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Law - Standard of proof in family courts.

Case No: GU03C00381
[2004] EWHC 1270 (Fam)

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 27th May, 2004
Before :
Between :
A Local Authority Applicant
- and -
S 1st Respondent
W 2nd Respondent
T by his Guardian 3rd Respondent
Eleanor Platt QC & Andrew Norton (instructed by a local authority) for the Applicant
Janet Bazley & Sharon Segal (instructed by Atkins Hope Solicitors) for the 1st Respondent
Marianna Hildyard QC & Jacqui Gilliatt (instructed by Latif Adams Solicitors) for the 2nd Respondent
Alison Ball QC & Emma Hudson (instructed by Creighton & partners) for the 3rd Respondent
Hearing dates : 21st April – 10th May, 2004

Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon. Mr. Justice Hedley
This judgment is being handed down in open court on 27th May 2004. It consists of 15 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mr Justice Hedley :
1. Having decided to give this judgment in open court, I must emphasise that nothing must be reported which might reasonably lead to the identification of any child or parent in this case. I have gone into open court because this case raises a number of matters which I think should be in the public domain. It involves the death of a child said to be the result of shaken baby syndrome. It involves a degree of disagreement between eminent and highly responsible medical experts. The man at the centre of this has already been tried for and acquitted of both murder and manslaughter yet the family court is apparently retrying the same issue with the inevitable possibility of arriving at a different view. This seems to me a good case in which the workings of the family court should be made public so that proper public discussion can take place on the basis of known rather than speculative procedures.
2. The family proceedings have come about because the local authority seeks a care order in respect of a child called T who is now 15 months old. Her mother is S and her father W, the man to whom I have already referred. T is currently subject to an interim care order whilst the court decides her future.
3. The mother had another child X. W was not her father but at the material time he lived with the mother and acted as a father to X. On 20th October 2002 X suffered fatal brain injuries from which she died the following day. No universally acceptable explanation has ever been given for these injuries beyond the fact that they appear to have been sustained whilst in the care of W.
4. It was because of this that these proceedings were started in relation to T. Until it is known how X came to suffer fatal injury, it is impossible to say whether T is at risk of injury and, if so, how great that risk is or whether it is capable of safe management.
The Criminal Trial and Civil Proceedings
5. In 2003 W was acquitted of the murder or manslaughter of X. On the face of it this hearing has tried the same issue again; why is that and is it open to this court to come to a different view?
6. In the criminal proceedings, the jury, having heard the admissible evidence, had to decide whether they were sure that this man had used criminal violence to this child which brought about her death. They decided that they were not sure: no more than that can be read into the verdict. They may have decided that he was in fact innocent or they may have decided that he was very probably guilty but that they could not be sure of it. We do not know. Their verdict does not give us the answer nor could it.
7. In family proceedings, however, the judge’s task is quite different. In the end I will have to decide whether the surviving child T can be safely returned to one or both of her parents. In order to decide that, I need to reach views about why X died and the question I have to ask is this: what was the most probable cause of her death? That is very different to the question faced by the jury both in terms of its emphasis (they were primarily concerned with W as the defendant whilst I am primarily concerned with the child) and in terms of the standard of proof. They had to be sure of guilt; I have to determine the probabilities and give detailed reasons for my view. Moreover I have heard a much wider range of evidence than would have been admissible in the criminal trial.
8. It will be apparent then, however odd it may seem at first blush, that I could give a different answer to the one given by the jury yet both of us could have correctly answered the questions actually posed to us. Truth is an absolute but elusive concept and the law, in recognising that, deals with it in terms of what can be proved. The fact that something cannot be proved does not mean it did not happen but only that it cannot be proved to the requisite standard that it did. That is the price society has to pay for human fallibility in the quest for truth.
The burden and Standard of Proof in Family Proceedings
9. I start then with this question of proof. Although very serious issues are raised in family proceedings, they remain nevertheless civil proceedings. They are subject to civil and not criminal rules of evidence and the civil law relating to proof. That said, the court can only make findings of fact where the evidence justifies these findings: anxiety or concern as to risk to the child, however great, cannot justify a finding in the absence of evidence. Thus in care proceedings the local authority as applicant must prove facts (known as threshold criteria) which justify the State’s intervention in family life pursuant to Section 31(2) Children Act 1989. That properly reflects the approach also required by Articles 6 and 8 of the European Convention (ECHR).
10. The classical statement of the law on these points is to be found in the speech of Lord Nicholls of Birkenhead in the House of Lords case known as Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. In that speech Lord Nicholls lays down the approach outlined above. He makes it clear where the burden of proof lies (page 95G), that these remain civil proceedings (page 96A; he makes it clear that findings can only be based on proved facts and at page 99G-H, he says this:
"The legal burden of establishing the existence of these conditions rests on the applicant for a care order. The general principle is that he who asserts must prove. Generally, although there are exceptions, a plaintiff or applicant must establish the existence of all the preconditions and other facts entitling him to the order he seeks. There is nothing in the language or context of section 31(2) to suggest that the normal principle should not apply to the threshold conditions"
He deals too with the standard of proof and in the now well known passage (page 96B-E) he says this:
"Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts [1964] 1 W.L.R. 451, 455: "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.""
He also draws attention to another matter. A criminal trial is, of course, governed by the rules of criminal evidence. In family proceedings the range of evidence available to a judge is much wider. Lord Nicholls makes this point (page 101A-C) where he says this:
"I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."
These are all factors binding on every trial judge conducting family proceedings.
11. Nevertheless the question remains: if a court is in fact trying an issue which effectively includes an allegation of a serious criminal act, is the position any different? In the recent cases of Re LU (a child) and Re LB (a child) [2004] EWCA (Civ) 567 (at paragraph 13) the Court of Appeal have firmly decided that the position remains just the same:
"We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as ‘largely illusory’. In our judgment this approach is mistaken. The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in his speech in re H. ………..and the principles set out by Lord Nicholls should continue to be followed by the judiciary trying family cases and by magistrates sitting in the Family Proceedings Courts."
It follows that in this case I approach this case on the balance of probabilities reminding myself of the inherent improbability of a loving step father inflicting fatal violence on a child of 20 months of age and thus reminding myself of the cogency of the evidence that will be required to overcome that improbability.
The Court’s Approach in Family Proceedings to Disputed Medical Evidence
12. In this case I have heard a wealth of medical evidence. For the most part it has all pointed in the same direction and certainly there is effective unanimity on the primary findings made in respect of the injuries and cause of death of this child. Yet there is some disagreement. Moreover, it is recognised that some medical issues in this case, such as the force required to produce these injuries, are genuinely controversial. It is also recognised that understanding in this area continues to develop and certainly that some of the old certainties have now been strongly questioned. It follows that disagreement should come as no surprise even amongst doctors of the highest repute such as that undoubtedly enjoyed by all the experts in this case.
13. The specific disagreement with which I am concerned in this case is that between Dr AS and Dr RS on the one hand and particularly Professor R, Dr J and Dr S on the other as to whether the father’s explanation proffered at the criminal trial (if true) could offer an explanation for the injuries suffered. All the doctors were agreed that in the absence of a reliable explanation the overwhelming probability favoured some form of non-accidental injury.
14. In the case of Cannings [2004] EWCA Crim 1 the Court of Appeal Criminal Division urged great caution where such disagreement existed. Although the verdict in this case preceded the decision in Cannings, it clearly is in line with it. However, the effect of Cannings in family proceedings was also considered by the Court of Appeal in Re LU, LB and is set out paragraphs 22-30. The lessons of caution are, of course, to be heeded but disagreement, however eminent the witnesses involved, does not absolve the family judge from the responsibility of making a decision applying the civil standard of proof, as the Court of Appeal have said:
"27. In the end the Judge must make clear findings on the issues of fact before the Court, resting on the evidence led by the parties and such additional evidence as the Judge may have required in the exercise of his quasi-inquisitorial function. All this is the prelude to a further and fuller investigation of a range of choices in search of the protection and welfare of the children. A positive finding against a parent or both parents does not in itself preclude the possibility of rehabilitation. All depends on the facts and circumstances of the individual case. In that context the consequences of a false positive finding in care proceedings may not be as dire as the consequence of the conviction of an innocent in criminal proceedings.
28. So it by no means follows that an acquittal on a criminal charge or a successful appeal would lead to the absolution of the parent or carer in family or civil proceedings. It is also worth remembering that the decision of the Court of Appeal (Criminal Division) in R v Cannings turned on the very particular facts of that case.
29. In summary the decision of the Court in R v Cannings has no doubt provided a useful warning to judges in care proceedings against ill-considered conclusions or conclusions resting on insufficient evidence. The extent of the retrospective effect remains to emerge. However practitioners should be slow to assume that past cases which have been carefully tried on a wide range of evidence will be readily reopened."
15. It follows that I must examine the evidence and see what (to the requisite standard of proof) it establishes.
The Background to the Life of X
16. X’s mother was herself brought up in care, having had some deeply traumatic home experiences before moving to supported accommodation around about the age of 17. She became pregnant with X but after a difficult pregnancy she found X a "pretty easy child" with whom she believed she had a good and close relationship. Whilst X was very young the mother entered into a relationship with W. She spoke highly of W’s relationship with X and other children, something that was widely testified to in the criminal proceedings.
17. It is right to record that nothing was found on X’s admission to hospital or at post-mortem to suggest that she was not essentially a well cared for child. I acknowledge that there may be legitimate concerns at the emotional level but as these are to be addressed in the assessments which are shortly to take place, I will say no more about them here save to say that they are connected with the mother’s own life experiences.
18. Furthermore I think it right to find, as the mother said, that the father was loving and gentle in his dealings with X and specifically that there was nothing to alert her that it might have been unsafe to leave X with W, nor indeed was anyone else aware of any such thing. It is true that there have been some earlier incidents relating to X but they were inconsequential in themselves and do not impugn the essential parenting capacity of either the mother or W.
19. That said, I should add that it appeared to me that the mother wanted to believe the best of W and persisted in that desire even when, as she put it, she had been ‘betrayed’ by his lies about the fatal injuries to X. That raises a note of caution as do her lies about her contact with W whilst he was on remand but it would be unfair to the mother to suggest that she is wilfully blind to W’s deficiencies; she wants to think the best of him and I believe that their relationship is as important to her as it clearly is to him.
The Events Surrounding The Fatal Injury
20. On the evening of 19th October X had been put to bed by W as was usual. She woke up twice during the night; W went to her once and perhaps on both occasions. The next morning she woke as usual about 7am and the mother dealt with her. At about 9.15am the mother went out to the shops leaving X in their bedroom with W. I specifically accept the mother’s assertions both that X had no visible mark of injury of note and also that she seemed fit and well. When the mother returned, X was already in the ambulance in a life threatening condition.
21. After the mother had gone out, the next person to see X (other than W) was a woman known as B. She lived in the same block of flats and was well regarded; indeed someone referred to her as the ‘Mum’ of the block. She answered the door to W who was carrying X. She noticed that X looked lifeless and she ‘phoned an ambulance immediately. She then followed resuscitation instructions, relayed to her by her boyfriend, from the control room. This she persisted in until the ambulance arrived. Meanwhile W was too distressed effectively to assist. B had done resuscitation before but never on a child. Her first thoughts were that the child might have had meningitis and the doctors who first saw her thought the same. I am fully satisfied that the evidence she gave me was an essentially accurate account by a witness who wanted to assist the court but who was clearly sympathetic to the mother and W. Over the next 36 hours and more she and her boy friend attended hospital and did much to give support. It is essential that both of them appreciate that they have nothing to reproach themselves for and much to take pride in over what they did on this occasion.
22. The ambulance team promptly arrived. For them it was a first and inevitably distressing experience of dealing with a gravely ill child. I accept the evidence of both paramedics. They were trying to use CPR during a fast and upsetting journey and I accept that it may not have been delivered in textbook style; indeed it is hard to see how it could have been.
The Injuries Sustained by X on 20th October 2002
23. There is no dispute in the medical evidence as to the actual injuries sustained by X. First there was the grave head injury comprising:
• Bilateral thin subdural haematomas (not space occupying lesions)
• A subdural haematoma around the spinal chord
• Bilateral retinal haemorrhages, and
• Diffuse brain swelling
In addition the following significant findings were made:
• Extensive external bruising including the trunk, upper right arm, buttock, beneath the left eye and the legs along with two bruises to the forehead, one on either side;
• Extensive bruising to the mesentery together with some petechial haemorrhages around the umbilicus;
• Three anal fissures.
In assessing these injuries it is important to remember both that emergency treatment of an unconscious child can be quite violent and that toddlers will often bear bruises of an entirely innocent origin. Other than bruising to the forehead and mesentery, the medical evidence was noticeably cautious in its approach to the timing and causation of bruising.
The Mechanism of the Head Injury
24. Once again the medical evidence spoke with one voice. These injuries were the product of an acceleration/deceleration injury with rotational forces. That was most commonly associated with a shaking type injury (hence the rather loose expression ‘shaken baby syndrome’) unless there was a history of an event which might result in the mimicking of such forces. It was this last point that elicited the essential disagreement amongst the experts.
The Causation of The Head Injury
25. There was agreement that the forces required to produce this injury could indeed be mimicked. W’s explanation, given both at the criminal trial and to me, was to the effect that X had been bouncing on the bed and had bounced off it falling in a V shape on to her bottom and that her head had ‘snapped back’ although he had prevented it from hitting the ground. Dr AS, an experienced and distinguished neuropathologist was of the view that this explanation (if reliable and true) provided a "small percentage possibility" of explaining the injury. Dr RS, an experienced and respected forensic pathologist, said of it that it was "a reasonable explanation but I cannot go further". All the other experts who addressed this were not prepared to say that this explanation provided a satisfactory account of these injuries, some speaking with more force than others.
26. What, however, all could agree on was that in the absence of a reliable explanation, the overwhelming probability was that these injuries were the result of shaking. It further emerged that two further matters on which they could also agree were that these injuries could have been the product of one movement provided that that movement generated sufficient force and that there would have been no lucid interval between injury and collapse.
27. It was the issue of the force involved that was the most difficult. Doctors simply do not know the forces required to produce these injuries and for obvious reasons there can never be experimental data on which to base research. What they did agree on, however, was this: the forces required would at least require "more than normal handling" or "an incident in which a bystander would say ‘stop, you will injure that child’". Again there was agreement that these injuries typically occur in children in the first year of life and that, not only was it most unusual to find such an injury in a child of the age of X, but it would require greater force because of the greater comparable strength of her neck muscles.
28. There were two other features in this case that cloud the issue of force. First, the damage itself will not necessarily be a guide to the force used. It had once been thought that the brain damage (which is the fatal component) was brought about by shearing injuries caused by different sections of the brain of different density being forcibly moved in relation to each other. That remains a possible mechanism but now it is recognised that much damage may in fact be caused by hypoxic/ischaemic changes which may themselves be caused by heart failure which deprives the brain of oxygenated blood. In this case X had been in cardiac arrest for 45 minutes and undoubtedly hypoxic/ischaemic damage would have been caused thereby. Secondly there was an issue as to whether retinal haemorrhages were present on admission at hospital. It is accepted that they were found later in the day on transfer to the second hospital.
29. At the first hospital X was seen by Dr A a locum consultant paediatrician. She says that she examined X through an ophthalmoscope and saw no haemorrhages. She was not specifically looking for them and acknowledges that she may have missed them. However, she would not have expected to do so because they were flame red haemorrhages, easy to see had they been present. I accept that view and therefore conclude that I cannot be satisfied that retinal haemorrhages were present of the time of admission to the first hospital. In my view they were more probably caused by raised inter-cranial pressure due to the brain swelling itself.
30. The consequences of that are controversial. Some say that their absence tells you nothing about the forces applied to the head. Others assert their relevance. Dr AS thought that their absence may speak of lesser forces being applied to the head. Professor L, a paediatric ophthalmic pathologist, thought that if they were not there earlier they had in fact been caused by raised inter-cranial pressure. Dr RS thought that their absence "slightly enlarges the question mark against shaking". In my view I should adopt a cautious approach in this case and recognise that the absence of retinal haemorrhages may signify lesser forces having been employed and that is a factor against rather than in support of a shaking injury. Nevertheless I must also remind myself that Dr RS said both that shaking remained more probable than accident and further that in the absence of a reliable explanation "the overwhelming probability is a non-accidental head injury".
31. I have set out here only small amounts of the medical evidence partly to prevent this judgment becoming of unwieldly length but mostly because what is set out encapsulates in my view the evidence which I need to consider in order to arrive at my conclusions in this case.
Assessment of W’s Evidence
32. It is right that at this stage I should set out my assessment of W’s evidence having heard all the evidence as well as his. It is the case that on his own account he has repeatedly lied about his involvement in this matter. That, as he recognised, inevitably colours any assessment.
33. His first account, persisted in from the day of the injury until his arrest some 5 months later was that the child had had a fit, been sick and fallen off the bed. He said that that was the first thing he thought of in his panic and stuck with it even when pressed by the doctor at hospital. My view is that the chaotic circumstances of X’s collapse are unlikely to produce a conscious fabrication but rather the truth with omissions. In his evidence to me he said that even when interviewed by the police he told lies as to what he had done (i.e. that the child was sick and he was wanting an ambulance) as well as leaving out the impact with the door which he believed to be the fatal injury. Once again I am more inclined to think that that was truth with omissions rather than conscious fabrications. Then he produced an explanation for the criminal trial. Even on his own account his explanations were until then designed to disguise what he believed to be the cause of fatal injury. That had been on any view a reason for his lie.
34. I accept that his behaviour at the time of the injury indicated that he was in huge distress and a great panic. I have no doubt that he was frantic with remorse though whether that was for careless or deliberate conduct one could not tell. I accept that that will have impeded his ability to explain what had happened which is why I think that what he said was more likely to be truth with omissions than outright manufacture. It follows that I think it much more probable that the child was indeed sick if not very much and that the child did indeed travel from bed to floor and thus the child suffered an acceleration/deceleration injury with rotation. I think it very probable that W knew that something very serious had happened and that W was going upstairs to seek help to get an ambulance. I think it likely that the child did strike her head accidentally on the door. I am quite unable to treat W’s present account as reliable having regard to the history of accounts given and the wholly implausible reasons (where he actually gave them since many were ‘I don’t know’) that he gave for lying other than to conceal what he thought was the fatal act. I do not, however, discount all his evidence as untrue. In particular I accept that he had behaved as a loving father to X during the time he was with her. He had cared for her if somewhat over-indulgently. In particular I accept that his evidence is motivated less by a fear for his own skin than by losing S and T as I accept that he had been genuine in thinking that S and X were the best thing that had happened to him.
Conclusion on Causation of The Non-Fatal Injuries
35. As I have said, she was observed to have a number of bruises. I am unable to reach any conclusion adverse to the parents in respect of any of the bruises save perhaps the two to the forehead. Given the inherent uncertainty of timing bruises my conclusion is that those two bruises are associated with the events surrounding the fatal injury, one perhaps as a result of an impact with a door, the other with the floor. Further than that I cannot go.
36. I turn then to the internal bruising found to the Mesentery, a piece of tissue lying over the liver. Professor R and Dr J both believed that this would have required the sort of force associated with a punch or kick. Dr RS believed that it was explicable in terms of a resuscitation injury (something he had seen in his experience) and indeed that was his impression on first seeing it. He added that he would expect a kick or punch to cause damage to underlying organs (there was none) but disagreement over that opinion remained. Given what I have heard about CPR (Cardio-Pulmonary Resuscitation), it must be more than a real possibility that significant forces were accidentally applied to the abdomen. In those circumstances I must conclude that Dr RS’s views must be regarded as a reasonable (but not the only) explanation for the damage to the Mesentery. I find that it is not proved that damage to the Mesentery was caused by any aggressive act on the part of either parent and further that the evidence does not warrant any finding that the risk of future harm to any child at the hand of either parent is affected by this injury.
37. In the second hospital (confirmed at post-mortem) three anal ‘fissures’ (or ‘cracks’) were seen which, however, did not extend into the perianal skin. Dr MG, a consultant paediatrician, saw them and was worried that they might be suggestive of sexual abuse although not diagnostic of it. That concern was echoed by Dr H, a well recognised expert in this field, though he would not go so far as a positive diagnosis. Dr M, a consultant paediatric gastroentorologist was not concerned by the findings and believed them capable of a natural explanation. Dr RS wondered if they had been caused by the use of a rectal thermometer which had certainly been employed.
38. In the end the local authority (rightly in my view) did not seek any specific finding. I was asked, however, whether I could go further and specifically exclude sexual abuse as a possible explanation. In my judgment the evidence does not warrant a conclusion that any abusive act caused these fissures. Although abuse must remain as a possibility, it is not at all probable. These findings should not be used as any indicator that any child may be at risk of sexual abuse from either parent. I regard the explanation by Dr RS as at least as reasonable a possibility as any other as is that of Dr M.
Conclusions on Causation of Head Injuries
39. Where the medical experts are in agreement, I have accepted their evidence and views. As is apparent from what has been said, the medical evidence is of one mind in concluding that in the absence of a reliable explanation some form of non-accidental shaking injury is the overwhelmingly probable cause of these injuries. As I have concluded that I could not rely on any explanation proffered by W, I am confronted with the conclusion that far and away the most probable cause is indeed a non-accidental shaking injury.
40. However, before making that finding, I should revert to the evidence of Dr RS and Dr AS. I regarded it as thoughtful and impressive and do not feel able to reject their view that the explanation given by W, provided that it was reliable in all material parts, could as a small but reasonable possibility account for these injuries. That said both recognised that even in those circumstances the probabilities lay the other way. Had I been satisfied that I could rely on W, I would have found it more difficult to be satisfied to the requisite standard that this was a non-accidental injury, although I might still have been so satisfied.
41. In coming to a final conclusion in this case there are two other factors that I must take into account. First, I have found that W has no background history to suggest propensity to such behaviour, indeed quite the reverse. Secondly my conclusions in respect of the non-fatal injuries do not add any support to the view that the head injuries were non-accidental. I should also remind myself that a shaking type injury is very unusual in a child of this age. That said, these matters were known to Dr AS and Dr RS (indeed the finding in respect of the mesentery was based essentially on his evidence) when they expressed their views on the probability of the case.
42. Having given my closest and most anxious attention to this case I have concluded that the overwhelming probability in this case is that these head injuries are the consequence of a non-accidental acceleration/deceleration injury with rotational forces. What I now need to do is to see how far I can translate that conclusion into an account of what actually happened in that bedroom on the morning of 20th October, 2002.
What Actually Happened
43. The plain truth is, of course, that only W can answer this question. All I can do is to try to reconstruct events so far as I can taking account both of what I have found proved and the probabilities that flow from that. The essential framework is this. W genuinely loved X and cared for her. W was as a general rule gentle and competent in his care of her. W was utterly distraught as a consequence of what happened and in those circumstances was far more likely to tell the truth with crucial omissions than he was actively to concoct a fabricated story. Hence my conclusions set out above that the child was sick, that the child travelled from bed to floor with some force and that in its immediate aftermath W knew that something very serious had happened. I can place no reliance upon or confidence in his present explanation .
44. I am quite convinced that W had no malevolent intent towards X in that he had no active intention of hurting her. Thus my views on murder would be exactly the same as those of the jury. On the other hand I am quite satisfied that any bystander present in that room would have realised that what he did would undoubtedly cause injury (albeit not grave injury) to the child. I think the probabilities are that he pushed the child away from himself with such force that she rose above the height of the bed before falling in such a way, probably a V shape, as to produce the acceleration/deceleration injury with rotational forces which has been described in the medical evidence. I think the force used might well have caused the bystander to describe a throw but I am satisfied that that was not W’s intent. I am quite satisfied that his action was culpable in that it was an action performed by him that he should have realised was potentially dangerous. It may be that this finding is technically inconsistent with the Jury’s acquittal of manslaughter but I am sympathetic to a reluctance to expose him to criminal punishment in the circumstances of this case. This was an uncharacteristic reaction, albeit a serious and culpable over-reaction, to a situation. Whether that situation was more than a child being or threatening to be sick, I have no way of knowing.
Was the Mother Culpable for What Happened to X?
45. Although she did herself no favours in lying about her contact with W whilst he was on remand, the only fair conclusion based on this judgment is to exonerate the mother from all blame for the death of X or for the other injuries found. In my view she presents no risk of physical harm to T herself. The only issue is whether she can satisfactorily protect T and to that end it will be necessary to see what she makes of this judgment and in particular its conclusions in relation to W. Its effect is, of course, not necessarily to exclude W from T’s life but it will require an assessment of risk in addition to the assessment of the capacity of the parents to meet the emotional needs of T.
46. As was implicit in the early part of this judgment, I do not claim to have divined truth. I have reached conclusions based on what I believe to have been proved to the requisite standard by the evidence. I have done so with the perspective of the surviving child uppermost in my mind. I do not mean that my conclusions of fact have been influenced by any consideration of her welfare (that consideration is for the future); what I mean is that the purpose of this hearing has not been to try either the mother or W but to determine whether facts exist to justify state intervention in the life of T and also the factual matrix within which the welfare inquiry is now to be undertaken.
47. I am amply satisfied that the criteria for intervention are made out both in the causation of head injury and in the deliberate misleading by W of the treating doctors, the police and social services over what happened to X. The focus now moves to the welfare of T and the careful consideration of whether she can be returned to the care of one or both of her parents. I propose now to adjourn into chambers to consider the details of what is to happen next in this case.

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