This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

No. IL13C00922
IN THE CENTRAL FAMILY COURT

First Avenue House
42-49 High Holborn, WC1
Monday, 13th October 2014

Before:

HER HONOUR JUDGE SALLY WILLIAMS
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B E T W E E N :

		LONDON BOROUGH OF LAMBETH	Applicant

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		Z & Others.	Respondent

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MS. JANET MITCHELL, counsel appeared on behalf of the Applicant

MS. SORREL DIXON, counsel appeared on behalf of the first respondent

MR. EDWARD ELLIOTT, counsel for the second respondent

Miss. XENIA Stavrou, counsel for the children

Ms. R in person

Ms. M in person

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J U D G M E N T
HER HONOUR JUDGE WILLIAMS:

Introduction

1	In this case I am concerned with three children, M,  who was born on 29th August 2006, and is now 8 years of age, S, born on 4th December 2010, who is now 3 years and 9 months old, and X, born on 25th May 2013; she is 1 year and 4 months old.  All three children are currently in the care of their maternal aunt, Ms A, and they have been since 9th January 2014.  The application before the court is a care application made by the London Borough of Lambeth on 19th December 2013.

2	Before I set out who is involved in these proceedings, I would just like to say that for the ease and efficiency of giving judgment I propose to refer to
Mrs Z as ‘mother’, Mr Z as ‘father’, to Ms M as ‘Ms M’, and Ms R as ‘Ms R’.  There is no discourtesy intended at all, it is simply easier to do so.

Parties

3	So who are the relevant people and the parties in this case?  Firstly, and most importantly of course are the parents.  The children’s mother is Mrs Z, and their father is Mr Z.  They are married and Mr Z has parental responsibility for the children.  The Local Authority, as I have said, is the London Borough of Lambeth.  There are two intervenors; one is the maternal aunt, Ms R, and the other is Mrs Z’s sister-in-law, Ms M. She is married to mother’s brother, Mr R, and they live in Croydon.  The last parties are the children themselves.  They are represented by counsel through their children’s guardian, Mr. Peter Witchlow.  Mr. Witchlow has been in court for almost all of this hearing but is not in court today.

Intervenors
 
4	I would like to say a word initially about the two intervenors, Ms M and Ms R. Neither is represented as they are not eligible for public funding and could not afford to pay for legal representation.  On the fourth day of this hearing Ms M asked for permission for her husband to support her.  That is, as I have said, Mrs Z’s brother.  Permission was given initially, but in the event it seemed unwise in case he was required to give evidence and therefore she managed alone.  However, today she has the support of her brother-in-law,
Mr R, in court.  Ms R has had the assistance of an interpreter in Urdu throughout; her interpreter is not here this morning but she is sharing the interpreter with Mrs Z.  Both Ms M and Ms R did very well in dealing with the paperwork and understanding the process.  I gave them what help I could, and so did counsel, and particularly counsel for the children, and
I am very grateful to all counsel for the assistance they have given throughout this hearing.  It is of course much more difficult to achieve a fair trial in these circumstances given what was, and is, at stake for these two intervenors, who were forced to go ahead without legal representation and that is something
I very much regret.  Both Ms M and Ms R asked intelligent and thoughtful questions.  Their conduct throughout and under real pressure and distress at times, has been exemplary; they have been courteous and co-operative.  Apart from the intervenors, all other parties have been represented by counsel.

Other relevant persons
 
5	There are some other relevant family members; Mr M, who is father’s brother, Mr R, I have mentioned, who is the husband of Ms M and brother of Mrs Z, and much mention has been made of Ms A, who is the maternal aunt who currently cares for the children.  Other relevant people about whom I have heard are a Mr A, who was staying in Ms M’s home in December 2013 and is said to be a friend of her husband’s and Mr N, an employee of father at his business premises in December 2013.

Brief History

6	Turning to the brief history, the parents of the children are members of a large and supportive family group with a Pakistani heritage.  They are British citizens living in the UK.  The parents have many siblings.  On the day in question when X was injured, 14th December 2013, mother was at her sister-in-law’s house, Ms M’s house, with her three children.  Present there also were Ms M and mother’s sister, Ms R.  Ms M has three boys, then aged 4, 2 and 1 year old, and Ms R has two boys, then aged 10 and 9 years.  There were therefore eight children in the house with the three women.  For all three women it is clear that their Muslim faith is important to them as well as their cultural heritage and consequent codes of behaviour.  They told me of this in their oral evidence.

7	Leading up to 14th December 2013, I set out the background.  X was born on 25th May 2013.  During the pregnancy her mother was diagnosed with lymphoma, but treatment was delayed until after X’s birth.  In July 2013, mother told her GP that father, and her brother-in-law, beat her, but subsequently she said the matter was resolved.  This is referred to in the parenting assessment of the allocated social worker, dated 15th April 2014.  The GP referred the matter to Children’s Services.  It was discussed with the health visitor and no further action was taken.  

8	On 14th December 2013, X was taken by the London Ambulance Service to Croydon Hospital, the Mayday Hospital, having had three fits.  A CT scan showed subdural haematomas, that is, bleeding of the brain and the lower spine.  One was acute and one suggestive of an older sub-acute subdural collection.  She had a bruise to the left side of her forehead and bi-lateral retinal haemorrhages.  She was later that day transferred to St. George’s Neuro-Surgical Centre and went into the Paediatric Intensive Care Unit, and then was referred to the care of a consultant paediatrician at St. George’s.

9	Mother said she was not in the room at the time that X became distressed on 14 December 2013.  She says she had gone upstairs to wash before praying, leaving X on a sofa with Ms M and Ms R in the room and the other children and she says she heard X’s distressed cry after three or four minutes and rushed downstairs to find Ms M holding X to comfort her.  X was comforted briefly and put in her car seat in the living room, but then started to make jerky movements, rolling her eyes and frothing at the mouth.  She was having a fit.  Ms M said that X had been on the sofa and was then on the floor and Ms M says she did not see what happened because she was turned away from the child.  Ms R was on the telephone to her sister, Ms A and also says she did not see what happened.  The other children were there or nearby.  The two eldest children were not asked what happened, that is Ms R’s children.  A 999 call was made.  Father said he was not in the house, Ms M’s house, at the time but was called by his brother, Mr M and arrived after the first response unit got there.  Father says he was at his business premises, which is nearby.  He said he was there that day, although he had gone out to buy some paint.

10	On 18th December 2013, an MRI scan showed subdural haematomas compatible with a single event and this confirmed the possibility of an inflicted head injury.  The explanation given was not thought to be adequate to explain the injuries.

11	On 19th December 2013, proceedings were issued.  Her Honour Judge Harris made interim care orders for all three children, who were removed into foster care.  They then later went to live with their maternal aunt, Ms A, after
a positive viability assessment of her.  

12	On 8th January 2014, Her Honour Judge Rowe QC, reviewed the matter and listed a case management hearing, and the case was ultimately set down for
a fact finding hearing.  It was listed on 6th May 2014 before District Judge Bowman but had to be vacated because not all the medical evidence was available in time. It was therefore relisted on 15th September before me, and
I am the fourth Judge to deal with the matter.  Judicial continuity has therefore been lacking.

13	I turn now to the issues, and they are: what are X’s injuries; are they accidental or inflicted – in other words how were they caused; if they are not as a result of an accident or there is no medical explanation, who caused them?  The Local Authority seeks findings which it has set out in its schedule of findings dated 16th July and amended on 1st August 2014.  It says that in the pool of potential perpetrators there is mother, father, Ms M and Ms R.  All of those people deny causing X’s injuries.  Both mother and father have responded to the schedule of findings sought.

Hearing
 
14	This hearing was initially listed for seven days but extended to ten, although
I noted that time was lost because witnesses were unavailable at the relevant point.  Judgment was reserved to today, 13th October, because I was unfortunately not available earlier, being away from this court.  I have had
a core bundle of relevant documents, and I have read the papers in this case thoroughly.  I was very much assisted by the opening note written by counsel for the Local Authority and her list of clinicians relied upon and later by
a summary of the law produced by counsel for father.  That was fortunately given to the intervenors early on to assist them to understand the law in this case.  Counsel for mother also provided helpful closing submissions on the law and a timeline for the events of 12th to 19th December 2013.  Counsel for the Local Authority provided a note, which was not agreed, of the medical evidence of the two independent experts instructed and that of Sarah Ward, the allocated social worker, in December 2013.  When I say that note was not agreed, it was simply not agreed through lack of time; there were no specific points that I was aware of which were not agreed.

Witnesses

15	At this hearing I have heard oral evidence from a number of witnesses, and in this order: Mr. Elston, Consultant Ophthalmologist from John Radcliffe Hospital in Oxford; he specialises in paediatric and neuro-ophthalmology; 
Mr. Jayamohan, Consultant Paediatric Neurosurgeon, also of the John Radcliffe Hospital in Oxford; Sarah Ward, the allocated social worker from 18th December 2013 until Eugene Patten took over; Jacqueline Morris, the paramedic from the London Ambulance Service, who was the first response unit person to attend; Carey Lodge, the paramedic with the London Ambulance Service; Dr. Atifa Hossein, Paediatric Consultant at St. George’s Hospital; Mr N, father’s employee on 14th December 2013;
Dr. Louise Davidson, Paediatric Registrar, on 14th December at Croydon Hospital; Dr. Shetty, Locum Paediatric Registrar, on 14th December at Croydon Hospital; the children’s mother, who gave her evidence through an interpreter in Urdu; the children’s father, Mr M, the father’s brother; Ms M, the mother’s sister-in-law; Dr. Anami Gour, Consultant in Paediatric Intensive Care at St. George’s on 14th December 2013, and Ms R, mother’s sister.

Medical evidence – Mr. Elston

16	Turning to the medical evidence, I deal firstly with Mr. Elston; as I have said he is a Consultant Ophthalmologist at John Radcliffe in Oxford, and specialises in paediatric and neuro-ophthalmology.  His evidence was heard through a video link.  His report is dated 9th April 2014 and he wrote an addendum on 18th June and then attended an expert’s meeting with Mr. Jayamohan on 24th July 2014.  Mr. Elston gave evidence about X’s retinal haemorrhages only.  I am satisfied Mr. Elston has extensive experience both in clinical practice and as an expert witness.  In his report he discussed differential diagnoses and excluded them.  He concluded:

“(1)  The history given of a fall from a sofa onto the floor with the baby banging her head on a toy appears to be incompatible with the retinal findings of extensive bilateral retinal haemorrhaging.  It is my understanding that this history is also unlikely to explain the presentation with encephalopathy and fits and the finding of subdural haemorrhages.

(2)  It is my understanding from the documentation and explanations given of the investigations that X was not found to have any naturally occurring condition that could explain those findings.

(3) The ophthalmological findings in this case are those that are known to occur following an inflicted head injury in infancy in the form of
a shaking or shaking impact injury.”

Mr. Elston confirmed in response to additional questions that the retinal haemorrhaging was likely to be from an injury within hours and not days of admission to hospital.  He said no more than 24 hours.  He thought that the injury which gave rise to the neurological deterioration also caused the retinal haemorrhaging.  At the expert’s meeting with Mr. Jayamohan on 24th July 2014, the extent of the injuries was agreed by the experts.  It was felt that the likeliest cause was an inflicted injury and not a fall from the sofa.  Mr. Elston relied on the petechial haemorrhages on the eyelids, although I note that the oral evidence later of Dr. Hossain was that it appeared that those may have been caused by examination of X as they were not initially noted.  
Mr. Elston confirmed that timing of the retinal haemorrhaging is “an imprecise business” and he noted that X did not see an ophthalmologist until 15th December, but he felt that the description of the multiple haemorrhages in all layers of the retina was most compatible with and most likely to be contemporaneous with the acute encephalopathic episode that occurred on
14th December.  In his oral evidence he was asked about the so called “triad” of injuries and he said he preferred to call or refer to these as the three components, namely, acute unexplained neurological collapse, subdural haemorrhages and retinal haemorrhages and he confirmed that these are strongly associated with an inflicted shaking injury. He confirmed there were multiple haemorrhages in at least two layers of the retina, but there was no evidence available as to the periphery because of the difficulty in examining X.  Such retinal haemorrhages could be compatible with accidental head injury, but in this case, for example, he said there is no skull fracture.  He said that falling off a sofa was a minor domestic trauma and low level falls of this nature do not usually cause retinal haemorrhages, but he conceded that clinicians do not usually examine for such in those cases.  He felt the simplest explanation was one event, but could not say there were not two events.  In response to cross-examination he said that a shaking injury was overwhelmingly likely, or if there had been a significant trauma the family would be aware of it.  He said no reasonable person would shake a six month old in a panic enough to cause these injuries, because it was suggested to him that someone might have done so to rouse X when she became unconscious.  He also confirmed that fits do not cause retinal haemorrhaging and that the incident mentioned by mother, that is that she knocked X’s head on the banister about three weeks before 14th December, if it had caused retinal haemorrhages then they would have resolved by 14th December unless very severe. If very severe a parent would have seen what he termed a ‘behavioural response’ from X.  He therefore discounted that as the cause.

Medical evidence - Mr Jayamohan

17	I next heard from Mr. Jayamohan, the Consultant Paediatric Neurosurgeon from the John Radcliffe Hospital.  He is a very experienced consultant in this field with an extensive clinical practice.  He accepts instructions to give expert evidence in family and criminal proceedings he said approximately 50 to 60 times a year and I am satisfied as to his extensive expertise in his field and practice.  His report is dated 7th May 2014, although was written earlier.  It was delayed as he had not seen the CT scan at that point.  He wrote an addendum on 7th May, having seen the CT scan.  He responded to written questions on 10th June and attended the expert’s meeting with Mr. Elston on 24th July 2014.  Mr. Jayamohan said that the CT scan taken on 14th December showed an acute left parietal subdural haematoma and a sub-acute left frontal subdural haematoma.  He confirmed that the skeletal survey was clear.  In his report he says that a lucid interval post-injury is unlikely.  He says falling on a toy may explain subdural blood, but not the posterior fossa subdural blood or the spinal blood.  He said a greater fall would be needed.  He said:

“I also believe it is unlikely that the child’s acute neurological deterioration would be explained by a simple fall off a sofa onto a toy.
I believe it will be necessary for the court to look for a further traumatic event.  A greater fall may be the cause of the inter-cranial blood and the neurological change in the child.  I would suggest that a fall from an adult standing height or similar would be a more appropriate level of trauma if an impact event is the cause.  No such event has been disclosed.”

Mr. Jayamohan did say that a low level fall might explain the findings because of the spaces in this baby’s head, but would not explain the blood in the fossa and the spine.  He felt a shaking event would explain the injuries, although not the presence of the forehead bruise.  As to timing he said it is most likely that the event which caused the brain deterioration occurred after the last time the court is able to determine the child was well.  He confirmed that the explanation given was not sufficient for the profound brain dysfunction seen.  At the expert’s meeting he confirmed he could not find any evidence of
a cause other than a traumatic one.  He confirmed he had considered differential diagnoses and excluded them.  In his oral evidence he was clear that X suffered a traumatic event and as, in his view, no explanation is provided sufficient to explain the injuries another event needs to be sought.  He confirmed that the most likely cause of brain dysfunction with subdural blood in the brain and spine is a shaking event.  He could not link the forehead bruise to this. He confirmed again that a lucid interval post-injury is rare.  He did not think that the blood had tracked down from the brain into the lower spine and he thought it was more likely there were two sources of blood and he explained that a shaking event would account for this and demonstrated how that could happen.  In his view only inflicted injury explains the injuries suffered by X.  He could not rule out two ages of blood, but he properly deferred to the expertise of Dr. Rich, whom he described as a very experienced paediatric radiologist and Dr. Rich said that they were compatible with
a single event.  He concluded by saying that shaking would explain the injuries in his view, but that some experts do not believe these injuries can be caused by shaking.  He also confirmed that doctors do not always agree when referring to what he thought were two ages of blood seen on the scan, but then, as he said, he deferred to the expertise of the paediatric radiologist.
  
18	Both independent experts gave very clear and considered evidence based on the documents they had respectively been sent and subsequently read, which documents included the witness statements of the parents and the intervenors, as well as all the clinical records and notes.

Evidence of clinicians and paramedics   

19	I turn now to the evidence of the clinicians and the paramedics.  I am satisfied that all the clinicians and paramedics from whom I heard gave evidence to the best of their recollection.  In most cases, however, that recollection occurred only by reference to their notes made at the time.  This is no criticism of them, it is unsurprising.  Some nine months had passed since 14th December at the time they gave their evidence and the only witnesses who recalled anything independently, in my view, were Dr. Hossein and the paramedic,
Jacqueline Morris, from the first response unit.  There were inconsistencies between the evidence of Mr. Lodge of the London Ambulance Service and Miss Morris.  He attended with the ambulance and followed Miss Morris to the property.  Mr. Lodge mentions Miss Morris telling him that the child had crawled and fallen onto a wooden toy box and banged her head and did not appear injured and carried on playing afterwards and that this occurred some 45 minutes before the child had her first fit.  Miss Morris did not agree that she had relayed this information about 45 minutes.  I preferred Miss Morris’ evidence as she had some independent recall and was the more reliable witness for that reason.  This information, the 45 minutes, was then relayed to the triage nurse at Croydon Hospital by Mr. Lodge and repeated in later notes.  

20	In relation to Dr. Gour, some of his notes did not match up consistently with those of Detective Constable Gethin Jones.  Both Dr. Gour and D.C. Jones were present at an interview at St. George’s Hospital with the parents at 9.15 in the evening of 14th December.  The Local Authority asks me to find that the notes were accurate and whilst I agree that those notes are very important, I do not find that they are completely consistent.  Nevertheless, I accept that all the doctors and paramedics did their best to assist the court.
21	
I treat with particular caution the letter by Dr. Fenton, Consultant Paediatrician at Croydon, who was not called as a witness, who wrote to Dr. Hossein at St. George’s on 17th December and said:
“When Dr. Shetty heard from Social Services (and we saw from the Red Book) that there had been allegations of domestic violence, this all made much more sense.”

I will go on to consider the allegations of domestic violence or abuse.  The notes of what mother had said that were recorded in strategy meeting minutes on 19th December at St. George’s must also have come from somewhere, but it is not clear from where.  She allegedly said she was feeling scared and pressurised.  I also take into account that mother and father have always said they were not present when the incident occurred, and therefore whatever they reported was second hand information.  Dr. Shetty spoke to Ms M over the telephone when he was taking a history and his notes are an amalgam of what he was told by her and the parents.  The matter of a fall was mentioned before the parents arrived at the hospital because Miss Morris particularly asked about this.  Given that X had been placed on the sofa and was later seen on the floor, it is probable that specific mention of a fall from the sofa was not needed; it was not known how she had got to the floor from the sofa.

Lay witnesses

21	In terms of the lay witnesses, I turn first to Mrs Z, X’s mother.  She gave her evidence through an interpreter.  She had not originally had an interpreter and I was told that after hearing the evidence of the independent medical experts that she felt she required one.  Her English, however, seems to me to be very good.  She gave her evidence in a considered and thoughtful way and was once or twice overwhelmed by thinking about her daughter’s injuries.  She has been in court throughout and behaved in a moderate and courteous way, for which I give her full credit, given the seriousness of the situation in which she finds herself and her family.  The background is that of a caring mother within a supportive and caring family environment.  That is borne out also by the parenting assessment written by the allocated social worker in April 2014.  I take into account the stressful circumstances in which mother found herself in 2013, having been diagnosed with lymphoma during her pregnancy and thereafter being treated for it whilst caring for a young baby.  As I understand it, she is still having checkups, although it is now felt that she has recovered.  I heard from mother about the circumstances in which she attended her GP in July 2013, following an argument with her husband and in-laws, when she complained that her husband and brother-in-law beat her.  She explained clearly that she should not have used that word, that is ‘beat’ her and she referred to historic allegations of about 2006/2007 when Mr M hit her and 2011 when father slapped her, and she explained those.  I was asked by the Local Authority to consider that mother had minimised this history and that it was unlikely she could not recall what the arguments pre-2013 had been about at the time as she said, but that was not my impression.  I did not consider that her evidence was unsatisfactory on the issue of domestic abuse.  I found her to be a reliable and credible witness.  There is much to support my view in the papers.  I note in particular that since the children were removed from her care in December 2013 and later placed with her older sister, that she has been on hand to help with their care on a daily basis and assisted with the school run and generally continued to make the children the centre of her life.  Her distress at their continued removal was obvious and convincing.

22	Mother has always maintained that she was not in the room when X fell.  It was clear that when X started fitting mother was completely distraught and I have listened to the recording of the 999 call and I can hear her distress.  It is consistent with the evidence of the other witnesses, including Mr M, who arrived later, that mother was crying and praying and unable to take control of the situation, so that Ms M had to do so.  Whilst not every parent would react in this way, it does speak to her concern and distress and the time and it seems to me highly unlikely she would have been in a position to have taken part in the construction of a concocted story with father and the two intervenors at this time.  She would simply have been unable to do so, in my view.  It is noted by the Local Authority and others that mother has done all she can to co-operate with professionals since December 2013 in promoting the welfare of her three children.

23	I then heard from the children’s father.  He gave his evidence in 
a very clear and calm manner and in English.  I found his evidence to be consistent.  He seemed somewhat puzzled by the suggestion that he was at Ms M’s house on the morning of 14th December.  I do not consider that he particularly delayed in providing evidence about his whereabouts on that morning.  As he says, he was not asked to do so until May 2014.  He appears to have co-operated with the police on 14th December and his response to his later police interview under caution, what is called a “No comment” interview, is hardly surprising since this must have been because of legal advice.  Looking back, it was not helpful but legal advice is there to be taken in circumstances where people do not know what it is best to do.  I do not think there can be any criticism of him because of this.  I say the same about Mrs Z.  Both of them had given what information they could to Dr. Gour and D.C. Gethin Jones on 14th December at St. George’s Hospital in the evening in any event.  I found Mr Z to be a credible and reliable witness and I accept his evidence that he was not at Ms M’s house on the morning of 14th December and that he had not seen his daughter since the previous morning on 13th December.  I have also taken into account the parenting assessment of April 2014, which is positive in respect of both parents, save of course for the outcome of this hearing.

24	I then heard from Ms M.  I have seen Ms M in court throughout this hearing and had many occasions to speak to her to assist or to explain.  She seemed to me to be an intelligent and impressive witness.  I have already said that she managed this hearing and the extensive paperwork extremely well and also I think managed to do that whilst putting aside her evident concern and distress about the extreme seriousness of the situation in which she finds herself and which I think she fully understands.  I was very sorry to hear this morning that she has since the hearing commenced had a miscarriage and that is a matter of real regret.  She was very concerned to have the toys in court, which were eventually produced by the police.  These were not shown to the independent experts, but there was an opportunity for questions to be put to them about those toys and in my view without the need actually to see them over the video-link.  What was of much more concern to this witness and to me was the fact that she could see how important it was for evidence to be given whilst it was fresh in the mind and she had given an interview to the police on DVD shortly after midnight on 15th December.  As she said, her recollection then was likely to have been good, as it was only a few hours after the event.  That DVD has been lost by the police, who have apologised, and there is no transcript.  There is a note in the CRIS reports by the police of what Ms M said, but that is not the same thing.  There was nothing that could be done about this, given the loss of the recording.  It is extremely regrettable.  Ms M was at pains to describe to me the closeness of her family and the way they interact and support one another.  It was compelling evidence and set out a clear background to the love and friendship between these three women: Ms M, Ms R and mother and indeed with other family members.  

25	I have read and taken into account the assessment of Ms M and her family by the London Borough of Croydon, in whose area she lives, which is dated
14th April 2014, where it is clear that there are no concerns about her family, it is a positive assessment and the only matter of concern is the outcome of this hearing.

26	Ms M’s evidence was clear and consistent, in my view.  The only matter she did not now recall was speaking to Dr. Shetty over the telephone, but when she signed her witness statement on 3rd May 2014 she mentions this and clearly recollected it then.  I found her to be a truthful witness, and in my view her credibility is not in doubt.

27	Lastly I heard from Ms R.  She gave her evidence through an interpreter in Urdu.  Her English is obviously quite good.  She said that her written English is better than her spoken English.  There were some difficulties in her oral evidence in that she was inclined to answer a question before it had been translated for her and her evidence had to be taken down very slowly through the interpreter to ensure that what she was saying was clear and was clearly noted.  She has always said she did not see what happened to X, even though she acknowledged she was in a position to see had she been looking.  She said she was on the telephone to her older sister, Ms A, when X cried out and Ms R then terminated the call.  She says that when she spoke about the timing of that call it was her rough estimate.  Originally she said she spoke for about fifteen minutes at 11.45 a.m.  However, having been taken through the telephone records, she confirms that it was a much shorter call at a later time.  Her recollection was not clear and she said they were not watching the clock that morning or whilst this situation developed, quite understandably, in my view.  It did not lead me to consider her evidence to be unreliable.  

I have also read an assessment of Ms R and her family carried out by the London Borough of Merton dated 2nd September 2014 and again that is a positive assessment save for the outcome of this hearing. I found Ms R to be a reliable and credible witness.  She also managed the paperwork and asked questions of other witnesses in an intelligent way and in my view both she and Ms M had a relatively good grasp of the medical evidence, which for the most part was demonstrated by the questions they asked.

28	I heard from Mr M.  He also appeared to me to be a credible witness.  He acknowledged hitting mother when he was 18 or younger in about 2006 or 2007, when he was living in the home and he said that father had dealt with that and that it had not happened again.  I accept his evidence that he was at the father’s business premises on the morning of 14th December to help out whilst father went to get some paint.  His recollection of the details of who was there and what the time was, was not absolutely clear, but that did not make his evidence less credible.  He said what he saw at Ms M’s when he arrived and that is consistent with the evidence provided by the paramedic, Miss Morris, and others.  

29	I heard from Mr N.  He gave his evidence in Bulgarian through an interpreter.  He no longer works for father at his business premises and has not done so since June 2014.  His recollection of 14th December was very hazy, but he said he recalled Mr A coming in to look for father and in his absence Mr M speaking to Mr A.  Mr N did recall working that day and having to stop painting a car after the first coat because more paint was required and that father went to get more paint and Mr M came to take father’s place.  I did not consider his evidence unreliable.  

30	The witness from whom I did not hear was Mr A, the friend of
Mr R, who was living in Ms M’s home at the time.  He was not called and I believe has not been traced.  It is unclear how he was aware of the incident and why he went to get father from the father’s business premises, which is very close by, but I can take that no further and in my view it is not of great importance in this case.

Law

31	I now turn to the law.  Both counsel for mother and father have assisted me by providing written summaries of the law and indeed assisting the intervenors.  In particular I have considered the following; Re: B (Care Proceedings Standard of Proof) [2008] UKHL 35, a decision of the House of Lords, in which it was said that:

“The legal burden of establishing the facts rests on the applicant Local Authority at all times.  The standard of proof is the ordinary civil standard of the balance of probabilities.  Neither the seriousness of the allegation nor the seriousness of the consequences makes any difference to the standard of proof applied.  Determining the facts is a difficult task which must be performed without prejudice or pre-conceived ideas.  The court is guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than another and the overall impression of the characters and motivations of the witnesses.  
I also looked at Re:  A (A Child) Fact Finding Hearing, Speculation) [2011] EWCA Civ 12, a decision of the Court of Appeal and Munby LJ, as he then was said “findings of fact must be based upon evidence, including inferences that can properly be drawn from the evidence and not suspicion or speculation”.

  In Lancashire County Council v. D & E [2008] EWHC 832 Charles J  in the High Court, confirmed that there is no reverse burden of proof on the parents in these cases, in other words, they do not have to prove anything, it is for the Local Authority to prove its case.  

Re: U ( Serious Injury: Standard of Proof), Dame Elizabeth Butler-Sloss, then the President of the Family Division, said that:

“a Judge in care proceedings must never forget that today’s medical certainty maybe discarded by the next generation of experts, or that scientific research may throw light into corners that are presently dark”

Hedley J, in 2011 in the High Court in Re: Regards,( Care Proceedings:  Causation) [2011]EWHC 1715 (Fam), and in referring to the case of R v. Cannings [2004] EWCA Crim 1, in the Court of Appeal, said:

“This teaches even where, on examination of all the evidence, every possible known cause has been excluded the cause may still be unknown.”

Hedley J went onto say:

“The temptation there described is ever present in family proceedings too, and in my judgment should be as firmly resisted as the courts are required to resist in criminal law.  In other words, there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown.  That affects neither the burden nor the standard of proof.  It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on a balance of probabilities.”

Baker J, in 2012, in the High Court, in the case of Re JS [2012] EWHC 1370 (Fam), referred to a previous criminal case, R v Harris & Ors [2005] EWCA Crim 1980 and said:

“As was explained by the Court of Appeal in the case of  R v. Harris  Others [2005] the medical diagnosis of non-accidental injury has for some years been based on what is called the triad of inter-cranial injuries consisting of encephalopathy, subdural haemorrhage and retinal haemorrhage.  For many years the coincidence of these injuries in infants was considered to be the hallmark of non-accidental injury.  As was made clear in the Harris case, however, the presence of this triad was a strong pointer to, rather than diagnostic of, non-accidental injury.  In each case the court must carry out a thorough investigation of the facts.  In many cases the child will have suffered other injuries, for example, bone injuries.  In other cases some of the elements of the triad may be missing, but having examined all the evidence, the court may still conclude that the child suffered non-accidental injury.”

Charles J again in A County Council v K, D and L [2005]  confirmed that the medical experts are not the decision makers; it is for the Judge, having analysed the whole of the evidence, including issues of credibility, to reach conclusions as to the facts which may vary from that reached by the medical experts. 

Conclusions

32	I turn then to my analysis.  Mr. Elston and Mr. Jayamohan are eminent medical experts.  Their evidence was clear and straightforward.  I must and have considered their opinions very carefully in the context of all the other evidence in this case.  They concluded that a shaking event was the most likely thing to have caused X’s injuries.  Looking at the totality of the evidence in this case it is clear to me that these parents are in a settled relationship and are supported by their wider family on both sides.  They have brought up together two children and the injured child is their third child.  There is evidence that these children were thriving in the care of their parents.  They are loving, caring parents and that is underlined by the fact that they had not previously, save for one matter to which I will come, come to the attention of Children’s Services and that those who have met and dealt with these parents, the health visitor, those at the children’s school, have not reported any concerns about the care given to these children and have always found the parents to be co-operative.  There is no background to concern the court in terms of neglect, mental health difficulties, violence or criminality, substance misuse.  The parenting assessment carried out by the allocated social worker in April 2014 reflects this and shows a positive picture which is relevant to my decision, which is to be made in the context of the wider picture relating to this family.

33	I find on a balance of probabilities that X suffered a fall at about 12.21 p.m. on 14th December 2013.  That is the time when Ms R terminated her call to her older sister and following that, for an unknown reason, X had a disturbance of the brain, which led to her fitting and the injuries noted.  The 999 call was made at 12.28 and that was after Ms R had tried to call 999 and failed to get through and Ms M had also done so and she had got through.  This fits in with the evidence given by the three women and the telephone records.  The medical evidence suggests one incident and I find on a balance of probabilities that that was the case.  Mr. Jayamohan was clear there would be no lucid interval after an event serious enough to cause these injuries when the child would appear well.  I find that X was last well when her mother went upstairs to wash just before X fell off the sofa.  X was well on 12th December when seen by the health visitor and on 13th December, according to the evidence and I have seen photographs taken of her on that day and particularly on the evidence of the three women in the house on the morning of 14th December.  She was then well also.

34	It was submitted by counsel for the father that Ms M and Ms R gave evidence that excluded the parents from being present and therefore put themselves in the position where only they remained, that is Ms M and Ms R, in the pool of potential perpetrators and that this supported the likelihood that they are telling the truth.  Further he said that there was no lucid interval and given the hysteria which quickly followed it is unlikely that the women would have been able to have planned any story and I agree with that.  It is submitted on behalf of the Local Authority that mother, father and the intervenors have colluded to concoct a story to hide the true cause of these injuries.  I have already said in my view these four witnesses were credible.  On the evidence it is highly improbable, it seems to me, that with or without the presence of the father these women could have colluded and concocted a story.  The history, as I find it to be, would not allow the time and mother was not in any fit state, as evidenced by hearing her distress on the recording of the 999 call, to do so.  Further accounts had been given by mother, father and Ms M before they travelled together in the car from Croydon to St. George’s Hospital and it would have been too late then for them to have made up the story.  The inconsistencies in the accounts are explained, I find, by the fact that no one saw what happened to X.  Much of what was reported by the witnesses was speculation.

35	Turning to the possible background of domestic abuse, the only matter which caused some concern is the referral by mother’s GP to Children’s Services in July 2013, when she attended a planned appointment in relation to the treatment of her lymphoma and then said that her husband and brother-in-law beat her.  The GP said she retracted that complaint.  It is said on her behalf that it was not so much a retraction as an acknowledgment that this was something that happened once only and would not happen again.  I have been referred to the incident in 2011, when she says her husband slapped her during an argument and I have heard from both parents about this and I am satisfied this was an incident which occurred once only and that both parents regretted it.  The other incident in 2006 or 2007 was a long time ago and I have heard from mother and from Mr M about this and again I am satisfied it was an incident which occurred once only and that Mr M was a very young adult and had behaved in an unacceptable way.  He was put right about this and he apologised.

36	I was more concerned about the events that gave rise to mother’s complaint in July 2013.  She says, in paragraph 11 of her first witness statement, that there was an argument in her home when her mother-in-law and father-in-law were staying and this was about cleaning or some domestic issue and she felt that her in-laws were putting her down in front of her husband.  The father did not support her and shouted at her and she says:

“I felt singled out as all three of them were shouting at me and this made me feel alone and upset.”

She confirmed she was under stress at the time because of her lymphoma diagnosis and she was still undergoing treatment.  She says she should have explained herself better to the GP and the whole matter has now been blown out of proportion.  The allocated social worker in his parenting assessment of April 2014 concludes there is nothing to suggest that this was or is a factor in the parent’s relationship and mother then told the allocated social worker that this was an unfortunate family dispute that escalated during a time of great stress for her.  I accept that evidence from mother.  In the wider context I am satisfied that this is a supportive family.  This domestic abuse allegation does not, in my view, form a basis for finding that either mother or father was likely to have injured X on 14th December 2014.  In context that would be mere speculation and I do not consider any such inference can be justified on the evidence.

37	Mr. Elston properly deferred to experts in other disciplines and
Mr. Jayamohan confirmed in evidence that some experts do not believe these injuries, those suffered by X, can be caused by shaking.  This is a difficult area.  I am fully aware that the injuries suffered by X were extremely serious and that the so called “triad” was complete.  However, in reviewing all the evidence I do not accept that any of the family members in the pool of potential perpetrators injured this child.  The remarks I have made about the stability of the parents’ family background relate equally to the backgrounds of Ms M and Ms R.  This has been confirmed by those two women who gave evidence and whose evidence I found to be credible and reliable and further by the wider background of the assessment in each case by their respective Local Authority Children’s Services, finding that all was well and the only matter of concern related to X’s injuries.  I have been fully addressed on the possible causes of X’s injuries.

38	I will deal with the bruise seen on her left forehead.  It seems to me on the evidence that it is more likely than not that this bruise was caused by a fall at the relevant time onto a toy and was unrelated to the other injuries.  This bruise was seen by some clinicians but had disappeared by the time Dr. Hossein saw X on the evening of 16th December.  The bruise was described variously as a graze, a lesion, a reddish bruise, a notable bruise and a slightly raised bruise with a rough surface.  The independent experts did not link it to the other injuries.

39	I should also deal with the petechiae seen on X’s eyelids.  It appears from the clinical notes that it is more likely than not that these were caused by the examination of X’s eyes and that is supported by Dr. Hossein.  Mr. Elston was not aware of that, I think and had relied upon those in his opinion.  This does not detract in any way from Mr. Elston’s opinion in my view and I accept of course that X had extensive bilateral retinal haemorrhages.  I also accept that X suffered an encephalopathic episode and subdural haemorrhages in the brain and spine to which I have referred.  All these injuries constitute significant harm.  However, in finding that none of those in the pool of potential perpetrators caused those injuries, having relied on their credibility and the wider background, I find that these injuries were caused by an aetiology which is unknown or not yet understood.  That is on the basis that all differential diagnoses were considered and rejected.  As I understand it, X has fully recovered from her injuries, although she has ongoing checkups.

40	The threshold in this case is therefore not met in that under Section 31(2) Children Act 1989, it is required that the significant harm be attributable to the care given to the child, not being what it would be reasonable to expect a parent to give to her.  I do not make any such attribution here on the evidence.  In all the circumstances then I exonerate the parents, Ms M and Ms R from causing X’s injuries.

41	In relation to the schedule of findings, I am content to go through that in
a moment but it is clear that many of those matters will not have been proved.  I would say further that I make no criticism of the Local Authority for bringing these proceedings to safeguard these children, given the lack of a clear explanation and the views of both medical experts that these injuries were likely to have been caused by shaking, but in all the circumstances I dismiss the application.

42	In relation to the schedule of findings I do not know if it assists in particular for me to go through that as I have made my findings clear, but I would say that I make findings in relation to Number 1, the nature of the injuries suffered, including the bruise, as I have set out.  In relation to Number 2, the date and time of the injury, being at a time the court is able to determine the child was last well and that on 14th December, as I have set out.  In relation to 3(a), that the injuries were inflicted and were non-accidentally caused, I do not make that finding.  In relation to (b), that they were the result of at least one traumatic event, I do not make that finding.  (c) A shaking event could explain the constellation of symptoms; to an extent, yes, it would explain the constellation of symptoms, but I do not find that there was a shaking event.  
(d) The presence of a forehead bruise would require an additional impact injury; yes.  (e) Most likely cause in the absence of external evidence in support of an episode of major accidental trauma is non-accidental or inflicted shaking injury; I do not make that finding.  In relation to 4, degree of force required outside the range of ordinary handling, I do not make that finding. 
5, not proved; that is the perpetrator of injuries, anyone present at the time must have known.  6, the injuries are not explained by any of the accounts given by the parents or members of the extended family; well, that is correct.  7, other medical causes, differential diagnosis; again I would find that this is not explained by any differential diagnosis.  8, pool of perpetrators; I do not find that one of the adults: mother, father, Ms M or Ms R, caused or inflicted the injuries.  9, in relation to the allegation about domestic violence, I find that father slapped mother on the arm in May 2011.  I find they had an argument in July 2013, as I have set out.  It must be an error I think in the schedule saying: “June 2013 the parents had an argument which escalated when brother-in-law joined in.”  There is no evidence of that and I think that is a mistake.  That was 2006/2007 and it was put on that basis.