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