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 children 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.
Case No: SD14C00145
Neutral Citation Number: [2015] EWHC 2439 (Fam)
IN THE FAMILY COURT 
AT THE ROYAL COURTS OF JUSTICE, LONDON
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF X (Born 26th August 2010) & Y (Born 5th December 2012)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/08/2015

Before:

MS JUSTICE RUSSELL
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Between:

	West Sussex County Council	Applicant	
	 and 		

	M
 and
S
	 	 and
W
                                            and
X & Y
(Children)
                                           and  
L	1st Respondent

2nd Respondent

Intervener

3rd &4th Respondents

5th Respondent	
 
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Ms Gemma Taylor and Ms Jennifer Kotilaine (instructed by West Sussex County Council) for the Applicant/Local Authority
Ms Lucinda Davies (instructed by Chamberlain Martin Solicitors) for the 
1st Respondent/Mother
Mr Neville Stevenson – Watt (instructed by Cooperative Legal Services) for the 
2nd Respondent / Father
Mr Jonathan Bennett (instructed by Harney and Wells) for the 3rd & 4th Respondents
Ms Jacqueline Wehrle (instructed by Edward Hayes) for the 5th Respondent 
Mr Sylvester McIIwain and Mr Richard Jones (instructed by Edward Hayes) for the Intervener/ W

Hearing dates: 13th to 24th July 2015
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Judgment
The Honourable Ms Justice Russell DBE: 
Introduction
1.	This judgment follows a fact-finding hearing held before me in the Royal Courts of Justice between the 13th and 24th July 2015. The case concerns two little boys, X who was born on the 26th August 2010 and is rising five, and Y who was born on the 8th December 2012 and is two years and 7 months old who are the subjects of care proceedings brought by West Sussex County Council (the local authority). The proceedings were initiated after Y was taken to hospital by ambulance in the middle of the night on 15th February 2015; he was unconscious required immediate surgery to relieve the life-threatening head injury seen on the CT scan taken shortly after he arrived at hospital. 
2.	Fortunately Y survived the operation and while initial concerns that he would be severely disabled and profoundly disabled have proved to be pessimistic and he has made good progress. The long term effects of his injury are not known and his health will continue to be monitored.
3.	When the ambulance was called Y was at home with his mother, her boyfriend W. His brother X and their older cousin were asleep on a sofa in the living room of the house. The conclusion of the experts in this case is that the cause of the injury was am impact to the head and that in the absence of a plausible explanation it is most likely that the injury was inflicted. It is the local authority’s case that all of the evidence taken together supports a finding that Y was injured by a single impact to his head on the night of the 14th February 2015 and that the injury was caused by either Y’s mother (M) or W or both. Both M and Y deny causing any injury to Y. 
The proceedings and conduct of the case
4.	These care proceedings were issued by the local authority in the Family Court at Sussex – Brighton on the 18th February 2015. This judgment will not set out a full chronology of these proceedings and the case management hearings, however there were difficulties in ensuring that M had the support she needed in court. 
5.	The case was before me for case management on the 24th April 2015 and following the orders made on that day it was listed to be heard in July 2015. In addition to the complexity of the medical evidence there were concerns about the ability of M to fully participate in, and understand the proceedings because of a report by Dr Nigel North (a psychologist) dated the 6th March 2015 which recommended the use of an intermediary. The solicitors for M had applied for public funding for an intermediary assessment which was refused by the Legal Aid Agency (LAA). There followed attempts by the solicitors to appeal against this decision which were unsuccessful.  By the time the solicitors approached the court for approval for funding an intermediary without a further assessment to support M during the trial in July there were none available to come to court.
6.	Given her history, which was never in dispute, it is not clear to me why it was considered necessary to have a further assessment by qualified intermediary except that Dr North is not an intermediary himself; the stance of the LAA did not assist when coupled with the insistence by Communicourt that they carry out an assessment separately from supporting Y at court. This led to the refusal of funding for that initial assessment. There is undoubtedly a pressing need for clear guidance and rules similar to those in criminal proceedings when it comes to the treatment of vulnerable witnesses. It is to be hoped that the proposed addition to the Family Procedure rules will come in to force sooner rather than later.
7.	On the first day of the fact finding trial I heard a ground rules hearing to decide how the case could progress without the assistance of an intermediary taking into account the recommendations which had been made by Dr North. It was agreed that the trial could go ahead with frequent breaks to allow M to have time to consider the evidence broken up into shorter more manageable sections. There were to be breaks every 30 minutes or more often if needed. M’s evidence was to be similarly divided; she was to be asked short questions and cross-examined by one counsel only, who would agree the area of questioning with other counsel. Counsel for the local authority undertook this task with the assistance of the guidance provide by the ATC in their toolkit for family proceedings. As there were seven files of evidence the documents that M was to be referred to during her evidence were placed in one file; in addition it was agreed that she would be supported by someone she knew from her solicitor’s firm to find pages or if she needed any other assistance. 
8.	M’s own mother L is a respondent to these proceedings as she had originally been named as a possible perpetrator and is closely concerned with the local authority’s future plans for the care of Y and X. She was able to offer M additional support throughout the hearing.
Evidence
9.	In addition to the evidence contained in the bundles filed with the court which included the medical records, the reports of the treating clinicians, social work assessments prepared for these proceedings and the statements of the witnesses which I have read and have been referred to I have heard the oral evidence of four of the experts instructed to prepared reports for the court, Mr Jayaratnam Jayamohan (Consultant Paediatric Neurosurgeon), Mr Danny Morrison (Consultant Paediatric Ophthalmic Surgeon), Dr Patrick Cartlidge (Consultant Paediatrician), Dr Alan Sprigg (Consultant Paediatric Radiologist), and of Richard Dixon of West Sussex Ambulance Service who was first on the scene along with M, G, L and W. Appropriately the local authority remind me that the court should not place special status on the expert evidence and I am asked to consider all of the evidence and whether an overview of that evidence leads to the conclusion that the case put on behalf of the local authority has been made out to the requisite standard of proof.
10.	The court had ordered a report from Dr Andrew Will a consultant in Paediatric Haematology but as his evidence was not challenged the court did not hear from Dr Will. He, as did all the experts instructed, looked very carefully at the differential explanations for Y’s brain injury. He concludes that was no defect in Y’s blood or coagulation system and no genetic or medical cause that explained his presentation at hospital. 
The Law
11.	This case is one in which the principal findings of facts in dispute and which the court is being asked to decide are cause of the brain injury and the identity of the perpetrator of that injury to Y. The parties have agreed that there are only 2 possible perpetrators despite the presence of another adult in the house on the night of the 14th February.  The medical evidence is unanimous in concluding that the mechanism or cause of the brain injury was an impact to Y’s head, which, in the absence of any other explanation, is most likely to have been inflicted. The medical opinion on the part of the treating clinicians was that there may have been an earlier injury some days before, followed by a further impact on the 14/15th February. The experts instructed in these proceedings have broadly concluded that there is more likely to have been one impact shortly before the child was taken to hospital. 
12.	I shall return to the medical evidence in detail below. The medical evidence and opinion is only one part of the evidence; the reports of Y’s presentation in the days leading up to the hospital admission are crucial and form part of the whole. There is no challenge to description of the injuries found on CT scan, however there has been some disagreement over the significance of the findings and what they may or may not mean in respect of the cause of the injuries. The law which forms the framework of my decision, which is not in dispute, is summarised below.
13.	The burden of proof lies with the Local Authority.  It is the Local Authority that brings the case and they have identified the findings they invite the court to make.  The burden of proving the allegations rests with them. Much of what they seek to prove, namely that the injuries to the brain and consequent brain damage the possible long term compromise to Y’s development is not challenged. Nor is the causal mechanism challenged in that it is accepted that it was caused by an impact; there has been no medical, metabolic or haematological cause for the brain injuries identified. The pool of perpetrators is agreed to be M and the intervener, W. Where there is a factual dispute it remains for the local authority to discharge their burden of proof. 
14.	The standard of proof is the balance of probabilities, as set out by the House of Lords in Re B (Care Proceeding: Standard of Proof) [2008] 2 FLR 141. If I accept that the evidence relied on by the Local Authority proves on the balance of probabilities that Y sustained injuries which were inflicted by either M or W or that the brain injury was inflicted by I am unable to identify the perpetrator, that will inform all future decisions concerning Y’s future and that of his brother X. I remind myself of the words of Lord Hoffman in Re B which apply to the identification of a perpetrator as they would to any finding of fact:
"If a legal rule requires facts to be proved, a judge must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are nought and one."
15.	Any finding of fact in care proceedings, and indeed in all civil cases, must be based on evidence.  As Lord Justice Munby (as he then was) has said 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". In this case I must take into account all the evidence before me and consider each piece of evidence in context of all the other evidence as a whole.  As Dame Elizabeth Butler-Sloss, President observed in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ. 567 the court "invariably surveys a wide canvas". A point further amplified by her in Re T [2004] 2 FLR 838 at paragraph [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 the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof."
16.	I have reviewed the medical evidence for, as observed by Dame Elizabeth Butler-Sloss, PFD in Re U, Re B [supra] ”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 may throw a light into corners that are at present dark".  This principle, is drawn from the decision of the Court of Appeal (CD) in R v Cannings [2004] EWCA 1 Crim, an object lesson as to the effects of changing medical orthodoxy in which Lord Justice Judge (as he then was) said:
"What may be unexplained today may be perfectly well understood tomorrow.  Until   then, any tendency to dogmatise should be met with an answering challenge."
17.	I have regard, because of this, to recent case law which has emphasised the importance of taking into account to an extent that is appropriate in any given case the possibility of the unknown cause and to the decision of  Lord Justice Moses in R v Henderson and Butler and others [2010] EWCA Crim. 126 [1]
"Where a prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
18.	Mr Justice Hedley, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point at [10] in Re R(Care Proceeding: Causation) [2011] EWHC Fam 1715
"A temptation there described is ever present in family proceedings too and in my judgment should be as firmly resisted there as the courts are required to resist it in criminal law.  In other words, there has to be factored into every case which concerns a discrete 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 the balance of probabilities."
19.	When seeking to identify the perpetrator or perpetrators of non-accidental injuries, the test as to whether a person is in the pool of possible perpetrators is the likelihood or a real possibility that he or she was the perpetrator as set out in North Yorkshire County Council v SA [2003] 2 FLR 849; the need do so was emphasised by the Supreme Court in Re S-B (Children) [2010] 1 FLR 1161. The pool of perpetrators in this case is agreed by all the parties to the proceedings, including the intervener, to be limited on this test to M and W, which meets the criteria set down in the North Yorkshire case.
20.	It is in the public interest that those who cause injuries should be identified (Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2005] 1 FLR 285). It is also in the interests of the child, although in this case counsel for the children refrained from making submissions on the question of the identity of a probable ‘perpetrator’. If I remain uncertain and decide that it is clear that the perpetrator cannot be identified then I should say so and I should not “strain” the evidence in this case which was put before me to identify a perpetrator on the simple balance of probabilities. It is not disputed that Y has suffered significant harm in the context of s31 of CA 1989, but if the court decides that M was not responsible for his injuries the criteria in s31 would not be met.
21.	The local authority submitted that the perpetrator cannot be identified as the both M and W have been vague and either or both has not given a full account of what happened. In respect of any lies told by M and Y, should I find that they have lied (which would include lies of omission) I keep in mind from the directions given regarding lies following the case of R v Lucas (R) [1981] 73 Cr.App.R. 159 specifically that people lie for a myriad of reasons, not all of which are easily discernible, and that the fact that they have lied does not mean that it follows that they are responsible for the act or acts alleged. 
22.	The credibility of the respondent mother (M) and the intervener (W) are ultimately a matter for the court, but I remind myself that the fact that either or both of them may have lied about one or more matters does not mean that they have lied about everything in particular whether any one of them was responsible for the injuries caused to Y. I shall consider their evidence in its totality within the context of all the evidence before this court. If my analysis of the evidence leads me to conclude that one or other of the three possible perpetrators was responsible for the injuries I shall so find. 
Background and the evidence of M, W, L and G
23.	Y is the younger child of M (their) mother and S (their father). The boys live with their mother M, who is separated from S. The children’s parents started their relationship in 2009; sadly it was marred by domestic abuse and violence with the police having been called on several occasions. It has been said that S and M would assault each other and according to police records both have been arrested. They separated in 2013 but the disputes continued some took place in front of the children. The police were called to an incident in August 2013 by S who alleged that M had punched him; she said that she had retaliated when he had hit her in the face. They were both arrested for affray and left with M’s mother, L. No charges were brought.
24.	This court has heard no evidence about the domestic abuse however the chronology, prepared by the local authority, indicates that M had complained that S had assaulted her on more than one occasion and she is reported as having separated from him because of his violence, abuse of alcohol and drug taking (he is awaiting trial for  possession). The police visited her at home in October 2013 to take a statement but she declined to pursue criminal proceedings as “all had gone quiet”. In May 2014 the police were called to S’s address. S was reported as being “clearly” under the influence of drugs and/or alcohol. M had refused to let him take the children because he was in no fit state to take them. M left with the children.
25.	There prompted a referral to social services by S’s CPN (psychiatric nurse) in May 2014 when he had made unsubstantiated allegations that she had broken his nose and there were physical disputes over his contact with the children. The children have not now had contact with their father since April 2014 and private law proceedings were issued in October that year. Prior to that in September, X, now at school, is reported as complaining about S being “mean to my mummy” and that S’s friend were mean to X and punched him in the stomach. Although both M and S have made cross allegations and sought injunctive relief against each other in the private law proceedings the records raise greater concerns about the behaviour of S than they do of M. It was the view of her mother L that M was at risk of domestic violence from S as she is recorded as phoning to police to say so in August 2014. In the proceedings the issue of paternity was raised and DNA tests directed by the court. The court also directed drug and alcohol testing of both parents; given the history of S this is unsurprising but there is nothing whatsoever to indicate that such testing of M was necessary or proportionate. The private law proceedings have been superseded by these proceedings. 
26.	There has been an assessment of S in these proceedings carried out by the social worker Ms Fields. He has a long record of criminal offences going back to a sentence of juvenile detention for a violent assault during a robbery. He has 12 convictions for 23 offences. He has a long history of drug and alcohol abuse; he has lost employment through being drunk and has been arrested on several occasions for drugs offences. S told Ms Fields that he does not have any friends and that he only has acquaintances as he struggles with “other peoples crap.” S said that he saw no reason to stop his regular use of cannabis and clearly has no motivation to do so. At the conclusion of Ms Fields recommends that the children are not placed in his care and that there should only be indirect contact.
27.	There are some recordings incidents in 2003, now some 12 years ago, when the police were called because of clashes between M and her mother (L) and sister. The records indicate that there was some violence; but they took place years ago when M was much younger, I have not heard any evidence about them and the local authority cannot rely on them in respect of Y’s brain injury as indicating a predisposition for violent behaviour towards her children; if anything the evidence about M’s parenting all points to a very careful mother and there are no reports or even a suggestion that she has ever been physically abusive to her two young sons. 
28.	When the police have had cause to see M they have always treated her as having learning difficulties and were aware that she needed to be seen in the presence of an appropriate adult. The cognitive psychological assessment by Dr North, which bears out the approach taken by the police, sets out M’s background in some detail; she was diagnosed with ADHD at school and prescribed Ritalin. She found school very difficult after the death of a close friend. The medical records filed with the court include those held by the GP who, on 28th May 2013 describe M as “a very anxious mum”. Y was taken to the GP frequently. The health visitor also described M as highly anxious and if anything, over protective. Indeed that is how M describes herself and it has been generally accepted that she was a very careful mother, somewhat over anxious, circumspect about any and all ailments that her children may have and assiduous in seeking advice from the GP and others. 
29.	In July 2014 M is recorded as discussing her concerns about Y’s development with the health visitor. M was worried that his arms and legs would shake, that he seemed to have lost the words that he had previously been able to use and that he would shout and scream. She was quite concerned about Y banging his head, hurting himself and others and worried that he might be autistic.  A referral was made to WSCC Family Outreach and M was offered the Solihull parenting course with Y placed in a crèche during her sessions. M told me in her oral evidence that while she found the sessions of some help what she had really been hoping for was support and work with Y himself.  It was said that the staff at the centre were concerned that M had not taken on any of the learning from the parenting course and there were concerns about her cognitive ability to understand the course; that is likely to be the case and as M’s difficulties were known it is to be wondered why she was told to participate in a course that was not tailored to parents with learning difficulties. M is not to be criticised for any perceived “failure” on her part.  It was reported, as a result of observations during those sessions that the concerns about Y’s parenting were that she did not allow the children to take normal childhood risks, was over anxious and over protective. 
30.	In her police interview and in her oral evidence, L describes support that she gave to M and the children. L said that she did telephone M every morning but it was only in part to make sure that M was up and ready to get the boys to school, it was also because she had a tendency to worry her self and would phone not just M but her other daughter and G who is the father of her other two grandchildren. M has a close relationship with her mother and a supportive family; this includes G (who gave evidence as he had been baby-sitting earlier for the earlier part of the night of the 14th February 2015 before Y was taken to hospital). G and M help each other with child care; his two children by M’s sister live with him, a teenaged daughter and a boy who is older than X and Y. X looks up to his cousins and they are all familiar with and close to each other. 
31.	Part of the background to this case is that M’s maternal grandfather was very ill in early 2015, indeed he was told that he had a terminal illness and was in and out of hospital as a result. L could not give M the assistance with child care that she usually would during this period and naturally the family visited him as often as they could. Prior to this, in October 2014, M and W met at the home of a friend and neighbour of M’s. They started to “hang together” as they both described it and their friendship developed into a more intimate relationship. By Christmas W was regularly staying overnight at M’s home. Both W and M described in their statements and to the court how he gradually spent more time with M and, of course, her little boys. Both in her police interview and in her oral evidence to the court L said that she didn’t know about this relationship and had thought that W was just a friend. M agrees that she did not tell her mother about their relationship as it was in its early stages. G described it as “a bit under the radar”. I accept that M had not told her mother because she thought it was too early and that she was being cautious about announcing it and there is no more to it than that.
32.	Unlike M and S there has been no assessment of W, about which I make no criticism, it is a proportionate use of resources as he is not likely to be a carer for the boys in future; the relationship he had with M has been ended by M.  As a result the court has limited evidence of W’s background. He has told me that he is part of a large sibling group who live with his mother and step-father. W has a part-time job and goes to the gym very regularly; he is a devotee of Mixed Marshall Arts, a combination of kick-boxing and karate. He has said, and I accept his evidence and that of M, that he was not asked to look after the boys for more than a few minutes until M’s grandfather became terminally ill and L was not so readily available for babysitting. Before February 2015 the most he had done was watch the children for a few minutes if Y went to have a cigarette and a cup of tea with her friend and neighbour across the road, or just outside the house. 
33.	Following a court direction the LA local authority commissioned a parenting assessment of M. The report of an independent social worker (ISW) Janice Barton dated 3rd July 2015 has been filed with the court and is in the bundle. It is a careful, through and impressive piece of work which is of assistance to the court in its assessment of M. The ISW report set out the M’s childhood experiences her relationship history and parenting experience. Ms Barton observed contact and provided a summary of the contact notes she had read and at paragraph 108 she said that that the contact notes indicate a consistently high standard of care. At paragraph 106 to 119 of her report Ms Barton describes the children clearly enjoying their time with M and gives numerous examples of her putting the children first. The ISW quoted phrases such as “[M] radiated warmth towards [Y, X and their two cousins]. [M] stated that she loves [the two cousins] a lot” and “[M] is a very natural mother who displays consistent caring qualities” and “[M] continued to think about Y and put his needs first” and “[M] has a very special bond with Y and she is totally devoted to his care and needs and dislikes being away from him” and “Once again [M] was consistent in her interactions with X. She presents as sensitive to his needs and developmental stage” and “[M] shows natural physical and emotional warmth to X…[she] maintains excellent eye contact and is tactile with X…[she] gives X positive affirmations i.e. ‘you are so clever’”. The contact between this mother and her two boys is excellent. Ms Barton was impressed by M’s parenting skills from the contact observed and from her assessment of M. She described M as having extremely good parenting skills “she easily evidenced her ability to manage multi tasks and her focus was on spending quality time with both children”. Ms Barton made alternate recommendations depending on whether or not the court makes findings against M.
34.	In the report Ms Barton refers to the weekly counselling that M has been having and which she told the ISW that she found very helpful.  In her conclusions and recommendations Ms Barton commends M for having cooperated extremely well. Ms Barton expresses concern about the physically abusive relationships that M has had in the past; given her difficulties she is particularly vulnerable and recommends that whatever findings the court makes M needs to undertake some work regarding safeguarding by undertaking the Freedom programme. Ms Barton describes M as having a very anxious personality and it is her opinion that having had two physically and emotionally abusive relationships quite young (and it would seem likely that she has had a third with W) M has become a highly anxious parent.  
35.	To return to the background Y started nursery on 26th January 2015 and went every day until 6th February 2015. The nursery have described Y as always being full of cold, which is hardly unusual at that time of year in a child who has just started mixing regularly with other children. Along with the application form a form called “All About Me” was filled in by a member of staff with assistance from M it read that Y can bang his head when frustrated and went on “mum finds it difficult to calm him with anything when he is upset. Bangs his head and hurts himself, can tip the buggy over when he is strapped in. Mum and other family members think he shows signs of autism like his cousin”. The nursery confirmed that in the week beginning 9th February, Y did not attend until his mother came in with him in on either 11 or 12th. A nursery worker saw that Y had a bump and a bruise on his forehead. Supporting the evidence given by M the nursery said that Y was reluctant to stay and his mother took him away.
Events between 6th and 15th February 2015 and Y’s presentation
36.	The Local Authority invited the court to find that it is more likely than not that Y sustained his injuries just before he has taken to hospital on 15th February 2015, however there has been some discussion by the medical experts about whether an injury sustained before 14/15th February could explain Y’s clinical presentation and how many injuries he actually sustained. In particular if there were two incidents when he was struck on the head and injured in the ten days preceding his admission to hospital. I shall set out the medical evidence below but the presentation of the child itself forms an important part of any opinion of the experts and ultimately I can only decide on the basis of all the evidence as taken as a whole. I have taken the descriptions of how Y was from the evidence of M, W, L and G all of who spent time with him in the days preceding his collapse. 
37.	As set out above Y was is described as prone to falls, head banging and hitting himself prior to the admission to hospital. When he was first admitted and a history was taken from M she was not being able to think of any accident or fall that could explain the injuries. When specifically asked about it by Mr Chakraborty just before surgery she denied that there was any history of head injury or shaking. While Y was in hospital, very ill, M constantly texted and asked W if he had idea of what had happened to cause Y’s injury. 
38.	After Y was admitted to hospital M has obviously gone over what had happened to Y in the days leading up to his admission. She was interviewed by the police at hospital (the note of the interview is undated) and without an appropriate adult and gave some further explanations for what had happened. From her written and oral evidence and from that of G, L and W the following sequence of events emerged.  
39.	Y attended nursery and until 6th February and he was described as fine, if full of cold. On 7th February M said that Y slipped on a donut and fell over, M is not sure whether he hit his head any in any case he is described as fine shortly afterwards and played on a climbing frame. On the Sunday, 8th February 2015, M was looking after the children including the elder of their two cousins. She was pushing X on a swing (they were at a playground near M’s home). M saw Y near the swing and then on the ground crying. M comforted Y and checked his head; he was wearing a woolly hat. She believed that he may have been hit by the swing or by X’s shod foot. No-one was aware of or directly saw Y being hit by X’s shoe or the swing. M said that he ran into the swing when X was being pushed in it. Although Y cried quite hard, M said that he cried for longer than usual, there was no mark or bump on his head and they went home for a roast dinner. Y ate his dinner and seemed fine. As M said in her statement to the court (16th March 2015) “…so I just thought it was a usual knock that a child gets and nothing to worry about. I have some photos on my phone taken back home at mine afterwards showing him looking really happy.”
40.	The following week Y was not very well, as referred to previously he was described as full of cold by the nursery. On the 9th February X went to school but Y did not go to nursery. After she had collected X from school M took both boys to the park with some neighbours and the children played in the park. Y fell over and cried briefly. On the 10th February X went to school but Y did not go to his nursery. M left the children with W when she went to see her grandfather. W spent the night at his own home. Neither M nor W gave evidence of anything untoward in Y’s appearance or presentation.
41.	On 11th February 2015 W started his job and returned to M’s to stay that night. In the morning of the 11th February M took X to school and Y to nursery but Y was reluctant to stay. Y did not like going to play school and was generally a bit upset and reluctant to stay. The nursery has said, in a note written for the local authority, that M had told them she would like Y to stay as she had to visit her [grand] dad who did not have long to live; and she had some cleaning to do. The nursery said Y was full of cold and, in any case, he would not stay.
42.	X and Y were both unwell on the night of Wednesday 11th February 2015. Y was sick on more than one occasion. M and W described that night in detail in their oral evidence. The first time Y vomited he was sick in his bed and was found by W standing in the corner of the room near the bed. W was standing at the door of the bedroom where there is a stair-gate in place. M then came and went over to Y. Both M and W described Y as being in a trance-like state, staring into space and not responding on being spoken to; M said he did not respond until she picked him up. W then cleaned up after Y and took the bedclothes off as they were soiled. M then went to sleep on the floor with Y, leaving W to return to her bed to sleep. Y was sick three times during the night and the trance-like state was observed on only one of those occasions.
43.	The following morning on 12th February X was not well enough to go to school and he or Y did not go to school or play school respectively. M could not recall what happen that day but she had looked after the boys and had though that both she and W had looked after them later on. W says that he did not stay at M’s from the morning of the 12th until late on the 13th as he had to work from 9 am to 1pm each day. M did not recall in evidence nor did she report at the time anything really wrong with Y or with X other than that she had suspected that they had a bug; if there had been something to cause concern it is likely that she would have taken them to the GP and she did not.  
44.	On Friday 13th February 2015 X had a temperature and did not go to school. M described Y as unsettled and not wanting to go to nursery. However she thought him well enough to take to nursery, once there he refused to get out of his buggy so she brought him home. M recalled seeing a yellowish bruise on his head which she thought could have been from a bump in the park on Monday or possibly a bump at nursery the previous week. W came over to her house late at night when the boys were already asleep. 
45.	On 14th February 2015 was a Saturday and St Valentine ’s Day so W made M breakfast in bed and took her up a tray and some gifts. Y got in bed with her and ate the yoghurt from her breakfast tray. Both children seemed fine and there was nothing wrong with Y. W left the house early after making the breakfast for M.  L looked after both boys that afternoon to allow M to visit her grandfather for a while. L said that Y was asleep went she arrived so they waited for him to wake up and then put him in his  buggy and went to the maternal grandfather’s home. L took the children to see her mother for a couple of hours. Y was described as fine, if a bit quiet, but he was eating and playing. He went straight to where he knew his great-grandmother kept her cheddar biscuits and started to play a game during which he ate some and offered some to the other people there to eat. L then walked the children back to the maternal great-grandfather’s home. There was a minor incident when Y was knocked over by the grandfather’s dog, but he then got up seemed to be fine.  L walked with them to the bus stop so that they could get the bus home and told me that Y was as normal. 
46.	Y was described as “chatty” on the bus home and recognised a play friend from nursery on the bus and was waving to him. They got home at about six in the evening and found W waiting outside. It had been arranged that there was to be a charity evening at which the maternal great-grandfather was due to perform with his band. He could no longer do this but the band was to play something especially for him. G had agreed to babysit. X and his older boy cousin like to sleep downstairs on the sofa together; partly because the cousin is disturbed by Y at night. G is well used to caring for the two little boys who are fond of him and like it when he and their cousins are there. G arrived at about half past six. Before he arrived M went to get ready for the evening out and W made the boys their tea. In his statement he says that M had put their tea on to cook, but in his oral evidence he said that he did. M says that when she was upstairs in the bath she heard Y crying and trying to get to her. In his oral evidence W said that he did not remember Y trying to get to M upstairs before. There is a stair gate at the foot and the top of the stairway. Y was described as crying and trying to climb over it to get to his mother. 
47.	M said in evidence that W had said that Y was not eating his food. W denied having said this and said that he had put Y in his high chair and he had eaten his food. W accepted that Y was crying and had tried to get to his mother upstairs by climbing over the stair-gate. M said that she had got out of the bath and come down with a towel round her. She had put Y on her lap and coaxed him into eating a fish finger. When she was in the front room with Y he had knocked his head on the table but to no obvious ill effect. She then finished dressing to go out. W says she was already dressed when she came down stairs. Y was put in his buggy by his mother with his bottle of milk which is used to soothe him and help him get to sleep, which is when she said she went to finish getting ready. 
48.	When both M and W were asked about Y’s temperament they said that he could be difficult; M describes him having tantrums and said it was the terrible twos. M said that he could be hard to manage when he was having a tantrum but that she could usually get him out of it. W said that he could not but found that it worked if he put something to eat or drink the Y liked within reach and then ignored him watching out of the corner of his eye. Like all toddlers Y could be difficult but there did not seem to be any real problem. 
49.	W agreed in his evidence that M was over protective and that she would consider some games too rough while he would not. M had said in her statement of 16th March 2015 that she had seen before that W “can be quite rough handling with the boys, not in a nasty way, but he used to spending time with some members of his family members who are older children that are used to being played with a bit more boisterously and sometimes I think he did too much with Y who was too little and I would tell him to stop.” W denied that M had ever done this. M asked that I watch a very short clip of video that her niece took of W holding Y and swinging him while M was upstairs. In evidence he said that he would have done if she had been in the room. It is a very short clip and is capable of more than one interpretation as is clear in the written submissions of counsel for both M and W.  I very much doubt that M would have allowed the play to continue and as W is, by his own admission aware, that M thought that some boisterous play was too rough it is very unlikely that he would have played Y in the way he did if she had, indeed, been in the same room. It would be wrong to read too much into this snippet of video and I do not. 
50.	W said that she gave into the boys too readily; when they were out she would buy them something if they just asked for it. W disproved of this and of M allowing the children to have the TV on all the time, including in their bedroom so they could go to sleep with it on. W told me that he said so and switched it off but that it was switched back on.
51.	At about half past six G arrived with the children’s cousin to babysit. G gave oral evidence to the court and I found him to be straightforward and helpful witness. He was unequivocal in his evidence about when he arrived and when he left that evening and at no time during his evidence did he dissemble or avoid giving a response to a question. He says that he barely spoke to either M or W as they were in the process of leaving to go out and I accept his evidence. G describes Y as alert that evening while he looked after the children. Y interacted with his brother and his cousin and was described as quite chirpy. When G changed his nappy Y responded readily to a request to lift his “Bum up!” G did not notice anything untoward. The two older boys went to sleep on the sofa top to tail and G placed the buggy next to him where he sat in an armchair and watched the TV with the volume low, he put Y in his buggy where he went to sleep. G was asked about the position of the buggy’s seat and said that he was pretty sure that he had dropped it back as he would not have left Y sleeping upright. He described Y as sleeping peacefully with one hand up beside his head.
52.	 According to G, W came back at about 10 past midnight and G left immediately as he wanted to get home to bed as he worked the next day. I accept his evidence that W arrived at that time as he had had a text from M at 23:39 and thought it was her at the door as it takes about half an hour to get from where she was at her grandfather’s. When cross-examined he repeated that he was pretty sure and that he had it in his head that he had looked at the clock when he left.
53.	G told the court that he relied on M to help share child-care and that he trusted her with his children “completely”. Later in his evidence he said he saw her as a sister. He did not think that M was soft on her children as implied by W. He said that the children, including his own, do not mess with M as she will tell them, not in an aggressive way, but she will tell them if they are naughty. G said that he did not really see W who would go upstairs. G said that M had mentioned to him that W was a bit too heavy handed with the children. This supports the evidence of M that she had remonstrated with W for the way he had handled Y, for she told G that she had told W to stop. 
54.	W said to the police when interviewed on 16th February 2015 that he had left the venue of the charity evening at gone midnight. He had had a text from his friend J at 23:34 but did not see it until later. It is now obvious, and W accepted in his oral evidence that what he told the police was wrong,  that they all left the venue at around 23:30 as a taxi had been arranged for M’s grandfather (to take a wheel chair) at that time and it had just left with M in it. There had been talk of M going into town with W but she changed her mind and went home with her grandfather because he wanted her to come with him. W then made his way and he too changed his mind and went to M’s home. He told the court that he went to Tesco’s to get something to eat and called a cab from their free-phone. He says that he got to her house at about 00:30 and she arrived 15 minutes later. M says that she arrived home at about 00:54 as she texted her sister at that time as soon as she got home. The timings have significance because of the time that W would have been alone with the children in the house. If it is over half an hour based on the evidence of M and G then W was there for longer than the 10 to 15 minutes he claims. When asked about what he did he was very vague and said that he watched the TV which was still on but cannot remember what was on; he thought he had only be waiting for 10 or 15 minutes before M came home. 
55.	On his return to the home after midnight on the 15th February W describes Y as asleep in his buggy and says that his pram was in an upright position. W was asked questions about the position of the buggy and said that he was unaware that it could be placed in more than one position. I find this difficult to believe if I accept his evidence about how much he was involved with the boys’ care particularly latterly when M’s grandfather was so ill. I find it hard to conceive of a reason why he should deny that he knew the buggy’s seat could be put in different positions except to ensure that he remained consistent with his police interview. He describes Y sitting upright in his buggy with his head forward, no-one else describes him in this position.
56.	When M returned she was not expecting W to be there and the evidence of M and W once more diverges. M says she went to charge her phone in the kitchen and did not check the children over. The boys were asleep on the sofa and she looked into Y’s buggy and he appeared to be asleep. She asked W to carry Y upstairs as she thought if she did he would be aware it was her and wake up. W says that Y was breathing heavily or snoring and that M noticed it and said that Y may be having a nightmare. M is adamant that she did not either notice Y snoring or say anything about him having a nightmare. W carried Y up to bed and it is his evidence that Y felt normal and that he put him to bed lying on his back.
57.	M has consistently said that she remained down stairs for a few minutes and then came up to go to bed. W’s evidence about times altered, again, in his oral evidence. In his statement he said that she had come upstairs after a few minutes and after a further few minutes she went to check on Y. In his oral evidence he said that he had gone down stairs again and that she came upstairs after only 30 seconds. 
58.	M told the court in her oral evidence that W then called to her asking her to come upstairs but that did not remember W coming down stairs. She decide to take her phone upstairs to charge it to go to her bed she passed Y’s bedroom door and heard strange breathing sounds, an animal noise; she pulled his bedclothes back and saw immediately that his legs and arms were stiff and at strange angles. She called for W and he came. M then called the ambulance but her phone was low on battery so she only just managed to get the address out. The next day W told the police that he had called the ambulance although he had not done so. 
59.	M told W to take Y down stairs to the front door and hold him there as she thought the cool air might help him. W says that he then noticed that Y’s hands were sticking out at an angle. He was sitting next to the door when the first response unit arrived. I heard evidence from the paramedic and his observations of Y and the parlous state he found the child in are not challenged. He gave evidence that he did not think that M realised the seriousness of Y’s condition. I do not accept his evidence as anything other than the unqualified opinion of what he personally and subjectively considers to be an appropriate response of a parent and as such is of little or no weight. M was annoyed with his response and thought he was taking too long to call the ambulance, she had expected an ambulance and not a sole paramedic.
After hospital admission
60.	The condition that Y was found to be in and the emergency treatment he received is set out in the medical evidence below.
61.	After Y was transferred to Southampton M sent W many, many texts some of which I have seen asking him to tell her, tell social services and tell the police about what he thought may have happened to cause Y’s injuries. W accepted that she had a conversation with him when Y was still in hospital about the time she had told him to stop playing roughly with Y. They had had a lot of conversations on a lot of different people’s phones. In one text M refers to W shouting at her because of her constant questioning W said that he could not remember shouting but could “remember a lot of conversations...a lot of it about the same thing – what could I remember”. 
Medical evidence
62.	This description of the what was seen on and after Y’s was admitted to Hospital in Chichester, West Sussex at 01.55 on 15th February 2015 is taken from the local authority’s schedule of findings sought and is not disputed. When admitted to hospital Y was in a coma, having been found stiff and unresponsive at home. His limbs were decorticate; that is to say they were stiff and twisted in an unnatural position. Y was unconscious on admission, with a right fixed dilated pupil, signs which suggested life- threatening raised intra-cranial pressure. 
63.	A CT scan taken at the hospital revealed a very large right fronto-parietal convexity subdural haematoma causing a marked mass effect with florid midline shift in excess of 1 cm. No associated skull vault fracture was identified. Two hours after that CT scan, Y was transferred to Southampton General Hospital where he underwent urgent lifesaving neurosurgery where a subdural haematoma was removed.  During surgery it was identified that one side of brain showed signs of oxygen starvation similar to a stroke. No evidence of trauma or skull fracture was seen during surgery. There was no bruising seen on his scalp or head. His eyes were examined at Southampton General Hospital twice on 15th and 16th February 2015. The examinations showed retinal haemorrhages in Y’s right eye; Multiple and unilateral multilayer haemorrhages in the right eye involving more than one layer of the retina, including ocular nerve fibre or ‘”flame” haemorrhages; so called because of their appearance. 
64.	In addition to the unilateral retinal haemorrhages Y was found to have sustained the following injuries; acute (or recent) subdural haematoma on the right side cerebral hemisphere, being an extra-axial collection of two different densities. The low density material was under the dura while the high density material was closely applied to the brain. The low density fluid was yellow in colour and could either be chronic subdural blood or an acute effusion of production of fluid. This xanthochromic fluid has been the subject of discussion and some disagreement between two of the experts Dr Cartlidge and Mr Jayamohan; Dr Cartlidge was most keen to emphasise that yellowing was an indication that the blood had broken down well before the evening of the 14/15th of February 2015. Along with the reference to a trance like state he was very concerned to point out that there could have been two impacts with the second precipitating the injury leading to the need for surgical intervention.   I keep in mind the fact that both agree that that history of Y’s presentation in the preceding week or ten days is a key element of any decision that the court may reach.
65.	In addition to the subdural bleedings there were signs of seriously raised intracranial pressure, with a compression of the brain tissue forcing it across the midline of the brain. There was evidence of low density change in keeping with early onset of ischemic damage to the brain within the right cerebral hemisphere. There was no medical, metabolic or haematological cause for the brain injury identified at the time of the operation; when Y was in hospital or during the evidence gathering for this trial. All the medical experts agree that the injuries were caused by an impact.
66.	The preponderance of the expert medical evidence was that the injuries found in Y’s brain were more likely to have been caused by a single impact on a soft or yielding surface shortly before the child was seen by the paramedic on the 15th February 2015. As I said above it is the case that Dr Cartlidge, the consultant paediatrician who gave his opinion to the court was concerned that the there had been more than one impact, however he is not a neurosurgeon used to looking at and interpreting the collections of blood and fluid seen in the brain as the result of trauma accidental or other wise. Mr Jayaratnam Jayamohan is a consultant paediatric neurosurgeon who reported to the court at some length and with considerable knowledge and care; he then had a telephone conference with Mr Chakraborty, the neurosurgeon who actually carried out the operation on Y. Mr Jayamohan then prepared an agreed note of their discussion and reported again to the court. 
67.	When it comes to the interpretation of the fluid seen in Y’s brain I prefer the evidence of the neurosurgeon. I do this for the following reasons, he is experienced in such interpretation and Dr Cartlidge is not. In his first report Mr Jayamohan explains the appearance of the yellow fluid as being more likely to be an acute production of fluid known as an effusion, which can occur after traumatic events and can be produced within a matter of hours from the lining of the brain. 
68.	In his view this would “fit significantly more with the clinical change in the child caused by acute pressure being placed on the brain, with the appearance of this subdural collection in toto appearing to compress the brain, causing a midline shift and the pressure changes seen within the brain, as well as the clinical deterioration seen in the child. This fits, in my opinion, much better than the idea that the majority of his collection was chronic, of the order of weeks old. The reason for this is if this is the case, the mass effect would also have been present for weeks. I find it highly unlikely that a child who would have had such significant mass effect for several weeks was apparently remaining reasonably well, active and behaving normally according to his mother’s statement…if the majority of this mass effect was present, I would expect the child to be at least drowsy, vomiting and off feed, with a decreased response and in activity and probably with a decreased conscious level or in a coma. The contribution of the acute blood on the scan is relatively minor and by itself would not be responsible for all of the mass effect and midline shift, as seen by the measurements in my interpretation. Therefore I think that unless there is confirmed evidence that this child had altered neurological status for days beforehand, I believe that it is more likely that all the changes on the imaging are acute and not chronic.”  
69.	Mr Jayamohan took part in the experts’ meeting along with Dr Alan Sprigg and Dr Cartlidge on the 17th June 2015. In oral his evidence Mr Jayamohan did not change his opinion and told me that Y’s CT scan had shown a collection in the subdural space on the right side at the front and side measuring a maximum of 1.4 cm in depth;  there were two components to it closer to the brain was high density material which represents fresh blood less than 10 days old and further out was low density material in keeping with older blood or an effusion and it is not always possible to distinguish between the two on scans.  There were clear signs of significant pressure on the brain and there was evidence of a slight lack of oxygen in the right hemisphere.  The midline struts were seen to be pushed across to the left and the shift was approximately the same as the maximum thickness of the subdural haemorrhage, that is to say 1.4cm.  There were worrying signs of pressure on the important structures of the brain, associated with brain dysfunction.  There was no evidence of skull fracture.
70.	Mr Jayamohan explained that he had discussed the matter with Mr Chakraborty because radiology cannot distinguish old from new. They discussed the issue of xanthochromic fluid; the problem was that the fluid had been analysed and compared to subarachnoid cerebro-spinal fluid which is usually taken after trauma in adults and as a result there was a large data base of such fluid.  There were completely different conditions to this case, where the fluid was both in a different location and was a different fluid.  Bilirubin can be found in sub-arachnoid blood within 12 hours, but Mr J could not say the same for subdural haemorrhages such as was seen in Y. He and Mr Chakraborty agreed that clinical signs which they would have expected to see on examination had the collection been chronic (or older) were absent; there was no swelling of the optic discs, the brain would not have been so lacking in pulsatility and membranes would have been seen in the subdural space if there was an established haematoma. 
71.	 Mr Jayamohan repeated his written opinion that he did not find it plausible that this child could have the amount of pressure on the brain and be functioning in anything like a reasonable manner. He had been struck by the amount of pressure on the brain, the clear signs of herniation and the clinical condition of the child. He referred to the fixed dilated pupil; the child would be drowsy, vomiting, complaining of headaches, but the most likely scenario was that the child would be unconscious, with abnormal limb posture, abnormal pupil findings, and breathing problems both in the pattern and rate of his breathing.  He would not expect the child to be eating. Mr Jayamohan did not consider that Y had this injury when he was seen interacting, playing, feeding and being alert.  
72.	On balance it was the opinion of Mr Jayamohan that the findings were all acute, by which he would suggest that the injury was most likely to have occurred before the neurological functioning deteriorated;  a few hours before was possible but unlikely. He also considered that it unlikely that it had for built up over time. There would have been a deteriorating child who may have been not as sick but still obviously unwell to any carer interacting with him,  with such significant symptoms for if the child had not lost consciousness, he would have been distressed and clearly upset. If the event had occurred close to his neurological deterioration, Y may not have had a window of time in which to be upset. Mr Jayamohan said it was his view that would be unusual for Y to have reached the stage of breathing difficulties and decorticate posturing five minutes after being carried upstairs apparently normally by W but accepted it could have been as much as15 minutes later.
73.	The decorticate posturing of Y’s limbs, the unresponsive pupil, the coma score of 3, all indicated that the condition of child  was likely to have been within minutes of its cause. These are indicators of severe pressure on the brain.  Y’s life had been significantly at risk and he could very easily have died; it was a life-threatening situation. This was not a situation which could have been in place for several hours, and is very likely to have been minutes before that, although, he said, it depended on the court accepting the factual situation as described by the witnesses.
74.	Mr Jayamohan was specifically asked about the swing incident and the possibility of “lucid interval”; he had referred to this as having been described in the research papers he had forwarded to the parties and to the court. He said that such an occurrence was rare and is associated with a period in which the child is unwell but not as unwell as they eventually become. The time gaps can be up to a couple of days but that the longer ones tend to be associated with direct brain injury when the trauma and tearing to the brain leads to delayed swelling, and not to subdural haemorrhages.  In this case, which would have involved a lucid interval of 6 ½ days seemed a long time and radiologically the findings were right.  Moreover the history, albeit there was the vomiting over the night of the 11th/12th and that Y he was clingy was essentially of normal behaviour during these days. Their mother considered that both boys had some lurgi. Having measured the collection (of blood and fluid) and the midline shift by which the brain had been pushed across by the same distance as the collection, if it was being said that some of the collection had been there for several days there would have had to have been pressure on the brain for those days and the history given about Y’s presentation is not what would be expected with that pressure on his brain.
75.	Mr Jayamohan did not believe there was a second impact and he referred to what he has said in the experts’ meeting. It was his opinion that the cause (of the brain injury) was likely to have been an impact, not just banging his head on a table or being hit by a toy or a cushion.  The likely mechanism would have been a hard fall on a hard, unyielding surface or a much harder inflicted impact against a soft and unyielding surface such as a bed or sofa.  He could not exclude shaking as a possible mechanism but thought it is less likely than impact because of the unilateral nature of the injuries and the more developed neck structure in a child of Y’s age. There are many differences between the recognized second impact syndrome as described in the literature and Y’s presentation so that it was an exceptionally unlikely scenario. Mr Jayamohan said that he effectively ruled it out as a reasonable possibility.
76.	The court then heard the oral evidence of Mr Danny Morrison, a consultant paediatric ophthalmic surgeon who had also prepared two reports for the court. In his oral evidence he said that the nerve fibre layer (or flame) haemorrhages seen in Y are really short-lived and are rarely seen beyond 1 to 4 days. It was his opinion that they were unlikely to have been associated with an event on 8th February 2015 and this meant what whatever caused the retinal haemorrhages had occurred in the few days before they were seen on 15th February.  There was nothing inconsistent with them having happened on the evening of 14th or early hours of 15th. 
77.	Mr Morrison explained that raised intra-cranial pressure (ICP) is not a cause of retinal haemorrhages and that ICP itself does not come about spontaneously.  In the case of Y it had come about because of the bleeding and the shifting of his brain.  He said if there had been an impact head injury there would be damage to the retinal blood vessels and retinal haemorrhages consistent with rupturing and bleeding. He told the court that while there is reference in the textbooks to raised ICP causing retinal haemorrhages it is extremely rare, occurs in particular circumstances and if there is an acute rise in ICP.  It could be argued by experts that some retinal haemorrhages were made worse raised ICP but he was not saying that raised ICP had caused the retinal haemorrhages. He rejected as unrealistic any suggestion that the blot haemorrhages also seen in Y’s eye were older and the flame haemorrhages were caused by raised ICP.  The flame haemorrhages are not the type one would typically see from raised ICP; you get blot, dot or vitreous retinal haemorrhages from raised ICP. It was his experience and opinion that flame haemorrhages are almost unheard of in raised cases of ICP.
78.	Mr Morrison said that the finding of the fixed dilated pupil indicated that the head injury and bleeding in the skull must have happened recently and that it was a medical emergency.  This could happen over minutes or hours but over days or longer, one cannot have this life-threatening situation for days. He said that was not conceivable that a child who had subdural haemorrhages, raised ICP, retinal haemorrhages and a dilated pupil would have been behaving normally. He was asked about the level of force required to produce these injuries and said that it would have been over and above normal handling and generated by playing or running around.
79.	He went on to say that the fact that the retinal haemorrhages were unilateral was, in his view, another reason why raised ICP may only have had a more modest role in this case.  Had it played a bigger part he would have expected bilateral haemorrhages and more change to the optic nerves. With the unilateral retinal haemorrhages already there from the impact the threshold for further haemorrhages may have been modified. It was more likely that the retinal haemorrhages were caused by an impact than by a shake in his opinion because of the neurosurgical report, age of child, unilateral haemorrhage pattern which were all more consistent with a fall or impact.
80.	The last expert that the court heard from was Dr Alan Sprigg, a consultant paediatric radiologist who prepared two reports for the court at E53 and E93 and also took part in the experts’ meeting in June 2015. It was his opinion that this was a recent acute event, within 10 days on the radiology, but within a shorter period on the neurosurgical evidence. The radiological findings of a large amount of black fluid with a small amount of acute blood were unusual, as was Y’s age for such a head injury. Y would have had clinical symptoms as a result of this level of mass effect and the swelling of the brain. Dr Sprigg said that based on his interpretation of the radiology he would have expected a longer history rather than a sudden deterioration which was why he considered the possibility of an earlier incident having taken place, but that he understood that the other clinicians had excluded that as a possibility. Dr Sprigg deferred to the neurosurgeons on whether the incident with the swing Dr S defers to the neurosurgeons on whether it fits with the clinical picture.
81.	While the neurosurgical findings make this a recent injury and not one that occurred weeks before Dr Sprigg would defer to the neurosurgeons about the possibility of Y having compensated over a period of days or whether it is not a possibility at all. Dr Sprigg could not say from the radiology whether there was more than one event within the 10 days of the radiological time-frame. Although he had seen what seemed to be a strand, vein or membrane on the scan, whatever it was would have been very obvious to the neurosurgeon and Dr Sprigg noted that none was seen. It could have been a vein which Dr S would not have expected the neurosurgeon to comment upon.
82.	The court heard from Dr Patrick Cartlidge, a consultant paediatrician, who prepared a lengthy report for the court and took part in the experts’ meeting.   I have already made some reference to his oral evidence and his concern about the finding of xanthochromia seen by Mr Chakraborty as it was his opinion that it would need time for the blood to degenerate and take on the yellow appearance.  It was his understanding that Mr Jayamohan had said that this would take 12 hours which would take the event back to around 6pm and there were witnesses as to how Y had behaved that evening.  Dr Cartlidge believed that this undermined the hypothesis that there was an acute event that evening and he felt that he was struggling to explain the medical evidence in a single hypothesis, but he was not strongly in one camp or another. Dr Cartlidge did indeed appear to struggle to explain the medical evidence; this may be because he is a paediatrician and not a neurosurgeon with years of experience in explaining and interpreting the features seen during neurosurgery.  
83.	Dr Cartlidge made a comparison between aging bruising and the xanthrochromic fluid; I found this unconvincing. One is the observation of a subcutaneous haematoma and the other is the observation of blood and/or fluid seen in the brain during brain surgery – they are not really comparable. I accept that Dr Cartlidge was uneasy with this fluid being only 6 hours old, but it seems that Dr Cartlidge was himself confusing between the old subdural blood in described by Mr Jayamohan as taking more than four weeks to turn yellow and an effusion or acute production of fluid and is produced within a matter of hours from the lining of the brain. While Dr Cartlidge said he deferred to Mr Jayamohan, he clearly remained unhappy about what the neurosurgeon’s opinion about the fluid. Dr Cartlidge should have deferred to Mr Jayamohan on matters of neurosurgical interpretation and I prefer the evidence of Dr Jayamohan on this interpretation; not only as it is his area of expertise and experience but because it fits with the description of Y’s presentation as set out above.   
84.	Dr Cartlidge explained that what was on his mind was distinguishing one  acute event from a hit on the head on 8th February 2015 and a possible later hit; there would have to have been a second event to have tipped Y over the edge, which would have to have been immediately before collapse.  Dr Cartlidge accepted that having heard the updated evidence about how well Y was between the 8th and 15th February this does tend to undermine his theory and he said that perhaps he had attached too much to the description of the vomiting and trance-like state. Dr Cartlidge went on to agreed that it is not plausible that Y was anything like well after the pressure inside his head started to build up. He said that Y had become unwell for reasons different to most cases involving babies and that there could have been an acute or a slower event and something that tipped him over, but Dr Cartlidge did not identify what those events were from the evidence before the court and at time seemed to venture into speculation for he agreed that the level of interaction described in Y would be very unusual if he had been injured but then said that it was also unusual for these clinical findings in a child of two. These observations may both be true but they provide little if any assistance in the way of expert opinion.
85.	Dr Cartlidge then said that having heard “snippets of evidence” (put to him by counsel for M in cross-examination) Y’s  change in state seems to have been more minor that Dr C had originally felt and if the trance-like state was not there Y would have been more firmly in the acute event scenario.  He conceded that this could be a fit and be explained by blood on the surface of the brain.  Although the vomiting could fit but it could be caused by something else and if Y was chirpy that evening the earlier event became much less likely. Dr Cartlidge then went on, “if the trance-like state was not a fit and was not of relevance, and I disregard the xanthochromic fluid, or it is considered un-datable, then the evidence is that it was an acute event and not the 8th February.”  He said the evidence which did not fit an impact or injury on 8th February was that Y was fine, walking, playing and if recovered in the two days after the vomiting and fit then this was not part of a developing illness and Dr Cartlidge would have expected a continuing deterioration. The fact that he recovered from the vomiting episode was consistent with it being a virus. This evidence, he said tends to suggest against a significant event before he vomited on the balance of probabilities. If there was acute event Y would have been very distressed unless rendered unconscious.  Dr Cartlidge said that to become decorticate would take minutes at least and probably even hours; anyone present would know that Y had been seriously harmed. Y’s injury could have been caused by a single impact, for example by having his head hit against the back of a sofa.
Consideration of the evidence and witnesses 
86.	The medical evidence is consistent in that all the experts agree that the causal mechanism is an impact to Y’s head. I accept the evidence of Mr Jayamohan which is largely supported by the evidence of the other expert witnesses in the light of his expertise and because of the evidence regarding Y’s presentation leading up to him being found by his mother in a state of unconsciousness  and collapse on the 15th February 2015. There is no evidence to support the theory that there were two impacts as the child did not suffer any ill effects of accident with the swing on the 8th of February 2015. There was no sign of any impact, no bump, no bruising and a quick recovery point to a minor if painful collision. M did not see the collision and certainly did not think there was anything seriously wrong with him at the time.
87.	While it is the case that he was sick and vomiting three days later on the night of the 11th/12th February 2015 he recovered from that and once again this careful and anxious mother did not consider that there was anything wrong other than that he had a bug. His condition did not deteriorate and although he did not go to nursery there was nothing else wrong, he was eating, playing and seemed to be fine. Indeed on the 13th February there was, according to his mother’s evidence, nothing to remark on at all. Given his recovery the trance-like state must have been a manifestation of the confused state that any child can experience on waking from sleep to spontaneously vomit. It did not return and there was no other sign of cerebral disturbance until after midnight on the 14th/15th February 2015.  Certainly on the 14th L and later G found him to be his normal self and he is described as chatty and chirpy during that day.
88.	I accept the evidence of both L and G. G for the reasons that I have set out above and L because there is no evidence that anything happened while Y was with her. Y was chatty on the bus and waving to his little friend after leaving his grandmother. Further I saw her give evidence and her evidence was of a plain speaking and devoted mother and grandmother. She was remarkably sanguine about losing her job as a classroom assistant because she had previously been considered a possible perpetrator by the local authority and her maturity about this and her daughter’s difficulties allowed her to give her evidence in a calm and dispassionate manner. I was impressed by her evidence and I accept it.
89.	As there is no evidence in the form of the child’s presentation leading up to the 14th February 2015 to support a possibility of two impacts the most likely explanation in the absence of any other based on Y’s clinical condition and the expert evidence is that there was an impact injury sustained by Y very shortly before he was found unconscious. There is no explanation offered by either M or W as to how Y sustained such an injury. 
90.	When I consider carefully the evidence of both M and W the following factors come to bear, their evidence and the gaps in that evidence. I find the evidence of W most troubling. There are numerous gaps and inconsistencies in his evidence which started with his telling the police that he had left the party venue half an hour later than he in fact done. He then attempted to explain that he would still have arrived later than G said he did giving a long account of his journey to M’s home which he had not given the police; they had assumed it was “gone twelve” by the time he got to Tesco’s. The explanation for his evidence is more likely than not to reduce the time at which he was alone with the children, Y included. He was then inconsistent in evidence about when events took place in M’s home; even allowing for the difficulty anyone has in remembering events the fact that he continued to contradict himself in his oral evidence about when M came upstairs, for instance, gives rise for concern about the reliability of his evidence.
91.	Although his counsel seeks rely on the fact that W comes from a large family of siblings and half-siblings the youngest of whom is three, there was no evidence from W or elsewhere that he had much experience of being solely responsible for child-care in the way a parent or primary carer is. It was his evidence that his while his mother often left him in charge it was usually for a short time when she went to the shops or run an errand. He helps out at home and although he is more used to young children than many young adults his experience is limited to assisting his mother
92.	There were troubling gaps and  inconsistencies in W’s evidence and that of M about what had happened when he was giving the children their tea. W said that Y had never tried to get to his mother upstairs like that before; M says that Y was crying and that W said he would not eat his tea; W denies this and says he was not aware of M feeding Y and getting him to eat a fish finger. There is something missing from this narrative which W must have known, why was Y crying and why did he want to get to his mother in a way he had not done before. I do not accept that W was unaware that M had come down stairs and fed Y, at the very least she must have gone into the kitchen where he was to get the food.  
93.	There is a gap in W’s evidence about what happened between G leaving at ten past twelve and M arriving home half an hour later. By itself that may not have been of concern but when coupled with what is most likely to be an attempt to mislead the police about the timing both of his movements and the time he was alone in M’s home there is a striking lack of any evidence or explanation for what went on at this time. There is some evidence before the court that W did not approve of M’s indulgence of her children and that she had been concerned that he had handled the children in a rough way, particularly Y who was only two. I accept the evidence of M that she had remonstrated with W when he had been playing boisterously with Y and that he stopped what he was doing. Although none of this comes close to evidence that he hurt or mistreated the children there is a disconnect which when coupled with his lack of candour and explanation for what happened during the half hour or more that he was alone with the children leads me to question his reliability and credibility as a witness. For this reason, something that led to Y’s collapse had  to have happened but it is W’s evidence that “I do not think that M could have hurt him…nothing happened;  I don’t know what happened.”
94.	There are surprising inconsistencies and gaps in his evidence about how Y appeared that night both before and after M found him in bed. W said to the police that when he carried Y up to bed he was still snoring but in his oral evidence he said that Y was not snoring. He said Y was not stiff when he carried him upstairs. Later after his mother found him very ill in bed he said that he did not notice that Y was stiff, although he must have heard M say that on the phone to the ambulance service. In answer to questions put on behalf of Y, W said that it was obvious to him that there was a lot wrong with Y’s breathing and that he was breathing funny, but despite holding the child in his arms he said that he could not remember and did not know if Y appeared to be lifeless. 
95.	M’s evidence was consistent with what she has said before and was consistent with her determination to find out what had happened. She told me that her children came first but that no-one likes to think someone could hurt their child. She tried her hardest to answer every question that was put to her. There is no evidence that she has, in the past, withheld  information or evidence. The evidence is that she was pursuing an answer and begging W for any information that he had; W on the other had was not forthcoming and has remained so. There is no evidence to suggest that M is capable of manufacturing a situation where she continually searches for an answer in order to cover up something that she is to blame for herself. Such a prolonged facsimile of investigation would require a level of sophistication that she does not possess.  
Conclusion and findings
96.	On the evidence which I have set out above of the clinical presentation of the child and the medical opinion of the experts I have concluded that it is more likely than not that Y suffered an impact to his head which caused the injuries found in his eyes and brain on the CT scan taken in the early hours of the morning on the 15th February 2015. His injury was unusual and unexplained and must have be caused as his own counsel has said by one acute event on the night or early hours of the morning on the 14th/15th February. The event and injury are of themselves improbable but the evidence leads me to conclude that the child was subjected to an  impact to his head that night. I do not know how the impact was inflicted.
97.	In keeping with the decision of the Court of Appeal in Re S (A Child) [2014] 1 FLR 1421; I have in mind paragraphs [19] to [21] as follows:
[19] The term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident.  It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong.  That element of wrong may involve a lack of care and / or intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction.  While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).  
[20] The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation.  The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way.  Just as non-accidental injury is a tautology, 'accidental injury' is an oxymoron that is unhelpful as a description.  If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms.  If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.   
[21] The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided.  The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.  

98.	It is my duty to look at all the evidence in the round and there is in this case no evidence to support a finding that the head injuries had  been caused by some unrecognised disease or unknown cause. Of the two adults present that night it is the evidence of W that has for the reasons set out above been both inconsistent and lacking in candour. The time that he was alone with Y while the two other children slept is not accounted for while M has accounted for the whole time that she was present. M’s conduct since that night has been congruent with a parent seeking an answer to what has happened to her child and has not been self-serving or defensive.
99.	On the balance of probabilities I find that W is responsible for the child’s head injury by an action or actions that cannot be identified. I do not consider that there is evidence to support any suggestion that the impact was deliberately inflicted and consider it more likely that it was a reckless and foolish action taken by a young man who has no experience as a parent, primary or main carer of a child who is still very young.  I have considered all the evidence as set out above and conclude that although it is not possible to define the mechanism which caused the head injury to Y on the balance of probabilities the injuries were was caused by W.