TG (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby (President of the Family Division),Lord Justice Aikens,Sir Mark Hedley |
| Judgment Date | 22 January 2013 |
| Neutral Citation | [2013] EWCA Civ 5 |
| Docket Number | Case No: B4/2012/3232 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2013 |
[2013] EWCA Civ 5
Sir James Munby (president of the Family Division)
Lord Justice Aikens
and
Sir Mark Hedley
Case No: B4/2012/3232
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LEICESTER DISTRICT REGISTRY
His Honour Judge Bellamy (Sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Aidan Vine (instructed by Cocks Lloyd) for the applicant (the father)
Ms Jacqueline Matthews-Stroud (instructed by Nelsons) for the mother
Mr William J Tyler (instructed by the local authority) for the local authority
Ms Kate Tompkins (instructed by Dodds) for the children's guardian
Hearing date: 20 December 2012
TG was born in June 2012. When he was just twelve days old he was found to have sustained four left rib fractures, two right rib fractures, two skull fractures and a number of subdural and intraretinal haemorrhages. The latter, we were told, were not as serious as are sometime seen and did not exhibit all the features of the so-called triad.
Care proceedings were commenced in relation to TG and his two older siblings, MG born in May 2011 and CJ born in July 2007. The case was transferred to the High Court, where it has been case-managed by His Honour Judge Bellamy, a very experienced family judge who is the Designated Family Judge for Leicester. The present application arises out of the refusal of Judge Bellamy on 5 December 2012, following a hearing on 3 December 2012, to give the father permission to adduce expert evidence from a biomechanical engineer.
At this point I should interpose the father's account of an incident which the parents believe may have caused some at least of TG's injuries. I understand the local authority to point to what are said to be various discrepancies in the parents' accounts which it will wish to probe at the finding of fact hearing, but for present purposes it suffices to set out the central core of the father's account. Having explained how he had put TG in his bouncy chair on the floor of the kitchen near the patio doors and then returned to the lounge, he continued:
"I heard a banging noise in the kitchen … I heard TG cry and immediately went into the kitchen to investigate and was horrified to see [his] chair upside down and MG sitting with his back against the patio door facing into the room with his bottom and legs effectively on top of TG.
I can only assume that TG's chair had tipped forward towards the window obviously with TG in it … He was strapped by the waist into the chair and effectively his bottom area was secured into the upside down chair. MG was in a sitting position with his back against the patio door facing into the room with his bottom and legs on the chair on top of TG's head and chest area."
We were shown a photograph of the bouncy chair. It is of a type that will be familiar to many parents. It consists of two metal uprights, each of which, when viewed in vertical section, looks like a V lying on its side. One side of the V rests on the floor, the other reclines backwards at a slope. The two uprights are in fact part of a continuous metal frame, the other parts of which join the outer ends of the two Vs. The baby lies sloping backwards strapped into the fabric seat stretched between the two uprights. Because of the springy nature of the metal frame, the baby can bounce gently backwards and forwards in the seat, either by its own exertions or if someone is rocking the frame. In principle the chair can tip over, either sideways or forwards, but given a baby's comparatively low centre of gravity and the fact that the baby's bottom is not very high off the floor the chair is stable when placed on the floor.
At an earlier case management hearing Judge Bellamy had given directions for five medical experts to be instructed: Dr Joanna Fairhurst, a Consultant Paediatric Radiologist, Dr Nicholas Shaw, a Consultant Paediatric Endocrinologist, Dr Philip Anslow, a Consultant Neuro-radiologist, Dr Patrick Cartlidge, a Consultant Paediatrician, and Professor David Taylor, Professor Emeritus of Paediatric Ophthalmology. By the time of the hearing on 3 December 2012, Drs Fairhurst and Shaw had reported. The reports of the other experts were due to be filed shortly before Christmas. Arrangements were in hand for a conference of the medical experts during the week beginning 7 January 2013, the finding of fact hearing having previously been fixed to commence on 28 January 2013 with a time estimate of seven days.
In preparation for a case management conference on 25 September 2012, Mr Aidan Vine on behalf of the father set out his argument in support of his contention that biomechanical engineering evidence is relevant in this case. He said:
" Biomechanics: the level of force caused by the baby bouncer incident as described is a biomechanical question, what forces would have been generated and how do they compare to the alternative posited by the Local Authority? — the biomechanical evidence in London Borough of Islington v Al Alas [2012] EWHC 865 (Fam), Theis J at para 186 was that shaking is unlikely to result in the angular accelerations necessary to tear cranial blood vessels resulting in intradural haemorrhage but may result in neck and torso injuries and that trauma is associated with Subdural Haemorrhage."
The request made by Mr Vine at the hearing on 25 September 2012 was not supported by a formal application under Part 25 of the Family Procedure Rules 2010. Judge Bellamy directed that the issue be further considered at a hearing on 1 October 2012. Mr Vine was unable to attend the hearing on 1 October 2012, the father being represented on that occasion by other counsel. Having heard submissions, Judge Bellamy refused to grant permission. There was no application for permission to appeal. But when Mr Vine became aware of Judge Bellamy's decision to refuse the application he immediately sought to have the matter relisted with a view to seeking further reasons for the judge's decision and/or to be permitted to advance further argument and/or for permission to appeal and for an extension of time within which to file notice of appeal.
Judge Bellamy heard further submissions from Mr Vine on 18 October 2012. Again he declined to give the father the permission he sought, although permitting him to file by 9 November 2012 an interim report from Dr Van Ee as to (i) the potential relevance of biomechanical engineering to the causation of TG's injuries (ii) the nature of the tests he proposed to utilise if permission was granted for him to undertake a full report and (iii) his ability to work to the court timetable for the finding of fact hearing due to commence on 28 January 2013.
Dr Van Ee is a biomechanical engineer based at Wayne State University in the USA. He has specific expertise in the analysis and risk assessment of head injury in the infant and adult population. His area of expertise and training with respect to head injury is in identifying and quantifying the mechanisms for and the risks of traumatic head injury and the evaluation of injury prevention devices and strategies. He appeared as an expert witness before Theis J in Islington London Borough v Al Alas & Ors [2012] EWHC 865 (Fam), [2012] 2 FLR 1239 The local authority does not challenge Dr Van Ee's credentials as an expert witness in this particular field.
In an interim report dated 3 November 2012, Dr Van Ee set out details of his experience and expertise, including his co-authorship of what he describes as "the only peer reviewed publication (Prange at al 2004) in which the infant head mechanical response to impact was directly measured experimentally and compared to the CRABI-6 infant crash dummy response"; and his authorship, with others, of two papers published in the proceedings of the 2009 ASME International Mechanical Engineering Congress & Exposition, Van Ee, Moroski-Browne, Raymond, Thibault, Hardy and Plunkett, 'Evaluation and Refinement of the CRABI-6 Anthropomorphic Test Device Injury Criteria for Skull Fracture', and Van Ee, Raymond, Thibault, Hardy and Plunkett, 'Child ATD Reconstruction of a Fatal Pediatric Fall,' which he says "further refine head injury tolerance for skull fracture and intracranial trauma." He set out his understanding of the incident described by the father and of the various injuries recorded as having been suffered by TG. He recorded the mother's suspicion that "MG may have tried to sit in the bouncy chair bending the chair backwards resulting in contact to the back of TG's head … when MG tried to get off, the chair flipped forward 180 degrees". He set out a 'Suggested Plan for Further Analysis' which I reproduce as an Appendix.
As will be seen, this included experiments using a CRABI-6 infant crash dummy placed in the bouncy chair and fitted with head accelerometers:
"Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee et al 2009 and published injury reference values associated with subdural hemorrhage."
Dr Van Ee also contemplated experiments using a number of children of MG's age "sitting down rambunctiously" to determine whether they can exert sufficient force — have the strength — to overturn the appropriately loaded bouncy chair.
Dr Van Ee ended his interim report with an estimate of the cost — between $18,500 and $22,000 — and said that if given at least five weeks' notice he could complete the work by mid to late January 2013....
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