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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> The London Borough of Ealing v AR [2014] EWHC 2172 (Fam) (1 July 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/2172.html Cite as: [2014] EWHC 2172 (Fam)

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IN THE FAMILY COURT
Sitting in THE HIGH COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A (A Child) (Born 29 11 2012)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Final Written Judgement 01/07/2014

The Honourable Ms Justice Russell DBE:

Introduction

1. These are care proceedings brought by the London Borough of Ealing (the local authority or LA) in respect of A, who is 18 months old; she was born on the 29^th November 2012. As the child suffered brain trauma found to be "suspicious for abusive head trauma" on original examination (which has required treatment at Ealing Hospital and at Great Ormond Street Hospital by specialists in paediatric neurology) and for which her parents were unable or unwilling to identify a causative event, it led to the local authority issuing an application under s31 of the Children Act 1989, dated 31^st May 2013. At the outset of this fact finding hearing on the 12^th May 2014 the medical opinion that the child had suffered injury as a result of being shaken was not substantially challenged therefore the major decision to be reached, if possible, was the identification of the perpetrator.
2. At the outset parents said that A was in their care at the time of the injury however in October 2013 the mother said she had left A with her child-minder D. D was joined as intervener on 30^th October 2013. A fact finding hearing had been listed before District Judge Harper at the Principal Registry of the Family Division on the 28^th October 2013, when it emerged at that hearing that it was likely A had not been in the sole care of her mother the morning of the 7th May when she was admitted to hospital the case was adjourned. On the 5^th December 2013 it was transferred to the High Court Family Division to be heard because of the complexities of the medical evidence (including the possibility that the child may be suffering from West syndrome), the recent joinder of the intervener, and an application for disclosure by the police. On the 16^th December 2013, Mr Justice Keehan fixed the case to be heard on the 12^th May 2014 with a time estimate of 10 days. The case was then allocated to me.
3. All three of the principal actors in this case, the child's parents and the child-minder, have admitted to lying; to the court, to the local authority social workers when they were investigating the background to the case, and to the police during their investigations. Their lies go to the heart of the case, concerning as they did who was caring for A at the time the brain trauma occurred and are central to the issues to be tried. However I have kept in mind that people lie for many reasons and the provisions of a Lucas direction (R v Lucas [1981] QB 720).
4. During the trial the unanimous medical opinion as to the likely mechanism of the trauma to A's brain has not been subject to challenge. Instead the focus of the questioning of the experts has been the timing of the event which caused the injury and whether that would assist in identifying the perpetrator. In the absence of any contrary medical opinion and accepting that that opinion is based on the current state of medical and scientific knowledge any current analysis of the medical evidence and the possibility of an unknown cause would point towards an incident of shaking as the mechanism which caused the injuries to the baby's head. The evidence is considered below, however, given the extensive investigation by the treating physicians of differential diagnoses and in the absence of any history of trauma from the parents there is no alternative mechanism on the balance of probabilities to that of acceleration-deceleration, with or without impact, given the nature and extent of the trauma to the baby's brain and its sequelae. All the expert witnesses quite properly left the final decision as to timing and causal mechanism to the court.
5. The lay witnesses including the three people who are in the pool of perpetrators identified by the local authority gave oral evidence with the assistance of interpreters. Two others present in the house on the morning of the baby's collapse gave evidence, as did the employer of R regarding her work that day. The former two were originally called to deal with whether or not the baby had been left with D in the past, but during the hearing the focus of their evidence was turned to timing, who was present in A's home that morning and what they observed about the baby.

History and background

6. On the 7^th May 2013 before 10 in the morning a baby of almost 6 months was admitted to Ealing Hospital. A was brought in by her mother (R) and child-minder (D). R told the medical staff at triage that she had been looking after the baby; the notes read "? Convulsion lasting 10 minutes at 8.30 hrs this morning. Unresponsive afterwards. Brought to A + E on the bus – irritable o/A taken to resus [sic]". The first part of that very short history formed the basis of the time of the onset of the baby's symptoms as considered by all the medical staff, clinical physicians, radiologists and other medical experts who have written reports and provided evidence and opinion in this case. The timing of a collapse of the baby of 8.30 am was repeated by R and is recorded in the hospital notes.
7. At 10:15 the admission record reads, "Irritability and crying this morning…5/12 baby girl who was well and healthy, was noticed at 08:30 this morning, she was crying, irritable with eyes rolling back, unresponsive for 10 minutes, she [was] noticed during that time to be clenching teeth, mum forced open mouth and gave her a little water, she was pale during the episode, and had difficulty in breathing, this followed by being floppy, lethargic with occasional crying". This history was given by R who says that she repeated what D had told her omitting the fact that the child had been in D's care at D's request.
8. Prior that the following history seems to be agreed: on the morning of the 7^th May 2013 A was taken by her mother on a short bus journey to the home of D who looked after her when her mother was working at hairdressers as a beautician. A had been left there about once or twice a week to be cared for by D since she was just over 3 months old, an arrangement that had then been in place for 6 to 8 weeks. D is a distant relative by marriage of the father M, and had known him prior to his moving to the UK as she had met him at his parents' home. D had visited A's parents where they were living before and after A was born.
9. For the first eight to ten days after A was born D had given some practical support to R for she had a baby of her own in February 2012 and had experienced motherhood herself. I shall return to the parties' backgrounds below. Everyone agrees that A had been a happy and a good baby, a baby that was full of smiles, who slept well, cried little and was easy to look after. Indeed D said that she was easier than her own daughter, and, because she thought it would be too much to look after two babies, that she had agreed to look after A principally because she was so easy to look after.
10. The morning of the 7^th May 2013, according to R, she took A, as arranged previously by phone, to D's home and left her there some time after 7 am. The baby was awake, alert and happy when she arrived and she left her there and took the bus to get to work in Kingston before 10 am. R says that when on her bus journey she had a phone call from her husband who told her he had had a phone call from D, A was crying a lot was not well, D sounded scared, that she (R) should call D and that she had better go back as D sounded worried, something was not right. R says that she thought that the baby may be hungry. R got off the bus and took another in the opposite direction, she called D. R says that D told her that A was having trouble breathing, she was rolling her eyes, she was clenching her teeth and to come back very quickly. R says that she told D to call an ambulance but D said she could not as she could not speak English. R told her to come quickly to Southall Broadway. D said that she would have to come to Southall to get a bus to the hospital, so R thought they could meet there and travel to the hospital together. R arrived at the Broadway before D. There is a dispute as to how D transported A and her own child, R says it was in a double buggy D says that she had A in a buggy and carried her daughter on her hip. Both agree that R then took A into her arms.
11. Both agree that they travelled to the hospital by bus while A's mother held her and that there was little conversation between them. R says she asked D what had happened and D told her A was having some kind of fit. R says that on arrival at the hospital D asked her not to tell the doctors that A had been with her that morning. R saw the doctors in A & E on her own and says she repeated what D told her about what had happened with A. R says that the doctor told D to stay in the waiting room; it is agreed that she stayed there with her little girl and that she was joined first by AS (who lives with the parents) and then by M, the baby's father. It is also agreed that D stayed there for some time but left as she needed to feed and care for her daughter, then aged 15 months.
12. D says that she did not ask R to lie about the baby being in her care. Nor was she aware what R had told the medical staff at Ealing hospital including that R had been alone with the baby that morning when she became ill, despite D standing near her when R first spoke to hospital staff. D says that the lie was R's idea. When first served with notice of the proceedings in November 2013 D denied that she had ever looked after the baby.
13. The hospital notes on the admission record, from which I have already quoted, give the diagnosis as "Fitting?" and the differential diagnosis as "to exclude sepsis". The baby is noted as being lethargic, sleepy but responsive, followed by the observation, "Now noticed to be staring for the last 10 minutes, unresponsive, but maintaining respiration and circulation". A was noted to be well hydrated.
14. The initial treatment at Ealing hospital was for an infection, following MRI scans (without contrast) and a chest X-ray both of which appeared normal. Later that day R was spoken to in Hindi by a paediatrician, Dr Ray, and was told that infection may be the cause of the fitting. This continued to be the differential diagnosis throughout 8^th May 2013, according to the hospital notes seen by the court, and reviewed by the expert witnesses.
15. On the morning of the 9^th May 2013 at 10:15 am the consultant ward round recorded a diagnosis of meningo-encephelitis. A continued to be irritable and following discussion with the radiologist a further MRI scan was ordered, this time with contrast. The MRI was said to suggestive of bilateral empyema, but there was then discussion with neurosurgical and neuroradiological teams at Great Ormond Street Hospital (GOSH), it was considered that the findings were constant with chronic subdural haemorrhages. Later that day A was observed to have posturing and seizure like activity lasting 40 minutes. Following further discussion, this time with the paediatric consultant, transfer to GOSH was arranged.
16. On arrival at GOSH, on the evening of the 9^th May 2013, A had another suspected seizure with reduced responsiveness which lasted about10 minutes. She then had further episodes of seizures both in A & E and when admitted to hospital. The MRI scans were reviewed by the GOSH neuroradiology team who felt they were consistent with chronic subdural haemorrhages. Initial blood tests did not show any sign of abnormality. On the 10^th May there was an ophthalmological review at which it was concluded that A had extensive bilateral haemorrhages in all four quadrants which were intraretinal, nerve fibre layer and pre-retinal; the notes include the following, "in the absence of bleeding diathesis consistent with non-accidental injury [sic]". On the 16^th May 2013 A was observed not to be fixing or following with her eyes, but she responded to her mother's voice. A remained in GOSH where there was further investigation of her injuries; the investigations at GOSH while not exhaustive were thorough and included toxicology (nothing abnormal detected); routine biochemistry (no significant abnormality); vitamin D level (no abnormality); bone profile (no abnormality); acylcarnitine (no abnormality); urine organic acids (no abnormality); Glutaric Aciduria skin biopsy (no abnormality – the results of this test were not available until September 2013); routine haematology showed no significant abnormality, as did a routine extended clotting screen and factor analysis. Nothing was isolated or grown in microbiological testing and analysis. Both MRI and CT scan of the head took place in GOSH. She was transferred back to Ealing hospital on the 20^th May 2013. A was discharged on the 7^th June 2013, a month after her original admission, into the care of her current foster family.
17. A has been, and continues to be, treated by a consultant paediatric neurologist, Dr Bhate of GOSH who on the 17^th May 2013 described her as having "an acute illness characterised by seizures, increased intracranial pressure and reduced level of consciousness. Investigations have shown the presence of bilateral subdural haemorrhages. Infection screen has not shown any sign of infection. The results of the clotting studies, including extended clotting screen available so far available are normal. The results of some specialised clotting studies, vitamin D level and specialised test for glutaric aciduria are not available as yet." Dr Bhate concluded that the differential diagnosis "includes abusive head trauma (acceleration/deceleration injury) and rare conditions such as glutaric aciduria and rare coagulation disorder. Once the results from these tests are back and we are able to exclude the above medical conditions, then in the absence of a history of trauma, the findings would be highly suggestive of inflicted head injury with the mechanism of injury being acceleration deceleration."
18. A was also seen by Mr William Moore, a Consultant Paediatric Ophthalmologist at GOSH, who wrote a short report on the 14^th October 2013 setting out the review of A he carried out at the hospital, and responding to questions from the court. He said the following; "In this child who has been thoroughly and extensively investigated, exhaustively so, I can think of no other possible alternative explanation to account for the retinal findings than an abusive head injury caused by repetitive acceleration-deceleration with or without head impact."
19. In November 2013, following further seizures Dr Bhate saw A again and wrote a letter to Ealing hospital in which he described the continuing seizures as evolving into infantile spasms. Dr Bhate recorded that A had changed in her behaviour and was no longer as responsive and interactive; she no longer giggled as much and had stopped vocalising and using her hands to grab toys and objects. She was generally floppier. A's visual behaviour was said to be unsatisfactory as she did not seem to fix and follow appropriately. She showed no interest in toys and appeared sleepy. In a video that he watched A was observed as shaking her head in a manner that seemed to be of self-stimulatory behaviour as a result of visual impairment rather than seizures. As result an urgent EEG was arranged during the clinic which showed that A had very abnormal EEG with very frequent and with persistent epileptiform discharges which Dr Bhate said were compatible with an EEG of evolving infantile spasms. Dr Bhate concluded that the increased sleepiness and reduced responsiveness was likely to be related to the onset of infantile spasms (West syndrome) and started her on a course of treatment. He explained to the family that this would have a further impact on A's developmental outlook as children with infantile spasms tend to have developmental stagnation and in the longer term neurodevelopmental problems.
20. In his most recent report of A's condition which is contained in a letter dated 11^th April 2014 (I shall return to this letter and the letter above later in my judgement), following a clinic on the 3^rd, Dr Bhate wrote to Dr Kumar, a consultant paediatrician at Ealing hospital, setting out the diagnoses (which are quoted in full below), the first is bilateral extensive subdural haemorrhages with retinal haemorrhages, May 2013 and the second, suspected non-accidental head injury. Dr Bhate reports that A has suffered a relapse with a recurrence of seizures, which are not typical of infantile spasms in that they do not occur in clusters but at random. He said that A has global developmental delay with severe social and communication delay: in short A's development has been seriously compromised by the brain injury

Proceedings

21. The proceedings, issued on 31^st May 2013, were originally to be heard in the Principal Registry of the Family Division at 1^st Avenue House, Holborn, in London. A fact finding hearing was listed before the allocated judge, District Judge Harper, on 28^th of October 2013. That hearing did not go ahead because in the days before the hearing (it is not clear precisely when) the parents substantially altered their evidence: up until then they had said that A had always been in their care but changed their story to say that the baby had been with her child-minder D on the morning of the 7^th May 2013. When it became apparent that although they had lied about the child this change in their evidence was supported by the mobile phone records of that morning's calls, which showed numerous calls to a 3^rd party, the hearing could not continue. Steps were taken to serve D who was served on the 8^th November 2013 with notice of the proceedings and a covering letter translated in Punjabi. At the time D denied that A had been in her care at all or on 7^th May 2013.
22. The case was transferred to the High Court, Family Division by an order of DJ Harper on the 5^th December 2013 and listed for direction on the 16^th, when it came before Keehan J who ordered the disclosure of records of interviews, including an interview of D, and other evidence held by the Metropolitan Police. The case was fixed to be heard by a High Court Judge for fact finding on the 12^th May 2014. Further directions were given for the instruction of a consultant paediatrician (Professor Tim David), consultant paediatric ophthalmologist (Mr W D Newman) and a cell site expert (Mr Baxter) to assist in evidence about the involvement of D; and for the filing of medical records and other evidence. Orders were also made for the disclosure of mobile phone records. A further case management hearing (the 7^th) took place before me on 1^st May 2014. Despite the recitals on the face of the order of Keehan J D remained without public funding or representation. By the time of that hearing some attempts had been made by counsel to arrange pro bono representation as the solicitors who had originally been instructed by her had failed for months to secure funding; despite seeking an explanation I am no clearer as to why that was the case. In May D had changed solicitors and the court contacted the Legal Aid Agency who assisted in putting funding in place. The whole case could have been compromised, as it was counsel for D worked very hard at ensuring they were prepared and the case commenced on the 12^th May 2014.
23. Both the 1^st and 2^nd Respondent and the intervener required interpreters as their understanding of English was very limited at best. R had, according to her employer Mr C, limited English sufficient for her to work in his hairdressing salon where she carried out threading. There was no indication that she had any more than a very basic understanding of English, and certainly not enough to understand medical or legal terms or procedures. Both M and D seemed to have little if any ability to speak English. All of three had the same interpreters throughout the trial. There were occasional difficulties with translation including the interpreters disagreeing about the translation of some words and giving additional information from their own knowledge of the parties' cultural background but overall the interpreters all worked very hard, for long hours and were of considerable assistance to the court.

Law

24. This case is one in which the principal finding of fact in dispute which the court is being asked to decide is the identity of the perpetrator of injuries to A. The parties agree that there are only 3 possible perpetrators despite the presence of other adults in both houses at the material time. There is no challenge to the medical opinion that the mechanism for the injury is acceleration-deceleration with or without impact, which, in the absence of any other explanation, is most likely to have been the result of shaking. There is no challenge to the overall medical view that within the broader parameters of time supported by the medical records the timing of the incident which caused the injuries to the baby's brain and head is a matter for the court. The time originally given of 8:30 am was not inconsistent with the observations on admission or the rest of history given at the time. The law, which is not in dispute, is summarised below.
25. 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 and consequent brain damage, seizures, fits or brain spasms and seriously compromised development of A is not challenged. Nor is the causal mechanism challenged. The pool of perpetrators is agreed to be the two respondent parents R and M and the intervener, D. It follows that the parties have all accepted that injuries were inflicted by one of those adults. Where there is a factual dispute it remains for the local authority to discharge their burden of proof; however, in this case the local authority has submitted that the untruthfulness of all the principal and other lay witnesses present on the morning of the 7^th May means that the court cannot find any one of the three perpetrators responsible on the balance of probabilities.
26. 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 A sustained non-accidental injuries were inflicted by one of her parents, that fact will be established for the purpose of these proceedings and all future decisions concerning A's future will be based on that finding.  If the Local Authority fails to prove that R or M or D was responsible for the injuries but that those injuries must have been caused by one of them (as is the LA case) then that will have consequences not only for A, R and M, but for D, her daughter and her unborn child, as there will almost certainly have to be proceedings brought by the LA. If I decide on the balance of probabilities that the injuries were caused by D (as I am asked to do by R and M) then, the court could dismiss the application in respect of A; and separate proceedings against D would be likely to ensue.  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."

27. 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". I remind myself of these words as the reasons for the lies that were told remain opaque at best and suspicion and speculation about them cannot and must not form part of my analysis and decision making. Again I refer to the direction that I must keep in mind from the Lucas case, namely 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.
28. In this case of child abuse, which as I have said is not disputed by any of the parties, I 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."

29. 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."

30. 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."

31. 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."

32. 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 R, M and D. That pool, in my view, meets the criteria set down in North Yorkshire.
33. 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 child submitted that such identification was not possible given the lies told by the parties and their witnesses. If I remain genuinely uncertain and decide that it is clear that the perpetrator cannot be identified then I should say so and I should not "strain" on 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 A has suffered significant harm in the context of s31 of CA 1989, but if the court decides that neither parent was responsible for her injuries the criteria in s31 would not be met.
34. The local authority and the child's representatives have both submitted that the perpetrator cannot be identified, as the R, M and D have all lied about who was caring for A on the morning of the 7^th when the injuries were inflicted. Again with reference to Lucas, their approach seems to fall into the very error that Lucas sets out to correct, namely that lies should not be relied on as evidence of guilt or otherwise of proof of the allegations made but as to credibility. The credibility of the respondents and the intervener are ultimately a matter for the court, but the fact that they lied about one or more matters does not mean that they have lied about everything, specifically whether any one of them was responsible for the injuries caused to A. 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.

Evidence: Medical

35. I have heard direct oral medical evidence from Dr Sanjay Bhate, Consultant Paediatric Neurologist at GOSH, Mr William Moore, Consultant Paediatric Ophthalmologist at GOSH, Dr Alan Sprigg, Consultant Paediatric Radiologist at Sheffield Children's Hospital, Dr P.H.T. Cartlidge, Senior Lecturer in Child Health at the University of Wales College of Medicine and Honorary Consultant Paediatrician at the University Hospital of Wales, Mr Jayaratnam Jayamohan, Consultant Paediatric Neurosurgeon at the Oxford Radcliffe and Mr William Newman, Consultant Paediatric Ophthalmologist at Alder Hay Children's Hospital, in that order. The first two medical experts treated A in GOSH; indeed at the time of this judgement in June 2014, Dr Bhate continues to review her case and her treatment for the epileptic symptoms from which she continues to suffer. The latter four were experts appointed by the court to prepare forensic reports regarding, amongst other things, the causation and timing of the onset of the traumatic symptoms.
36. In the letter dated the 11^th April 2014 Dr Bhate sets out the most recent diagnoses succinctly as follows:

1. Bilateral extensive subdural haemorrhages with retinal haemorrhages, May 2013.

2. Suspected non-accidental head injury.

3. Cerebral volume loss on follow up imaging [brain atrophy].

4. Epileptic spasms now involving into refractory tonic seizures.

5. Vertical visual impairment – abnormal visual behaviour.

6. Global developmental delay with severe social and communication delay.

These diagnoses are agreed by all the experts who gave evidence.

37. In the letter (and in his oral evidence) Dr Bhate described the difficulties that had been experienced in finding effective treatment for A and the relapse she had with the recurrence of seizures, atypical of infantile spasms as they do not occur clusters but appear at random. She has had to be treated with second-line drugs, currently Sodium valproate at 200mg twice a day. Of particular concern for her future well-being is the effect on her development; Dr Bhate describes her, at 16 months, as crawling, saying two words, possibly with meaning, but not making eye contact or demonstrating any visual interest. He also observed her as having what appeared to be random movements.
38. Notwithstanding the stance of the parties, none of whom challenged the unanimous medical opinion that the cause of the trauma to the brain was a shaking or a shaking with impact injury, in the absence of a history of accidental trauma, I shall review the medical opinion here as it forms an important part of the evidence before the court. Moreover it is incumbent upon me to keep in mind the words of Lord Justice Judge in the case of R v Cannings [2004] EWCA 1 Crim, referring to the possibility of an unknown cause and resist any impulse to follow medical dogma and to take into account, to the extent that is appropriate in this case, the possibility of the unknown cause. As alluded to above I am mindful of the judgement of Lord Justice Moses in R v Henderson and Butler and others, as followed by Hedley J in Re R (Care Proceedings: Causation), and of his words at paragraph [10] of his judgement which I have quoted above, to which he later added,

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

39. It is a factor that I shall take into account along with the other factors in the case. In this case none of the parties have described or set out at any time since A was first admitted to hospital on 7^th May 2013 any history of accidental trauma to the child, either at that time or earlier. The exploration and investigation of differential diagnoses was thorough and met with best practice requirements, if not exceeding them. They included abusive head trauma (acceleration/deceleration injury) and rare conditions such as glutaric aciduria type 1 and rare coagulation disorder. In respect of the former A had urine organic acids tested along with a carnitine profile, which were normal; a skin biopsy report, produced on the result of cultured fibroblast sent to Sheffield, excluded a diagnosis of Glutaryl CoA dehydrogenase deficiency in A. She did not have glutaric aciduria. In respect of the latter A had normal results for Von Willebrand antigen, Factor XII, Factor XIII, Von Willebrand factor RiCof, Von Willebrand factor collagen binding and alpha 2-antiplasmin. A's vitamin D levels were normal. In September 2013 Dr Bhate was able to say he could exclude rare conditions such as glutaric aciduria type 1, coagulation abnormalities and Menkes disease, as well as rickets as a causes for A's presentation. While it remains possible that there was an unknown cause of A's brain and head injuries it is unlikely that possibility of an unknown organic cause was overlooked in such thorough and apparently open-minded investigations.
40. On the 25^th November 2013 A was seen at GOSH as she had developed episodes of "what appeared to be flexor spasms occurring in clusters". The spasms lasted for 5 to 10 minutes and she appeared very distressed by them. Her had behaviour changed and, as referred to above and she stopped being as responsive and interactive, no longer giggled as much, and stopped vocalising and using her hands to grab toys and objects. Her visual behaviour was described as unsatisfactory; she did not fix or follow appropriately. Dr Bhate was shown a video of her repeatedly shaking her head with her eyes closed, which he said was self-stimulatory behaviour in the presence of visual impairment rather than seizures. It must have been distressing to see. A had an EEG which was very abnormal with very frequent and persistent epileptiform discharges occurring from the posterior regions bilaterally. She had lost interest in toys and appeared sleepy. As she was sleepy A underwent a CT scan which was reviewed by Mr Tisdall, Consultant Neurosurgeon. The letter that Dr Bhate wrote after this consultation said it was likely that the increased sleepiness and reduced responsiveness was related to the onset of infantile spasms (West syndrome) and although the EEG was not characteristic there was enough evidence to treat it as infantile spasms. Treatment (Prednisolone) was started and A was to be reviewed a week later. As set out above, Dr Bhate said he had explained to the family that this would have a further impact on her developmental outlook as children with infantile spasms tend to have developmental stagnation and, in the longer term, neurodevelopmental problems.
41. On the 6^th December Dr Bhate saw A again. Since she had started taking Prednisolone she had been seizure free for 4 or 5 days, which was accompanied by some recovery in her development, as she was able to sit up and make some babbling and cooing noises, but her visual behaviour, along with other behaviours, suggested visual impairment. There was improvement in her EEG. She was to be seen again in January 2014. Dr Bhate recommended her referral to the Child Development Team as it "is very likely that she will have significant delay in development and long-term difficulties." He recommended the appointment at Moorfields Eye Hospital was brought forward. Dr Bhate followed up with a further letter to the local authority dated 25^th December 2013; in it he reviewed the investigations and treatment carried out in GOSH and gave his opinion which was that A had developed a form of epilepsy characterised by flexor spasms occurring in clusters accompanied by developmental stasis and regression with a highly abnormal EEG. This was in keeping with her having developed infantile spasms (West syndrome). He went on to say that West syndrome has a number of causes including developmental brain abnormalities and neurometabolic conditions, chromosomal disorders and brain trauma [his emphasis]; and that the occurrence of epilepsy and brain spasms in A "is likely to be the consequence of the previous brain injury in May 2013. Epilepsy and infantile spasms are recognised complications following brain injury and have also been reported following abusive head trauma."
42. Dr Bhate saw A again on the 17^th of January 2014. She had continued to show the improvement seen in early December 2013 until she again started to have infantile spasms. The next record of his opinion is the letter dated the 11^th April 2014 (to which I have already referred) following a clinic at which A was seen in the Rapid Assessment Neurology Unit at GOSH on the 3^rd April referred. In July 2013 Dr Bhate made it clear that he did not wish to prepare a forensic report as he did not have experience of carrying out such work and did not consider it appropriate to give an opinion as to causation; his evidence and that of Mr Moore is as a professional clinical witness.
43. The court appointed experts, Mr Jayamohan and Dr Sprigg, met on 9^th October 2013 for an experts' meeting pursuant to the FPR 2010. At that meeting they said that they thought the opinion of both an ophthalmic and a paediatric expert was necessary in the case. When asked whether the seizures suffered by A were caused by anything other than non- accidental injury, Mr Jayamohan's response was "There are 72 causes of subdural haemorrhaging other than NAI. Not all have been tested for and not all need to be tested for in each child. Great Ormond Street Hospital have done a fairly extensive collection of tests and it is my understanding that they have come back as normal. I am not a paediatric expert but I do not think there was any evidence in this child that there is any underlying cause of subdural haemorrhaging but I am not a paediatrician and would therefore defer to the paediatrician at GOSH." Later he said "this child has abnormal brain imaging and I would say that we are way over the balance of probability that the seizures were caused by a brain dysfunction. I believe they were caused by the same event which has caused the subdural haemorrhaging." Both he and Dr Sprigg stressed the need for further expert opinion. Both said there was no evidence of bacterial infection. Mr Jayamohan said he could not fully exclude viral infection but relied on Dr Bhate's investigation and exclusion of any other cause in his letter in September.
44. On transfer to the Family Division of the High Court on 16^th December 2013 Mr Justice Keehan ordered further expert reports to be prepared by a consultant paediatrician, Professor Tim David, and a consultant paediatric and neuro-opthalmologist, Mr Newman. In the event Professor David did not prepare a paediatric overview which was prepared by Dr Cartlidge instead and is dated 11^th April 2014 (see below). Mr Newman's report is dated the 3^rd March 2013. As with all the experts instructed in these proceedings and medical professionals who treated A both took as their starting point the history given by her mother at Ealing hospital on the 7^th May 2013.
45. Mr Newman, a consultant paediatric ophthalmologist, reported on 3^rd March 2014. He reviewed A's case, the medical notes and the other evidence thoroughly and considered the possibilities or likelihood of the retinal haemorrhages observed in A being caused by something other than a shaking or shaking with impact. It was his opinion that the retinal haemorrhages, described as being bilateral and too numerous to count, were not related to birth trauma, minor trauma, seizures, vomiting, resuscitation, or isolated raised intracranial pressure. In the absence of an episode of major trauma (there is no history of significant trauma), or an underlying medical condition (none were found or disclosed) the retinal haemorrhages remain unexplained and were, in his opinion, consistent with shaking or shaking with impact. A continued to have poor vision 4 months after her initial presentation and he said that it was likely her visual ability will be significantly reduced compared with normal. H went on to exclude various conditions as a cause of the haemorrhages, including West syndrome, confirming that he was unaware of haemorrhages such as those found in A being caused by West syndrome and that, in any case, the condition had been found some time after the retinal haemorrhages were identified.
46. Dr Cartlidge was instructed to give the paediatric overview originally intended to be prepared by Professor David. His report is dated the 11^th April 2014 and in terms of A's prognosis, which I set out in condensed form here, it makes depressing reading for it is also his opinion (as was confirmed in the oral evidence of Dr Bhate) that A is very likely to be disabled. Dr Cartlidge sets out the prognosis in his report; the seizures at the acute phase of her illness which were difficult to control; the hypoxic- ischemic brain injury visible on neuro-imaging; the delay in development already apparent by August 2013 when her gross motor development was that of a 5 month old (she was premature so her chronological age was put at 8 months); the onset of infantile spasms (sometimes called West syndrome) in November 2013. These spasms were caused by the brain injury and not the other way round (as the question he was asked posited) and are described by Dr Cartlidge as an ominous form of seizure since they are very frequently associated with developmental regression; an opinion shared with Dr Bhate.
47. Dr Cartlidge considered that all the relevant tests that should have been done were carried out; both in his report and in oral evidence he said that the investigations carried out at GOSH were thorough. He concluded that the brain injury, the subdural bleeding, subdural effusions and retinal haemorrhages were caused by shaking (with or without an impact against a semi-yielding object) immediately before A became unwell at about 08:30 hours on the 7^th May. Dr Cartlidge, as with the other experts, bases this opinion on the history which was given at the time, saying as much and that he thought the injuries were sustained immediately before A became frighteningly unwell at 08:30. He says of any person present at the time the injuries occurred, that A would have been unwell immediately after the causal event and an observer would have realised she was unwell, and that any competent person observing the action that caused the injuries would have recognised it as excessive and sought to intervene. In his oral evidence Dr Cartlidge said that he was unable to assist as to timing if the history which was given was not reliable except that the timing could be narrowed if lots of people were saying the baby was normal, it would have had to occur after those observations. Dr Cartlidge did assist as to timing by reference to the Ealing Hospital admission notes which referred to the baby being well hydrated, pointing to the causal event being that morning rather that the previous evening or night. There was, in his words, no evidence that the baby had not been fed or been without fluid for some time beforehand which suggests that there had not been an untreated head injury for some time. It was more likely than not to have occurred within the past 24 hours.
48. In cross-examination on behalf of D Dr Cartlidge was referred to a mark on the baby's inner ear recorded in the hospital notes. When asked if it was a bruise he said that he would have expected the clinicians to highlight it as such as if they thought it was such and to describe it as a bruise. I am not asked to make a finding it was a bruise and on this evidence could not possibly do so.
49. During the oral evidence of the medical witnesses the possibility of A having a period of unconsciousness or semi-consciousness following the causal event was explored as D had said that A was left with her asleep in her buggy. There was some difference of opinion as to whether, if the baby's consciousness was compromised, it would be capable of being mistaken for sleep; Mr Newman was of the view that if a child had that demeanour it would be apparent that something was significantly wrong. Dr Cartlidge said that he could not distinguish between a child that was asleep or semi-conscious. However he later said that during a possible latent or "honeymoon" period, when symptoms could abate after the causal event and immediate aftermath when symptoms would be obvious, the child would still be obviously unwell, but not as frighteningly so. The immediate symptoms would be quite alarming and could include floppiness, an inability to feed or a marked reduction, an impairment of consciousness, being very pale, and an impairment of breathing. Fits can happen at the time but are more usual later. The symptoms are quite alarming and anyone present or responsible would require "a remarkable ability to ignore them and not to present the child for medical attention or treatment."
50. Mr Jayamohan was of the view that the findings were most in keeping with the events having occurred on the 7^th of May; however they could have occurred late on the 6^th if no-one checked on the baby. He believed that the traumatic event occurred just before the baby's collapse. He expressed the view which was a consensus of the expert opinion that there had been one incident, not two with chronic subdural haemorrhages. Mr Jayamohan said that the child would have looked obviously unwell throughout by someone she was well known to, although he would put a rider on that depending on how much interaction there had been. If there was interaction and play then it would be obvious. He said that rolling eyes and gritting or clenching teeth are indicative of a child who has been shaken.
51. There was an experts meeting 6^th May 2014 prior to the trial taking place to which I refer in respect of the investigation of differential diagnoses and organic causes. Dr Cartlidge said that he thought that there had been a very thorough investigation for organic causes, unusually thorough in fact, and that nothing was found. There was considerable discussion during the meeting of a child in the paternal family who had apparently suffered seizures. This had been raised by the parents as a possible sign of genetic or family predisposition to epilepsy. The notes in respect of the child were very limited and all the experts felt they could not make any diagnosis on the very limited amount of information which was, in any event, limited to that available in an email from a family member, and which itself did not contain any diagnosis. In the event this was not pursued by those representing the parents.
52. Conclusions The expert opinion and medical evidence has been and remains largely unchallenged. The experts were careful and thorough, none of the experts or treating clinicians sought to stray outside their own disciplines and were meticulous at leaving to the court factual issues to be decided; there was no speculation on their part. The investigations which took place at GOSH after A's admittance were wide ranging and disclosed no organic explanation for the trauma to her brain. There has been no report or description from any source of a previous incident or event which could have caused chronic subdural haemorrhages. The description of the baby's buggy tipping over in the bus and being caught before it fell to the floor is innocuous and incapable of explaining a previous brain injury. I find that the time frame for the injury can only be narrowed by medical evidence and opinion to a limited extent. On the basis of that evidence including the fact that the baby was still well hydrated at 10:15 am on the morning of the 7^th May 2013 the earliest the injury could have occurred was the evening of the 6^th May 2013. I find that the causal event on the basis of current medical opinion was of acceleration – deceleration, with or without impact. The absence of any scalp swelling and skull fracture and the presence of retinal haemorrhaging is consistent with a shaking mechanism but precludes extreme violence.
53. Prognosis Very sadly the prognosis for A is of global developmental delay, with severe social and communication delay and of visual impairment. These conditions have been brought about as a direct result of the injuries she received to her head and brain.

Evidence: factual

54. Background of the parties. A's mother R came to the UK from India in early 2011 to study at Birkbeck College in London; she had been issued with a student visa valid until 24^th June 2014 on15^th February 2011. Her parents live in India and her family connections in Britain are few, if any. M has told the social worker carrying out the assessments of the extended family that he entered the UK illegally via Italy and has been here for 10 or 11 years. He came here because of inter-familial conflict about land and property. He makes his living as a construction worker.
55. R went to live in Southall and shared a house with other people from the same region in India and it was there she met A's father M. They married within a very short time of meeting in a religious ceremony in a Sikh Temple on 26^th March 2011; this is in keeping with the cultural norm of not forming an intimate relationship outside marriage. M's family did not approve of the match, despite what he later told the local authority. A was born in November 2011 at Ealing hospital. I am told, and have no reason to doubt it, that both parents were happy to have had the baby. R does not appear to have attended college after she became pregnant and when A was just over 3 months old she started to work as a beautician in a hairdressers' in Kingston. She arranged with D that she would look after A when R was at work during the day and M would often pick the baby up on his way home. R and M continued to share their home with people with whom they had previously been living, two men JS and AS. They are particularly close to AS. There is another man, P who has lived with them occasionally about whom I know very little. JS and AS were there on the morning of 7^th May 2013 and both gave evidence about what they saw at home on that day to the court, I shall return to this below.
56. Members of both R and M's family have been assessed in India as possible alternative placements, as a result of those assessments the court has been given a deal more details of the parents' backgrounds than was available in their own statements. They both come from the Moga district in India. R speaks Hindi, Punjabi and a very little English, M only speaks Punjabi. R's family is Hindu, as she is herself; M is from a Sikh background and family and worships at the Gurdwara in Southall. There is independent evidence of the lack of support of the couple's marriage from the paternal grandmother and great aunt, and from R's parents who say that they are scared of the paternal uncles who disapprove of the marriage. There is suggestion that A may not be safe in India because of the family's attitude. Both the paternal grandmother and aunt told the social workers who carried out initial kinship assessments that A would be at risk from the male members of the family.
57. M told the social worker that he came to the UK about 11 or 12 years ago. His statements contain little detail of his background and I am inclined to agree with the Guardian's comment in her case analysis dated 17^th July 2013 in which she said that M had not been forthcoming during the court proceedings which had the effect of leaving R isolated. This impression was not diminished during the currency of the hearing. M initially said that he came to the UK at the same time as R but in July 2013, when the kinship viability assessments were being prepared, he told the social worker allocated at that time that he had been in the UK for 10 or 11 years coming via Italy because of inter-familial disputes about land and money. He said he came to the UK by truck and that he has no passport or other travel documents in the UK. There is no record from the UKBA or Home Office of him entering the country. In contrast to the assessment of the maternal grandparents which was comprehensive and included interviews conducted in Dharamkot, Moga in India, the information in relation to the paternal family is sparse. After hearing his oral evidence (to which I shall return) I was struck by his lack of openness and reluctance to be forthcoming about himself and his family and observe that he has often, if not invariably, left his wife to deal with most of the questions that had arisen during the case, which, in turn, added to the impression that he had not been as supportive as he could or should have been.
58. Of D even less is known and like M her statements and oral evidence was scant when it came to information about her background and family. D has her family name, K, with which she signed her first statement in November 2013, in addition to which she uses her husband's family name. The statement signed K in November 2013 was a very short and in it she denies ever having had A in her care. The use of the two family names seem to have caused some confusion as she has been referred to by both, by others and used both herself . Her first name has also been confused; R and M say this is because they have always known her by her private short name which is different to her given one, and I accept that is more likely than not to have been the case. Most of the information about her is contained in the social work assessments, in respect of her daughter, then 2 years old and of her unborn baby. The assessments were carried out over February and March 2014. Their contents were not challenged and are of relevance because they contain D's explanation of the events surrounding A's admission to hospital in May 2013. Mr and Mrs D's marriage was not approved by the families and is described by them as a union that is looked down on by their respective communities. D says she came from India to the UK with her husband in about June or July 2011. There has been no information from the Home Office about their entry to the UK put before this court. According to D they had fled a situation in which her husband had been subjected to violence. D had known M in India as a relative of hers was married to his brother. Like R and M she lives in a shared house in Southall. She told me that she and her husband and their 2 year old daughter share the house with 5 other adults. They told the social worker they knew little about the other adults and had little to do with them. I learnt no more when she gave her evidence to the court. The author of the assessment had no immediate concerns about D's care of her daughter. D's husband was described as being depressed and as he cannot work legally the family rely on the support of his sister who lives Hounslow. D is due to have her second baby imminently. D does not speak English and her first language is Punjabi. I make the assumption that she comes from the same region in the India as R and M, however that may be erroneous.
59. D has not engaged with the court process to the same extent as R and M. This is in part caused by an inordinate delay in her being granted public funding, which was not confirmed until the week prior to the hearing after this court contacted the LAA directly. However D had instructed solicitors by January 2014 who, for reasons that are far from clear, had failed to obtain public funding and on numerous occasions failed to respond to the local authority and the court as to the filing of evidence and D's instructions. The court is very grateful to the solicitors now acting for D and to both counsel who prepared the case at short notice. Fortunately as the court did not sit full days on every day of this trial it gave counsel the opportunity to use the time to take instructions. In addition to which because of the late instruction of counsel and because D has been pregnant through her involvement in these proceedings I allowed extra time for counsel to take instructions.
60. During the local authority's assessments of D carried in January or February of 2014, she and her husband initially said that they did not know why the social worker was there at all. D denied having A in her care on the 7^th May and said she received a phone call around 9 – 10 am from A's mother saying that A had been playing that morning and had just stopped moving. R asked D to attend hospital with her; and when asked by the social worker why she did not tell R to call an ambulance she said R was scared and pleaded with D to meet her, also R does not understand English so would not have been able to explain anything over the phone. She said she met R in Southall Broadway and they travelled to hospital on the bus. D is reported as denying having asked R to say she was not there with her. D told the social worker at that time that after A was in hospital R stopped talking to her and she had not seen R. D said there had been one occasion she bumped into her in Southall when shopping but that R had ignored her and they had no contact since.
61. As I have already referred to as part of the background to this case both A's parents and D do not have leave to remain in the UK. R's leave was curtailed without right of appeal on 23^rd June 2013. It is not clear when she became aware of the curtailment; in July 2013 she is reported to be telling the social worker that she had entered on a student visa and had leave to remain to 2014. M entered the country illegally. All three say that their immigration status has had no effect on the evidence that they have given or forms part of the reason that they all lied about D caring for A on the morning she was taken to hospital with brain trauma, or why they continued to lie afterwards. They were all specifically asked about this but say it did not form part of the reason for their misleading the court for the first five months of the proceedings. Nonetheless it forms part of the backdrop to the proceedings and the events leading up to them and it would be surprising if it had not affected the parties' dealings with the authorities to some extent. This is borne out by what M told the first social worker allocated to the case; that he had initially lied about when he came to the UK because he was frightened about how he had entered the country.
62. R says that she gave a history to the hospital which was based on what D had told her and that D had told her not to tell the doctors that A had been in her care. M says he felt had to go along with his wife, so as to support her story. Both R and M say that they continued to lie because they were worried that D was not a registered child minder and that it would make it less likely that A would be returned to their care. R told me that once she had started the lie she felt that she must continue with it, until she understood the implications for her of saying A had been in her care. D told me in her oral evidence that she had lied because R and M had told her to but did not say when this request was made and in what circumstances other than it had been on the occasion she and R bumped into each other in Southall and because she thought it would help them to get their baby back but did not attempt to explain why the lie would have this effect.
63. At the hearing in January the court gave as part of its reason for the timetable of the proceedings exceeding 26 weeks was that Dr Bhate had "raised the possibility that A has West Syndrome. However, the causal relationship with A's injuries will have to be explored by the medical experts." This was based on a misunderstanding of the genesis of the infantile spasms (or West syndrome) which is the brain injury rather than the other way round however it is unsurprising that because of the approach to the case at that time R continued to believe that there was an alternative to inflicted brain injury being considered; and I keep in mind that she had been told when A was first in Ealing hospital that the baby was to be treated for an infection and not possible inflicted brain injury.

7^th May 2013.

64. It has been established on the medical evidence that the events which led to A being taken to hospital with brain injury occurred, between the evening of the 6^th of May and the morning of the 7^th of May 2013. The baby was seen by the two men, JS and AS, with whom A's parents shared the house on the morning of the 7^th before they left for work. I heard evidence from both of them. They had originally filed statements along with two others to challenge the evidence of D that she had never cared for the baby. By the time of the trial D had conceded that she had had A in her care on the morning of the 7^th so the evidence of JS and AS was turned to and focussed on the events of that morning.
65. JS started by giving evidence that he knew D and that he recognised her sitting in court. He said that he knew her from her visiting the house and that he been there when A was taken to her house to be dropped off. JS said he left for work at 06:15 that morning and before he did he had seen A playing on her father's lap on the bed in their bedroom; R had been in the bathroom at the time. He had known M for the past four and a half years and had been living with M and R when A was born. JS told the court freely that he was in the UK illegally and said that he was an overstayer. He played with A very little as mostly he worked and was out at work and not at home. On the morning of the 7^th he described seeing A giggling with happiness and playing with her father. Both A's parents were, he said, good parents who looked after their baby well. In cross-examination he said he saw the baby because the bedroom door was open; it was usually closed in the morning when they were getting ready and was only open because R was in the bathroom. JS readily agreed he had seen the police and but said did not recall or know if they had asked about D or whether he knew her or not.
66. AS told the court that he was at home on the morning of the 7^th May 2013 and said he was getting ready to go to work. He said left at about 7 am. He had seen the baby and she was playing with her mother and was very happy; he told me the baby was showing happiness in her voice. AS said R also seemed happy; she was happy seeing to her baby and he had commented on it at the time. He had seen the baby in the bedroom and briefly played with her himself. AS said that he normally got up about 06:30 am and was usually still asleep when everybody left. M usually left first but he did not know about that morning, M was usually no longer at home by the time AS got up and he was not there that morning. He did not know what R's plans for that morning were, she had not told him. Under cross-examination AS said that R considered him a brother and had tied a raki (thread) on his hand (wrist); she would consider him to be the baby's uncle and he considered himself to be R's brother. He denied that it was improper to go into R's room as suggested on behalf of D as there was nothing in Punjabi culture that said it was improper to go into your sister's room. AS said that he recognised D (indeed she referred to him in her own statement) and knew she had looked after the baby. In further cross-examination, this time on behalf of the child, he was asked about lying to the police about knowing D. AS accepted that he had not told the truth to the police when he was interviewed by them as he knew D which he denied to the police. He had seen D when she visited the house and when he had accompanied someone to drop A off at D's house. He had lied because R and M were crying and distressed when they came home after A was taken into care and he thought it would help them to get their baby back. He denied being asked to lie and repeated that he had thought it might help the parents get the baby back.
67. The parents' version of events On the morning of the 7^th May both parents agree that A woke early although they disagree about who got her up first and when. M said he woke early and picked the baby up. R said that maybe her father had picked her up and she was not sure which of them it was who picked her up first. Both agree that the baby was happy and well when she woke up. They both took turns in looking after her. The baby was fed by her mother and her father had prepared the bottle. M described playing with the baby while her mother was in the bathroom. A was very happy and laughing. The bedroom door was open and JS may have seen them but M did not remember seeing JS. When his wife came back from the bathroom she took the baby and he went to the bathroom to wash. M says he left for work at about 06:15. R says it was about 06:25 to 35. She says he usually left at about that time but she could not be sure about that day. R says she remembers AS coming to the room but she was not sure exactly when, it was after M had left home to go to work. R told me that she left home about 7 and went to D's on the bus; it usually took 10 to 15 minutes. R said that A was in her buggy in the slightly upright position, the hood was up and she could see the baby and the baby could see her. A was awake and did not go to sleep during the journey. R said that when she dropped A off and left her with D she did not say that A was asleep or sleeping as the baby was awake. R said that even if A was asleep she would not have covered her face.
68. R told the court that she had an arrangement to drop A off at D's as she was due to go to work. That this arrangement had started when A was just over 3 months old was not a matter in dispute. Nor was it in dispute that the child-minding arrangement had come about as there was some relationship by marriage between D and M. D disputes that she was paid to child-mind; both parents say she was given £10 but not on each occasion and a sum was allowed to accumulate which she was then paid. R said in her oral evidence that she would not expect D to look after the baby for nothing. On the morning in question, on 7^th May 2013, D contended that A was dropped off unexpectedly. However R's employer came to court to give oral evidence, he was very complimentary about R who he described as reliable and trustworthy; he told me he had been expecting her to come into work that morning. He said that R and another woman who threaded sometimes swopped shifts but they always ensured the shift was covered. He had gone on employing R for some time after this as she was good at her work, trustworthy and reliable, and I accept all of his evidence.
69. R told the court that she after she left A with D she had got on the bus to go to Kingston. She said in evidence that she would usually leave two hours for the journey and had to change buses; she aimed to arrive at the salon at 9:45 am to start work at 10 am. She would leave home by 7 or 7:15 to allow for this. R was not in a hurry when she arrived at D's house on that morning, she says and she took A out of her buggy and laid her on a bed, talking to her as she did so, at the same time telling D when she had last fed A and about her routine. They had a normal conversation during which D spoke about playing with her daughter. R left after a while and got on a bus. She was not sure what the time was; but in time to get to work. R has two phones (one for calling India) and both were in her bag still in silent mode from the night before. She spoke to a friend at about 08:30 am(the court has had sight of mobile phone records and the report of a cell phone analysis as to the whereabouts of the phones when calls were made; this evidence is consistent with those records). At 08:46 she received a phone call from M who had been called by D. He told her to return to D's home as there was something wrong with the baby and D sounded very distressed and frightened and said A needed to go to hospital. R got off the bus and headed back. She called D and the had a conversation of about 30 seconds. R says they agreed to meet halfway to the hospital. R then phoned her employer (who confirmed this in his oral evidence) and told him she could not come to work. R met D in Southall Broadway. D arrived with A in a double buggy with her own child.
70. It is R's evidence that M had told her that she must call D who had said that something had happened and that A kept crying and her eyes were rolling back and she was clenching her teeth. When R called D back she repeated this saying that A was having trouble breathing, "she is rolling her eyes and is clenching her teeth, come back quickly" and that D seemed to be panicking. R says she told D to call an ambulance but D said she could not as she couldn't speak English.
71. When she met D in Southall Broadway R says that she picked A up from the buggy and could see straight away that she was not well; she was floppy and unresponsive. The two women asked passers-by for help and none was forthcoming. They took A on the bus to Ealing Hospital. When they arrived D asked R not to say that A had been with her. R says she repeated to the medical staff what D told her about A. It is R's case that once she had done she felt that could not change her story and that in any case that she did not think it necessary as she was told by the consultant that A was to be treated for an infection and would recover. The former is supported by the medical evidence and hospital records (see above).
72. M said in her evidence that when D phoned that morning she sounded very, very upset and told him that the baby had been crying and suddenly stopped and gritted her teeth and her eyes rolled back. When he asked D what had happened she told him that the baby had been on the bed and when she came back from the bathroom the baby was crying. She tried to quieten her by giving her milk but she would not take any, she tightened up her lips and her eyes turned back. M says that the baby was making a gasping sound; he was not sure if she said this over one call or two calls. The evidence is that more than one call took place. M then went to the hospital. He says that he lied about the baby being with D and concealed it because it was what his wife had done and he did not want to contradict her at the hospital, and later he thought it would make things worse. Both R and M said in evidence that they had been advised by members of their families that saying A was with an unregistered child-minder would make it less likely that they would get the baby back.
73. Spontaneously, during his oral evidence M, clearly without having given such instructions on this point previously to his representatives, said that he had phoned D and asked her if she had shaken the baby. He said that he told her whatever happened "we will take the blame; my wife would take the blame". His wife, re-called as the phone call was not put to her when she was giving evidence, said he had never discussed this with her or told her about such a phone call; and that she would never have agreed to it. D denied that such a conversation ever took place. I do not accept M's evidence about the phone call and it is not at all clear what he thought he would achieve by making the allegation; as it assisted neither him nor his wife. It further illustrated his lack of support for his wife and lack of appreciation for the position they found themselves in which has characterised his dealings with the authorities.
74. Ambulance Much was made during cross-examination about why an ambulance was not called by either of the two women at the time A collapsed; and about who asked whom to call for an ambulance. There is no medical or other evidence that A was caused additional harm by being taken to hospital by bus, or any delay that might have been caused by that course of action. I do not consider that it is sinister or unusual for people not to make calls, even emergency calls, in a language they cannot speak. Once the alarm was raised there is no evidence of a deliberate delay in seeking help by either R or D who went to the hospital by the method of transport mostly readily available to them. I accept that it is likely they asked members of the public to help and that no assistance was forthcoming. However I will return to the evidence of D in respect of her case that she asked R to call an ambulance and R ignored her.
75. D's version of events D said that R turned up unexpectedly and left A with her asleep in her buggy. She did not see A's face, although it was not covered. D was evasive about why she could not see the baby's face, saying she was in the sleeping position but without a clear description of that position. D accepted that although the hood was up there were clear sides to it of transparent plastic. She says that R arrived later than R said in evidence but was not clear when it was. According to D's evidence after about 30 to 45 minutes she went to feed A who was unresponsive. In her evidence in chief D told the court that "she was not moving…her eyes were half open and rolling, a little, but rolling. She was like dead." Later, in cross-examination she said that saw the baby's eyes were half open but denied that they were rolling back. D said that she tried to feed the baby milk (this was not in her statement) but that A would not take any feed. The evidence that D gave was consistent with the evidence given by Dr Cartlidge and Mr Jayamohan as to what would occur after the causal event (as set out above).
76. D told me she was really scared and panicked; she tried to call A's mum but she did not pick up. D said she then called M and she spoke to the baby's dad and told him that A was "not moving she was not responding at all". She asked M to call the baby's mother. D said that when she spoke to R she told her the same things she had already told M. D said in evidence that R asked her to bring A to Southall Broadway. D then said that she told R to call an ambulance but R did not respond. D also said this in her statement, but it contradicts what she had told the social worker earlier in the year when being assessed. I note that it was not put to R on D's behalf in cross-examination. D said that R was upset and cried a bit when she saw A, she picked her up out of the buggy. D said she only has a single buggy which the baby was in with D's daughter on her hip. D told the court A was so floppy and unresponsive she could not have had the baby on her hip.
77. In her evidence in chief D said that when they at first got to the hospital, when R first spoke to medical staff, she was standing beside R; she then immediately changed this evidence to say she stood behind R. She said could not hear what R was saying. D denied asking R not to use her name and not to say the baby was with her that morning. She told me that she lied later because R and M said that she should lie and was sorry for them. D said she was really sorry for the lies. D did not give any details at any time in either her written or her oral evidence of the circumstances or content of this important conversation with either R or M or with both of them. Her statement makes no mention of D asking her; just R when she bumped into her in Southall Broadway; earlier she had told the social worker that R had ignored her on that occasion.
78. When asked in cross-examination about lying to the police D said it was because the police did not know at the time of the interview the 5^th November 2013 that the baby "was with me that morning. I knew it was serious because I had already seen the condition the baby was in and I was trying to cover up that the baby was left with me that morning." D accepted that it had taken her almost 15 minutes to try to call A's mother from 08:30 to 08:42 and said it was because she was really scared, but she called straight away when she realised A was lifeless. This evidence would confirm the time of the baby's collapse as about 08:30, the time that R says D told her that morning and which she then told the doctor.
79. Under further cross-examination D said again that A's eyes were half open; and that her eyes went upwards. She denied her eyes were rolling back as she had said earlier in her evidence in chief but said that the baby's eyes were weird, strange and were "back, not in the right place". She described to the court trying to feed A and said the baby would not take the feed; that A would not take the nipple in her mouth and that she could not insert the nipple into the baby's mouth; but she denied that the baby was clenching her teeth or gums. It is difficult to imagine what else the baby could be doing to stop D inserting the nipple into mouth. D agreed that A was a good and quiet baby and that it was easy to care for her. D said to me that M had not phoned to ask her if she had shaken the baby, or made an offer for his wife to take the blame.

Conclusions and findings

80. This has been a difficult decision to reach as whatever I decide the consequences for the three principal actors and their families in this case are far-reaching. The local authority and the Guardian submit that the court cannot reach a decision as to who the perpetrator is; I do not accept this as being in the public interest or meeting the justice of this case. It is the role of the judiciary in this court to reach difficult decisions and not to avoid the issues which come before it.
81. The evidence of the parents and the two witnesses who live with them all point to the baby being well until 7 am. It is highly unlikely that had the baby had been shaken and suffered the almost immediate collapse and frightening symptoms as described by the medical witnesses that the two other tenants had both remained unaware of it; and if aware that they would do nothing about it. The evidence of the medical experts as set out above [49] suggests it would require a most unusual person to ignore such an obviously unwell baby; that four people could do so at once is simply not feasible, likely or believable. In particular AS came across in his evidence as very fond of A and of enjoying the baby being present in the house. When he saw A her father had already left for work and so had JS who had seen and described a happy responsive baby earlier. I can and I do rule M out as a possible perpetrator.
82. While it must be accepted that the mother (R) the father (M) and both JS and AS lied about aspects of D's involvement with the baby and even that she was known to them that does not and should not render all that they say without credibility; if I apply Lucas, and I must, I must take into account the reasons people lie and the parts of their evidence which when considered in the context of the case as a whole can be relied upon as I have done in the paragraph above. M's evidence was, I find less than frank and I do not accept that he made that extraordinary phone call to D offering his wife as willing to take the blame. I consider it likely he is less than forthcoming in some aspects of his evidence, because, as he said himself he is frightened of the consequences in respect of his immigration status. Nonetheless I can accept the evidence of AS and JS about how they observed the baby to be that morning for the reasons I set out above. I do not consider it to be likely that M shook the baby who then exhibited the frightening symptoms described by the experts, which were ignored by AS, JS and R.
83. When considering the evidence of AS and JS I find that they lied in a misguided attempt to support their friends and to try to help them get their baby home. It is believable in part because it is both misguided and somewhat naïve and because it does not serve them in anyway: there is no discernable advantage to them to have done so. R's evidence I found to be open: she accepted without flinching, that she had lied about A being left with D that morning and did not try to cover it up further, or demur about that or other aspects of her evidence nor was she defensive in her demeanour. I can well believe that she believed herself caught in a lie which she felt obliged to repeat. When considered in the context of the baby being initially treated for infection and no mention initially of inflicted injury it is more likely than not that she felt comfortable in acceding to her friend's request to keep her out of it; particularly if R had not seen what had happened to A and played no role in the injuries her baby sustained.
84. I turn now to the evidence of D. I have set her evidence out in detail above; and of all the witnesses she alone describes a baby who has suffered some kind of trauma. The conclusion she asks me to reach is that R and/or M shook their baby, witnessed her collapse and then in a calculated act of cruelty and malice put the infant in her buggy and dropped her off leaving D to discover the results of the assault and ultimately to bear the responsibility for those injuries. Putting aside for one moment that a previously loving, caring and responsible mother would ignore the frightening sequelae of shaking and injuring her baby, it defies logic and any kind of probable motive that she would carry out a charade of cruelty only to then place herself firmly in the frame by deliberately lying to say the baby was in her care at the time. The only person that could, ever, have benefitted from the lies as to who had care of the baby was D. There is simply no other credible explanation or reason. D herself accepted in evidence that she lied to the police to cover up that she was looking after A because she knew it was serious as she had seen the condition the baby was in at the time.
85. I do not accept D's evidence that A was asleep or semi-conscious when she arrived. It maybe that D was not expecting A and had forgotten she was coming; for R's evidence about going to work is corroborated by her employer. His evidence of a reliable and trustworthy member of staff, and the phone call R made to him to say she could not get to work on the morning of the 7^th May 2013, all point to a person who took her work seriously and made suitable arrangements to get there. I find it more likely than not that R did tell D she was coming with the baby. I accept that she remunerated D for looking after A and that she would have wanted the arrangement to be on a proper footing. If D had forgotten she may well have been irritated at being put upon and felt aggrieved or taken for granted, which may account for her denying she had been paid. Feeling this way may have led her to being angered with the baby if she cried. Whatever the reason, and I do not know what it was, I find that D caused the injuries to A by shaking her in what was a momentary loss of control. After which she delayed for about ten or fifteen minutes before calling the baby's mother: as she has accepted in her own evidence.
86. I make this finding for the reasons I have set out immediately above, and because many aspects of the evidence of D about the behaviour and symptoms of A closely reflect the medical evidence as set out above. I find, therefore, that what R told the doctors and medical staff was a repetition of what she had been told by D, who had observed them in A.
87. I have decided, on the evidence put before the court by the local authority, the responses of the parties and the evidence given by them and on the balance of probabilities that numbers 8 to 15 of the schedule prepared by the local authority are found and are set out in the body of this judgement. Paragraph 17 is found in as much as it refers to D as is 19. 20 and 21 are not found. The threshold is not met. There is no evidence other than that the baby was well cared for by her parents who had left her with D on numerous previous occasions without incident and could not have reasonably foreseen what has happened to A on the 7^th May 2013.

MRI scans in infants and children

88. The failure to identify the possibility of the injuries being inflicted at the outset of this case was what led to any delay for A being treated for such injuries and to her parents being informed of such a possibility. The failure was caused by MRI scans being carried out without contrast. It is highly desirable, if not essential, for scans with contrast to be taken of children and infants who present with possible brain injury as A did.

IN THE HIGH COURT OF JUSTICE NJ13C00094

FAMILY DIVISION

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF THE CHILD, AM (A Girl, Born. 29.11.2012)

B E T W E E N :

THE LONDON BOROUGH OF EALING Applicant

-and- AR First Respondent

-and-

JM Second Respondent -and- SD Third Respondent / Intervener -and- AM Third Respondent

(By Her Children's Guardian, Julie Clements)

__________________________________________________ Revised Schedule of Findings Sought __________________________________________________

1. These are care proceedings in respect of the child AM (b. 29.11.2012, who is therefore 10 months old).

2. A's mother is AR (b. 18.11.1998, therefore 23 years of age).

3. Her father is JM (b. 02.04.1978, therefore 35 years old).

4. The parents married in a religious ceremony in 2011 but have not undergone a legal marriage. It is assumed that the father has parental responsibility by virtue of being on A's birth certificate, although a copy has not been seen.

5. The Local Authority contends that the relevant date for determining whether the threshold criteria pursuant to section 31 of the Children Act 1989 are met in relation to A (b. 29.11.2012) is 31 May 2013 when these proceedings were issued. It was on this date that the Local Authority put in place protective arrangements (Re M (A Minor)(Care Order: Threshold Conditions) [1994] 2 FLR 577, HL).

6. The Local Authority contends that on this date the child A (b. 29.11.2012) had suffered and was likely to suffer significant harm and that this was attributable to the care likely to be provided to her not being what it is reasonable to expect a parent to provide.

7. The Local Authority relies on the following facts in establishing the threshold criteria.

Injuries to A

8. A has experienced the following injuries/symptoms:

i. On 7 May 2013, A was taken to Ealing Hospital where she was seen to be irritable and unresponsive. A was experiencing seizures. On 8 May 2013 A became more irritable and her anterior fontanelle became more full.

ii. A has experienced further seizures. For example, on 9 May 2013 in the morning, "she had a further 3 seizures where she was blank, eyelids flickering, staring, unresponsive and twitching upper limbs and tonic posturing of limb. Between 11.00am and 15.00 had 6 seizures lasting 1 – 2 minutes each. At 15.15 had another prolonged episode lasting 40 minutes" [G5].

iii. A has undergone multiple MRI scans on 7^th, 9^th, 11^th (spine only) and 11^th (head) May 2013 and a CT scan on 10^th May 2013. These scans show that A has experienced subdural hemorrhaging likely to be the result of "acute traumatic effusions" (see Dr Cartlidge, E342 – E344) and include:

1. Small amount of acute subdural blood along the posterior falx and in the posterior fossa.

2. Bilateral subdural fluid collections in the lateral ventricles

3. Small focus of subarachnoid or subpial blood.

iv. A's eyes were examined and she was found to have "in both eyes, widespread, extensive haemorrhages extending from the optic disc to the peripheral retina throughout 360 degrees (all four quadrants). These were pre-retinal (subhyloid) superficial and deep retinal, some white centers. The haemorrhages were too numerous to count. The optic discs had haemorrhages upon them and may have been swollen. There was a large pre-macular (subhyloid) hemorrhage in each eye." (See Dr Newman, [E283]) Consequently A's visual behavior was "much below what would be considered to be normal and [she] was not consistently fixing and following on 9 October 2013 (Ser Dr Newman [E284])

v. A now presents with Wests Syndrome (Infantile Spasms). A has developed a form of epilepsy characterized by flexor spasms occurring in clusters accompanied with developmental stasis and regression with a highly abnormal EEG.

Additional Medical Investigations

9. There is no evidence of an impact injury i.e. no fractures or bruising observed. Although the shaking may have included impact against a "semi-yielding object (e.g. mattress or sofa) (see Dr Cartlidge, [E351])

10. Samples have been taken from A to establish whether there was a medical reason for the symptoms seen. Dr Bhate (Consultant Paediatric Neurologist) at Great Ormond Street Hospital confirms "the results of all investigations carried out to exclude medical conditions, which could have led to A's presentation with subdural haemorrhages, retinal haemorrhages and encephalopathy have now come back and we are able to exclude rare conditions… as a cause for A's presentation." Organic causes have therefore been excluded.

Expert Evaluation of the Medical Evidence

11. Dr Alan Sprigg, Consultant Paediatric Radiologist, Mr J Jayamohan (Consultant Paediatric Neurosurgeon), Dr P.H.T. Cartlidge (Consultant Paediatrician) and Mr W D Newman (Consultant Paediatric Ophthalmologist) have considered the medical records, test results and MRI images in respect of A.

12. The conclusions of the experts can be summarised as follows.

13. A has presented with injuries that on the balance of probability are likely to have been caused non-accidentally and the likely mechanism is of A having been shaken.

14. A's injuries:

i. are the result of a non-accidental traumatic event;

ii. are the result of forceful acceleration/deceleration force (i.e. shaking);

iii. would have involved a force in excess of normal handling of the child;

iv. would have occurred just before the child's condition deteriorated.

v. are not the result of a traumatic birth; and

vi. are not the result of A's pushchair tipping over some weeks prior to admission.

15. A's subsequent presentation/diagnosis of West Syndrome is the result of her earlier brain injuries (see Dr Bhate at [E194] and Dr Cartlidge at [E354])

Causation

16. In the relevant period the child was in the care of the mother, AR and/or the father, JM and/or family friend Ms SD.

17. Neither the parents nor Ms SD have provided any explanation capable of explaining how A came to be injured as set out above.

18. It is not possible to exclude the mother, the father or SD as the perpetrator of the injuries suffered by A.

19. The mother and/or the father and/or SD have therefore cause the injuries to A by way of a traumatic incident involving handling A with excessive force involving an acceleration/deceleration, most likely shaking.

20. In the event that the injury was caused by one parent, it is likely that the other knows how A came to be injured but has failed to disclose this to the Court.

21. In addition to the above the parents have consistently lied to medical professionals and the Court as to A's circumstances at the time she became unwell (i.e. the possible involvement of a third party) resulting in inaccuracies in information being given to medics and professionals and delays for A.

Conclusion

22. In light of the above, the Local Authority contends that the threshold criteria in respect of the child AM (b. 29.11.2012) are met.

Please Note: This document is produced in advance of the Experts' Meeting and therefore permission may be sought form the Court to add to, vary or amend this document in the event that such amendment becomes necessary once the views of the experts are known.

 Kieran R Pugh

4 Brick Court Chambers,

Temple

8 October 2013

Revised 29 April 2014