Well, you’d surely say, if asked to find the link between Donald Rumsfeld and paediatric head injuries, that it would be “was he dropped on his head as a child?”
But no, it would be the Court of Appeal decision in Re M (children) 2012
It has been a year of the Court of Appeal moving away from the concept of medicine being infallible and towards what is described in this case as the “Donald Rumsfeld question” – i.e that “there are known knowns; there are things we know that we know. There are known unknowns; that is to say there are things that, we now know we don’t know.
But there are also unknown unknowns – there are things we do not know we don’t know”
I remember that being scoffed at, when Rumsfeld said it, but it begins to make sense when you look at it carefully.
This is the case of Re M (Children) 2012 , yet another Court of Appeal case in 2012 on complex medical injuries where the initial finding of non-accidental injury was overturned on appeal (though in this one, the case was submitted for re-hearing, rather than the Court of Appeal finding that the injuries were accidental)
It is a good start for a law geek when the Court of Appeal judgment has almost immediately a sub-heading labelled “the conundrum” – which produced an almost Pavlovian reaction in Suesspicious Minds, who lives for this sort of thing.
It was not and is not disputed that when M was admitted to hospital on 3 August 2011, when she was just five months old, she had three (possibly four) fractured ribs, those fractures having occurred on at least two occasions, and fractures to her skull. What lifts this case out of the ordinary – indeed makes it unprecedented and thus unique in the experience of the very distinguished experts who gave evidence – is that although M had indubitably suffered complex bilateral skull fractures, described by one of the experts as “spectacular”, she had not suffered the very serious brain injuries which would be expected to accompany fractures of such severity.
At the very beginning of her judgment the judge described the case as “most unusual and difficult.” She explained why (paragraph 2):
“I should record at the outset that the skull fractures are spectacular, so complex and extensive that they have been described by the experts as beyond anything they have seen before in a child of M’s age in their considerable collective experience. Her clinical presentation, in that she appeared to be reasonably well and suffering no apparent pain or neurological effects, was not just unusual in the circumstances, but inexplicable. This conundrum has perplexed the experts involved and goes to the heart of this case.”
The court at first instance had brought on board some of the heaviest hitters in forensic medicine *, and had exhaustively explored the possibility that the child had some form of rare genetic disorder, but there was no such disorder found.
*Dr Stephen Chapman, Consultant Paediatric Radiologist at Birmingham Children’s Hospital (report dated 5 November 2011, letter dated 4 December 2011 and addendum report dated 28 January 2012), Mr Peter Richards, Consultant Paediatric Neurosurgeon at the John Radcliffe Hospital, Oxford (report dated 31 March 2012), Dr Katharine Halliday, Consultant Paediatric Radiologist at University Hospital Nottingham (report dated 12 April 2012) and Professor Nicholas Bishop, Professor of Paediatric Bone Disease at the University of Sheffield and Honorary Consultant Paediatrician at the Sheffield Children’s NHS Trust (report dated 8 May 2012 and addendum report dated 11 May 2012). As I said, heavy hitters.
But it is telling when these eminent doctors talk about there being nothing in their experience, or in the medical histories of skull fractures as spectacular as these – the one comparable episode of injury that can be found was of a person who inadvertently walked into moving helicopter rotor blades.
So, there was no good explanation for the skull fractures – and I don’t mean in the ‘there’s no good accidental explanation so trauma” sense, but in the “I can’t work out how these injuries could possibly have been inflicted” sense; which is much more problematic in a finding of fact hearing.
Understandably, once the report from Professor Bishop had established that there was no inherent problem with the child’s bones that would account for organic causes of the spectacular fractures, an experts meeting was assembled.
- I appreciate that “what is said at an experts’ meeting is not strictly evidence in the case” (per McFarlane J in Oxfordshire County Council v DP, RS & BS  EWHC 2156 (Fam),  2 FLR 1708, para 109), though it can of course be put in cross-examination or re-examination. But it is convenient, setting the scene for the evidence that was given by the experts at the trial, to see how this aspect of the matter developed at the experts’ meeting on 15 May 2012.
- The issue was first discussed before Dr Halliday joined the meeting. Mr Richards said:
“I can only speak about the head injuries, but there was a lump on the head, very extensive – I would call spectacular – skull fracturing, but no evidence of any injuries to the brain substance or bleeding inside the head.”
Asked whether they all agreed that there were “extensive skull fractures, with minimal brain injury seen on the films?”, both Mr Richards said Dr Chapman said “Yes”. Professor Bishop said:
“I’d agree the extensive skull fractures. I defer to Dr Chapman and Mr Richards about the degree of brain injury. It’s not my area of expertise.”
A little later Mr Richards said this:
“Well, there must have been an impact against a hard surface or crushing of the head. What is unusual – the question of force is difficult, and what is unusual is to have such a degree of skull fracturing without any brain injury. But the fact there are fractures – they don’t occur spontaneously; there must have been some form of impact or crushing of the head … If the head is crushed so much that you get such significant skull fracturing, you’d get some damage to the underlying brain as well. Provided that we’re dealing with normal skull bone, and this is more Professor Bishop’s field.”
The following interchange then followed:
“NB I think from my perspective, there is no doubt in my mind that this child’s skeleton is entirely normal. I’ve never seen fracturing like this even in a child with abnormal bones. And we see children who’ve got very abnormal bones indeed – we simply don’t see this degree of skull fracturing. With normal —
PR So, Professor Bishop, would you agree that this in my mind is spectacular fracturing?
NB I would say it’s the most extensive skull fracture I have ever seen, irrespective of whether there’s an underlying brain injury or not. So —
PR Which is one of the difficulties for me, because yes, I’ve seen extensive fracturing like this before. The last time I remember seeing it was when someone walked into a rotating helicopter tail blade, and got that extensive fracturing, but did not survive very long … And that is unusual, the fact that there is very extensive fracturing, and yet no significant injury of radiology and no apparent clinical injury at all, no clinical disturbance whatsoever.
NB As I say, it’s not accompanied by changes in other parts of the skeleton that would lead my to believe that there’s any underlying bone disease. And having reviewed the child recently, only literally last week, the skeleton looks entirely normal to me, both clinically and radiologically.”
Dr Chapman agreed:
“I think the mechanism’s either going to be crushing or multiple impacts, and I don’t really know what is the actual mechanism … it could be either [one massive impact to the top of the head, but possibly two impacts each side of the head] … We’ve all said this is an absolutely spectacular fracture, and to say that it could have occurred from one impact alone is again I think speculation, because I don’t think any of us have that experience.”
Professor Bishop said “I’d agree with that.” Asked, “So it would be very difficult to speculate as to what it was that caused the injury?”, Mr Richards said:
“Yes. And of course nobody has done research on living infants to fracture their skulls, to see what happens. The only research really that’s been done on fractured skulls and what causes them is that rather unpleasant research of dropping dead babies before you do a post mortem on them, and seeing whether you fracture their skulls.”
- The discussion returned to this topic after Dr Halliday came on line. Mr Richards said “The degree of fracturing we all consider is spectacular, outside of our usual expertise”, to which Dr Halliday said “Yes.” Mr Richards continued, “it’s odd that there’s such extensive fracturing, not much scalp swelling, and a seemingly happy baby” to which Dr Halliday responded:
“And no brain injury, yes. Yes, it is odd.”
- The significance of this discussion for present purposes is perhaps two-fold. First, all the experts had addressed this issue during the experts’ meeting, so it was not coming to them ‘out of the blue’ at the trial. Second, the experts had been left baffled at the end of the meeting, so it is reasonable to imagine that they were thinking about it in the three weeks that elapsed between the experts’ meeting and the trial.
So far as the rib fractures were concerned, the expert opinion was fairly straightforward – there was no accidental explanation for them, and there was nothing about their presentation that suggested in any way that they were caused in any way other than by non-accidental trauma.
The problem the Judge found herself in was with experts who were clearly baffled by the skull fractures, and whether it was possible to draw a line under that, and make findings about the rib fractures. Or, whether as the parents argued, there was such huge doubt about the skull fracture and how it could be caused at all (much wider than the accident/non-accident issue, but how they could have come to be at all, particularly when combined with the lack of injury to the brain), that this child must be a medical first with something unknown to current science and therefore something in the way the bones in her fractured was beyond medical science, so not safe to assume anything about how her ribs were fractured.
The Judge was further troubled by the evidence given by the parents and clearly found it to be flawed in a number of regards.
Let’s get to Donald Rumsfeld. (Not a sentence I ever imagined I would type)
- Mr Richards was cross-examined by Mr Anthony Kirk QC on behalf of the mother:
“Mr Kirk … There is something rather unusual and something rather puzzling about this child’s presentation and the fractures that she has sustained.
Mr Richards Yes. Taking all the aspects – if we look at the three aspects of the fractures, so the fractures themselves, her response to the fractures and the scalp swelling associated with these fractures, either her bones fracture from very minor trauma and that is why there is severe fracturing but very little scalp swelling, or her response to it in terms of pain and suffering is highly abnormal. The whole picture is, with that degree of scalp swelling I would have expected significant brain injury and if there was not significant brain injury and she was conscious I would have expected to be in great pain and disturbance and, given the degree of fracturing, with normal force required to cause that fracturing, I would have expected a lot of scalp swelling.
Mr Kirk Yes. Could these complex fractures have been caused, in M’s case, by a relatively minor trauma?
Mr Richards I would not have expected it to have occurred from a minor trauma if her skull was completely normal but that is a question in my mind. Is her skull in some way abnormal so that she gets these fractures with trauma that would not normally cause these fractures?
Mr Kirk Was that addressed in your experts’ meeting?
Mr Richards It was discussed. Professor Bishop who has looked at the metabolic aspects of bone(?) disease has not been able to identify anything. We have all commented that we have not seen fracturing like this except in very extreme circumstances. I did raise one circumstance where I have seen similar severe fracturing, forgetting the job that her father was doing, but it was an adult injured by a helicopter walking into a rotor blade, a rear rotor blade who had very extensive fracturing and died several hours afterwards which is the kind of injury that I have encountered if you see this kind of fracturing. So if this kind of fracturing with minimal response were to occur there must be something odd about the bones and Professor Bishop cannot find anything but he did say he has not seen fracturing like this either so why he cannot find any metabolic abnormality to explain it, I still wonder in my mind if there is some explanation we are not capable of finding as doctors.
Mr Kirk Thank you. And we cannot rule that out either, Mr Richards, can we?
Mr Richards Oh, absolutely. This is (inaudible) unprecedented in the experience of someone like myself who has been in neurosurgery for nearly thirty years, Steven Chapman who has been a radiologist for many, many years, Professor Bishop who has specialised in bone abnormalities and between us we have got a lot of years where we have seen lots of things but we have not seen this with such a minimum disturbance to a child.”
- Mr Richards was then cross-examined by Mr Frank Feehan QC on behalf of the father. I need not set it all out, for necessarily it traversed ground already covered by Mr Kirk:
“Mr Feehan … the problem is, as you see it, that there is no such brain injury. You have looked at the scans and you, and in fact nobody, sees anything with regard to brain injury in this case?
Mr Richards That is correct. And it is not just on the inside of the brain; the outside, her scalp, does not seem to have reacted in a way you would normally expect, this sort of high force injury that you would expect to cause that fracturing.
Mr Feehan In your experience, where someone has suffered an insult to the head of this sort on a normal skull and therefore has suffered brain injury in almost every case, how long do the symptoms of that brain injury last, if they survive?
Mr Richards Well, if they survive … Not many with this degree of injury, fracturing and damage do survive. I had a recent one which was a very great surprise because the initial scan gave us the impression she was not going to survive. She was run over by a Ford Fiesta in a supermarket car park. She got under the car, it drove over her head, the people screamed at the guy to stop so he reversed and did it again and she spent three or four days on a ventilator in intensive care. We at one stage thought she would not survive. She did survive and recovered. She was in hospital for about a month to six weeks before she could go home.
Mr Feehan Essentially, it all comes down to this, does it not, that given the clinical picture and the timing of this the notion of inflicted injury without other injuries such as massive amounts of other broken bones or brain injury just does not fit?
Mr Richards That is correct. It does not add up. To me as a simple(?) surgeon, it suggests there is something wrong with this young lady’s skull. It is unduly fragile which is why I suggested that we needed a metabolic expert to look into this and he has not been able to identify it but it still does not mean to me that this is a normal skull and as we do in medicine, we sometimes show things to colleagues, not with the full story, not with any names. I showed the CT scans to one of my senior colleagues. There are four of us in the department and the one who is just below me in terms of age and I said to him “Look at this scan. This is a child with no brain injury and very little scalp swelling” and he immediately said “There is something wrong with the bones, isn’t there?” … This brings to mind for me that a man of Professor Bishop’s extreme skill has not been able to find anything …”
- Mr Feehan returned to the point towards the end of his cross-examination:
“Mr Feehan … we are simply left with this then, that had this been a deliberately inflicted injury causing these fractures in a normal skull, five days before presentation to hospital, first of all your view is she may well not have survived and even if she had survived she would simply not have presented in the way that she did.
Mr Richards Yes, I think she would have … again, it is odd that she does not have so much scalp swelling with these degree of fractures. Even if she had got away with the brain, there is still the soft tissue injury you would expect to be associated with it and you can have fractures all over the head, while you have just one small area of slight swelling, as that is all you see radiologically, why not over the whole of the head, unless the trauma that caused these fractures was less than you would normally expect in these fractures and that is why the response to it in the brain, the patient and the scalp is much less.”
- Dr Halliday was cross-examined by Mr Kirk. She agreed with what Mr Richards had said at the end of his cross-examination on this point by Mr Kirk (see paragraph 16 above). She went on:
“l think there are several things about this fracture which are extremely unusual. One is its severity. The other is the fact that it is not associated with any brain injury and the third thing which is unusual is that it has … the amount of soft tissue swelling on the CT scan is not very much for such a severe fracture and I think all of us are in agreement that we think these things are very unusual. And can’t really explain them.”
Asked by Mr Kirk whether this was “without parallel in terms of medical reporting and medical annals” she replied:
“Yes, yes, yes they are very unusual. Very unusual.”
- Dr Halliday was cross-examined by Mr Feehan. Referring to Mr Richards she said:
“l wouldn’t say M’s skull can’t be normal as you know we doctors don’t like saying things like that, we just say it is very, very unusual so I agree entirely with him that it is very, very unusual. Does it mean that M’s skull cannot be normal? No I don’t think it means that, I just think she has had a very unusual injury. There is some … either … I mean it could be that her skull is abnormal or it could be that she has … there is some sort of quirk of mechanics about the way she has fallen or that she has had several blows or … I think there are a number of explanations but they are extremely unusual.”
- Dr Chapman was cross-examined on the point by Mr Feehan:
“Mr Feehan Dr Richards said that his experience of a child suffering sufficient trauma to cause these skull fractures would mean that that child, again, if that child survived, that child would be in intensive care for upwards of two weeks and in hospital, in his experience, for at least a month, if not longer, and yet here we know there was a child who presented to hospital as happy, playful and alert. How does that fit with the kind of forces you describe as being necessary to cause these skull fractures?
Dr Chapman Well, if Mr Richards is right in that the child would be ill for many, many days, and clearly wasn’t upset and ill at the time she was presented for medical attention on the 3rd, then that would imply that the injury occurred nearer to 26th July than it did to 3rd August, and (inaudible) …
Mr Feehan I’ll ask you to pause there because it was clear from Mr Richards’ evidence that the timeframe was simply insufficient to allow recovery. Even the wider timeframe was insufficient to allow recovery of a child to the state seen by 3rd August in this child. Now, let me say this, again, you are a radiologist and he is a clinician in that sense. He sees the children himself and has experience of how children respond to these sorts of injuries. Given that’s his evidence, how does it fit with the level of trauma that you say is required?
Dr Chapman I’m not sure how to answer that.”
Towards the end of cross-examination, Dr Chapman said this:
“Well, I mean, you could argue that (inaudible) that there are an awful lot of inexplicable things in this child.”
And then at the very end:
“Mr Feehan And you, however, Dr Chapman, will be aware from your experience, and no doubt from other cases, that, in giving evidence, you have to at least acknowledge the real possibility that something has happened which simply you can’t explain.
Dr Chapman Of course.”
- Cross-examined by Mr Kirk, Dr Chapman associated himself with what Mr Richards had said at the end of his cross-examination on this point by Mr Kirk.
- Professor Bishop was cross-examined by Mr Kirk:
“Mr Kirk These fractures are, the skull fractures I’m talking about, are indeed highly unusual, if not, dare I go as far as to say, in the annals of medical science, unique in one so young?
Professor Bishop (inaudible) I certainly have not seen anything similar in my clinical practice, focusing on children with bone disease, in the last 16/17 years. That is not to say that it can’t occur and hasn’t occurred in other places and I have simply not been aware of publications that might record such fracturing. But talking with Dr Chapman and Mr Richards, who have also had a lot of experience with looking at x-rays and with traumatic injuries to the skull, they were very much of the same view, that these were exceptionally extensive fractures. And my understanding is that it was for that reason that people were concerned there might be an underlying metabolic bone disease that could give rise to such appearances and that was why I was asked to see M and examine her.”
A little later there was this interchange:
“Mr Kirk … How can one say that this little girl, M, is not, in fact, exhibiting the signs of some new or perhaps hitherto unknown medical disorder in the light of the fractures and her presentation?
Professor Bishop Thank you. Yes. That, I suppose, is a Donald Rumsfeld question. We don’t know what we don’t know. She certainly … there is a possibility that she could have a hitherto unknown and undiagnosed metabolic bone disorder. However, in my experience, children who have such a disorder usually continue to manifest problems associated with such a disorder throughout their life, albeit more frequently at some times in their lives than at other times. And my expectation, based on my clinical practice over the 15 years, would be that we would still be able to discern, at the age of a year, some evidence of underlying bone fragility problem at the age of a year in a child who suffered fractures earlier during infancy. And that’s, as I say, based on our clinical experience on my understanding of the literature and many discussions over the years with friends and colleagues who are also involved in the field. Of course, it is still possible that at the end of all of that this is something new that nobody has ever come across before, but I would still expect, as I say, to see some other evidence of a persisting problem with the bones had the skeleton been so fragile that it had given rise both to the rib fractures and the skull fracturing that were observed originally.
Mr Kirk Thank you for that, Professor Bishop, but just by way of, as it were, come-back or a question, further question on that, if this is, and I use the words ‘completely new and unchartered territory’, one surely can’t be so, as it were, positive in terms of your predictions and predictors, what would you say in answer to that?
Professor Bishop I think it’s absolutely true that every year that goes by we find some new disorder or other that can give rise to a problem with your bones, but it’s a question of balance of probabilities here and the number of children that we have seen over the years who present in the way that M presented and who’ve had bone fragility problems that give rise to such fractures and who then never exhibit any further features of bone fragility subsequently, that, in my experience, would be unique.
Mr Kirk And just, I think, finally this, if I may, you talk about M’s presentation. Professor Bishop, I don’t want to take you back through all of that because her Honour, the court and others have heard from other experts, I described her presentation earlier perhaps as being unique, but certainly the fact that this child remained alive with no massive swelling to the scalp, no significant brain injury and handled perfectly very well in hospital could themselves indeed be described as unique features; would you agree with me on that?
Professor Bishop I would agree in terms of it’s surprising that M suffered no brain injury given the extent of her skull fracture. But, as I said before, that degree of skull fracturing in itself is very unusual, in fact, unique in my experience, and if … I don’t know what else to say, really, other than yes, it’s a very unusual presentation. But, going back to what I said previously, if there was any specific problems with the bones that was likely to give rise to that degree of fracturing I would expect to see some evidence of consistence of that fracturing and further fracturing beyond the time when she first presented to hospital. That would be more in keeping with my clinical experience of how such disease tend to manifest themselves not just at the time of presentation but subsequently as well.”
- Cross-examined by Mr Feehan, Professsor Bishop said this:
“in my previous experience of similar matters it is surprising that M did not suffer any brain tissue injury commensurate with the degree of fracturing that she has.”
He was asked by Mr Feehan, “how can you explain the extent of skull fractures, given the lack of brain injury?” He replied:
“Well, I defer to Mr Richards in terms of his experience of these matters, and as I say, it is not my area of expertise drawing conclusions from the extent of skull fracturing that’s unlikely to be a brain injury. One might postulate if one was speculating here that M has been very fortunate in that the force to which her head was subjected result in fracturing which dissipated the force of the impact or whatever it was that caused the fracturing sufficiently that the brain was relatively protected and she is indeed very fortunate in that regard. But that is speculation on my part. I don’t have any good answer for you as to why this degree of fracturing has not resulted in more extensive intracranial injury.”
His response to the next question was:
“I will defer to Mr Richards in terms of his much more extensive experience of these matters, and I think I’d have to refer you back to my previous answer that if you’ve got energy applied to a bone which is sufficient to fracture it, effectively what you are doing when you fracture it is to dissipate the energy but the bone, if absorbing some of that energy and then it’s breaking when the energy exceeds its capacity to absorb that … sorry, when the energy of the force exceeds the bone’s capacity to absorb it. Now, why in this particular circumstance bone has fractured in the way that it has done I can’t answer and I can’t begin to speculate on the amount of force that might have been required to cause such a fracture. What I can say is that M’s skeleton, as it appeared to me on 8th May, was normal, and there was nothing that I could find to give me a reason to suspect that her bones were other than normal.”
He was asked by Mr Feehan “what else might be an explanation for what we see?” Professor Bishop’s answer was “I think you are asking me to speculate beyond the limits of my expertise
And this, in my humble opinion, is a truly amazing illustration of how cases can be transformed by the hearing of oral evidence. This is not witnesses being tricked or bamboozled, but the skilful drawing out of the awful truth that the doctors simply could not explain what had happened here.
With that in mind, whilst the Court were very sympathetic towards the trial judge it is not surprising that they had major problems with findings of fact being made about the injuries being caused by the parents [I think that the one fairly inexplicable thing is why a case like this hadn’t been pushed up to the High Court, particularly after the experts meeting minutes were available, but no criticism is made of anyone for that]
- I should at once pay tribute to the care and skill with which Judge Marshall went about the exceptionally difficult task facing her. Her judgment, if I may say so, is impressive and, in all respects save one, compelling. But for one crucial factor it would, I suspect, have been impregnable. If, in addition to the other factures, M had had only a simple skull fracture then the judge’s findings would in all probability have been unassailable.
- As it is, many of her findings cannot, I suspect, sensibly be challenged. Thus, even allowing for the fact that M’s presentation was medically inexplicable, I think Mr Feehan would have faced a very uphill task if he had tried to argue (though he did not need to) that the judge was not entitled to conclude, as she did (paragraph 84), that:
“This is not a case where I find the parents accounts so compelling or reliable that I am persuaded to accept what they say and reject well-founded medical evidence where it does not fit.”
That was not a finding driven by the medical frame of reference; it was, in large part, as the judgment explains, based on difficulties in the parents’ own evidence. Similarly, it is difficult to challenge what the judge said a little later (paragraph 85):
“I conclude that the evidence is weighted in favour of a finding that it is more likely than not that the parents have not told this court the truth about what has happened to M.”
- But, of course, the case was not as simple as that.
- For present purposes one can, I think, start with two propositions which I shall assume, even if not necessarily accepting: first, that the judge, for the reasons she gave, was entitled to rely on Professor Bishop’s evidence; second, and again for the reasons she gave, that the judge was entitled to reject the parents’ evidence. But where did this leave her? Facing the central conundrum that all the experts were baffled – none could explain M’s presentation in the light of the skull fractures – and, as I have already pointed out, that her acceptance of Professor Bishop’s evidence did not resolve the case, it made it more difficult.
- In addressing that central conundrum Judge Marshall, in my judgment, fell into error. One can see the three facets of that error developing gradually through the key passages in her judgment. In the first place (see paragraphs 49, 61), by focusing on Mr Richards she tended to downplay the fact that, as she had previously recognised (paragraphs 2, 48), all the experts were baffled. Second (see paragraphs 49, 79), she failed to appreciate (or if she did appreciate it she failed to address) the fact that her acceptance of Professor Bishop’s evidence did not resolve the case but made it more difficult. Third, and crucially (see paragraph 86), she failed to explain how she was able to move direct from acceptance that:
“How M’s skull fractures were caused remains a mystery, but there must, of course, be an explanation, albeit at this stage unknown”,
to a finding in the very next sentence that:
“The fact that the parents have not provided a truthful account supports a finding on the evidence, including the drawing of reasonable inference, that it is more likely than not that the injuries are non-accidental.”
- In relation to this, I should make clear that I cannot accept Ms Judd’s reading of what the judge was saying here. After all, at the very beginning of her judgment (paragraph 2) Judge Marshall had described M’s presentation as “not just unusual … but inexplicable”, and in my judgment she was, for the reasons I have already given, entirely justified in characterising the case in this way. That was, after all, the effect of the expert evidence. She had, correctly, acknowledged (paragraph 48) that all the experts found it a “particularly perplexing and unusual case” and (paragraph 85) that there were features of the case “that are indeed perplexing.” So if, when she was describing causation as a “mystery” and the explanation as “unknown” (paragraph 86), Judge Marshall was meaning no more than that the parents had provided no adequate explanation – and that is not how I read her words given what she had said elsewhere in her judgment – her analysis would be liable to the further criticism that she was at this point simply not engaging at all with the substance of the expert evidence.
- There is another difficulty with Judge Marshall’s judgment which in a sense encapsulates all the others. It is to be found in a passage (paragraph 84) that I have already quoted:
“This is not a case where I find the parents accounts so compelling or reliable that I am persuaded to accept what they say and reject well-founded medical evidence where it does not fit. I am not persuaded that this is a case where the court should find that there is something unexplained, beyond current medical knowledge. Father on his own account did not tell the truth … (emphasis added).”
As I have already explained I have no particular difficulty with the first sentence, nor for that matter with the third. But the second sentence, which I have emphasised, presents major difficulties. The judge’s refusal to find that there was “something unexplained, beyond current medical knowledge” was not merely inconsistent with what she had said at the outset of her judgment (paragraph 2) and, as I read it, with what she said only two paragraphs further on (paragraph 86); perhaps more to the point it was inconsistent with the expert evidence. At the very least, it was a finding which, given the expert evidence, required much more explanation, a much more convincing process of reasoning, than is to be found anywhere in the judgment.
- In these circumstances I conclude that, for all its many merits, this judgment cannot stand. Judge Marshall has simply not explained how, in the light of the expert evidence, she was able to arrive at her final conclusion. It may be that there was, in the light of the evidence, no way in which the judge could have arrived at her conclusion, though that is not, in my judgment, something we can safely and properly decide for ourselves. But certainly, and it is on this basis that, in my judgment, this appeal must be allowed, the judge has not explained how she arrived at her conclusion. That omission, going to the central issue in the case, is fatal and necessarily vitiates her findings.
- Standing back from all the detail it might be said that given this collection of injuries – rib fractures caused on two occasions and very severe skull fractures – arising in circumstances where there is no suggestion that anyone other than the parents (or one of them) could have been responsible, and where the parents’ accounts and explanations have appropriately been rejected, it was open to a judge to find as Judge Marshall did. So, I have little doubt, it would have been if the case had fallen to be determined in accordance with a conventional medical frame of reference. But it did not, for, to repeat the point, so far as the skull fractures were concerned M’s presentation was inexplicable assessed by reference to conventional medical opinion and experience. And it must follow from the inability of conventional learning to explain the skull fractures that the judge’s findings in relation to the rib fractures are also vulnerable. So there is, in my judgment, no scope for drawing a distinction and upholding the judge’s findings in relation to the one whilst upsetting her judgment on the other.
Well, on the one hand, clearly this case is unique to date in medical science, hence the case might be of limited value, but on the other, it is yet a further piece of argument as to the limitations of what medical knowledge can tell the Court and that even something which seems utterly impossible – that a child can sustain such significant skull fractures that the only comparable example is of a person who had walked into rotating helicopter blades with no organic cause and no accidental explanation but without any culpability, can be possible.
Until this case, the Court, and the experts, did not know that this could be a possibility, hence it was something that not only did they not know, but they didn’t know they didn’t know it.
That reminded me of R D Laing, and his Knots poem
There is something I don’t know
that I am supposed to know.
I don’t know what it is I don’t know
and yet am supposed to know,
and I feel I look stupid
if I seem both not to know it
and not know what it is I don’t know.
Therefore, I pretend I know it.
This is nerve-racking
since I don’t know what I must pretend to know.
Therefore I pretend to know everything.
All those who buy management books off WH Smith bookshelves or airport lounges know of Rumsfeld’s missing quadrant: the unknown knowns. Knowledge you have but that you don’t know that you have. btw he didn’t invent it, here merely incompletely remembered it.