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Law - Standard of proof in family courts.
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 27th May, 2004
Before :
THE HONOURABLE MR JUSTICE HEDLEY
Between :
A Local Authority Applicant
- and -
S 1st Respondent
-and-
W 2nd Respondent
-and-
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
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 :
Introduction
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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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