R v Lancashire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ryder |
| Judgment Date | 04 December 2008 |
| Neutral Citation | [2008] EWHC 2959 (Fam) |
| Docket Number | Case No: LA06C00141 |
| Court | Family Division |
| Date | 04 December 2008 |
[2008] EWHC 2959 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BLACKBURN DISTRICT REGISTRY
As from:
Preston Combined Court Centre
Openshaw Place
Ringway
Preston
Mr Justice Ryder
Case No: LA06C00141
Stephen Cobb QC & Jonathan Buchan (instructed by LCC) for the Local Authority
Miss Singleton QC & Miss Koral (instructed by Messrs Green & Co) for the Mother
Miss Grocott QC & Miss Bowcock (instructed by Messrs Ratcliffe & Bibby) for the Father
Miss Cross (instructed by Marsh & Co) for the Guardian
Hearing dates: 10 th October 2008, 13 th– 17 th October 2008 & 5 th– 7 th November 2008
This judgment is being handed down in private on Thursday 4 th December 2008. It consists of 48 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.
Introduction
R is a child who was born on 31 May 2006. His mother I shall refer to as S and his father as N. They were born on 28 January 1984 and 22 March 1978 respectively. They are not married and have now separated. The local authority, Lancashire County Council made an application for a care order in respect of R on 18 August 2006 and R is represented in these proceedings by a children's guardian, Mrs A-G. The precipitating circumstances that led to the local authority's application are not in dispute and are as follows.
R's birth was not entirely uneventful. He was born by emergency caesarean section following a failed ventouse delivery. He was subsequently noted to have developed neonatal jaundice together with some scalp swelling and a superficial laceration related to the attempted ventouse delivery. R was described as being irritable and unsettled and was given oral paracetamol. Mr G the Consultant Obstetrician and Gynaecologist described him as making an "uneventful recovery". R is referred to as a well baby in his obstetric notes and was discharged home on 7 June 2006 with no requirement for follow up treatment.
Father notes in his witness statement that: "We took R home and he never seemed to be a happy baby. I didn't think he looked healthy". Mother has given a very similar account of R's presentation and their recollection appears to be beyond dispute.
Health professionals saw R on nine occasions during the period he was at home with his parents. The medical records corroborate that the parents' perception was of an unsettled baby who cried a great deal:
a. On 7 July 2006 R was seen at his GP's surgery with a complaint of excessive crying. The discharge summary was "colic" and advice was given about winding.
b. On 13 July 2006 R was seen at his GP's surgery for his six week check. He was noted to be crying "excessively". Mother was advised to increase his water consumption to avoid constipation. The GP noted that she appeared to be "low in mood at this appointment".
c. On 3 August 2006 R was examined at his GP's surgery. Mother observed that he had been unwell since immunisation (on 27 July 2006) and he was constipated and unhappy. No abnormalities were found.
d. On 8 August 2006 R was seen by the nurse practitioner. He was constipated and Lactulose was prescribed.
On 10 August 2006 both parents recall that R began projectile vomiting. The cause of this remains unknown. On 11 August 2006 he vomited in the morning. Father described R as being "grouchy". Mother was aware that he was crying more than was usual. His parents took him for a walk in the afternoon and returned home at approximately 5:00pm. He remained in their joint care all evening except for a period of approximately 15 minutes when father cooked a meal in the kitchen and mother and R remained in the living room and the events as hereafter described.
At some time after 7p.m., mother went into the back garden to feed the family's pet ferrets. Neither parent describes any arguments, displays of aggression or tension during the evening. In the general context that R was 'grouchy', mother's evidence up to the point where she left to go outside is not in issue and is as follows: N had R in his bouncy chair in front of him and N was watching television and talking to R. Both R and N were "fine".
Both parents agree that the patio doors to the back garden were closed to prevent the ferrets escaping into the house and that father was in the living room at the front of the house. A window in the kitchen, which faced on to the garden, was open.
What then happened is described by father in his police interview as follows: "……He (R) was sat in his bouncy chair, I was watching telly……he got really grumpy. I tried his usual thing in his bouncy chair and it wouldn't calm him down and I picked him up, had him in my usual position arm under him and then he was just crying a lot you know really hard as if he was in a lot of pain, and then he arched his back with his arms up….. he just looked like he was in that much pain and erm…. Well (S) heard him in the garden, that's how hard he was screaming".
Mother agrees that she heard R scream: "It was the sort of scream that made me want to go inside and check on him in case anything was wrong. (N) was stood in the lounge doorway. He looked worried and said something was wrong. He was holding R with one hand supporting him in the back and one under his bottom. R's back was arched and his arms were in the air. His head was back. I ran to him and when I looked at R's face it was greeny/grey in colour and his eyes were in slits". This accords with father's description of R and has been referred to by everyone without any pejorative or technical significance as a collapse.
R was taken to the Accident and Emergency Department at Lancaster Royal Infirmary at 8:18pm on 11 August 2006. He was transferred to Royal Manchester Children's Hospital on 15 August 2006.
There is no dispute as to the following medical facts which were established on examination:
a. On radiological scanning on 12 August 2006 (CT) and 16 August 2006 (MRI) R was found to have a chronic subdural haematoma (SDH) which was then at least 2 to 3 weeks old (i.e. arising not later than mid July) over both cerebral hemispheres and which was slightly larger on the right than the left. He also had acute bleeding (an acute SDH) which was between 3 and 7 days old as at 16 August 2006 and which extended over both cerebral hemispheres, particularly in the left sided collection and also in the region of both posterior inter-hemispheric fissures.
b. R had exhibited a mild transient encephalopathy i.e. at the lower end of the spectrum of insult.
c. On ophthalmic investigation by Mr Ian Lloyd, Consultant Ophthalmologist, on 16 August 2006 R was noted to have extensive retinal haemorrhages in both eyes including a large pre-macular haemorrhage in the right eye and a smaller pre-macular haemorrhage in the left eye and multiple fading intra-retinal haemorrhages scattered throughout the retina in both eyes.
The Local Authority's Case
In order to introduce clarity into a necessarily detailed analysis of how R came to present in the way that he did between 11 and 16 August 2006 and from birth until then I shall set out the parties positions. The key issues were identified prior to the commencement of this fact finding hearing and are summarised in the form of a 'Scott Schedule'. Having regard to the oral evidence which has been heard, the local authority now summarise their case as follows.
The local authority say that it is possible that R sustained an SDH together with retinal haemorrhages at birth. If he did so, they say that these were asymptomatic and that it is statistically likely that the any signs had resolved within 4 weeks of his birth i.e. by about 28 th June 2006.
They allege that thereafter R sustained serious non-accidental head injuries on no less than two occasions:
a. He sustained the first head injury on or around 7 July 2006; this caused an acute SDH which became a chronic SDH, which in turn took in fluid, expanded and caused head swelling. At the time of the first head injury, R showed non-specific signs of general malaise, was said by his parents to be crying differently (and according to mother, excessively) and was taken to the doctors.
b. The second head injury was caused on the evening of 11 August 2006. This caused additional i.e. separate subdural bleeding, and more obvious neurological symptoms including fitting. As a consequence of this second traumatic event, R collapsed.
c. At the time of and in the event which caused the second head injury, R also sustained extensive retinal and pre-macular bleeding.
The local authority submit that it is quite proper for this Court to regard the combination of SDH, eye haemorrhage and (even transient) encephalopathy as a "strong pointer" to non-accidental head injury. They also submit that:
a. The degree of force which would have caused either or both of the head injuries was excessive i.e. outside normal handling such that an observer (an objective bystander) would reasonably believe it would cause harm to the child;
b. The degree of force in the second incident was at least as great as that in the first; and
c. The overall picture of injuries identified as recent on 11 August 2006 has to be considered in that, they say, this was not just a case of a re-bleed into an area affected by chronic SDH; acute subdural blood was found in other areas of the subdural space, and in...
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