Re W (A Child) (non-accidental injury: expert evidence); sub nom Oldham Metropolitan Borough Council v GW and PW
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE RYDER,Mr Justice Ryder |
| Judgment Date | 20 March 2007 |
| Neutral Citation | [2007] EWHC 136 (Fam) |
| Docket Number | Case No: MA05C01045 |
| Court | Family Division |
| Date | 20 March 2007 |
[2007] EWHC 136 (Fam)
Mr Justice Ryder
Case No: MA05C01045
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Sarah Singelton QC (instructed by the Borough Solicitor) for the Applicant (local authority)
Mr Anthony Hayden QC and Mr Karl Rowley (instructed by Pearson and Hinchliffe) for the 1 st Respondent (Mother)
Miss Eleanor Hamilton QC and Mr Bansa Singh-Hayer (instructed by Platt Halpern) for the 2 nd Respondent (Father)
Mrs Sally Bradley QC and Ms Erica Carleton (instructed by Rothwell and Evans) for the child (the 3 rd Respondent, by her children's guardian, Ms Jacqueline Coultridge)
Mr John Sharples (instructed by Hempsons) for the Intervenor
Hearing dates: 14 th November 2005, 17 th, 29 th, 30 th and 31 st January 2007
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.
This judgment is being handed down in public on the 20 th March 2007. It consists of 103 paragraphs 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 child and the adult members of his family must be strictly preserved in accordance with the publicity restraint order which has been renewed and which is dated the 20 th March 2007.
Index:
Paragraph Numbers
to 4 Preamble
to 26 Background
to 36 The Proceedings and Medical Evidence leading to the Finding of Fact Hearing
to 41 The Finding of Fact Hearing before Her Honour Judge Newton
to 48 The Appeal
to 60 The New Medical Evidence
to 66 The Re-Hearing
to 73 The Current State of the Medical Evidence
The New Medical Consensus
to 89 Analysis
to 100 Lessons to be Learned
to 103 Publicity
Mr Justice RyderPreamble
This is a case about KPW (hereafter 'K'), a young boy who was born on 8th November 2004. His mother, the First Respondent, is GW and his father, the Second Respondent, is PW. K's parents are in a permanent relationship but have not married. In common with the other parties, K is represented by counsel and solicitors instructed by a children's guardian, Ms Jacqueline Coultridge. The Applicant local authority, Oldham Metropolitan Borough Council, commenced care proceedings in respect of K on the 28th January 2005.
At the outset of this judgment I must emphasise three very important and essential facts that I find and that are now agreed by all involved:
i) K has never been a victim of non accidental injury
ii) The care of K by his parents is and has always been exemplary
iii) K's parents and relatives acted promptly and appropriately in obtaining medical treatment for him.
In the reading of complex medical materials these essential facts may become obscured. They should not be forgotten. This is not a case where there is 'no smoke without fire', this is a case where a family court and the expert who advised it got it wrong. The parents have no case to answer but their son spent 12 months of his very young life away from their care while the family courts acted to correct the error. K's parents deserve an explanation as will K when he is older. It is not surprising in these circumstances that there are lessons to be learned.
I am acutely aware that this court acts with the benefit of hindsight, a luxury that was not available to any of those in the legal and medical communities at the time that difficult decisions had to be made. Nevertheless, in light of the importance of some of the issues that have been raised, I hope I may be forgiven for venturing my own recommendations for the future. Accordingly, in the body of this judgment I shall pose some of the problems that were identified and suggest solutions.
The Background
K's mother and father had been in a relationship (on and off) for over a year by the time of his birth in early November 2004. The birth was relatively uncomplicated, though the mother's membranes had ruptured some 24 hours previously and because of the rupture, K was given antibiotics to guard against infection. K's stay in hospital was largely unremarkable save that he was observed to have a swelling over his left eye and his right eye was bloodshot. A swab was taken of the eye which revealed nothing of note: the possibility of infection was considered and not excluded. K was breast-fed. Both he and his mother were discharged home on the 11 th November 2004.
Mother had a tenancy in Oldham at the time and father was living there with her. Thus, father was present and involved when mother and K returned home. The new family was also visited and supported by both parents' mothers.
K was seen at home by a midwife before noon on the 21 st November 2004 when he appeared well. This had been the professional opinion during the couple of weeks after his birth i.e. the midwives and health visitors who regularly saw the family were happy with K's progress. They were impressed with mother: she was described as settled and confident with the care of the baby and as coping well. She was continuing to breast-feed.
The couple went out on the night of Saturday the 20 th November 2004. K was left with his maternal grandmother and mother had expressed milk for him. The parents returned home in the early hours of the 21 st November and picked up K later that day. A midwife arrived at about 11.00 am and stayed for around half an hour. She observed that mother and baby were well: K was bright and alert and fed well.
The narrative of events from the midwife's departure before noon on the 21 st November to 12.59 am on the 22 nd November is derived almost entirely from the parents' accounts. In their statements to the court the couple said that K was asleep for most of the afternoon and that little remarkable had happened. Mother went for a sleep for a couple of hours from around 4.00 pm and K slept on his father's chest as he watched television. Father's brother visited for a short while during the afternoon but he at no time had care of the child. At around 6.00 pm mother awoke and attempted to feed K but he did not seem hungry. He slept through the early evening but at some point at night K awoke and was said to be floppy and his eyes were rolling. Concerned, father was despatched to his mother (K's paternal grandmother) to seek advice. She suggested K might be too warm and so layers of clothing should be removed, and perhaps a cool bath given.
This was to no avail and so the parents called the Royal Oldham Hospital. The couple were given some instruction and in particular to raise K to see if he lifted his legs. He did not and an ambulance was immediately summoned. The ambulance arrived at one minute before 1.00 am; K's pulse was 160 per minute and his respiratory rate 40 per minute. By 1.24 am K was in the accident and emergency department of the hospital.
K had various blood tests. A viral illness was suspected. A thyroid test proved normal. He was possetting after feeds, but by 2.00 pm on the 22 nd November he was considered satisfactory and alert by medical staff. There was talk of him being discharged but mother expressed her unhappiness with this. In the event, her concern was validated: mother noticed K's right hand was twitching at about 7.00 pm on the 22 nd November and this continued and then worsened for the next hour.
At 9.45 pm a lumbar puncture was performed which did not demonstrate meningitis or other infection. K, however, continued to fit and phenobarbitone was prescribed and administered. At 1.45 pm on the 23 rd November a cranial ultrasound was reported to be normal with no evidence of intraventricular haemorrhage and no parenchymal abnormality. K's seizures were regular and very distressing for him and his parents. Dr Odeka, Consultant Paediatrician, requested an EEG. This was reported to be severely abnormal. It showed a moderate amount of inter-ictal epileptiform activity localised to the left posterior quadrant. Such a localised seizure was thought to be secondary to focal, cerebral dysgenesis, and/or a neuronal migration defect: essentially it was thought to be due to a structural abnormality where K's brain had developed in the wrong way. A CT or preferably an MRI scan was advised.
K's last seizure was recorded as taking place in the afternoon of the 24 th November. He seemed more settled the following day and was more alert and responsive. A CT scan was performed that same day. Dr Kumar, Consultant Radiologist, reported that there was a focal area of high density in the left parietal region measuring 5mm x 5mm with no gross peri-focal oedema. The rest of the brain parenchyma was said to be unremarkable. There were no signs of hydrocephalus or herniation. Dr Kumar said that appearances suggested a small focal haemorrhage and queried whether it may be due to a prominent vessel.
Dr Odeka discussed the CT scan report with Dr Herwadkar, Consultant Neuroradiologist at Hope Hospital, Salford. He confirmed that there was a left frontal small haemorrhage and that it was within the brain substance. There was no soft tissue swelling or fractures of any bone, and he thought that the site of the lesion was unusual for it to be caused by trauma. He emphasised the need for MRI scanning....
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