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Home > Judgments > 2013 archive

A Local Authority v DB & Others [2013] EWHC 4066 (Fam)

Fact finding hearing to consider whether a child died as a result of non-accidental injuries and if so, to consider who the perpetrator of the injuries was.

In the morning of 21.04.13 a 19 month old child was taken to hospital from his home where it was found that he had suffered massive brain damage. Life support was withdrawn and he died 3 days later. The court was required to determine whether it could be established that the child's brain damage resulted from inflicted trauma and if so, whether a perpetrator could be identified by the court.

Mr Justice Keehan considered the law relating to fact findings:

1) The standard of proof is the balance of probabilities, nothing more, nothing less. [Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141]

2) The medical expert evidence is but one part of the evidence available to the court at a fact-finding. [Re U; Re B]

3) If it is clear that identification of the perpetrator is not possible, then the judge should reach that conclusion. [Re D (Care Proceedings: Preliminary Hearing) [2009] 2 FLR 668]

4) Re T (Abuse: Standard of Proof)[2004] EWCA Civ 558 [2004] 2 FLR 838 at paragraph 33 Butler- Sloss P. said that  "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."

5) "A person comes within the pool of possible perpetrators where the evidence establishes that there is a 'likelihood or real possibility' that  a given person perpetrated the injuries in issue: North Yorkshire CC v. SA [2003] 2 FLR 849"

6) The need for judges to give themselves a Lucas direction when considering witnesses credibility.

Mr Justice Keehan considered the medical evidence. All experts were of the opinion that the child had suffered injuries as a result of a non-accidental injury. He was satisfied on the balance of probabilities that the child was a victim of inflicted head trauma and that this was the only explanation for his injuries.

He considered the Mother's and her partner's evidence and found that both had lied during their evidence and in particular in relation to the child's last evening and morning at the family's home. He concluded that the only reason they lied was because they knew how the child came to be injured.

The mother and her partner accepted that if the court found that the child had suffered inflicted injuries, they were the only people who could be within the pool of perpetrators. Mr Justice Keehan accordingly found that the injuries were caused by either the mother or her partner but was unable to determine further who the perpetrator was. 

Summary by Laura McMullan, barrister, Coram Chambers


_______________

Neutral Citation Number: [2013] EWHC 4066 (Fam)

Case No: LU13C03370

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/12/2013

Before :

THE HONOURABLE MR JUSTICE KEEHAN
- - - - - - - - - - - - - - - - - - - - -
Between :

A LOCAL AUTHORITY 
Applicant

- and -
 
DB (Mother) (1)

RB (Father) (2)

SM (3)
(Through the Children's Guardian Alison Small)     
Respondents
  

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

Ms A Grief and Mr M Edwards (instructed by A Local Authority) for the Applicant
Ms F Oldham QC and Mr G Pryce (instructed by Park Woodfine Heald Mellows) for the First Respondent
Mr L Ss QC and Ms M Christie
(instructed by Bastian Lloyd Morris Solicitors) for the Second Respondent
Mr C Larizadeh and Ms D Peters
(instructed by Crane and Staples) for the Third Respondent

Hearing dates: 25th November 2013 – 6th December 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.


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

THE HONOURABLE MR JUSTICE KEEHAN

The judge gives leave for this judgment to be reported in this anonymised form. Pseudonyms have been used for all of the relevant names of people, places and companies.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by his or her true name or actual location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
 
The Honourable Mr Justice Keehan :

Introduction 
1. In the morning of 21 April 2013 S, who was born on 1 September 2011, was taken by ambulance from his home to B Hospital. There it was found he had suffered bleeding in his head which required surgical intervention. Later that afternoon he was transferred to A Hospital where he underwent surgery. Tragically he had suffered massive brain damage. The following day it was agreed life support would be withdrawn. S died on 24 April aged 19 months.

2. The issue for the court to determine is whether the Local Authority can establish that S's brain damage resulted from inflicted trauma.

3. If so, the issue arises as to whether the court can identify the perpetrator or perpetrators of those inflicted injuries.

4. S has a half sister SM B who was born on 22 March 2013 and is 8 months of age.

5. The mother of S and SM is DB who is 26 years of age. The father of S is the mother's former partner NH. He has played no part in these proceedings. The father of SM is the mother's current partner, RB who is 22 years of age (whom I shall refer to as the 'father').

6. Both the mother and the father deny harming S in anyway whatsoever or of having any knowledge of the other having done so.

Background
7. In 2009 the mother and the father met when they were both working at the C Conference Centre; the mother as a restaurant supervisor and the father as a barman.

8. In September 2010 the mother began a relationship with NH. S was born about a year later on 1 September 2011.

9. Very shortly after S's birth on 16 October 2011 the mother and NH separated. The breakdown of their relationship was acrimonious. In November the mother alleged NH has scratched her car. He was arrested by the police but no action was taken against him. On 20th March 2013 he was convicted of a public order offence in respect of the mother and had a financial penalty imposed.

10. In the meantime the mother and father commenced a relationship in November 2011. By March 2012 they were living together which appears to have exacerbated NH's attitude towards and his desire to have contact with the mother.

11. On 26 March 2012 NH issued an application for a shared residence order and/or defined contact order.

12. On 22 May 2012 a district judge made an order for NH to have contact with S each Friday until 6 July 2012 when the contact progressed to overnight staying contact each weekend.

13. On 10 October 2012 the court granted the mother a residence order, dismissed NH's application for a shared residence order and provided for NH to have ongoing contact with S.

14. In late 2012 the mother and father moved to a new home at 26 D Close.

15. On 26 February 2013 the mother attended the maternity department of B Hospital. She was 35 weeks pregnant and this was her first antenatal appointment. In her statement of 14 November 2013 she explained that she had only just discovered she was pregnant.

16. On 28 February 2013 the mother attended the delivery suite of B Hospital where she was reported to be smelling vaguely of alcohol. A referral was made to B social services.

17. The initial assessment conducted by the local authority concluded that:

a) the mother said she did not have an issue with alcohol;

b) she had only known she was pregnant for about 2 weeks; and

c) Although there had been 2 incidents of domestic violence between the mother and NH in 2011, she had acted appropriately to protect S.

Accordingly the case was closed. 

18. On 14 March 2013 S banged his head under his eyebrow on a coffee table at the paternal grandmother's home. He cried but was not said to be screaming or distressed. It would appear no major harm was done.

19. The following day S's father took him to hospital because he had sustained a graze under his chin during a contact visit. No treatment was required and it would appear no lasting harm was done even though the mother reported NH telling her that S had had "quite a bang".

20. S had a further tumble on 17 March 2013 when he hit his head on the corner of a coffee table at home which caused a bruise above his eyebrow. Again it would appear no lasting damage was done. S was at that stage of his development where he was gaining confidence in walking but would suffer the odd fall and tumble every now and again.

21. On 22 March 2013 SM was born. It was a happy event for the family but she was not a good sleeper and woke frequently in the night to be fed, to have her nappy changed and to be settled in her cot.

22. Around the same time, from approximately 7 April 2013 S began to suffer with a hacking cough which persisted for a number of days.

23. On 10 April 2013 S had contact with his father. The mother noted that S started to hate having his baths.

24. By 13 April 2013 S remained unwell and began to vomit. The following day he continued to vomit but was now also suffering episodes of diarrhoea.

25. He was seen by the family's general practitioner on 16 April 2013 and was prescribed Dioralyte. Later that day he was seen by an out of hour's doctor but no further prescription was issued. The father, RB, felt ill and was sent home early from work: he took the following day off work during which he spent most of the day in bed.

26. At about 9pm the mother called the paternal grandparents to ask for their help in looking after the children. She did so again the following evening or perhaps the evening after that. The paternal grandfather told the police that he was not surprised by the request because they had a new born baby, S was unwell as was RB.

27. On the morning of 20 April 2013 the mother went to the stables. On the way home she stopped off at a local garden centre to buy some pot plants. The father was at home caring for the children. S had a longer than usual midday nap between 11.30 and 14:30.

28. The paternal grandmother arrived at the parents' home for a short visit and left about 3pm. The mother may have returned to the stables later that afternoon but has no clear recollection of doing so.

29. The paternal grandmother returned again to the family home bringing with her a prepared meal for dinner that evening.

30. S was still up and awake when the paternal grandmother left at about 10pm.

31. S was later taken up to bed where he settled for the night. I propose to deal with events of that night and of the following day in some detail when I consider the evidence of the parents.

32. It is clear however that S suffered some form of collapse and was very seriously unwell when the father telephoned for an ambulance at 9:21 on the morning of 21 April 2013.

The Law
33. The burden of proving the findings of fact sought in this matter rests solely with the Applicant local authority. The burden of proving any other facts or matters rests with the party who seeks to prove the same.

34. I am very grateful for the comprehensive closing submissions provided to me by all parties. I have read and taken account of all of the submissions made: most especially those made on behalf of the parents in relation to the medical evidence.

35. I am very grateful to counsel for agreeing a bundle of authorities. I have taken account of all of them but refer in this judgment only to the principal authorities.

36. The seminal statement of the law expounded by Lord Nicholls in Re H & R (Sexual Abuse: Standard of Proof) [1996] AC 563 was  considered by the House of Lords in  Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141, at paragraphs 70 & 73 Baroness Hale said:

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

37. The medical expert evidence is but one part of the evidence available to the court at the fact-finding stage of the case. In Re U; Re B Dame Elizabeth Butler-Sloss P.  said at paragraphs 25-27:

"The trial of a preliminary issue is the first, but essential, stage in a complex process of child protection through the medium of judicial proceedings. It is for the purpose of satisfying that threshold that the local authority seeks to prove specific facts against the parent or parents. Only if it succeeds in that task can its application for a care or supervision order proceed. Thus the preliminary issue of fact constitutes the gateway to a judicial discretion as to what steps should be taken to protect the child and to promote his welfare. In those circumstances we must robustly reject Mr Cobb's submission that the local authority should refrain from proceedings or discontinue proceedings in any case where there is a substantial disagreement amongst the medical experts. For the judge invariably surveys a wide canvas, including a detailed history of the parents' lives, their relationship and their interaction with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children's guardian. In the end the judge must make clear findings on the issues of fact before the court, resting on the evidence led by the parties and such additional evidence as the judge may had required in the exercise of his quasi-inquisitorial function. All this is the prelude to a further and fuller investigation of a range of choices in search of the protection and welfare of children. A positive finding against a parent or both parents does not in itself preclude the possibility of rehabilitation. All depends on the facts and circumstances of the individual case."

38. In determining whether the local authority has satisfied the burden upon it, Bracewell J observed in Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20 (Fam), [2004] 2 FLR 200 at paragraphs 24 & 30 that :

"Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened. In the current case, it is correct that the evidence upon which the local authority relies is circumstantial evidence. No one saw the mother do anything suspicious and numerous nurses and other witnesses have testified that nothing the mother did put them on enquiry. The mother has made no admissions of any kind and has always denied harming her child. The cogency of the circumstantial evidence depends on its quality. It can range from the peripheral and unhelpful to compelling and cogent, and therefore it is necessary to test the various elements."

39. In the case of Re T (Abuse: Standard of Proof)  [2004] EWCA Civ 558 [2004] 2 FLR 838 at paragraph 33 Butler- Sloss P. said that,

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

40. The court should not, however, strain to identify on the simple balance of probabilities the individual who inflicted the injuries. If it is clear that identification of the perpetrator is not possible, then the judge should reach that conclusion: Re D (Care Proceedings: Preliminary Hearing) [2009] 2 FLR 668

41. Giving the judgment of the court in Re S-B (Children) [2009] UKSC 17, [2010] 1 FLR 1161, at paragraph 40 Lady Hale said,

"if the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators. Sometimes this will be necessary in order to fulfil the "attributability" criterion. If the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. Sometimes it will desirable for the same reasons as those given above. It will help to identify the real risks to the child and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child in the long run."

42. A person comes within the pool of possible perpetrators where the evidence establishes that there is a 'likelihood or real possibility' that  a given person perpetrated the injuries in issue: North Yorkshire CC v. SA [2003] 2 FLR 849

43. Where the pool of possible perpetrators consists of just two people, it is wrong to exclude one of them on the basis there is no real possibility that that individual inflicted the harm or caused the injuries. The court must be satisfied, on the simple balance of probabilities, that the other person inflicted  the harm or caused the injuries:

44. The Court of Appeal held in Lancashire County Court v. B [2000] 1 FLR 583 that where the court is satisfied that the child has suffered significant harm the threshold conditions of s.31(2) CA 1989 will be met even though the court is unable to identify who within the pool of possible perpetrators inflicted the injury.

45. Where the court is minded to conclude that a party or a witness has been less than frank on occasions or indeed has lied either in police interviews, statements or in evidence to the court, the court should apply and have in mind a modified Lucas direction [[1981] QB 720] when considering these issues and should find proven lies to be evidence in support of the findings sought only if the court is satisfied there is no other reasonable explanation for the same.

46. Further, when considering the evidence and the findings that I make, I have regard to the Court of Appeal decision in the case of Re M (Children) [2013] EWCA (Civ) 388 in relation to how the court should approach the question of lies when assessing a witness' credibility.   During the course of giving judgment in the Court of Appeal Ryder LJ said:

"A Lucas direction is a criminal direction derived originally from a case on corroboration, R v Lucas [1981] QB 720.  It is used to alert a fact-finding tribunal, that is a jury in a criminal trial, to the fact that a lie told by a defendant does not of itself necessarily indicate guilt because the defendant may have some other reason for lying; that is, he may lie for innocent reasons.  A witness may lie because she lacks credibility, or because she has an innocent motive for lying. If she lies about the key fact in issue, that is one thing; if she lies about collateral facts, that may be quite another.  A judge of fact may not be able to separate out every fine distinction, but may nevertheless conclude that an allegation is proved, despite the fact that the witness has lied about other matters.

Evidence
47. I am grateful to counsel for agreeing a judicial reading list. I have read all documents I was invited to consider. I paid particular attention to the reports of the medical experts and the statements of and the transcripts of the police interviews with the parents.

48. I heard oral evidence from the ambulance technicians who transported S to B Hospital, from Dr N a registrar in A and E, who led the resuscitation team, Mr G, the neurosurgeon from A, who performed surgery on S on the afternoon of 21 April, Dr O'D, a consultant paediatrician at A who had principal care of S, and from Miss A, a consultant paediatric ophthalmologist, who examined S's eyes at 12:45pm on 22 April 2013.

49. I heard oral evidence from the following expert medical witnesses:

i) Dr Kiho, a consultant paediatric pathologist;

ii) Dr Jacques, a consultant neuropathologist and histopathologist;

iii)  Dr McCarthy, a consultant ophthalmic pathologist;

iv) Dr Cary, a Home Office forensic pathologist; and

v) Mr Richards a consultant paediatric neurosurgeon.

50. No party required Dr Sharrard, a consultant paediatrician with an interest in metabolic disease, to attend to give evidence. His reports and conclusions were accepted, the principal conclusions were that:

a) The enzyme test on cultured fibroblasts excluded the possibility that S was affected with glutaric aciduria type 1; and

b) There was no evidence that S was affected with any of the metabolic conditions associated with subdural haemorrhage.

51. I heard evidence from DB, RB, SB, JB and a social worker, KS.

Treating Clinicians
52. The ambulance technicians, Mr S and Mrs M, told me that it was obvious when they arrived at the home that S was very poorly. His pulse was low, his blood pressure was high and increasing, his CRT was over 4 and his Glasgow Coma Scale was 6/15. There was very little response from S. His pupils were unequal and his temperature was 34.9 °C. Mr S said S was cold, his body was shutting down and it was clear he had suffered a serious head injury.

53. Mr S saw some twitching in S's arms but did not see him have a full blown seizure. In contrast Mrs M interpreted S's twitching limbs as 'fitting'. The 'fitting' became more vigorous and his whole body was shaking by the time they had arrived at hospital.

54. Mrs M described when she picked up S to take him to the ambulance that he was rigid and as straight as a board.

55. Dr N said he was the leader of the resuscitation team. He did not examine S but was told by those doctors who did that no signs of injury were seen on S's body.

56. Once stabilised S underwent a CT scan. The scan revealed a right sided large subdural collection which was having a mass effect.

57. It was plain that S needed to undergo immediate neurosurgery to drain the collection. Accordingly he was transferred as an emergency to the neurosurgical team at A. On arrival he was taken to an operating theatre.

58. Mr G examined the right of S's head as he prepared to evacuate the subdural haemorrhage. He saw no signs of bruising or swelling. He saw no abnormal blood vessels in the course of the procedure.

59. He described the progressive increase in S's intracranial pressure after the completion of the operation. The bone flap did not prevent S's brain from swelling further nor his intracranial pressure further increasing from 15 to 30 to 50 in a matter of hours: it reached a peak the following day of 84.

60. Dr O'D took over S's care at A on the morning of 22 April. He told me there was no prospect of survival and accordingly he had an immensely difficult discussion with the mother and NH when the decision was taken to withdraw life support. All support was withdrawn on Monday 22 April.

61. On 22 April 2013 Miss A undertook an examination of S's eyes. She set out her findings in diagrammatic and narrative form in the clinical notes [see G152-153]. The right eye has in excess of 100 retinal haemorrhages and perimacular folding. The left eye had between 50-100 retinal haemorrhages.

62. Dr McCarthy comments that Miss A's diagrams accurately reflected the degree of haemorrhage he found in the eyes. There were features Dr McCarthy identified that Miss A did not. I am satisfied that the examination and investigation which can be performed by an ophthalmic pathologist is the gold standard for clear and obvious reasons.

63. For that reason I prefer the evidence of Dr McCarthy about the extent of haemorrhaging and damage to S's eyes. I do not criticise Miss A at all; my conclusions reflect the limitations of an ophthalmic examination in life. Miss A's examination did reveal very extensive and severe damage to S's eyes.

64. On 23 April 2013 Dr O'D undertook a head to toe examination of S. Save for a fading bruise on his forehead which was not suspicious, no other injuries or marks were found.

65. Very sadly on 24 April 2013 S died. Dr O'D told me he died peacefully.

66. All of the treating clinicians and medical staff concerned with S's care are to be thanked for the quality of care afforded to S and of the valiant efforts that were made to save his life.

The Expert Medical Evidence
67. The medical experts, with the exception of Dr Jacques, held a meeting by telephone conference call on 22 October 2013. A transcript of the meeting is available in the bundle.

68. Dr Jacques has read the transcript and does not dissent from the views expressed by the other expert witnesses.

69. The experts are all agreed that the clinical findings in life and on post mortem examination are not the result of any medical disorder, condition or disease or the result of any natural process.

70. They are all agreed that the findings are a consequence of inflicted head trauma – 'non accidental head injury'.

71. The medical experts who have reported in this case all have very substantial experience in their respective fields or speciality. In my judgment they have expressed views and opinions which fall well within the bounds of mainstream scientific and medical opinion. I remind myself, however, that the expert medical evidence is but one piece of the jigsaw. I have to consider and weigh the totality of the evidence which includes my assessment of the mother and of the father, their respective backgrounds and the circumstances of their lives as a family unit.

72. S was found to have the following injuries:

i) a large space occupying right sided subdural haematoma, causing a midline shift;

ii) widespread cerebral infarction with secondary brain swelling;

iii) bilateral retinal haemorrhages some 100 in the right eye and 50-100 in the left eye, affecting all parts of the retina;

iv) bilateral perimacular folds;

v) extensive haemorrhage into the orbital connective tissues;

vi) extensive haemorrhage into the collagenous dual sheath of both optic nerves;

vii) extensive haemorrhage in the subdural space around both optic nerves; and

viii) marked papilloedema in both eyes

73. It is of note that:

i. no skull fracture was identified;

ii. no fractures were identified of the ribs or of the long bones;

iii. there was no swelling or bruising on the right side of his head;

iv. there were no suspicious marks or bruises found on S's body;

v. there was no damage to his internal organs caused by a grip or a shake;

vi. there was no contusion to the brain;

vii. the sub dural bleeding was unilateral and not bilateral and multi-focal; and

viii. S was outside of the usual age range at which children ordinarily sustain injury by shaking.

74. All of those important points were recognised and/or accepted by each of the medical experts. Nevertheless they each remained of the clear view that the cause of S's injuries was trauma.

75. In his report Mr Richards postulated that one possible but rare cause of the subdural bleeding might have resulted from an arteriovenous malformation which had bled spontaneously and had destroyed itself in the course of the haemorrhage. He made it clear in his report that such cases are extremely rare and he had never seen this occur in children.

76. In the course of the expert's meeting Dr Cary observed that:

"I would just like to make the point though from earlier discussion I think it was felt that a spontaneous bleed was so unlikely to be completely unrealistic in these circumstances…" [E220].

Mr Richards responded as follows:

"I agree entirely, I stressed in my report and I continuous (sic) to stress, it was the only potential alternative for acute disaster like this to trauma and I think it is extremely highly unlikely to the point of being virtually implausible" [E220].

77. During his oral evidence Mr Richards was questioned by Mr Samuels QC, on behalf of the father, about arteriovenous malformations. He told me that the vast majority of arteriovenous malformations bleed into the substance of the brain. No bleeding was found on post mortem examination in the substance of S' brain. Accordingly one had to consider a dural arteriovenous malformation. These are incredibly rare and in 31 years of experience as a neurosurgeon he had never seen the spontaneous rupture of a dural arteriovenous malformation in a child. He added that an arteriovenous malformation was an extremely rare event, it was an extremely rare event for an arteriovenous malformation to rupture spontaneously and extremely rare for the evidence of the existence of an arteriovenous malformation to disappear.

78. The argument that S' injuries resulted from an arteriovenous malformation were further complicated by the fact that an arteriovenous malformation would not cause the retinal bleeding found in S' eyes. An arteriovenous malformation could lead to a very sudden and dramatic rise in intracranial pressure which can result in retinal haemorrhaging in a condition known as Terson's Syndrome.

79. S did suffer from severely raised intra cranial pressure. After he underwent emergency surgery at A his intra cranial pressure steadily and inexorably rose to a level that was incompatible with life.

80. Dr McCarthy was closely, but quite properly, cross-examined by Mr Samuels QC on a number of important research papers contained in the bundle of medical literature. In particular he was taken to a number of passages in the recently updated guidance 'Abusive Head Trauma and the Eye in Infancy' published jointly by the Royal College of Paediatrics and Child Health and the Royal College of Ophthalmologists. The points and issues put to Dr. McCarthy are helpfully and comprehensively set out in paragraphs 16-29 of the closing submissions filed on behalf of the father.

81. He told me that only in the last two years the practice of paediatric and forensic pathologists has changed in that they now provide the ophthalmic pathologists with more tissue when removing the eyes at post mortem. The latter are now provided with the orbital connective tissue. Although there is not as yet any published research on haemorrhaging in the orbital connective tissue, Dr. McCarthy gave a clear and helpful description of the differences between the anatomy and physiology of the eye compared with the orbital connective tissue. He considers the latter to be an important aspect of his work.

82. Dr. McCarthy readily acknowledged the gaps in the scientific and medical evidence in relation to eye injuries and trauma, however, he forcefully made the following points:

i) the extent of the retinal haemorrhages, the fact they were bilateral, the severity and the location of the same, the fact that there were haemorrhages in the optic nerve sheath, in the orbits of the eye and in the orbital connective tissues meant that they were not caused by raised intra cranial pressure. These features were likely to result from trauma;

ii) these retinal haemorrhages were 'curious' in the sense that they were unusual in terms of severity and shape;

iii) all of the haemorrhages were at the severe end of the spectrum;

iv) the pressure in the capillaries of the orbital connective tissue is virtually zero, accordingly he could not see how raised intracranial pressure could cause those blood vessels to burst;

v) it was outside his extensive experience, for raised intra cranial pressure to cause perimacular folds. Further, he knew of no research that described raised intra cranial pressure causing perimacular folds;

vi) head trauma explained  all of the findings in S' eyes; and

vii) he could not think of any other cause for the presentation in this case.

83. Dr Jacques observed axonal swelling in his histopathological examination of S' brain. In answer to a question from me he said that on the balance of probabilities the axonal swelling was more indicative of a traumatic cause rather than resulting from the swelling of S' brain. Mr Richards was slightly more cautious in his interpretation of the axonal swelling but he deferred to Dr Jacques.

84. In all of the circumstances, and whilst I entirely accept the evidence of Dr Jacques, I shall leave the findings of axonal swelling out of my consideration of the likely cause of S' injuries.

85. Dr Cary said in oral evidence that his view that the cause of S' injuries was abusive head trauma was now firmer having attended a recent medical conference in Leicester. He told me that it was uncommon to see signs of external injury in abusive head trauma cases. A simple impact would tend not to produce the nature and extent of the eye findings. There must have been a more complex traumatic process, namely a shake followed by the child being thrown down once or twice onto a soft yielding surface (eg a cot mattress or soft furnishings). He concluded his evidence by saying that the inevitable conclusion on the facts of this case is trauma.

86. In relation to the timing of S' collapse, Mr. Richards said at the expert's meeting:

"I think on the basis of the history of the child interacting and feeding and playing with a toy the night before, we can exclude the haematoma accumulating over a matter of days, but whether it was a matter of hours or minutes is entirely dependent on an accurate truthful history on his clinical state from his carers" [E218].

87. Dr. Cary responded:

"However the point I would add that with such severe eye findings, this child is not going to appear normal or interact normally from the point of impact onwards, that is an important feature of the case. So this is not just some trivial injury producing a slowly accumulating subdural haemorrhage, whatever injury occurred caused quite widespread damage in the eyes which you could expect to cause a changing condition." [E218].

88. The last time S was seen appearing to behave normally by someone who was not a member of the parents' household was at about 10pm on the Saturday night when the paternal grandmother left the house. He was next seen by non-members of the household, namely the ambulance crew, at 9.32am on the Sunday. Accordingly, on the medical evidence, S suffered or sustained his injuries sometime within that time frame.

89. All the experts were invited in cross examination to consider an arteriovenous malformation as the cause of the injuries or that they resulted from a cause or condition unknown to medical science. All were careful to observe that one can never say 'never' in medicine or science. All were and remained agreed, however, that there was no natural disease or condition that could explain the totality and severity of S's injuries. Glutaric aciduria type 1, for example, had been excluded on the basis of fibroblast testing. On the balance of probabilities the only cause for the complex constellation of S' injuries was abusive head trauma.

The Parents
90. I was invited to read a selection of the recordings of the supervised contact sessions which have taken place between the parents and SM. It is plain that the parents are deeply devoted, loving and caring parents. The contact is of a uniformly high quality. Despite the stresses and strains of S's death and of these proceedings, they have each put SM's needs to the fore during contact.

91. The mother is a caring, loving and devoted mother. The paternal grandmother spoke warmly of her as a person and as a parent. In April this year and especially in the week leading up to S' tragic death, she was under a great deal of physical and emotional pressure. She had a 31/2 week old baby to care for who was being fed on demand day and night. S had been very unwell suffering from vomiting and diarrhoea which required him to be cleaned and changed 4 or 5 times a day. He was sleeping longer than was usual during the day and consequently was more unsettled at night.

92. On top of all of that the father became ill on Tuesday 16 April. He was sent home from work early. He was off work the following day during which time he spent a large part of the day in bed. The father was suffering with severe diarrhoea and felt awful. Despite returning to work on the Thursday it is clear he still felt very much under the weather.

93. Fortunately the parents were able to call on the help of the paternal grandparents. The mother sought their assistance on two evenings during that week. It is not entirely clear which two evenings they came round and in the scheme of things it probably does not matter which were the two days. I think more likely it was the Tuesday and Wednesday. The mother recalled the paternal grandparents being present when the out of hour's doctor was attending on S.

94. The mother has given various accounts of the events of 20 and 21 April to the clinicians, to the police, in her statements and in her oral evidence to the court.

95. She asserts that it was a normal family weekend up until she returned from the stables at around 9am on the Sunday. The father had telephoned her just as she was pulling into their road and told her that something was not right with S.

96. The mother says that within moments of her walking into the house S, who was in the father's arms, threw himself back such that the father almost dropped him and he then became stiff as a board. She assumed he had had a fit. She panicked and screamed at the father to call 999.

97. The local authority, supported by the children's guardian, submit that the mother has given inconsistent accounts of the events in the week preceding S's collapse which are, at best, misleading and, for the greater part, untruthful. Further it is submitted that the mother has failed to give a full and frank account of her drinking habit in the weeks and months before S's death.

98. I regret I am bound to find that the mother was not an impressive witness and is an unreliable historian. I so find for the following principal reasons:

i) The hair strand tests clearly established that the mother was consuming 56 units of alcohol per week; the equivalent of 5 bottles of wine. In none of her statements did she give an honest account of her levels of drinking which would reflect those test results: see C45 and C66. In her oral evidence she eventually accepted that she had seriously minimised the amount she had been drinking. In my judgment, however, the mother's evidence went beyond 'minimising', she was lying about the amount she had been drinking.

ii) Against that background an issue arose about a conversation the mother had with a social worker, KS, on 5 March 2013. The antenatal clinic had made a referral to social services after the mother had attended there for her first appointment when 35 weeks pregnant and when the nursing staff detected the smell of alcohol on the mother's breath. In response to a question from the social worker whether she had been drinking before that antenatal appointment the mother asserts that she confirmed she had had a drink that night. The social worker is adamant the mother denied having had anything to drink. The social worker accepted she had made minimal notes during her meeting with the mother. She was clear, however, that rather than closing the referral, as she did, she would have contacted her manager and progressed the matter to a core assessment if the mother had admitted drinking. In my judgment that is compelling evidence. I prefer the evidence of the social worker and I conclude the mother is lying in her account.

iii) The mother's accounts of the events of the evening of 20 April are vague and inconsistent. The problems were compounded in her oral evidence, when her accounts of events become more confused.

iv) The mobile phone records for the father's mobile telephone clearly establish the father drove from the family home by no later than 22:16 on the Saturday night shortly after the paternal grandmother left. The mother claimed to have no memory of the father leaving the house that night. She told the police in interview in August 2013 that "literally all we did after RB's mum left was literally to pull out the sofa out into the sofa bed and went to sleep" [H1193]: see the father's account at paragraph 104(iii) below. In evidence she gave the same account and claimed she could not remember RB going out that night.

v) This is a crucial time – it is the start of the period in which S suffered or sustained his injuries. It is inconceivable in my judgment that the mother would forget such an event. Further I have been provided with no explanation at to why she would have difficulties remembering the episode. I find she is lying.

vi) Worse still, the mobile phone records disclose that between 22:16 and 22:25 the mother made 2 telephone calls to the father and sent him 3 text messages. The mother, however, claims to have no knowledge of those telephone calls (both of which went to voicemail) or of the content of the same. I do not believe her and I find she is lying.

vii) The mother told the police that she thought the father put S to bed that Saturday night but it may have been her [H1195]. In answer to a question from Ms Grief, for the local authority, she said it must have been me who put S to bed or perhaps RB put him down before he went out. On the basis that the mother has no recollection of the father going out that night, I do not see how she can assert that. Once again in a crucial period of the timeframe the mother is inconsistent in her account. I conclude she is doing so to obfuscate rather then to clarify what happened in the home that night.

viii) There is then the issue of who if anybody attended to S that night. The various accounts are wholly contradictory. At the hospital she gave an account of S waking up at about 23:50, cooing (heard over the baby monitor) and wanting a drink [G139]. At the early stage of her evidence she told me she heard a few groans from S over the monitor. A little later she told me there was nothing from S and that she had not got up to S that night. Under cross examination by Mr Samuels QC she said that S first woke at 23:50 but she did not remember if she got up to give S some juice. She said that at 3am she thought she heard him call 'mum'. Then she said she could not remember whether she or the father gave S juice in the night. I note the father asserts that the mother told him that she had got up to check on S in the night and that he was fine [C33]. Once more I find the mother's changing and contradictory accounts exceedingly concerning. I do not believe she is giving a truthful account of the events that night.

ix) On the morning of 21 April the mother told the police that she might have texted the father when she was at the stables [H1634]. In her oral evidence, however, she went much further and asserted not only that she had sent a text to the father but, for the very first time, she asserted that he sent her a text back saying the children were fine. She claimed to have done so because it was the first time she had left them with him for a long period of time. There is no record of any such texts being sent or received. I am satisfied the mother is lying. I find it curious that she apparently remembers texts which were not in fact sent or received but cannot remember texts she had sent to the father the night before.

99. The father is a kind and decent young man with many fine qualities. The maternal grandmother spoke of him in glowing terms. He is obviously hard working and is keen to provide for and support his family: all very admirable qualities.

100. I accept he treated and thought of S as his own child. I accept he treated S and SM equally.

101. I do not accept that his use of text lines detracts in any way from my assessment of him. The only significance or relevance of such behaviour in the context of these proceedings is the extent to which, if at all, it caused tensions or difficulties in the relationship between the mother and the father.

102. He has found these proceedings but, especially, this hearing profoundly difficult. I have observed him and the mother closely during the course of this hearing. He had appeared very distressed, almost desolate at times, particularly when evidence was given by the medical experts. The mother too found that evidence very difficult to bear.

103. It is, therefore, with profound regret that I am driven to conclude that the father has not been honest and frank in his evidence to this court.

104. I make that finding for the following principal reasons:

i) Throughout his written and oral evidence the father has deliberately minimised the level of the mother's drinking. The quantity of wine consumed by the mother as asserted by the father would not begin to account for the test result levels. He claimed in evidence that he could not keep track of the number of times the mother topped up her wine glass because the fridge was kept in the kitchen. On the basis that is was the father who bought the wine and that we are considering a period over many months I simply cannot accept he did not have a clear idea and knew of the sustained quantity of alcohol being consumed by the mother on a daily or weekly basis;

ii) Having been sent home early on Tuesday 16 April, the father did not go home. He claims to have gone to his parents' house but cannot recall whether he saw there his mother or father. We know his father was not at work that day. His father makes no mention of seeing his son at his home during the day of the 16th although both of the paternal grand parents visited the mother and father that evening. Moreover the father did not tell the mother had been sent home early. Why not? I do not know. I do not know where the father went that afternoon but I do not believe it was to his parents' home. He is lying in that account.

iii) The father used strikingly similar words in his police interview when giving an account of what happened after his mother left on Saturday night – literally pull the sofa bed out, put TV on and fall asleep [H1255 + 1193]. When the police put to him in his August interview that there is clear evidence of him being out that evening, the father accepts he must have been out but he claimed, and claims, to have no memory of going out that night. He gives no real reason for that lapse in his memory. I categorically reject his assertion that the events at A Hospital were as traumatic that the events of that weekend have become a mish mash. I accept the events at the hospital must have been deeply upsetting for all concerned but I do not accept they account for this memory loss. I do not accept that it is purely coincidental that this loss of memory commences at the very start of the timeframe in which S suffered or sustained his injuries.

iv) In her evidence the paternal grandmother told me that some little time after that interview the father told her he had been out that night and, she thought, he might have told her he had been to see his friend J. The father has not ever previously or since given such an explanation. The closest it comes to is in his last statement when he says he has recently found out that the police had spoken with J who told them he had an arrangement that night to meet with the father but he had had to cancel the meeting [C71].

v) There were 3 text messages sent by the mother to the father and 1 text message sent by him to her on that Saturday evening. The father claims neither to remember the same nor the content. I do not believe him.

vi) Those texts were deleted by the father on Monday 22 April as they sat at A Hospital. The father claimed he did so to free up space on his Blackberry so that it would work more efficiently. He could give no credible explanation why it was only the mother's texts to and from him that he deleted. He could give no credible explanation of why he had not deleted any other string of text messages from his phone to enable it to work more speedily. I do not accept the father's evidence. I find he is lying.

vii) The father has given various and inconsistent accounts about how often he was up feeding SM the night of 20/21. In evidence he asserted she only woke up once for a feed that night. Whereas he told the police he was up a couple of times with her [H1874 and 1875-6].

viii) He told the police she was a good sleeper – sleeping 5 hours through the night in his April interview [H1820]. Whereas he told the police in his August interview that she was ridiculously hard to get to sleep [H1307]. It cannot be both.

ix) In his police interviews the father described his panic on finding S lying facedown in his cot on the Sunday morning. In his oral evidence he gave an account of being very very relieved when he turned S over in his cot and saw that his eyes were open and he was breathing. At no time, as I recall, does the father describe S' eyes moving.

x) At 9:13am the father sends a text to his brother about them playing golf that morning. Thereafter he claims to have noticed S' eyes were not moving and in a panic he called the mother at 9:18 to say something was not right with S. The mother entered the house moments later. At 9:21 the father called 999. On the father's account he spent some 20-40 minutes with S before noticing his eyes were not moving. On the basis of the medical evidence and the severity of the eye injuries, if S had suffered his injuries before the father attended to him that morning he would not have been remotely normal. The father's explanation that S was normally drowsy when he first woke up will not do. This was a devoted and dedicated carer. I cannot believe he would not have been aware for some 20-30 minutes that this child was seriously unwell. I remind myself that the father says he washed and dressed S. That would have involved a great deal of interaction with the child. For those reasons I cannot accept the father's account of the events of that morning. He is not, in my judgment, giving a truthful and honest account.

Analysis
105. Ms Oldham QC and Mr Samuels QC, on behalf of the mother and father respectively, submit that these parents do not fit the picture of a family often seen in these cases of alleged non-accidental injury. I agree.

106. There are none of the factors often seen in such cases, namely, drug abuse, domestic violence, chaotic lifestyles, criminal activity and convictions, multiple relationships, financial hardship or learning difficulties. These parents are intelligent and both came from good homes and stable backgrounds (but I should note the mother's parents separated and divorced when she was a young child). I entirely accept the evidence of the maternal and paternal grandmothers that the parents are both good and kind people and are good and caring parents.

107. There is the issue, however, of the mother's consumption of high quantities of alcohol in the days, weeks and months before S died. As I have found neither of the parents were frank, open or honest in their respective accounts of the mother's drinking habits.

108. During the week before S was admitted to hospital there were a number of matters which inevitably increased the pressure, stresses and strains on both of the parents:

i) SM was just 3 ½ weeks old and was being fed on demand;

ii) S was very ill and was vomiting and suffering with diarrhoea which necessitated his being washed and changed some 4-5 times a day;

iii) The father was particularly unwell from 16 April – he was suffering from diarrhoea and felt awful. He spent most of 17 April in bed and whilst he returned to work on 18 April, he had not returned to rude health;

iv) The natural father of S had written to the mother threatening her with further court proceedings. They had to raise £20,000 to fund the earlier litigation in respect of S which had only concluded in November 2012. Both were worried and scared at the prospect of incurring further legal costs;

v) The mother had made arrangements with her mother late on the Saturday evening to go horse riding early the following morning for the first time since giving birth to SM. The father, therefore, had to manage the sole care of both children prior to going to play golf with his brother Matthew; and

vi) The mother had asked Matthew to ask the father to play golf because she told me she thought the father needed a break.

109. So all was not as well as it could have been for the parents. As I have found the parents have each been untruthful about the events of 20 April and 21 April. I do not know what happened in that house from the late evening of 20 April to the time of the arrival of the ambulance at 9:32 am on 21 April. I do not know why the father left the family home after 10pm on the Saturday night. I do not know what was said in the 5 texts they sent to each other between 22:18 and 22:25 that night. I do not know clearly who did what in terms of childcare throughout that night.

110. In the premises I am not satisfied that I have been given a true account of the events of the morning of 21 April before the arrival of the ambulance.

111. I do not know any of those matters because the parents have chosen in my judgment not to tell me. I cannot emphasise how significant I consider it to be that the vast majority of these lies and inconsistencies occur during that crucial time period where some acute event was suffered by S. I simply do not accept they have forgotten such significant events the night before and morning of the day that a much loved and cherished child suffered severe and fatal injuries.

Conclusion
112. I bear in mind R v Lucas when considering why the mother has lied. I have been given no reason for any lie or inconsistency in her evidence. There is, in my judgment, no other explanation for the same other than the mother is trying to protect herself or she is trying to protect the father

113. Similarly so, I can come to no other conclusion that the reason for the father's lies and inconsistent evidence  is either the father is to seeking  to protect himself or to protect the mother.   

114. The only conclusion I can draw from that failure to give an account of those events and, as I have previously set out, to lie to the court, is that they know what happened.

115. I remind myself that even usually good, kind and loving parents can, when under stress and pressure, momentarily lose control and without any intention inflict harm on their child.

116. On the basis of the clear and unanimous expert medical evidence, which I accept, and on the basis of my findings above, I am satisfied on the balance of probabilities that S was the victim of inflicted head trauma. I go further, on the totality of the evidence I am sure that this is the only explanation for S' injuries.

117. The parents accept and agree that if the court was to find S' injuries were caused non-accidentally, the only people who can be within the pool of perpetrators are the mother and the father.

118. On the basis of the parents' evidence and my findings in respect of the same, I regret I cannot determine whether the mother or the father is the perpetrator. In light of the evidence they have given I am bound to find that whichever is the perpetrator the other has subsequently colluded with and covered up for that parent. As the evidence stands, however, I cannot reach a clear finding on the degree and nature of that collusion and it would be unwise for me to speculate about the same. 

119. In light of the stance taken by the parents, it is not for this court to speculate how S came to be injured. All the court can find is that S's injuries were caused non-accidentally either by the mother or by the father.

120. I wish to express my gratitude to all counsel for their preparation for and conduct of this hearing which has assisted me greatly in this difficult case.

Postscript
121. On the basis that I ultimately found, as I have now done so, that S had suffered non-accidental head injuries, I had hoped to be able to identify one of the parents as the perpetrator and to exonerate the other.

122. In those circumstances and subject, of course, to the outcome of a risk assessment, it had been my wish that SM would be rehabilitated to the care of her parents.

123. The recordings of contact demonstrate a warm, loving and deeply affectionate relationship between SM, her mother and her father. Each of the parents spoke movingly and entirely sincerely of their great love for their daughter.

124. I was surprised to hear that the mother would prefer SM to be placed for adoption if she cannot be returned to her care, rather than be placed with, for example, the paternal grandparents. The mother would apparently find it too painful for SM to be cared for by family members when she could have contact with but not care for her. The father does not share that view.

125. For the reasons I have given, I am not able to identify which of the parents caused S' injuries nor am I able to exonerate one of them. Accordingly the task of undertaking a risk assessment is far more complex and a decision on the future care of SM is made much more difficult.

126. The parents must understand that there are, sadly but rarely, occasions when an otherwise loving and caring parent, under the burden of the stresses and strains of life, momentarily loses control and inappropriately handles a child. There is no intention to harm the child let alone inflict serious injury. Such actions do not make them a bad person or a bad parent.

127. I do urge both the mother and the father to reflect long and hard on this judgment. I urge them to consider what more they can and should reveal about the events which led to S suffering his fatal injuries.

128. They should and must do so for the sake of their beloved daughter SM.