A discussion of London Borough of Sutton and Gray 2012 – in which the High Court determined that an earlier finding of fact that a father had shaken a child, causing injuries (and for which father went to prison) was wrong and had been in effect a miscarriage of justice.
The children had been placed with a relative (fortunately) who cared for them under Special Guardianship Orders. Had they been instead, adopted, then the Court would have been faced with the same issue as in Webster, that children had been wrongly removed and adopted, but that such a step cannot be unpicked. The LA had been seeking a Placement Order for the younger child.
The Judge in this case, Mrs Justice Hogg, dealt with the case in a very measured and compassionate way – the other judgment, which I don’t include, which deals with the aftermath of this finding of fact and the reconciliation of the family is moving in the extreme.
[I am very grateful to Ms Troy who was junior counsel for the children in alerting me that this case was forthcoming and to watch for it. Ms Troy is a very able advocate, a thoroughly decent person and someone blessed with good taste in football; an all-round good egg. The title is a malapropism from a gentleman who left Court and informed myself and counsel that this had been “a tapestry of justice”]
The judgment is here:-
You will notice the highly unusual step of the Court giving the full names of those involved, rather than anonymising them. That’s a marker of how important it is for this family to be exonerated, and the likelihood that there will be further media involvement – I note that journalists were present.
I would point out in this case, that the miscarriage is not a result of bungling or bad faith on anyone’s part, nor crookedness, nor incompetence, nor overly dogmatic experts. It just reflects what is becoming increasingly understood – that in complex medical cases involving injuries to children, sometimes our best working diagnosis on the balance of probabilities, can still be wrong. As the Judge says late on, with reference to Mrs Justice Bracewell – in effect the Judge has to make the best conclusions they can from the evidence as it is presented, but being aware that today’s certainties can be tomorrow’s grey areas.
In a case such as this, we can see the stark impact of that on the family. It would not be an overstatement to say that they have been torn apart by these circumstances.
- From a very early stage the spectre of Non Accidental Injury was raised to explain Ellie’s collapse and the findings of intracranial and retinal bleedings. The parents, in particular the father, was unable to give a history of an accident or other explanation as to why she had suddenly become limp and in a collapsed state. The various tests performed did not reveal any medical explanation. Suspicion therefore arose that Ellie’s condition was a result of an inflicted injury. The fact she had been injured previously added to the suspicions. The Local Authority and police were informed of the position.
- As a result the parents were arrested on suspicion of causing grievous bodily harm to Ellie and interviewed by the police on 6 March 2007. Both denied causing injury to Ellie on or about 15 February, and have continued to do so ever since.
- In the meanwhile the Local Authority decided to issue care proceedings in respect of Ellie in which a care order was sought on the basis that she had suffered an inflicted head injury and burns whilst in the care of her parents.
- The application was issued on 5 March 2007 in the Croydon Family Proceedings Court. The first Interim Care Order in respect of Ellie was made on 15 March 2007, and thereafter renewed on a regular basis. On that date the proceedings were also transferred to the Croydon county Court.
- The fact-finding hearing took place in front of HHJ Atkins culminating in his Judgment dated 29 January 2008, in which he made findings against the father in that he:
(i) caused the burns on 7 February 2007 to Ellie deliberately or recklessly or negligently;
(ii) caused the head and eye injuries and the consequences sustained by Ellie on 15 February 2007;
(iii) the mother failed to protect Ellie by leaving her in the father’s sole care on 15 February.
- On 28 April 2008 the Learned Judge made further findings against the parents that:
(i) neither had accepted his Judgment and findings on 29 January 2008;
(ii) neither had been open and honest about the extent of their relationship, that “it has been more extensive than they said”;
(iii) both had intimidated and made various specific threats towards the maternal grandparents;
(iv) and the Learned Judge ruled the mother out as a long-term carer for Ellie.
- On 14 August 2008 the Learned Judge made the Special Guardianship Order to the maternal grandparents and the contact orders for the parents.
- The police charged the father with causing grievous bodily harm to Ellie on 15 February 2007 contrary to S.20 of the Offences against the Person Act 1861 and with cruelty contrary to S.1 of the Children and Young Persons Act 1933.
- On 24 March 2009 after a 4 week trial at Croydon Crown Court the father was convicted on both counts, and by majority verdict on the charge under S.20 and sentenced to concurrent terms of 18 months and 1 month imprisonment.
- Isabella was born on 7 September 2009 while the father was in prison.
It can easily be seen, that in relation to paragraph 45, those findings made that the parents had not accepted the finding of fact hearings are the only thing they could have done, and to criticise them for it is now evidently unfair. Given that it was not true, how could they do anything other than continue to deny it?
But of course, the Court was proceeding on what was understood to be right at the time [and from a legal point of view, what the Court FOUND to have happened at the hearing in January 2008 WAS what happened; although we now know that in reality, it was not what happened at all]
- The Injuries Ellie received
- Ellie collapsed in the father’s home. She suffered brain dysfunction or encephalopathy. She sustained subdural and retinal haemorrhages.
- Those three types of injuries are often referred to as The Triad and considered as a significant pointer towards a diagnosis of non-accidental head injury, particularly as in this case where there are no other signs, symptoms or marks of injury on the child. In this respect I am excluding the burns.
- It must not be assumed that because it seems ‘The Triad’ is present that it automatically and necessarily leads to a diagnosis of non-accidental head injury.
- Before concluding that The Triad exists and that a finding of non-accidental head injury is justified the Court must consider and examine the evidence in respect of each injury, its diagnosis, and its causative event(s) with care. It must also consider the clinical presentation of the child and the evidence of the parents, carer or other relevant witnesses.
- The findings in every case must depend on the specific individual facts to that case.
- At the end of the day it is always possible for a Judge to rule that the cause of an injury remains unknown. As Mr Justice Hedley said in Re R. 2011 EWHC 1715:
“In my Judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism.
Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”
I suspect, that this is a phrase, as it is both resonant and skilfully constructed, that we will see again and again “We are fearfully and wonderfully made”
The Judge analysed the evidence in relation to each element of the ‘triad’ – those classic symptoms which suggest that the child has been the victim of a shaking injury.
- My Conclusions
- The conclusion I draw from the evidence of all three ophthalmologists are:
(a) This is an unusual case;
(b) It is unlikely that the injuries to the eyes were (i) birth related or (ii) caused by the seizures suffered by Ellie in hospital.
(c) The causative event(s) probably occurred shortly before Ellie’s admission to hospital;
(d) Ellie’s rapid and complete recovery was “remarkable” given the apparent severity of the haemorrhages when first seen;
(e) By just looking into the eye it is not possible to identify the cause of haemorrhaging;
(f) The haemorrhages do not have the hallmarks of a shaking injury, but such an injury cannot be excluded. In the event it was a shaking injury the severity of the force would be at the lower end of the spectrum;
(g) An airway obstruction giving rise to a sharp increase in intra cranial pressure could be an explanation for the haemorrhages, and would fit into the scenario resulting in a rapid and complete recovery without any residual damage;
(h) All three were prepared to consider an explanation other than that of shaking. The two experts were also specifically questioned about the possibility of an airway obstruction being the root cause as suggested by Professor Fleming. Both accepted the possibility;
(i) None were prepared to say on the balance of probabilities the injuries seen in Ellie’s eyes were caused by a shaking or inflicted mechanism. Mr Gregson and Professor Taylor were prepared to say they “did not know” or “could not be certain” what caused the injuries and “sat on the fence” when asked whether there was an innocent explanation or non-accidental explanation;
(j) The ophthalmic evidence is only one part of the picture, a piece of the jigsaw which is before the Court
- The conclusions I draw from the ENT doctors are as follows:
(i) All the doctors accepted that Ellie had abnormalities: the cyst, the cleft and laryngomalacia. They also accepted that there were indications she suffered from reflux and the cleft could contribute to possible aspiration of the gastric products.
(ii) They accepted that she had intermittent stridor, noisy breathing indicating an airway obstruction, which could have been caused by the cyst, and/or the laryngomalacia and positioning of the head, but that it was mild and there was no evidence that it was a moderate or severe obstruction.
(iii) None were aware of a link between airway obstruction whether severe or not and intracranial haemorrhages either in personal experience or in medical literature.
(iv) Mr Joseph alone indicated that a sudden reflux could cause a spasm and a closure of the airway which would be sudden and silent, but producing a floppy child.
(v) None of the doctors had examined or treated a child with the three physical abnormalities, nor had they read about such a case, even without the additional complication of reflux.
(vi) They agreed she was an unusual child
- The conclusions I draw from the radiological/neuroradiological evidence are as follows:-
(i) Any fluid seen in the subdural space is an abnormality and cause for concern. It has a pathological cause.
(ii) There are abnormalities seen on the scans and there was broad agreement as to what is visible. The differences lie in the interpretations; what the abnormalities represented;
(iii) There were darker areas of attenuation over the frontal areas and convexities containing small areas of brighter attenuation:
(a) It is agreed the small bright areas represent acute blood;
(b) The darker areas could either be:
(i) Chronic subdural haemorrhage, possible dating back to Ellie’s delivery; or
(ii) Acute traumatic effusions being cerebro-spinal fluid having leaked through damage to the arachnoid;
(iv) Acute blood is seen as brighter attenuation up to 7 to 10 days after bleeding;
(v) Chronic bleeds are seen as darker attenuation and are recognised between 2 to 3 weeks after the bleed. An upper age limited is not possible to assess from the scans;
(vi) Birth related subdural haemorrhages do occur, particularly after a Ventouse delivery. They are asymmetrical and usually resolve/disappear by 4 weeks: some may remain longer;
(vii) New bleeds creating acute subdural haemorrhages require a force which is beyond that of every day handling. An observer would know it was excessive and inappropriate and likely to cause injury to a child;
(viii) Re-bleeds are possible into chronic subdural haemorrhages either around damaged bridging veins or from membranes within the haemorrhages. Lesser force is required to trigger a re-bleed.
(ix) Subdural haemorrhages in themselves do not cause brain injury: but are markers of injury.
(x) Ellie suffered from encephalopathy, dysfunction of the brain which caused her collapse and presentation to hospital;
(xi) There was no evidence of hypoxic-ischaemic damage in the brain, but that did not exclude such injury being present, but not visible and thus very mild;
(xii) Ellie appears to have made a complete recovery from the neurological point of view;
(xiii) There was no evidence on the scans of scalp swelling, or skull fractures or other visible injury to the head. (I leave aside the injuries to the eyes).
(xiv) Whether there were re-bleeds into chronic subdural haemorrhages or an acute traumatic effusion there needed to be an incident of trauma: the degree of force required for such trauma depended upon whether it was a re-bleed or a bleed de novo;
(xv) The traumatic event would have occurred before her presentation to hospital, and most likely shortly, if not immediately before her collapse;
(xvi) The traumatic event could be one involving a shaking and/or impact, or if only enough to trigger a re-bleed a minor force or even the alleged bumpy buggy ride;
(xvii) In Dr Stoodley’s opinion the trauma sufficient to trigger re-bleed’s would not account for the acute bleeding at the back of the head and in the posterior fossa nor the encephalopathy.
- The conclusions to draw from the evidence of Mr Richards and Mr Jayamohan are:
(i) The two neurosurgeons were in broad agreement with the findings on the scans by the neuroradiologists. Like them Mr Richards and Mr Jayamahon could not agree as to the interpretation of the darker attenuation in the frontal areas. They both agreed there was fresh blood within the darker areas and at the back of the head and in the posterior fossa.
(ii) They agreed that an explanation was required for that fresh blood, and the blood at the back of the head and in the posterior fossa could not be accounted for by a re-bleed or movement between compartments and thus a lesser force. They agreed that the most likely explanation was that of trauma.
(iii) They also agreed that Ellie had suffered some brain dysfunction shortly before her presentation to hospital for which there was no obvious answer: the force required for a re-bleed would not suffice.
(iv) They were of the overall view that the encephalopathy and trauma occurred at about the same time and could have been caused by the same event.
(v) Both were presented with Professor Fleming’s evidence and proposition that Ellie suffered an airway obstruction causing cessation of breathing. In her struggle to breathe there was a sharp rise in intracranial pressure which caused her to collapse. They were both prepared to accept this as a possible cause for the brain dysfunction.
(vi) They were also both prepared to accept that the father unintentionally inflicted injury to Ellie in his panic to help her. Neither could say from the scans that the trauma Ellie sustained was accidental or non-accidental in motive. That was for the Court to decide.
(vii) Both acknowledged that the injuries could have been sustained as a result of an unknown cause.
A significant issue was the detection of a cyst in the child’s throat, with the mechanism being that the cyst had caused breathing difficulties, which in turned caused the child to enter into a fit, which caused the subdural haematoma and the retinal haemorrhaging. This had potentially been compounded by the child travelling in a car seat, which if the child had (as in this case) weak neck muscles the head can tip forward and block the airway.
The Court was assisted by the paediatric overview from Dr Fleming
- Sometimes in cases of alleged abusively injured children a paediatric ‘overview’ adds little to the overall medical evidence. In this case Professor Fleming with his great interest and experience in airway obstruction and near life-threatening events in children was able to look at this case and its history in the light of recent medical thinking and with a very objective eye.
- He was cautious, fully aware that there is much to be learnt in medical science particularly with reference to life-threatening events in infants, and the many aspects of their physiology:
“The medical professionals are sometimes arrogant in thinking we know the answers, but our understanding is changing rapidly at present. There are things we know about now that we did not know about 3 or 4 years ago. That is why I am conscious that despite all the investigations we can do in children who have had such life-threatening episodes we don’t actually find an answer as to what’s caused them. Not finding an answer is not to me the same as saying somebody must have done it”.
- If I may say, wise comments from a very experienced practitioner and one of which doctors and lawyers alike should take heed.
And the Judge then pulled all of this together, and an analysis of the parents evidence.
- 15 February
- I turn now to the 15 February. Should I make the finding sought that the father caused Ellie to suffer a non-accidental head injury by doing something, a shake, a shake with impact or other mechanism in a brief loss of temper or control?
- Do I accept the father’s evidence that something silently happened to her before in panic he scooped her out of the car seat?
- Do I accept that his actions of scooping her up, putting her onto the bed inadvertently caused her some injury, but only after she had collapsed?
- The father’s description of Ellie’s collapse, appearance and floppiness are descriptions of an encephalopathy or brain dysfunction.
- Her presentation to hospital and clinical observations are those seen typically in an infant who is suffering from an encephalopathic illness.
- It is accepted that the illness could have either an innocent explanation or a non-accidental one.
- The investigations undertaken have shown that she was not suffering from any illness or other disorder and unless there was an unknown cause, not impossible, the doctors effectively excluded an illness or disorder.
- The CT and MRI scans reveal subdural collections in the frontal area, and at the back of the head and in the posterior fossa. The frontal collections contain acute blood, and there is acute blood at the rear of the head. There is a dispute as between the neuroradiologists and neurosurgeons as to what the frontal collections represent; there is no dispute as to the presence of acute blood in the various areas. There is no dispute that the acute blood was caused by trauma, the exact nature of the mechanism and force required is disputed, subject to the individuals’ interpretations.
- The important blood to consider is that at the back of the head and in the posterior fossa and the possible mechanisms and forces required to cause it.
- Otherwise the neuroradiologists and neurosurgeons agree that on the scans there was no other evidence of hypoxic-ischaemic damage or injury to brain, and no evidence of an impact to the skull or scalp. The radiology revealed no other injury to Ellie’s body and other than the burns there were no other marks or bruises on Ellie.
- There were retinal haemorrhages present which were not typical of a shaking injury and which required explanation.
- Ellie was an unusual child with three abnormalities in the laryngeal area. The cyst and the cleft are rare features, the laryngomalacia more common. That combination with the cyst could have caused her intermittent stridor. No doctor appearing before me had ever encountered a child with all three abnormalities present.
- She also suffered from reflux.
- There was strong evidence from Professor Fleming that Ellie could have suffered from airway obstruction, either as a result of laryngo spasm triggered by reflux, or by her head dropping forward whilst asleep in her car seat. Either way she could have collapsed through an inability to breathe and consequential lack of oxygen. Either would give rise to rapid changes in intra thoracic and intra-cranial pressure which in turn could have caused the retinal haemorrhages.
- The experts, the neurosurgeons in particular and the ophthalmologists were able to accept this hypothesis as possible.
- Professor Fleming was not so certain about the acute blood at the rear of the head, and I felt the other evidence that indicated a trauma of some form was required to cause it was stronger.
- The neurosurgeons accepted that a swift arc like movement from the car seat and a bang onto the bed following a collapse induced by an airway obstruction was a possible explanation for the presence of the acute blood both at the back and in the frontal regions. Even Dr Stoodley who preferred an overall inflicted shaking causation could accept it as a possibility but an unlikely one.
- On the medical evidence alone there is no strong pointer that the injuries Ellie sustained were inflicted through a loss of control or temper by a perpetrator shortly before her collapse.
- I go further. On the medical evidence alone I think the Local Authority has difficulties. There are too many pointers which question a conclusion of inflicted injury. There is a strong pointer indicating an innocent explanation for the collapse, being the airway obstruction as propounded by Professor Fleming and accepted by the neurosurgeons as possible.
- The Local Authority has to prove its case. In my view on the medical evidence alone I do not think that it has established on the balance of probabilities that the injuries Ellie sustained were non-accidental in origin. There is too much strong evidence flowing the other way. I do not make the finding sought by the Local Authority that she was a victim of an abusive head injury.
- Where does that leave me? Am I in a position to take the matter further, or merely leave it as a case of no find of fact against the father?
- In fairness to all I should try to go further. Ellie and Isabella when they grown up need to know with as much clarity as possible what happened to Ellie in February 2007 and why they were separated from their parents while still infants.
- The parents have suffered enormous loss as a result of the findings. If I can exonerate them from wrongdoing in February 2007, the father in particular, I should do so. This family, all three generations, have suffered as a result of the findings made in January 2008. The grandparents’ planned quiet retirement was invaded by their granddaughter. It has been their pleasure and enjoyment to bring her up, but it has been at an enormous physical and emotional cost. Neither is in the first flush of youth or best of health. It could not have been easy for them to change gear and take on a toddler. They have done well. Ellie is thriving in their care. Without them she would have been adopted, but the additional cost is they have lost touch with their own daughter, and she with her siblings. The family circle has been shattered. I hope the damage can be repaired, and if it be possible any work might be assisted by all the adults knowing what I think probably happened to Ellie that February evening.
- I therefore ask myself: Do I accept the father’s account of the events of that early evening, that all was peace and calm before Ellie for some reason collapsed; and do I accept his now not clear account of his reaction to seeing his daughter lifeless?
- There is corroboration from the parents themselves describing intermittent noisy breathing and episodes of intense paleness. Professor Fleming accepts these could be symptoms of the underlying, and then unknown laryngeal abnormalities.
- There is corroboration from Dan the flat mate that all was quiet and he did not know Ellie was there until summoned by the father.
- There is corroboration from the 999 tape and transcript that the father was panicking.
- The incident took place more than 5 years ago. The father was panicking and frightened for his daughter and I accept it is likely in those circumstances he may not now recall the exact details of what he did after the collapse or what he said on the tape. Even nearer the time given his panicky state of mind he may not have recalled the precise details. Such corroborative evidence as is available supports his account.
- It is inherently unlikely that a ‘silent’ something happened which caused the father to silently lose control and silently inflict an injury upon Ellie. He is not someone who reacts silently, even in court when he disagreed with a piece of evidence he was muttering and overheard by others. If there had been an event which had caused him to lose his temper or control he would not have been silent, he would have been heard by Dan. There would have been some form of commotion.
- According to the neurosurgeons in particular his account of a collapse followed by a panicked reaction involving a swift arc-like movement onto the bed could have had the same effect in Ellie as if she has been shaken or shaken with an impact onto a soft surface.
- On the medical front there is an innocent explanation for all the injuries Ellie sustained having taken into account the father’s own evidence. It is a complex picture that involves two innocent events in quick succession.
- Overall, I felt both parents wanted to be open with me. I felt in this context the father was anxious to be truthful. He did not say he remembered it all; he did not try to provide new information. I accept his account. I do not think he inflicted an abusive injury to Ellie. It may well be that inadvertently he injured her, but only in a reactive way after she had collapsed. I wonder how many parents in a panic situation scooping up a lifeless infant from a car seat remember to protect the wobbly head. I am sure many parents would not.
- It may be in failing to do so and swinging her round too fast he mimicked a rotational shaking movement; maybe he banged her head too hard onto the bed. He was a new and inexperienced parent reacting to a very difficult and frightening event. He was seeking to revive his baby. He may well have acted in too much haste and with too much force but not intending to harm her in any way.
- I do not blame him for causing injury to Ellie, while I accept that he may have done so with all good intention to help her.
- I hope everyone will accept that I do not attach any culpability to him, and that in my Judgment he is exonerated from causing her any inflicted injury. If, in fact, he did cause her injury it was purely accidental.
There are some final conclusions, which are very important. One is the Judge’s firm views that the involvement of neurosurgeons in a case of this kind is vital, with which I completely agree. Another is that the role of the Guardian, and her representatives in this case was pro-active and assisting the Court in reaching the truth, rather than the passive ‘deckchair brief’ that it often becomes.
We have had three judgments this year, McFarlane LJ, Justice Mostyn and now this one, and this is the strongest of the three. I would say that this is, because it is a positive decision praising the Guardian and her representatives for being pro-active, that it is now authority for the principle that this is what a Guardian and his or her team should do in fact finding hearings. Fold up the deck-chair and get stuck into the medical records.
If you are representing a Guardian in a fact-finding hearing, or if you are involved in a fact-finding hearing and think the Guardian is being entirely passive, these passages are vitally important. [My underlining]
I could NOT agree more forcefully with these sentiments – it isn’t for the Guardian to prosecute or defend, or to take a side, but to ensure that the possibilities are properly explored and that the Court has the best chance of reaching the truth for the children concerned.
- And Finally
- The medical evidence which I heard is very distant from that heard by HHJ Atkins in January 2008.
- To begin with neither he nor the criminal trial, nor indeed the Court of Appeal had sight of the CT scan of 26 February. Its first appearance in Court was before me and before I heard any evidence. Why it was not produced to Judge Atkins I do not know. It is a most valuable document identifying the subdural collections, the acute blood in the subdural space, and the cyst in the larynx.
- The Learned Judge heard evidence from Dr Rich, the “treating” Consultant Neuroradiologist, and Dr McConachie, the expert Consultant Neuroradiologist, who declined any further instructions in these proceedings. I did not. He did not have the evidence of Dr Anslow or Dr Stoodley.
- He heard from Dr Salem, Dr Dutta, and had reports from Dr Shepherd, all being ‘treating’ doctors. He heard from Dr Lloyd who was jointly instructed, and Dr Harding instructed by the mother. I did not.
- He heard from Mr Richards who has never seen the whole medical evidence. He did not hear or see any report from Dr Jayamohan.
- He heard from Professor Proops and Mr Joseph, both Consultant Otolaryngologists and ‘expert’ witnesses. He also heard from Mr Daya, the treating Consultant ENT Surgeon. I did not.
- He heard from Miss Leitch the ‘treating’ Ophthalmic Surgeon and Mr Gregson and Professor Taylor who were instructed as expert Ophthalmologists. I did not hear Miss Leitch.
- He also heard from Dr Cussons, a Consultant in Burns and Plastic surgery. Although I have seen his report and views he was not required, and I preferred the more pragmatic view of Professor Fleming.
- The Learned Judge did not hear from Professor Fleming, who was particularly instructed by the parties for this hearing as an expert paediatrician with considerable experience and interest in treating infants with airway and breathing difficulties, and those who have suffered a life-threatening event.
- It was very fortunate that he was available. The issue of airway obstruction had been raised long ago, particularly by Dr Salem who called for an expert. Although Dr Harding accepted the proposition her evidence was not so strong. Professor Proops’ evidence discounted airway obstruction as did Dr Lloyd.
- I have not read HHJ Atkins’ Judgment of January 2008 or the summing up of HHJ Stow, and deliberately so as to ensure that I dealt with the ‘raw’ medical evidence only and not that as recorded or interpreted by another. I cannot and do not criticise Judge Atkins Judgment, and I make no comment upon Judge Stow’s summing up.
- I have come to different conclusions from Judge Atkins on different and more expansive evidence. In my view it is important for me to emphasise this so that the parents, the grandparents and the girls in time can appreciate this. It may also be of some value to the Local Authority.
- I wish only to add a few comments and thoughts.
- I add also that in many cases involving a fact-finding hearing of alleged abusive injury a Guardian plays little or no part in the proceedings at that stage.
- In this case although I gave leave that the Guardian personally need not attend every day she was most ably represented by experienced Queen’s Counsel and experienced Junior, newly drawn from the ranks of solicitors.
- The Guardian through them was kept closely informed of the medical evidence. She was able to reflect upon it, and give clear instructions. She came to hear the parents’ own evidence, which in itself is important if a case is to go further.
- She gave clear instructions for her written submissions.
- I appreciate that it is important to consider costs in such cases, but in this case the Guardian’s involvement and interventions have been of great assistance and significance in the final outcome.
- There is no reason why a Guardian should not play an active part in a fact-finding hearing. There are very good reasons why a Guardian should.
- A Guardian represents the interests of the child. It is in the interests of that child that the truth is ascertained with as much clarity as possible.
- It is the child’s right to know in later life what happened in his/her childhood, and why certain decisions were taken.
- In days gone by when I was still practising, and when some children were represented by a Guardian, then the Official Solicitor, the Guardian’s Counsel took an active part in the fact-finding part of the hearing and was expected to do by the Judge and other Counsel ensuring that the relevant and appropriate questions were asked and issues raised for the Judge.
- In the appropriate case a Guardian should not only be represented but personally attend parts if not all of a fact-finding hearing, and be prepared to play as full a part as is necessary in that hearing: only then can the child be properly represented.
- The instruction and evidence of Professor Fleming only emphasises in cases of alleged inflicted injury and difficult medical issues to resolve the need for all parties and their legal advisors and Courts to consider with care the type of expert required, and the particular expert’s expertise and experience.
- It was also important in this case to have the evidence of two experienced Consultant Neurosurgeons. The evidence of a neurosurgeon tends to be broader than that of a neuroradiologist. A consultant neurosurgeon is capable of viewing a scan and interpreting what he sees, he then on operating will see the real thing, and see in fact what he saw as an image on a screen. He also has the advantage of meeting the parents or carer of an injured child, and indeed has to meet with and console grieving adults. Whilst working with the neuroradiologists discussing cases both neurosurgeons said they could read the scans, but deferred to the neuroradiologists for subtleties on the scan.
- Again in some cases and with an eye to the costs of cases it may be appropriate to consider instructing an expert neurosurgeon rather than neuroradiologists. In many cases the evidence only of a neuroradiologist is adequate.
- It is also important to reflect that in the last 5 years further research has been carried out and papers published on head injuries to infants. There has been much debate on the medical and legal worlds as to how or why some injuries occurred. The debate has emphasised that there is still much that is not fully understood and much to learn. Professor Fleming put it so well, that there was a need to be cautious, not arrogant, and to know that medical science is still learning.
- I simply add: “we do not know it all”.
- The late Mrs Justice Bracewell once commented to me after a particularly difficult case that it was at the “very edge of medical science”, “she could only do her best in the light of the evidence put to her”.
- Mr Justice Hedley is right: “we are fearfully and wonderfully made”.
[See, I said we’d be seeing that line again. It”s from the King James Bible, Psalm 139:14 if you’re interested]