E (a child), Re [2015] EWFC B119 (22 July 2015)

DN-V1

IN THE FAMILY COURT SITTING AT bournemouth		CASE NO: BH14C00657





Before His Honour Judge Bond

Re E (a child)










	JUDGMENT

1. This case concerns E, a little girl who was born by emergency caesarean section at 35 weeks plus 2 days on 31 ^st May 2014.

2. E’s mother is K (the mother). Her father is D (the father). J is the maternal grandmother. On 13 ^th September 2014 E was admitted to the Dorset County Hospital and later transferred to Southampton Hospital.

3. Following admission to hospital investigations revealed that E had suffered bi-lateral subdural haemorrhages and retinal haemorrhages.

4. Fortunately E has recovered from her injuries. She is currently placed with foster carers. The parents have regular supervised contact with E

5. The father says that he had been holding E swaddled in a blanket close to his chest and in his arms. She slipped from the blanket and the father caught her around the chest without bending his knees. E went floppy. The ambulance arrived at 9.56pm.

6. E arrived at the emergency department at Dorset County Hospital on 13 ^th September 2014 at 22.23 following a 999 call.

7. The history given to Dr Wylie, Consultant Paediatrician by the parents was that E had been well until having her second set of immunisations on 2 ^nd September 2014. About 48 hours later she became grumpy and started to vomit. Over the period from 4 ^th September to 13 ^th September the parents reported that E frequently vomited but not after every feed; she was more sleepy and irritable than usual; she did not sleep peacefully; she had stopped smiling.

8. Dr Wylie described E as being pale, quiet with arms flexed and hands clenched. She had an urgent CT scan. This was reported as showing bi-lateral subdural collections. The appearance was of chronic effusions with some areas of new bleeding. E had intensive care, support and intracranial pressure monitoring. Some of the subdural collection on each side was removed prior to E’s transfer to Southampton Hospital. A mixture of blood and fluid came out under significant pressure.

9. During her care at Southampton E had three further taps of her intracranial subdural areas.

10. A MRI scan of her head and spine was performed on 16 ^th September. This was reported by Dr Gawne-Cain and showed bi-lateral chronic subdural collections with evidence of recent bleeding. There was also some blood in the sub-arachnoid space. The Consultant Ophthalmologist Mr Sanu examined E’s eyes on 18 ^th September. He described pre-retinal and retinal haemorrhages in each eye. A skeletal survey was performed on 15 ^th September 2014. There were no fractures on these images or on a repeat of the chest x-ray on 23 ^rd September 2014.

11. Various tests were performed in order to exclude the possibility of the existence of a coagulation disorder, vitamin deficiency or metabolic disease. There was some difficulty in completing these tests because on one occasion E was too distressed to allow the tests to be successfully carried out. They were, however, eventually completed .

12. High raised blood pressure: this was found in E in circumstances of raised intracranial pressure although measurement on admission on 13 ^th September 2014 was normal

13. This hearing was arranged to establish:-

(i) whether E’s injuries were the result of an accident or whether E was shaken or suffered an impact injury;

(ii) if E was shaken or suffered an impact injury who was responsible;

(iii) the Local Authority’s case is that if the injuries were non-accidental neither the father or the mother was the perpetrator;

(iv) whether the parents have provided a truthful account of what happened;

(v) in the event of non-accidental injury, whether the non-perpetrating parent failed to protect E from the risk of injury;

(vi) in the event of inflicted non-accidental injury whether the perpetrating parent failed to act promptly in seeking medical attention.

14. The Local Authority in its revised threshold statement dated 18 ^th May 2015 contends that such was the state of the family home when visited by the police following E’s admission to hospital that the risks posed by the state of the property were sufficient in their own right to satisfy the threshold criteria.

15. I heard this case over ten days in June 2015. Mr Hand appeared for the Local Authority, Mr Samuels QC appeared for the mother, Mr Vater QC appeared for the father and Miss Lazenby represented the Guardian.

16. Cases of this sort require significant preparation and co-operation between the parties’ representatives. I am grateful to all concerned for the way in which this case has been managed.

The Law

17. The burden of proof lies upon the Local Authority. It is the Authority that brings these proceedings and identifies the findings which the court is invited to make. The burden of proving those allegations therefore rests with the Local Authority throughout.

18. The standard of proof is upon the balance of probabilities ( Re B [2008] UKHL 35). If the Local Authority proves on the balance of probabilities that E has sustained non-accidental injuries inflicted by one of her parents, the court will treat that factor as established and all future decisions concerning E’s future will be based upon their finding. If, however, the Local Authority fails to prove that E was injured by one of her parents, the court will disregard the allegation completely. See Lord Hoffmann in Re B (above).

19. Findings of fact in a case such as this must be based upon evidence. As Munby LJ observed in Re A (A Child) (Fact – Finding Hearing: Speculation) [2011] EWCA Civ 12:

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

20. The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. As Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and 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.”

21. In this case the court heard, amongst other evidence, expert medical evidence from a variety of specialists. It is important to remember that while proper attention must be paid to the opinions of medical experts, those opinions have to be considered and assessed in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence. Having conducted such an exercise the court may reach a conclusion that is at variance from that reached by the medical experts.

22. A case such as this which involves an allegation of shaking involves a multi-disciplinary analysis of the medical information conducted by a group of specialists each of whom brings his own expertise to bear on the problem. It is therefore important that each expert keeps within the bounds of his/her own expertise.

23. The evidence of the parents is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. The parents in this case have had the fullest opportunity to take part in the hearing. The court places considerable weight upon their evidence and the impression it forms of them.

24. It may be that witnesses in this case will have told lies in the course of the investigation and the hearing. I must bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and stress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything – R v Lucas [1981] QB 720.

25. Further as was observed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 FA:

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

26. There is a temptation, which the court must resist, to believe that it is always possible to identify the cause of injury to a child ( R v Henderson and Others [2010] EWCA Crim 1219).

27. The frontiers of medical science are always expanding. There will not always be sufficient understanding to explain every case. As Hedley J observed in R v Henderson:

28. “In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made

29. When the court seeks to identify the perpetrators of non-accidental injury the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator ( North Yorkshire County Council v SA [2003] 2 FLR 849).

30. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interests of the child. Where it is not possible to find on the balance of probabilities that A rather than B caused the injury then neither can be excluded from the pool and the judge should not strain to identify the perpetrating parent - Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).

Background

31. The mother was born in December 1988 and the father in August 1991.

32. The mother was both witness to and the victim of aggressive and violent outbursts from her father and brother over many years. In the Horizon report the mother is reported as describing occasions when she was herself beaten or saw her mother being beaten. On occasions the mother tried to protect both her own mother and her brother from these violent outbursts.

33. The father described a generally settled and conventional childhood. He did well at school and reported that his family are supportive of him.

34. The parents met by playing an online computer game. At this time they lived at the homes of their respective parents. The father lived in Staffordshire and the mother in Dorset. It was some time before the father visited the mother in Dorset. The relationship was broken off for a time but they resumed communicating through social media. The father visited Dorset and the couple agreed to reconcile.

35. The parents had not intended to have a child so early in their relationship. The pregnancy therefore came as a shock although they became pleased and excited at the prospect of a baby.

36. The mother had a difficult pregnancy. E was delivered by emergency C Section. She was in constant pain thereafter from which she still suffers to some extent.

37. In the report at C36 paragraph 4.6 the father is referred as to having “unusual thought patterns”. The reporter described it “as difficult to give an exact title to the type of thought processes or to name what this is but (the father) appeared to have ideas and opinions that are outside of usual social norms”. It was said that he appeared to make situations more complex and more complicated than they actually are and at times he tries to look for deeper and more theoretical reasons for behaviour or situations.

38. Having seen the father give evidence I understand what the author of that report was driving at when she made those comments.

39. At C38 paragraph 5.3 the couple were reported as showing themselves able to meet E’s care needs well and were aware of what was needed to provide for E and what is required of them as parents.

Medical Evidence – General Observations

Subdural Haematomas

40. I am grateful to Baker J for his summary which starts at paragraph 48 of his judgment in A County Council v RH, KS, and JS [2012] EWCH 1370 Fam. I have adopted some of his descriptions.

41. Enveloping the brain and the central nervous system is a system of membranes which consists of three layers: the pia, the arachnoid and, nearest to the skull, the dura. Between the pia and the arachnoid there is a space, the sub-arachnoid space or extra-axial space, which is filled with cerebrospinal fluid. Between the arachnoid and the dura there is no actual space but rather a potential space.

42. A collection of blood in the potential subdural space is called a subdural haematoma. Subdural haematomas do not occur as spontaneous events in children. Something has to cause them. In the absence of a bleeding disorder, some pre-disposing malformations and certain very rare metabolic disorders, subdural haematomas are strongly associated with trauma. The ultimate mechanism of the formation of subdural haematomas is thought to be a rupture by shearing forces of the small unsupported veins which pass between the brain and the skull.

43. Fresh bleeding in the spaces causes an acute subdural haematoma. Such bleeding normally disappears without trace, other than some changes visible through a pathologist’s microscope. In certain individuals, however, the acute blood breaks down and becomes more watery, causing an inflammatory response within the subdural space which leads to the development of fragile subdural membranes. Instead of the blood disappearing the subdural space fills up with progressively more watery fluid and intimate episodes of spontaneous re-bleeding may lead to the volume of fluid in the subdural space becoming greater over time. This dynamic situation develops over a period of at least two weeks and is known as chronic subdural haematoma.

44. In the infant the accumulation of chronic subdural haematomas is usually accompanied by the expansion of the skull. This is possible because the growth plates in the skull have not yet fused. This may allow a significant volume of fluid to collect without any clinical symptoms becoming apparent, other than enlargement of the head.

45. It may be that appreciating that a head is enlarging rapidly can be difficult for the everyday observer. It is usually identified by someone who has not seen the child for some weeks or, alternatively, by a routine surveillance examination of the head circumference.

46. The origin of a chronic subdural haematoma is, therefore, an acute bleed into the subdural space some time in the child’s life usually at least two weeks before presentation and possibly longer.

47. There are a large number of medical conditions which are known to cause spontaneous subdural haematomas. In E’s case all proper investigations have been conducted and rule out all such medical causes . In the absence of such a cause the remaining cause is injury. In the case of an infant, who is not ambulant as was the case with E, the possible cause of such an injury are birth followed by an evolving condition, accidental trauma and a non-accidental trauma.

48. Recent research has shown that subdural haematomas occur more frequently at birth than was previously recognised. A paper by Rooks and others indicated that 46% of neonates had subdural haematomas seen by MRI within 72 hours of delivery and that subdural haematomas were seen after all modes of delivery, including caesarean section. Most of these subdural haematomas have resolved within one month and all have resolved by three months .

49. In this case the question is whether E’s injuries were caused by a shake or by a shake plus impact. Although earlier in the evening on 13 ^th September E accidentally struck her head against the side of a basin in the bathroom no party has suggested that such impact may have been the cause of E’s head injury. It is the Local Authority’s case that E was shaken.

50. The consensus of opinion amongst the experts was that while the minimum force required to cause an acute subdural haematoma is not known, clinical experience suggests that accidental events have to be at a level higher than encountered in normal everyday life and would normally only be expected as a result of accidents memorable to parents.

51. If the sub-arachnoid space was enlarged before any subdural bleeding, a condition known as benign external hydrocephalus, it is suggested that the degree of force required to cause subdural haematoma might be less than would be needed to cause subdural haematoma in the absence of such enlargement. The presence of enlarged extra-axial fluid spaces is known to be a risk factor for spontaneous subdural bleeding or subdural bleeding after minimal trauma .

52. In his report at E145 page 108 Dr Rylance said:

“There remains a possibility that E’s subdural haemorrhages and retinal haemorrhages are unexplained. As a doctor, I am bound to consider known causes of problem presentations and particularly in this area, it would be inappropriate to dismiss the possibility of unknown causation. ... In a case like that of E, I have to consider the “arrogance” of doctors in believing we know most of what there is to know about medicine and the truth is probably that we know only a small part. Nevertheless, I can only provide an orthodox and balanced position that I know would be shared by the great majority of paediatricians. It is that most presentations of combined subdural and original haemorrhages as in a child like E would be caused by forceful shaking, but it is just possible that may not.”

Retinal Haemorrhages – General Observations

53. The retina is a structure of multi-layered light sensitive tissue at the back of the eye. It plays a vital role in the process of vision. Bleeding in the retina is known as retinal haemorrhage. It is characterised and described by reference to whether it is unilateral or bi-lateral, that is to say in one or both eyes, that whether it is multi-layered or limited to only one or a few of the layers of the retina and whether it extends to the periphery of the retina or is confined to the central area known as the posterior pole and peri-papillary areas.

54. There are various causes for retinal haemorrhage. The mechanisms suggested excluding direct injury to the eyes, includes raised intravascular pressure, which may be produced by raised intracranial pressure, increased central venous pressure which can occur with intrathoracic pressure due to impaired venous return to the heart. This may occur in chest compression or strangulation, and an increase in central retinal vein pressure, such as may occur in certain medical conditions, or inter action with the vitreous jelly on the retina at its points of attachment to the retina caused by the effects of acceleration/deceleration during shaking. In this case one of the possible causes of E’s retinal haemorrhages was raised intracranial pressure.

Medical Evidence

55. The following expert witnesses were instructed in this case: Dr Stoodley, Consultant Neuroradiologist, Mr Newman, Consultant Paediatric Ophthalmologist, Mr Rylance, Consultant Paediatrician, Sally Kinsey, Professor/Consultant Paediatric Haematologist and Mr Richards, Consultant Paediatric Neurosurgeon. The court also heard from Dr Wylie the Consultant Paediatrician on duty at Dorchester Hospital on E’s admission and Dr. Gawne-Caine Consultant Neuroradiologist at Southampton Hospital and Professor Kirkham.

56. Dr Stoodley: With reference to the CT scan of 13 ^th September 2014 Dr Stoodley reported as follows:-

“Lower attenuation (dark) subdural collections are seen over both cerebral convexities. Whilst darker than the underlying brain they are brighter than the cerebral-spinal fluid (CSF) in the sub-arachnoid spaces. The two main possible explanations for the presence of this fluid is that it could represent old (chronic) subdural haematomas (in which case as they are darker than the underlying brain they would be at least two to three weeks old at the time of this examination). The alternative explanation is that a fluid represents haemorrhagic effusion. Such effusions are believed to occur when the arachnoid membrane is damaged at the time of a head injury allowing dark CSF to leak into the subdural space and either collect there or dilute any acute (bright) blood that is present.”

57. Dr Stoodley also reported:

“Over superior aspects of both cerebral hemispheres there are patchy areas of high attenuation (bright) material that is due to acute (recent) sub-arachnoid haemorrhage. It is not possible to assess accurately the age of this acute blood as recent reading can appear bright on CT from soon after an episode of bleeding for up to seven to ten days (although small volumes of acute blood tend to resolve faster in the sub-arachnoid space because of a dilution by CSF). The peripheral distribution of this acute blood suggests that it is likely to be due to a traumatic cause.”

58. In relation to the MRI scan dated 16 ^th September 2014 Dr Stoodley reported:

“There is evidence of small amounts of discrete subdural blood over the posterior aspects of both cerebral hemispheres, and the posterior fossa and layering along the arachnoid membrane over the lateral aspects of both cerebral hemispheres. This material is acute blood and the signal characteristics suggest that the predominant blood breakdown product present is intracellular methaimoglobin. Whilst not absolute, this tends to be seen around three to seven days after an episode of bleeding.”

59. Dr Stoodley went on to report that the features which he had observed:

“... would favour the collections being acute traumatic effusions rather than chronic subdural haematomas. If that is the case then all the subdural abnormalities could be explained on the basis of having occurred at the same time. If the collections represent chronic subdural haematomas then that would suggest that there had been at least two episodes of significant subdural bleeding.”

In his conclusion starting at E27 Dr Stoodley says:

(i) Following admission to hospital neuro imaging investigations showed evidence of acute subdural bleed at several different sites with probable traumatic effusions and acute sub-arachnoid haemorrhage.

(ii) Investigations had not shown any naturally occurring medical condition that would account for E’s presentation or the scan abnormalities. As such, the subdural abnormalities are strongly associated with head trauma.

(iii) Birth or birth trauma is not a realistic cause for the abnormality.

(iv) No history of accidental head trauma of sufficient severity to account for these appearances had been given.

(v) The scan abnormalities are all entirely consistent with being due to an episode of abusive head trauma.

(vi) The most likely mechanism was a shaking injury.

(vii) Whilst the exact amount of force required to cause such head trauma is unknown, such features do not stem from normal handling, typical domestic trauma or rough play. It is safe to conclude that a minimum degree of force required is likely to be such that an independent witness would regard it as being likely to lead to harm to the child, i.e. it would obviously be inappropriate.

(viii) Symptoms and signs of non-accidental head injury (NAHI) are varied, variable and non-specific. They can include going off feeds, vomiting, reduced levels of consciousness, abnormal movements and seizures.

(ix) Following the NAHI taking place there is likely to have been a change in the child’s behaviour at the time of the causative event and the child will not have behaved entirely normally after the causative events.

(x) The causative event is likely to have occurred after the last time that the court can find that the child was behaving within the bounds of normality.

(xi) A perpetrator would be likely to realise that the change in behaviour had occurred as a result of their actions, but a non-perpetrating carer who did not know of the causative event might recognise a change in behaviour but they would not necessarily ascribe that change to a traumatic event.

60. Mr Newman’s report is at E34. At E66 Mr Newman describes the retinal examinations which were undertaken on 17 ^th September and 18 ^th September. Retinal photographs were not taken.

61. Mr Newman reports:

“The findings were similar on both occasions which were documented in an annotated diagram. ... In the diagram there is at least one retinal haemorrhage in the left eye, and several in the right. The Registrar mentions that there were multiple retinal haemorrhages in the right eye, but only two “blobs” are drawn. The consultant’s drawing simply mentions “retinal haemorrhages” and the notes states “pre-retinal and retinal” but these are not indicated on the diagram.”

62. At the top of E67 Mr Newman notes that the limited information necessarily limits interpretation. He points out the mere presence of retinal haemorrhages does not give rise to a diagnosis and that non-accidental head injury as a cause of retinal haemorrhages is a matter of diagnosis by exclusion.

63. At E67 at paragraph 5 Mr Newman reports that most intraretinal haemorrhages detected at birth resolve within seventeen days and with virtually none visible after four weeks. Deep retinal haemorrhages may take up to 30 days to resolve and pre-retinal/sub-hyloid haemorrhages may take several months to resolve.

64. Starting at E73 Mr Newman deals with the various questions posed in his instructions. He excluded minor accidental trauma, attempts to arouse a sleeping or apparently unconscious child, bouncing in the course of normal handling or play, cardiopulmonary resuscitation, seizures and vomiting.

65. At E76 Mr Newman deals in some detail with the question of raised intracranial pressure which is a cause of the retinal haemorrhages. He describes that E had intracranial haemorrhage with tense fontanelle and clinical signs of raised intracranial pressure including depressed pulse, raised blood pressure, deviated eyes with asymmetric pupils. This led to a subdural tap which found the cerebrospinal fluid to be under considerable pressure.

66. Mr Newman describes this as a complex case in which there has been significantly raised intracranial pressure with several interventional procedures (subdural taps) undertaken prior to examination of the retina and finding of retinal haemorrhages. It is Mr Newman’s view that the pattern of haemorrhages is not typical of that found in raised intracranial pressure. On a balance of probabilities it his Dr Newman’s opinion that the retinal haemorrhages found in E are unlikely to be due to an isolated raised intracranial pressure.

67. Mr Newman continued in his report to exclude birth related retinal haemorrhages given that E was 109 days old at the time that the retinal and pre-retinal haemorrhages were identified.

68. He also excluded a number of other conditions. At E89 Mr Newman points out that the causes of retinal haemorrhages remain hypotheses. Some ophthalmologists are, in view of recent controversies of aetiology, uncomfortable considering that ocular haemorrhage is associated with subdural haemorrhage in the absence of obvious bruising or skeletal or other injuries.

69. Starting at E96 Mr Newman gives his Opinion. In his view the retinal haemorrhages occurred some time within the seventeen days preceding their identification. He points out that the pre-retinal haemorrhages may have occurred at the same time but may pre-date the retinal haemorrhages. In his view neither are likely to be birth related. He also pointed out that he had no evidence of a significant episode of accidental trauma.

70. While E did have significantly raised intracranial pressure within a few hours of presentation which required relief, retinal haemorrhages are identified following raised intracranial pressure but they are usually around the optic disc and few in number. He pointed out that this is a complex case with significant events occurring prior to the examination of the eyes. There was little available detail of the retinal haemorrhages that were found. At E97 Mr Newman reports as follows:

“Noting the commentary above and in the absence of an episode of major accidental trauma, or an underlying condition, and in the knowledge that not everything in medicine has a clear explanation the retinal and pre-retinal haemorrhages remain unexplained and the retinal haemorrhages could be:

(i) unexplained;

(ii) related to raised intracranial pressure and intervention;

(iii) due to a shaking injury or shaking injury with impact;

(iv) throwing up in the air and catching E.”

71. Mr Newman reports that on the balance of probabilities it is his opinion that the findings are most consistent with a shaking type injury. He pointed out that in respect of inflicted head injury the minimal force required to generate retinal haemorrhages are not known. It is considered that the force must be considerable. Any such action, if witnessed by a bystander, would be considered by that person to be obviously dangerous and inappropriate.

72. Mr Richards is a Consultant Paediatric Neurosurgeon. His report is at E160. At E173 he reported as follows:-

“Specialist neuroradiological investigation has identified fresh subdural bleeding and fluid over the surface of both cerebral hemispheres that on radiological grounds could be either old blood which is breaking down, becoming more watery and expanding in volume, a chronic subdural haematoma, or fresh blood mixed with cerebrospinal fluid, and acute traumatic effusion. A chronic subdural haematoma would be expected to have abnormally expanded the skull, to have it normally separated the skull sutures and, when released by a surgeon, to have been recognisable as old breaking down blood which is commonly brown, black or yellow. In this case, the head circumference had not grown excessively, and the skull sutures were not separated and the surgeons who aspirated the fluid and the laboratory described it as blood stained cerebrospinal fluid. This would suggest, although it is not definitive, that the fluid in the subdural space over the cerebral hemispheres if it is not fresh blood was an acute traumatic effusion.”

73. At E174 Mr Richards went on to say:

“On the presumption that she has no underlying clotting abnormality, or any other disease process capable of causing acute encephalopathy, acute subdural haemorrhage, acute traumatic effusion and acute retinal haemorrhaging, the features identified are features clinically that can all be explained by a recent episode of head injury. Clinically it is well recognised that these features in combination can occur after a child has had excessive movement of the head in relation to the body, followed by deceleration such that excessive acceleration/deceleration forces occur.”

74. At E175 Mr Richards reports:

“Clinical experience would suggest that the forces involved must be greater than those encountered in normal life, including normal domestic handling, rough domestic handling and minor domestic accidents such as falling off domestic beds or sofas where such injuries rarely occur. Such injuries can be seen following a more forceful accident such as road traffic accidents and the higher force falls, and therefore it can be presumed that the forces required to cause these injuries lies somewhere between the two.”

75. Dr Newman’s opinion is that the commonest situation where such injuries occur follow where a child is forcibly shaken by a carer in respect of which he cites three patterns:-

(i) Infants who have been clearly forcible beaten up and as well as the intracranial changes of a number of other injuries such as fractures and bruises. There were no such injuries in E’s case.

(ii) Children who suffer head injury as a part of repeated systematic abusive behaviour as well as head injuries such children present with other injuries such as fractures and bruises at different ages. No such injuries were apparent in E’s case.

(iii) The commonest presentation where a child has injuries such as E is the result of a momentary loss of control by a carer who had not planned to injure the child.

(iv) In Mr Richards’ opinion E’s presentation is compatible with her having suffered a recent shaking injury as set out in paragraph (iii) above.

76. Mr Richards points out that commonly the point of injury is where a child changes from being normal to abnormal. E’s mother’s presentation was that she had been fed that morning and suddenly changed so that the emergency services were called. Mr Richards’ opinion is that E’s state when attended by the paramedics and continued into her arrival at hospital is compatible with her having suffered an injury around the time that the emergency services were summoned. If the cause of E’s injury was that she had been subjected to a shake with excessive force by the carer, that is likely to have been at the time she changed to being floppy with impaired breathing and circulation.

77. At E178 in paragraph 2.7 Mr Richards considers the father’s explanation. As to that he reports as follows:

“It is theoretically possible that if this event involved her head moving excessively with force it might have exceeded the injury thresholds and caused acute encephalopathy, acute subdural haemorrhage, acute traumatic effusion and acute retinal haemorrhage. However, there is nothing in the presentation that would allow me to say that this must have been the cause of the presentation.”

78. Dr Rylance is a Consultant Paediatrician of great experience until his retirement in January 2014.

79. His report is dated 3 ^rd January 2015 at E109. His replies to certain questions filed E185. In his report he has conducted a review and as set out in his instructions at E113/114.

80. At E137 paragraph 84 Dr Rylance asserts:

“The episode of floppiness and pallor that affected E on 13 ^th September 2014 was a very significant clinical change. It is the only time that such a significant change was evident in her and this makes it very much more likely than any other time for the occurrence of one episode of bleeding into the subdural space.”

81. At paragraph 86 Dr Rylance reports as follows:

“The clinical description of E having vomiting and being unsettled may indicate that she had a subdural bleed before 13 ^th September 2014 and probably around 6 ^th September 2014. This clinical explanation for timing is only of assistance if Dr Stoodley considers that a first relatively recent haemorrhage could have occurred at this time according to the imaging features. If so, it would be a real possibility in which case, the bleed associated with the very significant clinical change on 13 ^th September 2014 could represent a re-bleed into an existent subdural haemorrhage. In that case, the necessary force to cause the bleed on 13 ^th September 2014 may have been less than would have been the case if there were no haemorrhage pre-existing on 13 ^th September 2014.”

82. At E146 Dr Rylance reports:

“In E’s case, she had the grouping of subdural haemorrhages, retinal haemorrhages and brain dysfunction though there was no apparent brain tissue injury. Although the brain dysfunction may have been due to the subdural haemorrhage through irritation or pressure effects, the association of the two bleeding manifestations is a very strong pointer to a shaking causation of injury.”

83. In answers to his specific instructions Dr Rylance deals with the question of E’s prematurity and is of the following opinion:-

(i) Subdural bleeds even if more likely to occur at birth in pre-term babies resolve in the same timeframe as term baby.

(ii) Retinal haemorrhages if even more likely to occur at birth in pre-term babies resolve in the same timeframe as term babies.

(iii) Subdural haematomas resulting from birth trauma would not persist longer in pre-term babies.

(iv) That retinal haemorrhages resulting from birth trauma would not persist longer in pre-term babies.

(v) Dr Rylance could not think of any reason why E’s behaviour in the days before 13 ^th September 2014 would be more likely to occur as a result of prematurity or that the symptoms of her sudden clinical change would be associated with subdural haemorrhaging and in the case of a term baby with whom there were no abnormalities.

84. Professor Kinsey is a Consultant Paediatric Haematologist. She reviewed the results of the haematology investigations and on the information available to her at the time of her report on 8 ^th March 2015 she said:

“The results of the blood investigations undertaken in E have not identified a haematological pre-disposing condition that may result in spontaneous intracranial bleeding. Nor any evidence for an underlying haematological abnormality which would pre-dispose E to a spontaneous bleeding and bruising of any kind, or more prolonged bleeding and bruising following trauma, however caused.”

85. At page E153(l) Professor Kinsey went on to say:

“I have considered the haematological investigations results available so far and find no evidence for an underlying haematological problem in E which would pre-dispose her to spontaneous intracranial haemorrhage or spontaneous bleeding elsewhere. In my opinion the explanation given by parents does not explain the extent and severity of the bleeding seen in E.”

86. Professor Kirkham is a Consultant Paediatric Neurologist at Southampton Hospital. Her report is at E14 dated 1 ^st October 2014.

87. Her notes appear at J290 and J292 which appear to be almost identical. In her report at J293 she reported:

“One explanation of the appearances is that there has been re-bleeding into pre-existing chronic subdural collections, that the original cause of the subdural haemorrhage remains to be explained. Trauma, including birth injury is one possible cause. Clinical correlation will be needed. Clinical history and the results of other investigations may help to narrow down possible causes.”

88. In her oral evidence she confirmed her view that she thought there had been a chronic subdural followed by a re-bleed. In relation to birth injury the doctor said that such bleeds disappear within four to six weeks but remained clear that her first impression and clinical interpretation on the evidence available to her was that there had been a re-bleed into a pre-existing chronic collection. The previous bleed, in addition to birth trauma might have been caused by any trauma subsequent to birth.

89. Dr Wylie is a Consultant Paediatrician at the Dorset County Hospital. His main statement is at E1 dated 17 ^th September 2014. At E5 in his report is a section headed interpretation of findings which reads as follows:-

“E is a 15 week old baby who has presented with unexplained subdural effusions/haemorrhage. The timing of the injury has yet to be established but it should be noted that E had been unwell for eight days. Symptoms during this period included vomiting and a change in behaviour (grizzly and lack of smiling) which could indicate raised intracranial pressure. In my opinion the sudden deterioration precipitating admission on 13 ^th September 2014 was probably secondary to a seizure (precipitated by the intracranial damage). It is plausible that E slipped through the blanket in (the father’s) arms because she had become floppy as a result of the seizure. The fact that she was unresponsive and floppy as soon as she was caught suggests (in my opinion) that she had not been right even before she was dropped. If the effusion and haemorrhage were to have been sustained during this fall I would expect her clinical condition to gradually deteriorate as the effusion/bleeding developed. With unexplained intracranial bleeding/subdural effusions, non-accidental injury (particularly shaken baby syndrome) has to be very seriously considered and a differential diagnosis although alternative diagnosis would need excluding.”

90. Later in his report at E6 Dr Wylie mentions positive features in the past history which include the absence of any concerns about parenting/handling of E during earlier hospital admissions and the fact that the parents were seeking medical help during the eight days in which E had been unwell prior to admission. She was described as appropriately grown and appeared clean at the time of her admission.

91. In his oral evidence Dr Wylie confirmed that there were no adverse comments about the quality of the parenting of E. In relation to E’s collapse at the hospital the doctor said he was extremely concerned because when intracranial pressure reaches a certain level the brain is forced into the brain stem which can cause death. This was the most severe example of intracranial pressure that he had seen and he described it as “the end game”. Such was his clinical impression at the time and that remained his view.

92. The flexing of E’s arms suggested a severe dysfunction of her brain and the asymmetry of the pupils was suggestive of a life threatening situation.

93. He thought the parents while at the hospital and in his presence reacted in the manner he would have expected concerned parents to behave. The doctor recalled the father telling him in some detail of the fall through his hands.

94. Mr Parker has been the Practice Manager at the Dorchester Children’s Social Care Team since 1 ^st December 2012. His statement is at C1 and is dated 19 ^th September 2014. Some of the material upon which his statement is based is contained in section Q. He also referred to the photographs of the family home in section F. These photographs were taken by the police on 15 ^th September 2014. Mr Parker was only directly involved in the case for a short period immediately after 13 ^th September although he supervised the allocated social worker until October 2014. He has had no direct involvement since then.

95. He was aware from paragraph 14.6 of the Horizon assessment at C47 that the home conditions showed a marked improvement by 15 ^th December 2014. The further signs of improvement are evident from the Case Recording Summary at Q98. Mr Parker was part of the initial decision to recommend the removal of E. He described the condition of the home as bad enough on its own to justify the removal of E in September. He had been concerned not only about the structural damage but poor state of hygiene and sanitation. The Local Authority was surprised that there had not been a referral from the Health Visitor about the state of the house.

96. The Health Visitor had learned from the mother that E’s conception was unplanned and the parents both told her that this had come as a shock. At the Health Visitor’s first visit she described the mother as grieving in respect of E’s early birth, in shock and needed to be comforted. It was noted that the mother showed warmth to E and although she was tearful at times it was not thought that the mother was depressed

97. The Health Visitor’s notes are in section M1. On 15 ^th July 2014 (M38) the Health Visitor went to the home and saw E with the mother. E’s head circumference is recorded as 37.5cms. At H11 this is recorded as being on the 98 ^th centile while her weight is recorded as a 75 ^th centile and her length as on the 71 ^st. The head circumference chart at H20 puts 37.5 on the 50 ^th centile but these measurements should have been backdated by four weeks because of E’s prematurity.

98. In relation to the question of the head circumference at H17 the first dot on the chart represents the head circumference at birth. This was measured by the hospital. The measurements taken on 17 ^th June made allowance for E’s prematurity but on 15 ^th July (H20) the Health Visitor did not correct the head circumference measurement and was unable to explain what had happened. She told me that if she had realised that there appeared to be a significant increase in the head circumference she would have advised the mother to take E to the doctor. On 15 ^th July the Health Visitor’s impression was that the head circumference was on the 50 ^th centile. She could not explain why it was that at H11 which related to 15 ^th July she recorded the measurement 37.5 as being on the 98 ^th centile. It was not until she came to court that she realised there had been this discrepancy in the plotting on page 11.

99. In her recording at M38 it is said that the mother’s language when talking about E can be negative at times. The mother described E as “devil child” and reported how the father shouts “shut up” at E at night. The note goes on to say:

“When she said this I had the impression she meant dad was shouting at the baby. When we spoke about the need to ensure baby is safe and that dad could sleep somewhere else if he gets cross she minimised what happens. She implied he just mutters it under his breath. She said it is just where he is tired.”

100. The Health Visitor never met the father and felt that the mother was isolated. The Health Visitor had the impression from mother that the father was quite controlling.

101. Further in her oral evidence the Health Visitor asked the mother if she had been subjected to domestic violence. She denied it. There was also concern that E had not been named and that the mother had given the Health Visitor the impression that the father did not want his name on the birth certificate. The mother was having difficulty with breast feeding. At the top of M39 is a note in relation to the mother’s parenting capacity “Warm interaction. Much more positive language used by mum”.

102. Following this visit there was subsequent telephone contact or the mother was seen in the clinic. The mother continued to voice concern about E’s feeding. On 26 ^th August 2014 at M39 there is a note which reads as follows:-

“E was seen today at clinic well and happy; mum concerned as E is vomiting post every feed. Weight gain good at clinic E is 5.3kg E is seeing her GP this pm for an appointment. Currently not on any anti-reflux medication”.

103. The Health Visitor never went into the kitchen, upstairs or into the bathroom and was unable to comment as to the condition of the house. She did mention to the mother that the black bags stacked outside the house should be removed.

104. As to the comment “devil child” the Health Visitor’s oral evidence about this was to the effect that the mother was tired, exhausted and low. It was perhaps an unfortunate use of terminology and conveyed a much more serious impression than was the reality.

105. The Health Visitor tried to explore more closely with the mother the suggestion that the father shouted “shut up” at E at night. Insofar as the Health Visitor could gain more information, she was left with the impression that this was not as bad as if the father was shouting at full volume at E. At first she thought the mother meant the father was shouting at the baby but this did not appear to be the case.

106. As to the possibility of the father’s controlling behaviour this was a question raised by the Health Visitor with the mother. She would not hear of any such suggestion. She denied that the father was controlling.

107. The Health Visitor pointed out that it is generally the case that she has to assess the situation upon her impression. In this case she was never able to discuss with the father the impression that she had formed from what the mother had told the Health Visitor. She was aware that the family finances were tight but not the full extent of the situation. Generally she felt that the mother was able to keep E safe.

108. The mother’s statements are dated 10 ^th October 2014 and 13 ^th February 2015. Her police interviews are at section L. The mother was at times in considerable distress but was also an articulate witness

109. She began her oral evidence by producing a picture of E which was taken on her birthday on 31 ^st May. She is clearly doing well. The mother sees E on three occasions a week and on one Saturday per month the father joins the contact. The mother reported that the contact is going very well and she loves being with E. The mother produced a diagram of the ground floor of the Dorchester house. There is no direct access between the kitchen and the living room. A recording of the 999 Call was also played. It is clear from this that both parents were in a great state of distress. The mother denied shaking E or doing anything that might have caused the injuries.

110. As to the state of the house in September 2014 she agreed that it was unacceptable and this also applied to the state of the kitchen surfaces which could not be explained by the disruption caused by plans to move house. It was not a proper place in which E should live. There was no excuse for it.

111. The mother said that she had done the best that she could. She was still in considerable pain following the Caesarean operation and found it difficult to move about. Further E had been unwell since the end of August. The volume of E’s vomiting had increased. It had turned into Projectile Vomiting and she was bringing up both milk and then water. Further she and the father were under considerable stress because the maternal grandmother had suddenly given them notice to leave the premises.

112. She was referred to bundle 4 at page 391. This is a record of the father’s internet usage from which it is clear he was accessing pornography. She was aware in a general sense that this was what the father was doing but not that for example on 13 ^th September 2014 he was accessing pornography connected with Incest. She had only become aware of that when she saw the trial bundle and had not allowed herself to think about it.

113. It is also clear from some of the text messages in section O that the father at the relevant time was also involved in some form of association with a work colleague called Lucie. Once again the mother was unaware of this before she saw the relevant messages. She told me that she felt confused and hurt although there did not appear to be any indication that the father was involved in a sexual relationship with Lucie. It is also clear from the messages that the parents frequently sent text messages to each other when in the same house. She explained this by saying that on occasion it was because that they wanted to say something to each other, particularly if they had been arguing, to avoid having raised voices in the home. Some of these texts were playful. At O127 dated 4 ^th September 2014 however is an unpleasant message containing graphic language sent by the father. At O77 dated 11 ^th September marked as timed 12:01 but in fact sent at 13:01 there was a particularly unpleasant message from the father. He was upstairs using his computer. The father is clearly unburdening himself of a number of irritations and frustrations.

114. In her oral evidence the mother said that on 11 ^th September (O77) she was realised that the father did not on that occasion want to spend time with her. She was upset and angry. She told me that sometimes she felt that their relationship was hanging by a thread. The father when talking about E in his text used the phrase “Cry baby bitch you managed to spawn”. The mother confirmed that the father was referring to E but that he would never have said that directly in person. The intention the mother thought was for the father to upset and hurt her and in her words it did “Piss me off”.

115. In explaining the father’s frustration the mother pointed out that her family, and in particular her brother Sean, treated her and the maternal grandmother very badly. This had caused considerable difficulty because the father felt that the mother was supporting her family rather than the father.

116. At O75 dated 11 ^th September 2014 is a message from the mother to the father:

“Fine, be glad. You’re the most self centred person I have ever been unfortunate enough to meet. I’ll look after our sick daughter, you take all the time you need. You’re depressed? I get physically hurt if I disagree and emotionally blackmailed. You don’t know the meaning of fucking depressed you arrogant little boy.”

This message was timed at 13.40. The reference to being hurt, the mother explained, related to a play pillow fight after the father had come downstairs when he had tried to apologise to her for his behaviour. During the play fight the mother became very annoyed and because she was accidentally hit in the eye by the pillow. At O72 is an exchange of messages which suggests that there had been some physical violence between them. The mother was insistent that the father does not beat her, or threaten her. She said that he is the one person in the world that she can truly trust.

117. The mother pointed out that if one follows the text messages the atmosphere lightens and by the time of the messages on O68 things are quieter and they subsequently watched a film together.

118. It was put to the mother that whereas in her statement at C16 paragraph 13 it is reported by the mother that E started to vomit on 6 ^th September, the father’s statement at C23 paragraph 4 says that it was around 25 ^th August that he noticed that E’s vomiting following her feeds was getting worse. The mother explained this by saying that E was always vomiting but the position was getting significantly worse by 6 ^th September. On 12 ^th and 13 ^th E was irritable and they had seen the doctor on the 11 ^th who had suggested a different feed.

119. On 13 ^th September the father left the house at about 0600 and returned at about 1630. He had been to a charity plane pool at Bournemouth. The mother had not suggested that the father stayed at home to help care for E. With reference to her police interview at L68 the mother explained what had happened on 13 ^th September. The parents were in the kitchen before the father left the room taking E with him. The mother said that E looked very unwell. The colour was draining from her and she became paler during the day. The mother said that it suddenly “hit me” and her concern was substantially elevated while the parents were both in the kitchen with E. As described at L68 the father swaddled E and went into the lounge with her where they remained for one or two minutes. The mother thought that the father would put E in her Moses basket in the lounge so that she could sleep. The mother said that it was no more than one minute before the father alerted the mother to the fact that something was wrong with E. She thought that between the point when the mother thought that E looked very unwell and the point at which the father told the mother that E had gone floppy and fallen from his arms was about ten to fifteen minutes.

120. At Q8 are notes taken of the police discussion with mother on 15 ^th September. The notes read as follows:-

“Got in at 8pm (that is after the walk into town).

(illegible) feeding (illegible) in living room – she was fine.

In her oral evidence the mother said that E was not fine and that E at this time was not her usual happy self.

“Passed to Daniel – go fix some food.

Daniel to kitchen – music.

Looked – didn’t look right.

Screaming – not happy (the mother denies that E was screaming and does not know where that word came from. She described E as moaning and grumbling and fidgeting. The mother had no recollection of saying to the police officer that E was screaming.

...... living room – Daniel came out she was swaddled.

I’ll try to get her to sleep.

Two minutes.

Came back is not swaddled.

She’s gone all limp.

Eyes rolled in her head for (illegible).

She just flopped.

Grabbed phone called – thought she was dead.

Daniel was hysterical, crying melting down.”

121. In his statement at C26/27 where the father describes these events he does not say whether or not, before E went floppy, that she was screaming or merely moaning and grumbling. In her police interview at L73 when asked about this sequence of events the mother describes E being with the father in the living room and music was playing. The mother went on to say:

“I could not hear anything then. She was quiet. There was no crying. There was no noise from Daniel it was, it was, everything was how I expected it to be. There was no real, nothing playing in the, like the TV wasn’t on in there.”

122. As far as the state of the house was concerned the mother had no recollection of the Health Visitor asking for the rubbish to be removed or talking with the Health Visitor about the state of the house. I do not believe the mother about this. I prefer the evidence of the Health Visitor

123. The mother did not accept the concerns expressed by the Health Visitor as to her impression of the parents’ relationship. She did not mean that E was literally a Devil Child. She did not think that the father resented E. The father never positively refused to put his name on E’s birth certificate. It was difficult for him to get time off work. In the end the mother went to the Office without the father. She did accept that in late August early September their relationship was in some difficulty but thought that they would get through it. She was not afraid of the father and did not accept that he was controlling of her.

124. The statement of the maternal grandmother is at C123 and is dated 2 ^nd June. She also was interviewed by the police on 29 ^th September 2014 (L222).

125. In her statement the grandmother explains her financial difficulties. She appeared to owe some £12,000. The arrangement was that she worked full time in order to pay off her debts while the father’s earnings were used for day-to-day expenses. She explained that she had been the victim of domestic violence from her husband and that both he and her son Sean had caused damage to the house.

126. She explained the mother’s difficulties both during and after the pregnancy.

127. She first became aware of the events of 13 ^th September on that day when she was on her way home from Weymouth. At paragraph 34 she says as follows:

“At one point in time that doctor was asking what had happened. I remember (the father) saying that (E) had been crying, (the mother) was making dinner, he picked her up whilst the mother was making the dinner and swaddled her in a blanket and then (the father) screamed to the mother to look and E was sliding from what I presume was a blanket and had gone limp.”

128. In her oral evidence the grandmother explained that she and her husband had separated in 2008 and her son Sean had left in about 2012.

129. She fairly accepted and apologised for the state of the house and agreed with reference to the photographs at F6-12 that the kitchen was insanitary and in a terrible state.

130. She confirmed that she was not present at the time of the incident when E knocked her head against the sink earlier on 13 ^th September.

131. She described E as getting “grumpy” from 5 ^th September and started to vomit from the 6 ^th. She had noticed that E’s head appeared to be getting bigger and that the front of E’s head did not look right. She had bought some new clothes for E and although the clothes generally fitted E’s length and weight the accompanying headgear was too small.

132. Although she did not get on very well with the father she described him as a loving parent who was initially nervous of E but grew in confidence in his handling of her.

133. She and her daughter had a good relationship and had no recollection of the mother telling her of particular difficulties, arguments, violence or controlling behaviour towards her by the father. At the end of her evidence the grandmother commented that she might have been the cause of some of the rows between the parents.

134. The father’s statements are at C21 and C94. He was also extensively interviewed by the police. A transcript of those interviews appears in section L. Since March 2015 he has lived at an address in Bournemouth. He initially said that was with the mother but it emerged in cross-examination that the mother spent the weekends with him from Friday evening until Monday morning and lived during the week with her mother in Dorchester. He had told his solicitors of the change of address but had not informed the Local Authority.

135. He is aged 23 and has worked as a software designer for some six years.

136. I have seen the video of his demonstration with a doll to the police as to what he said happened when he dropped E on 13 ^th September. He denied that he ever shook E or threw her. He had done nothing to hurt his daughter and neither had anybody else. He agreed that it would be awful if he had hurt E and kept that knowledge to himself.

137. He described himself as “terrified” when he learned that the mother was pregnant. The mother was ill virtually from the beginning of the pregnancy and he found himself under considerable pressure having regard to the new responsibilities which fell upon him.

138. Following E’s birth he described the mother as being in agony all the time and was unable to pick up E. He took no paternity leave as he could not afford the reduction in income. Consequently he left the home every day some time between 0600 and 0700 and returned between 1800 and 2200. Initially he described E as a happy and smiley baby but from the end of August or early September he could see that something was upsetting her.

139. He expressed himself as being disgusted at the state of the home and that the family lived in such conditions.

140. He was asked about the text at O77 on 11 ^th September. He described his message as “awful”. He felt sick knowing that he had sent it to the mother. He did not really feel that E was “a stupid cry baby bitch”. He had sent it with the intention of upsetting the mother and the use of the phrase “you managed to spawn” was “terrible”. His explanation was that he was angry with the mother because her family were throwing them out. He could not understand how the mother continued to be civil to her family in the circumstances. At the time he felt that he was getting nothing back from the mother and the grandmother and had had enough from both of them. He accepted that to some extent he felt trapped in the relationship. There was no recognition of the fact that he had been buying things for the home. In any event, he said, the argument was resolved by later that evening.

141. As to contact he enjoys his monthly visits which last for two hours but was unable to take any more time off because he cannot afford it. I was surprised at his attitude to the suggestion put to him by Mr. Hand that he (the father) might have arranged his affairs so that he could have more contact.

142. As to the period leading up to 13 ^th September he had finished work on the 10 ^th and had taken the next four days as holiday. He described that he and the mother were happy up until 13 ^th September. He had expected being a parent would in his words have been “awful”. He had enjoyed fatherhood much better than he had anticipated. They had both been to the doctor on 12 ^th September about E’s vomiting and were advised to use a different sort of feed. He felt that they were being made to feel silly because they were new parents. The doctor had not told them that something appeared to be abnormally wrong with E. On 13 ^th September during the walk into the town E seemed to be a little better and she was fed after the return at about 2130. She took the food slowly but on this occasion she did not vomit.

143. On 13 ^th September he described the mother cooking in the kitchen. He needed to settle E who was waving her arms around. It was agreed to swaddle her in order to keep her arms still.

144. He took E from the kitchen to the living room. He swaddled her and returned to the kitchen by which time he described E as being a little grizzly and not happy. He said she was groaning but not screaming. He thought that he was in the living room on this occasion for a couple of minutes. He was then in the kitchen for some ten minutes holding E who was moaning but becoming calmer. He took E back to the living room to put her to sleep while the mother remained in the kitchen. He said that he paced backwards and forwards for a few seconds. He then became aware that E had slipped downwards. He had been holding E with her head against his left shoulder; his left hand was under her bottom and his right hand was supporting her back.

145. He was wearing a T-shirt. E was in a babygrow. Her top half was swaddled in the blanket but her legs were free. He could not explain how E had slipped. He had not tripped over anything. He caught her round her chest as she slipped down his body. He grabbed E and caught her with what he described as a sweeping motion and then pulled her straight up his body. She had fallen between 12 and 24 inches. He had not shaken E. Her arms were floppy and her head rolled back. She appeared to become instantaneously floppy. She had not been screaming.

146. The father denied that he and the mother had put their heads together to concoct a story and to lie about what had occurred. He described the mother as having a special bond with E. She was always gentle with her and never lost her patience.

Submissions

147. I am grateful to the Advocates for the careful and detailed written submissions that have been provided. I have read them all.

148. On behalf of the Local Authority Mr Hand reviewed the evidence of the jointly instructed experts and by reference to the experts’ discussion emphasised that this was a highly impressive multidisciplinary exercise which resulted in agreement that the most likely explanation for E’s injuries was a shaking episode so far not explained or described by the parents. Mr Richards had said that from his clinical experience a shaking episode is the most common cause of injuries such as E’s but that the slip from the father’s arms as he described was a theoretically possible cause of E’s injuries.

149. It is pointed out that Mr Richards deferred to Mr Newman as to the cause of the original haemorrhages. His opinion was that the Retinal Haemorrhages were caused by a shaking episode. Further it is submitted that the jointly held expert view is that the shaking episode caused acute traumatic effusions and that the incident happened close to the time of E’s collapse on 13 ^th September 2014.

150. Mr Hand therefore submits that the evidence of the jointly instructed experts points to a substantial body of opinion that the most likely cause is a shaking incident on or around 13 ^th September 2014.

151. Mr Hand at paragraph 61 of his submissions considers the views of the treating doctors Dr Gawne-Cain and Professor Kirkham at Southampton. He submits that these two doctors did not have all the case papers and were not part of a multidisciplinary approach and did not attend the experts’ meeting. Mr Hand submits that there were many options being discussed at Southampton Hospital and at the time of the strategy meeting on 24 ^th September. It was not possible to be sure of the cause of E’s collapse but that the question of child protection continued to concern the treating team. It is submitted on behalf of the Local Authority that given what Mr Hand describes as the uncertain status of the evidence of these two doctors and their lack of the case papers such doubts as Dr Gawne-Cain and Professor Kirkham had are overridden or cleared up by the joint view of the experts whose evidence is to be preferred. I do not accept that the evidence of the two treating doctors can be dismissed in this way. This is a complex case with a number of uncertainties.

152. At paragraph 70 of his submissions Mr Hand turns to consider the wider canvas. He points to the chronology provided by the Health Visitor and highlights certain points namely:

(i) The home visit on 25 ^th June 2014 when the mother reportedly described E as “devil child”.

(ii) The mother seems to have told the Health Visitor that the father shouted “shut up” at the baby during the night and advice was given to the mother about the need to make sure that E was safe.

(iii) The Health Visitor was concerned that the parents had unrealistic expectations of E.

(iv) The reported reluctance or refusal by the father to have his name on the birth certificate and concerns about the possibility that the father was behaving in a controlling fashion to the mother.

153. The last visit of the Health Visitor to the home was on 15 ^th July 2014 when concerns were noted about the state of the property. The Health Visitor said in evidence, which I accept, that on this occasion she raised for the second time with the mother her worries about the state of the house. Although the Health Visitor did not refer the family to Children’s Services it is submitted that there is an emerging picture of worrying features which must be seen in the context of subsequent events.

154. Such events, submits Mr Hand, include the father’s friendship with Lucie, the financial pressures, the grandmother’s demand that the parents leave the house, the father’s resentment and feelings of entrapment. I agree that these are worrying indicators.

155. Particular emphasis is put upon the exchange of text messages which appear at O75 to O77 where he refers to E as:

“Stupid cry baby bitch you managed to spawn/why the house smells of piss and shit ...”

156. This, it is submitted, shows that things were far from well between these parents and do not support the picture which the parents sought to portray in their evidence of a loving and committed relationship. It is suggested that these factors produce a context which supports the likelihood of a sudden momentary loss of self control and a shaking of E.

157. Mr Hand at paragraph 79 of his submissions considers the father’s evidence as to E’s slip from his arms on 13 ^th September. It is pointed out that E falls a very short distance – approximately 12 to 18 inches. The father caught E around her chest without bending his knees. If such truly occurred Mr Hand submits the injuries of the sought sustained by E would be far more commonly found.

158. It is submitted that the father cannot give an account for the fall save to say that she slipped from the blanket but the father had been supporting her with one hand round her bottom and the other on her back. It is further submitted that while the father said that he used considerable force in catching E the force is applied to E’s torso.

159. Starting in paragraph 80 of his submissions Mr Hand points to the state of the property which is apparent from the photographs at F20-F60. It is the Local Authority’s case that the risks posed by this were sufficient alone to satisfy the threshold criteria. The evidence of Mr Parker was clear that on this basis alone the Local Authority would have applied to remove the child.

160. It is the case that the state of the property has since improved but, points out Mr Hand, this is irrelevant to the consideration of threshold at the relevant date. I agree.

161. In paragraph 84 of his submissions Mr Hand sets out the findings now sought on behalf of the Local Authority. I shall return to this later in the judgment.

162. I turn now to the submissions made on behalf of the mother. Mr Samuels submits that the broad canvass evidence in respect of the mother is overwhelmingly positive. It is clear from the records of the health visitor that the mother showed warmth towards E. She handled her with confidence and showed positive language and interaction towards E. In her oral evidence the Health Visitor saw a good mother/baby bond.

163. It is further pointed out that this was a mother who regularly sought medical care in relation to E particularly in the period 8 ^th/12 ^th September. E was seen for all the relevant checks and immunised at the proper time. This, it is submitted, was a mother who engaged and has continued to engage fully and appropriately with medical and social care professionals. I accept those submissions.

164. Given the tenure of the mother’s oral evidence and her reaction to the suggestion that she might have hurt E, it is submitted that this is a mother who simply would not have hurt E herself or would protect another whom she had known had done so. I agree. The observations all show her to have been a gentle and caring mother.

165. It is also pointed out that Horizon Team assessed the situation. It was recorded at C43 that the parents showed E constant affection and attention. Further the reports of the mother’s contact are also favourable. There is consistent reference to emotional warmth, attentive attuned care and full engagement with E through play and soothing handling. The mother attended contact on time even when she was unwell. No parenting concerns are raised throughout the notes which cover a period of some eight months.

166. It is also pointed out that both parents had given what are submitted are credible and consistent accounts of the events which led up to the 999 Call on 13 ^th September. The mother gave her account to treating clinicians, to the police and social workers which included some six hours of police interview on 19 ^th September and also in her evidence at this hearing.

167. My attention was drawn to the handwritten note from a police office). It is suggested that the mother had said that E was “screaming” shortly before the father took E into the lounge and then “moaning” or “crying”. It is submitted that the police officer was not called to give evidence and the note is itself unclear. The court is invited to place no weight on this in its analysis of the evidence. I accept that submission.

168. I accept the submission that this mother would not be capable of hurting E or of protecting someone that she knew had done so.

169. Before dealing in detail with the medical evidence Mr Samuels made a number of preliminary points about the Local Authority’s case of NAHI.

170. By the close of the evidence the Local Authority’s case was put as follows:

“On the available evidence the time of the injury was on the evening of 13 ^th September, probably close to or immediately before the 999 Call.

The most likely scenario is that the father caused the injuries by shaking the child. There is sufficient evidence to say that he was a specific perpetrator.”

171. It is submitted by Mr Samuels on behalf of the mother that the Local Authority has not produced the evidence to prove inflicted injury. The following pints are made.

(i) The Local Authority did not challenge the evidence of Dr Gawne-Cain as to:

(a) the areas of bleeding;

(b) that one explanation for the scan appearances was that there had been re-bleeding into pre-existing chronic subdural collections;

(ii) The Local Authority did not challenge the hypothesis that a birth related subdural bleed could evolve into a chronic collection over time such that a re-bleed and immediate collapse could occur without a second traumatic event.

(iii) The Local Authority did not challenge the accuracy of the Health Visitor’s measurement of E’s head circumference on 15 ^th July 2014. The same Health Visitor had taken the previous measurement on 17 ^th June. Clearly the chart entry as plotted is wrong (H20) but at H11 the centile measurement is correct.

(iv) In his oral evidence Mr Richards accepted that if this measurement is accurate this probably represents an abnormal growth in head circumference. At that point there had been a movement across four centiles. Professor Kirkham commented that something had happened between readings 3 and 4. Mr Samuels points out that there would have to have been a cause for this abnormal head growth and one such cause would be an initially asymptomatic birth related subdural bleed.

(v) He pointed out that since the Local Authority’s case is now based upon the infliction of a single episode of inflicted injury moments before the 999 Call on 13 ^th September, any evolving problem as at 15 ^th July can only have a natural or unknown cause.

172. On behalf of the parents considerable weight is placed upon the evidence of Dr Gawne-Cain and Professor Kirkham. It is pointed out that she is a Specialist Paediatric Neuroradiologist and has been a Consultant since 1997. Her particular area of specialism is NAHI. She examined the images to see if there had been bleeding in separate compartments of the head. If so this would have suggested a more recent event. She saw no bleeding in the posterior fossa or recent bleeding in the sub-arachnoid area. Her first impression when looking at these images was that she was seeing a re-bleeding into a chronic subdural haematoma.

173. Professor Kirkham’s area of particular research interest is that of neonatal subdural bleeding. In her view the circumstances of E’s birth left her vulnerable to subdural bleed. Having seen the head circumference chart drawn by Dr Rylance she agreed that the data fits with the hypothesis of a developing birth related bleed.

174. Another important point submits Mr Samuels, and I agree, is that when E was admitted to hospital there was no external evidence of trauma. There were no fractures of the type commonly seen in cases of suspected shaking. There was no bruising or finger marks. There was no contusional or axonal brain injury which might suggest a movement of the brain within the skull during the course of a shaking. There was no scalp swelling or fracture.

175. These are important matters and as Mostyn J said in Lancashire County Council v R, W and N [2013] EWHC 3064 (FAM) at paragraph 46:

“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.”

176. Starting at paragraph 15 of his submissions Mr Samuels deals with the question of developing birth related subdural haematoma. Reference was made to the judgment of Mostyn J in the Lancashire County Council case where the judge observed at paragraph 31(iii):

“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 show that no fewer than 46% of normal births cause subdural bleeding. We now know that many appalling miscarriages of justice must have been perpetrated in reliance on the old, now discredited, orthodoxy ... As Mr Richards said to me ... ‘the more you know the more you know you don’t know’.”

177. In the case of A County Council v RH, KS and JH [2012] EWHC 137 (FAM) at paragraph 52 Mr. Justice Baker referred to the research contained in three studies by Looney and Others, Whitby and Others and Rooks and Others. In that case, as in this, Mr Richards referred to the paucity of research material on the question of whether a birth related subdural bleed could become chronic. Both Mr Richards and Professor Kirkham accepted that there is no logical reason why a birth related subdural bleed should behave in any different way from any other subdural bleed. The evidence given by Mr Richards before Baker J on this topic is recorded as follows:

“We do not know what causes acutes to become chronics. The vast majority of acutes are cleared away by the body’s mechanism. In a few cases, more commonly in infancy and old age, it starts off a chain reaction that makes it worse; the fluid expands, membranes are created, leading to more blood. That becomes a chronic subdural. Why Patient A gets it and Patient B does not we do not know, but it is not the usual response ... The vast majority might disappear without trace, but the occasional one might sneak through into a chronic.”

178. It is pointed out that none of the relevant experts in this case excluded this as a potential explanation. Mr Richards could not exclude the possibility and pointed out that if the acute subdural developed membranes they would not always be visible on the scans. He told me that on occasions he operates and sees something he was not expecting from information gleaned from the scans. Dr Rylance said that between 7% and 11% of babies born by Caesarean Section (as E was) have clinically silent subdural bleeding. In his opinion the chart measurement taken on 15 ^th July should have led to a referral to a paediatrician. Mr Samuels submitted that this failure means that there is no answer to the question of whether what was seen was a birth related chronic bleed with re-bleeding. Dr Richards accepted that one possible cause of the clinical picture as it developed up to and on 13 ^th September was a build-up of a chronic subdural haematoma.

179. Dr Stoodley, it is submitted, was unable to exclude the possibility that what he saw on the scans was a chronic subdural haematoma together with an acute bleed.

The Original Haemorrhaging

180. From the notes of the ophthalmic examinations on 17 ^th September at J116 and J72-74, it is clear that E had sustained bi-lateral retinal haemorrhages as at that date. On 13 ^th September E had been admitted to hospital in a state of collapse. Dr Wylie reported that E’s condition potentially indicated “life threatening raised intracranial pressure.” At J38 Dr Griksaitis records the performance of a subdural tap “rapid release of watery blood at very high pressure (squirting out of needle)”.

181. In his oral evidence it was clear that Dr Wylie was extremely concerned about the level of E’s intracranial pressure. His opinion was that E was at risk of dying and her symptoms were suggestive of a severe dysfunction of her mid-brain. She had high blood pressure, asymmetric pupils and low pulse. She had suffered a very steep and dramatic rise in intracranial pressure.

182. Mr Samuels had made reference to the Guidance produced by the Royal College of Paediatrics and Child Health and The Royal College of Ophthalmologists: “Abusive Head Trauma and the Eye in Infancy”. This is included in the Research Bundle with which I have been provided. The conclusion at page 124 is said:

“Experimental and clinical data demonstrate that any acute dramatic rise in intracranial pressure (ICP) may produce unilateral or bi-lateral retinal haemorrhages in infants that resemble those reportedly caused by abusive head trauma.”

183. Mr Samuels observes that in his evidence Mr Newman seemed to be reluctant to accept the conclusions of the Guidance.

184. I have been helpfully provided with an agreed note of the medical evidence. At page 28 when being cross-examined by Mr Samuels the note of Mr Newman’s oral evidence reads as follows:

“Question: What they conclude at page 124, experimental and clinical data demonstrates that a rise in ICP may leave RH – that is correct, and if you read the references, there are specific circumstances not found in E.

Question: Not saying there are circumstances, general advice – they are making a general conclusion, I am saying that if you read the reports my conclusions and that of most paediatric ophthalmologists that there are circumstances as described, but the reason we go through the process of differential diagnosis and then look for an aneurism is with raised ICP due to certain causes, but these things were not present in E.

Question: Are you saying you agree with the conclusion? – I do agree, but if you look at the context, it relates to specific circumstances.

Question: Well it doesn’t say that, it says to be careful because the acute rise in ICP may produce RH resembling head trauma and it doesn’t go on to say only specific circumstances – I am merely expanding on it ... precisely what is meant, and interpretation you would need to ask the author Patrick Watts ... This is a difficult case because of the paucity of information. I am well aware of the conclusion of that paragraph. But my conclusion remains the same.”

185. Mr Samuels referred to the observations of Mostyn J in the Lancashire County Council case. The ophthalmologist instructed in that case was Mr Newman who was described by Mostyn J as “firmly bonded to the prevailing ophthalmological orthodoxy ...”

186. I am reminded by Mr Samuels that medical science is always moving on see also Butler-Sloss P in Re LU and LB [2004] 2 FLR 263:

“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.”

187. Further the ophthalmologist instructed in the case before Baker J ( A County Council v RH, KS and JS) accepted that “the possible mechanisms for causing retinal haemorrhaging included raised intravascular pressure, which may be produced by raised intracranial pressure ...”

188. In his oral evidence Mr Newman accepted that the exact mechanism causing retinal haemorrhages is unknown and there were other mechanisms apart from shaking. The proposition that E’s retinal haemorrhages were caused by ICP was a realistic possibility for the court to consider.

189. I agree that the dramatic and life threatening situation faced by E on admission to hospital only became apparent following the oral evidence of Dr Wylie. He was the only clinician present at the time from whom the court has heard. It is submitted that it is likely that it was RICP which caused the retinal haemorrhages.

190. Starting at paragraph 31 Mr Samuels reviews the parents’ evidence and the history of events up to and including 13 ^th September. He refers to the fact that E was unwell in the days leading to her hospital admission. She was irritable and consistently vomited which, he submits, are both consistent with a developing chronic subdural haematoma. He further submits that what is now known about the enlarged head circumference on 15 ^th July supports that contention. I agree. In these circumstances it is said that the father’s description of E’s fall would be sufficient to cause a re-bleed leading to her rapid deterioration that evening. It is therefore said not to be unreasonable for the mother to have consistently held the view that E’s collapse was the culmination of an evolving process.

191. It is submitted that there was no time for the parents to collude and manufacture a false account. I agree.

192. In paragraph 33 of his submissions Mr Samuels deals with the text exchange on 11 ^th September about which I expressed some concern. There are clearly exchanges which are consistent with the existence of a relationship that was at best full of tension and at worst domestic abuse. It is submitted on behalf of both parents that these exchanges, particularly when put into context show a short-lived difficulty after which the parents resumed a normal and loving relationship. The mother said in evidence that the text which contained the phrase “I get physically hurt when I disagree ...” referred to her being struck accidentally by a pillow during a play fight. I do think that the situation on or about 11 ^th September had become difficult and there was greater tension between the parents than either is now prepared to admit. I must be careful, however, in considering the amount of weight to be placed upon that finding when considering the question of NAHI.

193. It is a long way from establishing that the father hurt E or that the mother knew he had done so and is protecting him. Mr Samuels reminded the court of the importance of the Lucas direction.

194. It is submitted that on a proper global review of all the evidence in this case the Local Authority has failed to establish that E sustained a non-accidental injury. It is submitted that the evidence points to E having sustained a birth related subdural bleed which had evolved into a chronic collection sufficient by 13 ^th September to produce a collapse and life threatening RICP. Alternatively, submits Mr Samuels, this is one of those cases where the cause is unknown and in any event the Local Authority has failed to discharge the burden of proof.

195. It is further submitted that if the father did shake E and cause her injuries there is no reason for the mother to have suspected that such was about to happen or to believe that it had happened after the event. I accept that this would have been a momentary loss of control, instantly regretted. Both parents immediately sought medical assistance. I accept that in such circumstances the mother cannot be said to have failed to protect E.

196. In his consideration of the Health Visitor’s evidence and the matter set out in paragraph 4 of the threshold statement it is submitted that following the Health Visitor’s oral evidence these matters cannot establish threshold. For example in her oral evidence when the reference is made to the mother referring to E as a “devil child”, the Health Visitor modified in her stance. She said the mother used the phrase “devil child” where “I might have said “a little pickle””. I accept the submission that these matters do not establish threshold for the reasons submitted by Mr Samuels.

197. As to the home conditions the mother accepted in evidence without reservation the criticisms made of the condition of the home when seen on 15 ^th September. I find that these conditions were so poor that they were sufficient to establish threshold on that ground on the relevant date namely 15 ^th September.

198. On behalf of the father Mr Vater has also provided detailed written submissions. When amplifying these submissions orally Mr Vater adopted those of Mr Samuels.

199. It is submitted on behalf of the father that since the court is faced with a number of competing possible causes for E’s intracranial pathology, it cannot safely distinguish the most likely cause on the balance of probabilities. Because of the divergence of opinion between the neuroradiologists combined with the clinical and lay evidence in respect of the abnormal growth in E’s head circumference, it is submitted that the Local Authority has failed to prove that E’s collapse was caused by anyone shaking her on 13 ^th September 2014.

200. It is submitted that by the time of E’s collapse there is clear evidence that E had a relevant pre-disposition towards intracranial bleeding as a consequence either of trivial trauma or spontaneously. It is further submitted that it would be unsafe for the court to find that the RH’s were caused by shaking. It is suggested that the RH’s are as likely to have occurred as a consequence of E’s collapse whatever its cause.

201. Beginning at paragraph 21 of his submissions Mr Vater emphasises the absence of corroborative evidence for an assault as to the cause of E’s subdural collections. I accept that submission and consequently the court must approach its analysis of the probable causes of E’s difficulties with caution.

202. In paragraph 24 of his submissions Mr Vater tackles the question of whether the RH’s were corroborative of abuse.

203. It is clear that in the early hours of 14 ^th September E had suffered a sudden and dramatic decline in her condition caused by a “life threatening” rise in ICP. Dr Wylie was present and his evidence about this was compelling. Professor Kirkham’s opinion was to the effect that E was approaching what were described as “end stages” of raised ICP. Mr Vater refers to a number of signs and symptoms including the blowing of E’s pupils, the HB count of 6.3 leaving E markedly anaemic, the further subdural tap on 15 ^th September and another tap before the ophthalmic review on 18 ^th September.

204. Given these features in combination it is submitted that a court cannot safely find that E’s RH’s were caused by trauma. Mr Vater then refers to the debate between ophthalmologists about whether rises in ICP can cause RH’s in children. Reference is made to the decision of Theis J, in Islington LBC v Al-Alas and Others [2012] EWHC 685 (FAM); [2012] 2 FLR 1239. The judge on the particular facts of that case concluded that significantly raised ICP had caused scattered RH’s. In that case starting at [126] Theis J considered the debate between the two ophthalmologists instructed in that case (Professor Luthert and Dr Bonshek).

205. At [129] Theis J said as follows:

“They both agreed that retinal haemorrhages could be caused by raised intracranial pressure but disagreed as to the extent and type. Dr Bonshek had maintained his position that the pattern of bleeding was more likely to be caused by trauma (inflicted or otherwise). He did, however, say in his evidence:

‘I believe that in some cases very, very sudden and very, very severe increases in intracranial pressure, and this is basically over a period of minutes or less than a minute, rather than hours to days, and very, very high spikes of pressure, I believe that situation may lead to retinal haemorrhages’...”

206. It is important to note that the rise in E’s ICP was sudden and severe.

207. Further the question of severe anaemia in the formation and development of retinal haemorrhages may also be significant as discussed by Theis J in Medway Council v A Mother and A Father and Others [2014] EWHC 308 (FAM). The ophthalmologist in that case was considering the case of a child whose HB count was 6.3 as was E’s and was therefore “markedly anaemic” (E153g). While it was not suggested that the anaemia might have caused the RH’s the expert in that case was of the view that the role of anaemia was significant in trying to interpret the cause of RH’s.

208. Mr Vater supported Mr Samuels’ submissions in respect of the guidelines “Abusive Head Trauma and the Eye in Infancy” in which the following appears:

“Experimental and clinical data demonstrate that an acute dramatic rise in intracranial pressure (ICP) may produce unilateral or bi-lateral retinal haemorrhages in infants but resemble those reportedly caused by abusive head trauma.”

It is therefore submitted that the court is unable to decide one way or another whether E’s RH’s were caused by ICP or how ICP contributed towards their development or how E’s anaemia might have contributed towards their evolution. It is therefore submitted that it is not open to this court to determine that the RH’s are by themselves evidence to support a conclusion that the subdural collections were inflicted.

209. As to the Subdural Collections it is pointed out that there is a highly unusual level of uncertainty about this. The three doctors whose job it was to interpret the same scans as E’s skull and brain produced significant differences in interpretation as to:

(i) the location of the collections within the compartments of E’s skull;

(ii) the location of the collections within the membranes covering E’s brain;

(iii) what that part of the subdural collections which is not acute blood is likely to be;

(iv) what the significance of the answer to (iii) is;

(v) whether E’s skull sutures are widened.

210. Mr Richards, the Paediatric Neurosurgeon regarded radiology as an analytical tool to assist with an overall diagnosis. He described the radiology as “maps” to “guide”.

211. It is pointed out that there is disagreement between Dr Gwane-Cain, Dr Stoodley and Mr Richards as to the location of the collections. Dr Gwaine-Cain’s interpretation is that there was “no evidence of posterior fossa, subdural collection or haemorrhage”. Dr Stoodley’s view after looking at the same MRI scan, was that there is “discrete subdural blood ... in the posterior fossa.” Mr Richards again looking at the same MRI scan saw “... fluid over both cerebral hemispheres, but not on the posterior fossa ...”

212. Dr Gwane-Cain was particularly concerned to look for blood in the posterior fossa because that, in her view, would have been a significant marker for inflicted head injury. It would have represented bleeding in more than one compartment of the brain.

213. Although Dr Gwane-Cain was not one of the jointly instructed experts in this case, it is pointed out that she is a Consultant Paediatric Neuroradiologist as is Dr Stoodley and were both looking at the same images.

214. It is therefore submitted that the court cannot safely find that there was bleeding in the posterior fossa.

215. The other difficulty is that there are differences in interpretation of whether there was any sub-arachnoid bleeding. When looking at the CT scan of 13 ^th September Dr Gawne-Cain saw only subdural collections. Mr Richards saw something which “may represent sub-arachnoid blood”. Dr Stoodley saw “acute (recent) sub-arachnoid haemorrhage” and reported that “the peripheral distribution of this acute blood suggests that it is likely to be due to a traumatic cause”. Further Dr Stoodley says the scan showed “... no definite evidence of discrete subdural blood ...” On the MRI scan of 16 ^th September none of the doctors, including Dr Stoodley, sees any sub-arachnoid blood.

216. For the reasons set out by both Mr Samuels and Mr Vater I do not accept the Local Authority’s suggestion that the evidence of Dr Gawne-Cain is of less value in this case than that of Dr Stoodley. The court is therefore left in a position that it cannot safely find that there was bleeding in more than one compartment of E’s brain.

217. There is further a dispute between Dr Stoodley and Dr Gawne-Cain as to the interpretation of E’s subdural collections. Dr Stoodley’s view was to the effect that that part of the subdural collections which were not “bright” is likely to represent acute subdural effusions. Dr Gawne-Cain when she interpreted the scans and in her oral evidence took the view that the darker material represented chronic collections. It is submitted that this is of fundamental importance. If the collections were chronic they represent a pre-disposition towards further acute subdural bleeding on minor or trivial trauma or trauma which might not be recognised as such by a carer as stated by Mr Richards in his oral evidence. It is further pointed out that Dr Gawne-Cain’s contemporaneous impression was that one explanation for the scan appearances was acute re-bleeding into chronic subdural collections (J290-291). It is, I agree, unfortunate that Dr Stoodley had not apparently factored into his thinking Dr Gawne-Cain’s view.

218. On radiological grounds Dr Stoodley gave three reasons for preferring the interpretations that there had been an acute effusion:

(i) the uniform nature of the collections;

(ii) the apparent increase in size between 13 ^th September and 16 ^th September;

(iii) the absence of evidence of chronic subdural membranes.

219. He did, however, accept that he could not rule out that in any event these were in fact chronic collections.

220. Mr Richards from his particular perspective favoured acute effusion for two reasons:

(i) He could not see widened intracranial sutures.

(ii) He thought the aspirated fluid (see Professor Kirkham at [E16]) more consistent with acute effusion.

221. In cross-examination Mr Richards said that while the aspiration of watery fluid more likely indicated acute effusion he could not exclude the possibility that what was in fact aspirated were a watery blood breakdown products from a chronic haematoma. Professor Kirkham’s evidence was to the effect that not every chronic subdural haematoma, when aspirated, produces thick black fluid. She has also described serous, straw coloured fluid. She has herself aspirated serous fluid with blood staining from chronic collections. Mr Vater points out that this is what appears to have been aspirated in E’s case and therefore the court cannot safely find that the aspirated fluid was not chronic.

222. Starting at paragraph 62 of his submissions Mr Vater refers to the evidence about E’s head circumference. It is pointed out that the Health Visitor made three written contemporaneous entries to record the findings of the measurement made on 15 ^th July (H and M). It does not appear that in any of the stages the Health Visitor thought this information might be inaccurate.

223. Given the evidence about the head circumference measurement, the lay observations, the radiological interpretation of Dr Gawne-Cain and general uncertainty about the radiological interpretations it is submitted that there is a real possibility that by 13 ^th September E suffered with a relevant pre-disposition towards acute subdural bleeding with minimal trauma.

224. I think that is correct. Professor Kirkham was concerned about E’s presentation on 13 ^th September. This might have been reflected such a pre-disposition. She was of the view that the low maternal Platelets in prematurity gave E a vulnerability towards subdural bleeding. In her evidence Professor Kirkham explained that she has a particular interest in intracranial bleeding caused perinatally. She was concerned about E’s head circumference at birth. The way that it had dropped showed the probability that there was a collection of fluid present perinatally.

225. Mr Richards’ evidence was to the effect that if the measurement of 15 ^th July as to head circumference was correct it was probable that whatever process had caused that growth was established and under way at about 11 ^th June. If so it was possible that the process had started either at birth or before. Mr Richards’ clinical experience is that in roughly 10% of cases of chronic subdural haematoma no cause for them is found.

226. It is further pointed out that before 13 ^th September 2014 there is no evidence that E had sustained any inflicted head injury or that she was in any way abused. It is, however, suggested that had E been scanned on 12 ^th September the doctors would have found a relevant pre-disposition towards subdural bleeding. The court cannot say one way or another. It is submitted in those circumstances that it cannot be satisfied that E’s head injuries were caused by forceful shaking. The subdural haematoma therefore cannot be said to be corroborative of abuse. I agree.

227. Professor Kirkham gave evidence as to how a minute increase in volume in E’s skull could cause a very significant rise in ICP because of what she described as the steep volume pressure curve. Dr Wylie was working on the basis that E had collapsed as a consequence of a re-bleed into a chronic subdural haematoma which in turn had caused a seizure.

228. As Mr Vater points out the nature of E’s collapse does not help as to its likely cause. It is compatible with the impact of an acute re-bleed into a pre-existing subdural collection causing a tipping of the volume pressure curve and collapse. It is also compatible with inflicted head injury. It is submitted that the court is not in a position to decide either way.

229. Insofar as other matters are concerned it is submitted that although the father was not honest with the mother about his dealings with his work colleague Lucie and the mother was hurt by what she discovered, it is submitted that there is no evidence to suggest that this association was more than friendship. I think that is right although I find that the father’s conduct in this respect was unthinking and selfish. I accept the submission that this example of dishonesty does not adversely affect the question as to whether or not he was telling the truth about the events of 13 ^th September ( R v Lucas above).

230. As to the text messages it is submitted that the court should be careful about over interpretating what amounts to a small passage of text messages in a general run of many such communications. What has been described as the “cry baby bitch” text message was an appalling communication. It certainly succeeded in hurting the mother and demonstrated the father’s overriding concern at that point for himself.

231. As to the events of 13 ^th September the court is reminded that from the first the father’s account has been consistent and his distress during the police interview was apparent. I agree.

232. Finally it is said that if, for the reasons relied upon by Mr Vater, E had by 13 ^th September a pre-disposition towards acute subdural bleeding then the slip as described by the father would have been sufficient to cause an acute bleed. The subdural bleed triggered the collapse because of the minimal increase required as described by Professor Kirkham. The RH’s it is submitted were secondary to the acute and severe rise in ICP.

233. In her submissions on behalf of the Guardian Miss Lazenby points out that the parents now accept, and I find, that the home conditions as described in the photographs in section F sufficiently bad to cross the threshold. In fact the conditions were plainly appalling. It is difficult to see how the three intelligent adults living in the house and who had the care of a baby could have permitted such a situation to arise.

234. Turning to the medical evidence Miss Lazenby carefully reviewed both the oral and written evidence of the medical witnesses. As to whether E has suffered an acute effusion in the perinatal period it is submitted that it is open to the court to conclude that E may have been in this 7-11% of caesarean births that had an effusion in the perinatal period. This might possibly be a higher figure together with the influence of the mother’s HELLP. I accept that submission.

235. As to whether the birth haemorrhage becomes a chronic subdural Miss Lazenby pointed out that the medical witnesses accept a possibility that such can occur. The head circumference measurements suggest a change in head size and a possible explanation would be a growing CSH. Against this is the reference at I127 to E’s fontanelle being “soft nor most sensitive” which is a comment that implies normality. Mr Richards commented that there was nothing in this section that led him to consider any intracranial abnormality although the possibility could not be excluded.

236. Given the matters relied upon by both Mr Samuels and Mr Vater and fully explained in their submissions I cannot in this case exclude that there was a change from birth subdural to CSH.

237. The next question posed by Miss Lazenby is whether a further acute bleed caused with little or no force led to E’s collapse, that is to say whether there was one acute traumatic effusion (ATE) or a chronic subdural haematoma (CSH) with acute re-bleed. Miss Lazenby carefully rehearsed the evidence in the same way as Mr Samuels and Mr Vater. It seems that a re-bleed is more likely to occur into an existing collection. Dr Stoodley commented that the focus of a re-bleed can often be seen around the bridging vein. He did not think the pattern suited E’s case. It is accepted that on the radiology a similar picture for SSH with re-bleed or acute traumatic effusion (ATE) can be seen. In this case the two paediatric neuroradiologists came to different conclusions. Dr Gawne-Cain and Professor Kirkham as treating doctors took the opposite view to Dr Stoodley. Although both Mr Richards and Dr Stoodley felt on balance that this was an ATE Dr Gawne-Cain at J291 said:

“One explanation of the appearances is that there has been a re-bleeding into pre-existing CSH but the original cause of the subdural haemorrhage remains to be explained. Trauma, including birth injury is one possible cause.”

In his oral evidence Mr Richards said that if E had a CSH and she was pre-disposed a re-bleed could happen with a lower level of trauma or “maybe nothing at all. It could happen spontaneously.”

238. I find that the CSH was vulnerable to a re-bleed with little or even no force.

239. Raised intracranial pressure and bi-lateral haemorrhages. I have already dealt with this in some detail when considering the submissions made by Mr Vater. I cannot exclude the possibility in this case that the sudden and dramatic rise in ICP caused the RH’s.

240. As to the explanations given by the parents Miss Lazenby submits, and I agree, that it is unlikely that when E hit her head on the basin she could have then been taken around the town and showed no signs of being unwell. The expert evidence agrees that there had been a rapid deterioration in the child’s condition.

241. The parents referred to what was described as the father throwing E into the air. As described it does not appear that this was a cause of E’s collapse.

242. The slip down the father’s front. Mr Richards accepted this as a possible cause of the difficulties. At E178 he said that it was theoretically possible if her head moved excessively with force it might have succeeded the injury thresholds and caused acute encephalopathy, acute subdural haemorrhage, acute dramatic effusion and acute retinal haemorrhages. Miss Lazenby also points to the consistency of the parents’ account.

243. It is submitted and I agree that the mother gave clear, consistent and intelligent evidence. There was no time for the parents to rehearse their stories before the 999 Call and reporting to the doctors at the hospital.

244. As Miss Lazenby points out there was clearly tension between the parents as shown by the text in O71-75.

245. Miss Lazenby points out that there are only about two weeks of messages and it is not possible to determine whether these reflect the normal state of the relationship between the parents or this reveals an abnormal situation in response to the stress that the family was suffering. I accept whatever happened to E occurred after the father and E had left the mother in the kitchen. I also accept that both parents responded quickly and sought medical help.

246. As to the father’s evidence Miss Lazenby points out that he has been consistent in his account and offered the explanation of the “slip down his front” at the earliest opportunity and repeatedly.

247. As to the “slip” Dr Stoodley did not think that it appeared likely that the degree of movement or repetitive nature of it was sufficient to cause the injuries. Mr Richards commented that such reconstructions are not helpful but if what he had seen demonstrated had been done with sufficient force it might have caused the injury but it might not have done. Dr Rylance said that the mechanism required for the collapse is either or both of a significant velocity that suddenly stops or is a variation in position akin to movement in different directions. He added that one can only go by one’s experience but handling, accidental collisions that happen in the lives of most babies do not seem to cause this type of injury. Having said that however Mr Richards said he could not rule out the fall as described by the father.

248. The question has arisen as to the boundary between the expertise of Dr Stoodley and Mr Richards. Mr Richards being a Paediatric Neuroradiologist not only views scans but sees the reality if he subsequently operates. The other difficulty with Dr Stoodley’s evidence in this case is that although a highly experienced neuroradiologist in the interpretation of images, he was not in a position to factor into his opinion the views of Dr Gwane-Cain. As Mr Vater pointed out the doctors saw and interpreted different things on the same scans.

Conclusion

249. (i) I find that on 13 ^th/14 ^th September 2014 the house in which the parents, maternal grandmother and E lived was in an appalling state it was cluttered, unhygienic, dirty and not a suitable environment in which to bring up E;

(ii) Given the divergence in the medical evidence, together with wider canvas evidence, I am not satisfied that the local authority has proved its case namely:

“on the available evidence the time of the injury was on the evening of 13 ^th September, probably close to or immediately before the 999 call.

The most likely scenario is that the father caused the injuries by shaking the child. There is sufficient evidence to say that he was the specific perpetrator.”

(iii) I accept the submission made on behalf of the father that by the time of E’s collapse on 13 ^th September there is evidence to show that E had a relevant pre-disposition towards intra cranial bleeding as a consequence either of trivial trauma (such that a carer might not be aware of it) or spontaneously. It is unsafe to find that the retinal haemorrhages were caused by shaking.

250. The consequence therefore is that the Local Authority has not discharged the burden placed upon it and has not established its contention that the father caused E’s injuries by shaking the child.

Dated this 22nd day of July 2015

…………………………………………..

HIS HONOUR JUDGE BOND

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> E (a child), Re [2015] EWFC B119 (22 July 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B119.html Cite as: [2015] EWFC B119

England and Wales Family Court Decisions (other Judges)