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Unravelling the Triad

 

The judgment of Mostyn J in Lancashire County Council and R 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3064.html

 

This is an interesting one, particularly as it pulls together a body of medical thinking on the cluster of symptoms which normally end with a finding of a non-accidental “shaking injury”

 

The two features of the classic “Triad” which were present here were a subdural bleed in the brain of the child and retinal haemorrhages. One never wants to see those injuries in a child, and for a long time they have been warning indicators that whatever had happened to the child might require the Courts to become involved, not just doctors.

 

The judgment begins by saying that the LA involved were right to bring the case, that they would have been badly criticised if they had not done so, and though the Judge is disappointed that the fact-finding hearing took some eight months to get going he attributes no blame to any of the parties.

 

 

 

The local authority, who through Miss Heaton QC has conducted its case professionally, coolly, and responsibly, argues also that this was not a case of an assault coming out of a clear blue sky perpetrated by a man of unblemished character. Rather, they say that this father is a man with criminal convictions for unprovoked assaults who had at least once prior to the incident assaulted the mother by placing his hands around her throat. Since the incident he has done the same thing again. He had recently lost his job and they were all living in inadequate cramped accommodation. There were plenty of stressors here, it says, which in combination with the father’s aggressive and impulsive personality should lead me to disbelieve him and to conclude in conformity with Mr Newman (in particular) that this was indeed a case of abusive assault.

 

The medical evidence was not speaking with one sole voice

 

On the other hand, some of the medical evidence suggests that this was an assault, although it is fair to say that the experts do not speak with one voice. The expert consultant paediatric ophthalmologist, Mr Newman, believes it is very much more likely than not that these retinal haemorrhages, both in their type and plenitude, are indicative of non-accidental injury. The expert neonatologist, Professor Wyatt, believes it is more likely than not that this was a non-accidental injury, although his degree of certitude is far less firm. However each of these experts accepts that it is possible that the father’s explanation furnishes the true reason for the injuries. The expert paediatrician, Dr Samuels, and the expert paediatric neurosurgeon, Mr Richards, are more equivocal and each believes that the competing scenarios are equally likely.

 

 

The father’s account was that he had got up to tend to the child in the night and had tripped and fallen on the child.

 

 

 

 

It is agreed that the case really boils down to the question of whether I believe the father or not. If I believe his story that this was an accident where he tripped and fell when holding N then that is the end of it. That story is not incompatible with the expert evidence. Mr Newman, while believing it to be highly unlikely does not rule it out. The other experts, more or less, believe that it is about as likely as the assault theory.

 

 

The Judge summarised current medical thinking in relation to subdural bleeds and retinal haemorrhages, and this will be useful to anyone involved in such a case.  It has been some years since I was last involved in an alleged “shaking” injury case, and I cross my fingers that I never see another, but things have certainly developed very significantly since my last one. Underlining here mine for emphasis.

 

  1. Before I look at the individual contributions I wish to make some preliminary observations:-

i) The presence of subdural and retinal haemorrhages, and for that matter encephalopathy (which taken together constitute the famous “triad” referred to in the jurisprudence and the medical literature), do not of themselves prove anything other than the infliction of a head injury. As Mr Richards said, the triad is an indicator of injury only, not of how it occurred.

ii) Inasmuch as the presence of the triad is, or some of its components are, used in the process of forensic proof then this is based on statistical or empirical evidence, which states that there is a high prevalence of these features in many proven cases of abuse. However I was not given evidence as to how many of these cases were proven as a result of the presence of these features, as opposed to those which were proven to be abusive by reference to other evidence, such as confessions. If many were in the former class then of course the process of logical proof may be said to be circular, as Mr Richards pointed out. Further, it is a fact that very many children who present with head injuries arising from an indisputable accident such as a fall are neither scanned nor subjected to ophthalmological testing. They are just patched up and sent home. This is because a CT scan by definition irradiates the brain, which is something to be avoided wherever possible. For a child of more than three months of age a MRI scan requires general anaesthesia – again a procedure not be undertaken unless unavoidable. Ophthalmological testing requires awkward and unpleasant dilation of the pupils. These tests are only likely to be commissioned where there is either a suspicion of abuse or where there are clear symptoms of head injury, such as persistent vomiting. Therefore the data is compiled from a class which has a high prevalence of suspected abusers. Accordingly it might be said, and Mr Richards agreed, that the sample on which the empirical analysis is based is a false or skewed sample.

iii) In the realm of subdural bleeds there seems to have been a relatively recent shift away from the prevailing orthodoxy. Not so very long ago the presence of a subdural haemorrhage in a recently born child was taken to be strongly indicative of abuse unless the birth was especially traumatic. On the basis of this supposition very many children will have been permanently separated from their parents. Yet, authoritative research over the last decade has demonstrated that this supposition is false. The Rooks paper in 2008 was the last of three important pieces of research and showed that no fewer than 46% of normal births caused subdural bleeding. We now know that many appalling miscarriages of justice must have been perpetrated in reliance on the old, now discredited, orthodoxy. Further, current medical and clinical thinking is now prepared to accept that short falls can in many cases cause subdural bleeds; the view that this could only happen exceptionally is now regarded as outdated. As Mr Richards said to me (and this chimes with the judicial opinions cited by me at para 8(ix) above as well as with Secretary Rumsfeld’s famous apothegm about unknowns) “the more you know the more you know you don’t know”.

iv) The ophthalmological world has not undergone an equivalent shift in thinking. Here the view remains that multitudinous bilateral retinal haemorrhages are strongly indicative of abuse and that it will only be exceptionally that they will be the result of an accident. But this is not a unanimous view. Mr Richards told me of the work of Dr Gillian Adams at the Great Ormond Street Hospital who is apparently collating a body of material which she intends to publish which challenges this orthodoxy. Further he referred me to the work of an American pathologist called Dr Lantz who (among other pieces of similar work) has published an article in the Journal of Forensic Sciences in November 2011 entitled “Fatal Acute Intracranial Injury, Subdural Haematoma, and Retinal Haemorrhages Caused by Stairway Fall”. This was a case study concerning a 7¾ month old child who fell down a flight of six stairs through a vertical height of 1.42m at a pitch of 37°. Sadly he died. An autopsy established that he had not only suffered from subdural bleeding but also from extensive bilateral retinal haemorrhages. This led Dr Lantz to conclude:

“These published reports of original data are discordant and controversial, making the correct classification of a young child death following a reported short fall a diagnostic challenge. Most childhood stairway and low-level falls do not cause serious head injuries. Nevertheless, not all seemingly minor falls are minor. This case report refutes a pervasive belief that childhood low height falls are invariably trivial events and cannot cause subdural bleeding, fatal intracranial injuries, and extensive multi-layered retinal haemorrhages. The harmful and potentially devastating consequences for a caregiver or family facing a false allegation of child abuse obligate physicians to thoroughly investigate and accurately classify paediatric accidental head injuries”

 

 

There are a number of important things in those passages. Mostyn J makes the very good point that the CT scans and eye examinations tend to be done in cases where abuse is suspected or really serious injuries observed. One knows therefore that the symptoms are present in such cases, but what one doesn’t know is whether they may have been present in much milder cases, such as falls from short heights or accidents. 

 

Also that medical orthodoxy has shifted considerably in recent years in relation to subdural bleeds (the figure of how frequent these are in births made me blink, and I dare say it might make others do the same) and it seems that we may be at an early stage on the same path in relation to retinal haemorrhages.

 

 

 

The final expert witness was Mr Peter Richards, consultant paediatric neurosurgeon at the John Radcliffe Hospital in Oxford. In his written report he stated that it is generally considered by most paediatric specialists who deal with infant head injury that low level falls described here do not cause acute subdural haemorrhages, and that a similar thinking applied in the ophthalmological world to retinal haemorrhages. Tellingly he stated that 12 months ago he would have agreed with this view but now he has had cause to doubt it. Only a very small percentage of children who suffer low level falls undergo specialist neuro-radiological investigation. Therefore it is possible that the incidence of low level falls causing subdural bleeding has been underestimated. Indeed in his own practice he had a child who fell off a sofa and who was perfectly well but because that child had a shunt in place it was felt prudent to have a CT scan to make sure that the shunt was working properly. To everyone’s surprise the CT scan showed a subdural haemorrhage. This case, and other cases encountered by him in his medico-legal practice, have led him to question the view that low level falls of the type described here does not lead to subdural bleeding. While he defers to an ophthalmologist in relation to retinal haemorrhages he drew my attention to the work of Gillian Adams to which I have referred which apparently will show that low level falls may cause significant retinal haemorrhaging. In the circumstances from a medical standpoint he could not determine whether the history as given is true or false on the basis of the medical features alone

 

 

There were four very heavyweight experts in this case, drawn from a variety of disciplines. Their evidence was necessary for the Judge to reach a proper finding, and one hopes that the drive towards less experts and faster resolution (remember, this finding of fact hearing took two months longer than the entire duration of proceedings that we are meant to be aiming for) doesn’t end with investigations of this type in future not being sufficiently thorough.

 

 

The Judge then drew these strands together, and considered the totality of the father’s evidence

 

  1. I therefore now state my final conclusions. I am of the opinion that a schism is beginning to form between the subdural and retinal disciplines concerning the forces involved in low level falls. I agree with the submission made by Mr Storey QC that in some respects the medical evidence given on behalf of the respective disciplines is irreconcilable.
  1. I remind myself that medical science is always moving on. It was not that long ago that the bleeding of patients and the use of leeches was de rigueur. Given the striking differences of emphasis and approach by the two disciplines it would in my judgment be dangerous for me to judge this case predominantly by reference to the mainstream orthodox opinion of Mr Newman particularly where there is research in the wings which may question that orthodoxy. If Mr Newman had not made his contribution I doubt whether this case would have been pursued after the subdural reports were in. So my overall assessment of the medical evidence looked at in isolation is that it does not provide me with a sure or firm basis on which to conclude that it was more likely than not that these injuries were caused abusively.
  1. In my opinion the absence of any of the tell-tale concomitant injuries which so often feature in shaking cases is important in helping me to inform the judgment which I must make.
  1. I do not know how the medical profession will resolve the statistical conundrum to which I have referred. Obviously children who have suffered minor falls cannot be routinely scanned and tested ophthalmologically. But until the data referable to these minor falls has been assembled I do not see how a statistically valid survey can be undertaken which can authentically and rationally conclude whether such falls do, or do not, regularly give rise to retinal and subdural haemorrhaging. Further, in order for the empirical work to be sufficiently persuasive to lead to the very serious findings that are sought here there surely has to be a discrimination between short falls from a standing start and the sort of fall described here which must have involved considerable horizontal, vertical and rotational forces. Yet so far as I am aware no such discrimination is made in the medical literature.
  1. And so I turn to the credibility of the father. I do not form the same adverse view of him as a man and a parent as that advanced by the local authority. He has very obvious flaws; but he has qualities also. I judge him to be truthful in his evidence to me, but I have to be alive to the possibility that he is a highly accomplished liar capable of embellishing a pack of lies with convincing snippets of circumstantial detail and by affecting displays of emotion. However in this particular regard I am assisted by the stance of the mother who is represented by the highest quality counsel and solicitors. Having heard all the evidence, having received appropriate advice, and knowing the father better than anyone in the courtroom, she firmly believes that he is telling the truth.
  1. In judging the father’s credibility I do not place any weight on his criminal record as being suggestive of a propensity to assault his infant daughter. The crimes in question, while deplorable, are of a totally different character to the one alleged here. By the same token I do not derive any assistance in my task from the two ugly and unpleasant incidents where the father manhandled the mother. Again, this conduct, which is much to be deprecated, is in a class apart from the conduct which is alleged here. Further, I do not accept that this was a family beset by stress. In fact the evidence shows that the family was living a mundane quotidian existence where the focus of attention of the parents was their beloved daughter.
  1. If this was a case of abuse then it was a very bad case indeed because it would not only have involved a violent shaking but then the hurling of N, or the bashing of her face, against a hard surface. It would have been an assault in two parts. This takes the theory beyond a momentary loss of self-control into the territory of sheer malignity. I consider this to be unlikely. On the other hand the father’s account is perfectly consistent with both the haemorrhages and the facial wounds. Mr Rowley QC submitted, that when looking at this aspect the process of logical reasoning known as Occam’s Razor favours the father’s case. I agree. Further, there are aspects to the local authority’s theory that are problematic. If N was crying loudly and incessantly, so much so that the father snapped and brutally assaulted her in the manner alleged, then why did these cries not wake the mother up? If N was crying loudly and incessantly why did the father not simply take her upstairs to her mother? No satisfactory answers to these questions were given to me.

 

 

[Of course, being trite, the last two questions are true of almost every case of physical abuse that is actually proven. We will never know why the other parent did not wake up, or why the parent who felt that they were about to lose it faced with an inconsolable baby doesn’t just walk away. I didn’t feel, personally, that the last two questions really add much. Nor would I necessarily want to see Judges placing huge weight on the underlined passage – the fact that mum believes dad isn’t all that helpful necessarily.  I can see why in this case, they added to a preponderance of evidence that was pointing towards exonerating the father, of course]

 

Despite those slight qualms about the final summation, this is a very rigorous judgment, drawing together some important strands and highlighting the tension between medical thinking on subdural bleeds and retinal haemorrhages and that there is research around or forthcoming which challenges the orthodox view on the latter.

 

This case is likely to be a good starting point for any lawyer faced with a case involving such injuries.

 

 

 

 

A tapestry of justice

 

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:-

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2604.html

 

 

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.

 

  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.

  1. 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.

  1. On 14 August 2008 the Learned Judge made the Special Guardianship Order to the maternal grandparents and the contact orders for the parents.
  1. 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.
  1. 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.
  1. 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]

 

  1. The Injuries Ellie received
  1. Ellie collapsed in the father’s home. She suffered brain dysfunction or encephalopathy. She sustained subdural and retinal haemorrhages.
  1. 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.
  1. 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.
  1. 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.
  1. The findings in every case must depend on the specific individual facts to that case.
  1. 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.

 

  1. My Conclusions
  1. 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

 

 

 

  1. 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

 

 

 

  1. 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.

 

 

  1. 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

 

  1. 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.
  1. 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”.

  1. 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.

 

  1. 15 February
  1. 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?
  1. Do I accept the father’s evidence that something silently happened to her before in panic he scooped her out of the car seat?
  1. 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?
  1. The father’s description of Ellie’s collapse, appearance and floppiness are descriptions of an encephalopathy or brain dysfunction.
  1. Her presentation to hospital and clinical observations are those seen typically in an infant who is suffering from an encephalopathic illness.
  1. It is accepted that the illness could have either an innocent explanation or a non-accidental one.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. There were retinal haemorrhages present which were not typical of a shaking injury and which required explanation.
  1. 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.
  1. She also suffered from reflux.
  1. 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.
  1. The experts, the neurosurgeons in particular and the ophthalmologists were able to accept this hypothesis as possible.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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?
  1. 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.
  1. 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.
  1. 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?
  1. 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.
  1. 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.
  1. There is corroboration from the 999 tape and transcript that the father was panicking.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.

 

  1. And Finally
  1. The medical evidence which I heard is very distant from that heard by HHJ Atkins in January 2008.
  1. 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.
  1. 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.
  1. 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.
  1. He heard from Mr Richards who has never seen the whole medical evidence. He did not hear or see any report from Dr Jayamohan.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. I wish only to add a few comments and thoughts.
  1. 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.
  1. 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.
  1. 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.
  1. She gave clear instructions for her written submissions.
  1. 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.
  1. 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.
  1. 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.
  1. It is the child’s right to know in later life what happened in his/her childhood, and why certain decisions were taken.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. I simply add: “we do not know it all”.
  1. 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”.
  1. 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] 

 

Liberace, losing and Lou Gehrig

Some thoughts arising from the Evidence in Child Abuse Cases  #ECAC course I attended today.

 

Firstly, it was an excellent course, and had a lot of fresh and useful material.  It was a genuine pleasure to hear Jo Delahunty QC  (who is like the most charming intelligent surgical scalpel you will ever meet) speak on the Al Alas Wray case  (which I’ve blogged about before – here : –   http://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/                as she was leading counsel for one of the parents, and so had a wealth of useful insights and tactics to put forward.

 

Secondly, there was a paediatric neuroradiologist sitting in front of me who is DEFINITELY going to get instructed next time I need one. Likewise the paediatric neurosurgeon. And no, I’m not sharing names, because I want them to be available when I call them.

 

One slightly awkward moment when an entirely different barrister responded, during the Panel session, to a barbed question from a doctor about whether Court is the best place to resolve complex medical issues with the R-bomb  (With the greatest possible respect).  Kudos to the questioner, for not responding, as I might have with “you know what, I’ll see your ‘crusader for justice’ and raise you ‘I save children’s lives for a living’ , so keep your Respect to yourself”  and instead just said “with all due respect”  which was even better)

 

Anyway, Liberace.  You may not know, if you are younger, who Liberace is. So he was a flamboyant singer, who looked like this :-

 

 

In 1956, the Daily Mirror printed a story saying that he was gay.  It was the Fifties, perhaps people needed to be told the bleeding obvious back then, and perhaps for some reason it was any of a newspaper’s business what a celebrities sex life was like  (thank goodness times have changed)

 

Liberace sued them for libel. (he couldn’t, presumably, sue them for being homophobic jerks, because this was the Fifties).

 

He won his case,won about £15,000  (which in those days was at least several houses) and coined his expression “I cried all the way to the bank”.

Now, as you probably know, truth is a defence to libel. So, someone, representing the Mirror, went to Court, and tried to persuade the Court that it was true that Liberace was gay. And failed.

 

Feel free to look back at the photograph, which would have been my exhibit one.

 

I suspect whoever had that brief for the Mirror put on a tie with a smile on his face, and walked to Court with a spring in his step that day. They didn’t know much about basketball in those days, so the phrase “slam dunk” was meaningless to them, but if there was ever a slam dunk, that was it.

 

So I occasionally like to ponder the mixed feelings of the two counsel on that case – one with a mountain to climb who did so, and one with what looked like a molehill to step over, who fell over it.

 

The Al Alas Wray case is of course, not in that same league. For one thing (and I am sorry if this crushes any illusions) , Liberace really was gay, so shouldn’t have won; and the odds weren’t quite so slanted, but still, one is expected to think as counsel seeking the findings with the great and the good of Britain’s medicine lined up behind you, that you will see off these fancy American experts with their crazy theories, but it was not to be.

 

But the reason it was not to be, and this really came home today, listening to Jo Delahunty QC, is that people involved put in huge amounts of work. Medical reports weren’t just obtained and copied, or read through, they were digested and tough questions formulated arising out of them. The truth came out, but it wasn’t like finding a doorkey under a doormat – just a quick bit of lifting and there it is – this was truth obtained by painstaking forensic analysis.

 

And what was clear to everyone in the course was that Al Alas Wray might well represent the high watermark of when English family justice meant just that, that a person wrongly accused has the weight and resources of the law behind them and has the chance at a fair trial.  A similar case in two years time, is not going to get the experts that are needed, the time that each expert needs to read the source material, the ability to call and test that evidence  (it seems pretty clear that cross-examining experts will be a rarity even when you do get to instruct one) and certainly isn’t going to have the period of time it takes to do a case like that properly.

 

There was some interesting discussion about head injuries, and the medical research on lucidity.  A key piece of research, which offsets the previous position of Chadwick 1997 that “If a history purports a lucid interval that history is likely false and the injury is likely inflicted”   was Denton and Mileusnic 2003 where the child suffered a witnessed fall backwards 3 feet onto vinyl floor, was fine and tragically died 3 days later.

 

It’s a telling example of how even though any particular case might have to make medical history for the explanation given to be correct, medical history can be made by a single case.   (And the one of those that leapt to my mind was Lou Gehrig, the baseball player, who died of Lou Gehrig’s disease. Plus, it started with an L, so it fitted.  And was referenced by Bill-Hicks-rip-off-merchant Dennis Leary  with the tasteless aside  “How’d he not see that coming?”.    )

 

Frankly, Phineas Gage is a better example particularly as we’re talking head injuries, and his story is fascinating if you haven’t already read it.  He was a railway worker, who suffered a serious head injury, destroying his left frontal lobe  which changed his entire personality, and is pretty much the beginnings of neuroscience, and moved us from reading bumps on people’s heads to finding out which bits of the brain do what.

http://en.wikipedia.org/wiki/Phineas_Gage

 

subdural haematomas, fractures and rickets

This is a case which has been in the news lately. I was tempted to write a blog on it, but I have to be frank and say that the summary prepared by Leading Counsel in the case which appears here :-

http://www.familylawweek.co.uk/site.aspx?i=ed97208

would be hard to be bettered.

I think that Islington were in an extremely difficult spot here. On the one hand, the case did not go before a Jury in the criminal trial because the trial Judge did not consider that it would be possible given the medical evidence for the criminal standard of proof to be met.  (It may have gone higher than that,  since it wasn’t even put before the jury with a direction to acquit, and it may have been that the criminal summing up went very close to saying that the defence were right)

But Islington were faced with medical professionals in their area saying that the injuries were as serious as it is possible to be, and were on the balance of probabilities caused non-accidentally, and faced with another child of the family.

They had a tough decision to make – either no intervention at all (since if the American experts were right, the parents had done nothing wrong and suffered a huge tragedy AND had that compounded by a criminal trial) or place the issue before the Court to establish whether it was more likely than not that the younger child was at risk.

It is of course, awful, that the parents had to go through not only their loss, but two sets of legal proceedings to defend themselves and reach the truth, and that this process was no doubt gruelling, distressing, arduous and all consuming.

But I think those who criticise Islington for bringing the case perhaps misunderstand the position that they were in – it wasn’t a second bite of the cherry, but an untenable position that was only capable of being resolved by either the Local Authority taking a gamble that the American experts had been right and there was no risk to this child (and who would have been defending them had they taken that gamble and been wrong) or saying to a Court – this is beyond our scope to decide which set of medics is right, and that’s what you’re there for.

The Court could have taken a very robust view of the case at a really early stage and said, having viewed the criminal papers, it is understandable that the Local Authority have brought this case but there is no need for a finding of fact hearing and the Court is satisfied that the threshold isn’t met. That would effectively have taken that burden of managing an unknown risk off the shoulders of the Local Authority. The Court did not do that. The fact that the Court decided that the issues in the case had to be resolved by a four week finding of fact hearing meant that the issues were difficult and needed careful thought and resolution.

It might be, I know not, that when the evidence was heard, it was all blindingly obvious what the correct version of events was, but it wasn’t blindingly obvious until that process began, and I think that everyone involved in this process was just in a really difficult situation.

 

[Caveat – there’s obviously a large range of nuance that can be applied by a Local Authority in this situation, from the extremes of “We don’t believe that these parents did anything wrong, and invite the Court to give a brief judgment to that effect” to “the LA firmly believe in the medical views expressed by the Great Ormond Street medics, and seek the highest findings” and where this LA positioned themselves on that wide scale is probably critical]

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