws; but he has qualities also. I judge him to be truthful in his evidence to me, but I have to be alive to the possibility that he is a highly accomplished liar capable of embellishing a pack of lies with convincing snippets of circumstantial detail and by affecting displays of emotion. However in this particular regard I am assisted by the stance of the mother who is represented by the highest quality counsel and solicitors. Having heard all the evidence, having received appropriate advice, and knowing the father better than anyone in the courtroom, she firmly believes that he is telling the truth.

49. In judging the father's credibility I do not place any weight on his criminal record as being suggestive of a propensity to assault his infant daughter. The crimes in question, while deplorable, are of a totally different character to the one alleged here. By the same token I do not derive any assistance in my task from the two ugly and unpleasant incidents where the father manhandled the mother. Again, this conduct, which is much to be deprecated, is in a class apart from the conduct which is alleged here. Further, I do not accept that this was a family beset by stress. In fact the evidence shows that the family was living a mundane quotidian existence where the focus of attention of the parents was their beloved daughter.

50. If this was a case of abuse then it was a very bad case indeed because it would not only have involved a violent shaking but then the hurling of N, or the bashing of her face, against a hard surface. It would have been an assault in two parts. This takes the theory beyond a momentary loss of self-control into the territory of sheer malignity. I consider this to be unlikely. On the other hand the father's account is perfectly consistent with both the haemorrhages and the facial wounds. Mr Rowley QC submitted, that when looking at this aspect the process of logical reasoning known as Occam's Razor favours the father's case. I agree. Further, there are aspects to the local authority's theory that are problematic. If N was crying loudly and incessantly, so much so that the father snapped and brutally assaulted her in the manner alleged, then why did these cries not wake the mother up? If N was crying loudly and incessantly why did the father not simply take her upstairs to her mother? No satisfactory answers to these questions were given to me. 

51. The father gave his account very early on and since then, allowing for Lord Pearce's observation about the fading of memory with the passage of time and its replacement with imagination, he has been highly consistent in its many repetitions. That his account is very detailed is not, in my judgment, an indicator of fabrication. On the contrary, had he been vague in his account this would have been used against him – "surely you can remember the details of such an important event?"

52. In all the circumstances, weighing all the evidence both expert and lay, and having regard to the need for evidential cogency given the seriousness of the allegations, I conclude that it is more likely than not that the father injured N by accident in the way he has described. This is not a borderline decision but then neither is it a decision beyond a reasonable doubt. There remains a possibility, perhaps even a real possibility, that the father has taken us all in with a web of lies. But on Lord Hoffmann's technique the balance of probability favours the father and he is entitled to the return of the value of 0 and to be treated as if he has not committed the alleged assault. For the subdural experts this is an unexceptional finding. In the opthamalogical anthologies it will be noted as one of those rare, outlying, exceptional cases where retinal haemorrhages have been caused by a single impact low level fall attended by strong linear and rotational forces.

53. I direct that a copy of this judgment shall be supplied to each of the experts and to the Lancashire Constabulary.