Neutral Citation Number: [2017] EWCA Civ 965
Case No: B4/2016/0349
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COMBINED COURT CENTRE
His Honour Judge Orrell
DE15C00097
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/07/2017
Before:

LADY JUSTICE BLACK
SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE SALES
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Between:

	In the matter of P-K (Children)		

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Ms Langdale QC & Ms Croxford (instructed by French & Company Solicitors) for the Appellant
Miss Isaacs QC & Ms Jones (instructed by Derby City Council Legal Department) for the Respondent

Hearing date: 6 April 2017
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Judgment Approved
Sir Ernest Ryder, Senior President: 
1.	  This is an application for permission to appeal findings of fact made by His Honour Judge Orrell on 17 December 2009.  The findings were made in public law children proceedings heard in the Derby County Court.  The child concerned was born in 2009.  The parties to the proceedings were the local authority applicant, Derby City Council, the child’s mother, the child’s father, the mother’s then partner and the child, by her children’s guardian.

2.	  The child concerned had been admitted to hospital on 5 June 2009 as a consequence of which medical investigations and examinations were conducted.  The local authority issued care proceedings and alleged that the child had sustained injuries which were inflicted.  Within the proceedings expert evidence was commissioned about the cause of the child’s injuries.  The experts included Dr Stephen Chapman, consultant paediatric radiologist, Mr Peter Richards, consultant neurosurgeon, Dr Neil Stoodley, consultant neuroradiologist, and Dr Ian Mecrow, consultant paediatrician.  Prior to the finding of fact hearing, the experts had answered various questions asked of them by the parties with the approval of the judge.

3.	  The hearing took place on 17 December 2009.  The mother, her partner and the partner’s half-sister who was living in the household with them gave oral evidence.  Evidence was also given by Dr Chapman.  After Dr Chapman had given evidence the court adjourned to allow instructions to be taken.  When the hearing resumed the judge released the remaining expert witnesses.

4.	  The judge in his judgment made the following findings:

a.	“The brain injuries were non accidental and in all probability were inflicted during the night or early morning of the 4-5 June 2009 by shaking or shaking together with impact against a soft surface. These injuries were caused whilst [the child] was in the care of either the Mother or [her partner] or in the care of both of them.”

b.	“The injuries to [the child’s] lower limbs are very likely to have been sustained on a single occasion and were caused either by [the child] being held by the calves or by being shaken.  The evidence suggests that it is likely that the injuries to the brain and those to the lower limbs were sustained during the same incident.  The injuries to the lower limbs were also non accidental and were sustained whilst [the child] was in the care of the Mother or [her partner] or in the care of both of them.”

5.	  The effect of those findings was that the judge excluded two adults from the pool of possible perpetrators (the partner’s half-sister and the child’s maternal grandmother) but left the mother and her partner in that pool.  As a consequence, the child was made the subject of a care order on 18 March 2010 and placed with her maternal grandmother where she remains.  Mother’s second child was born on 19 April 2010 shortly after the conclusion of the proceedings.  He was placed with his paternal grandmother, in whose favour a special guardianship order was made.  Mother’s third child also lives with maternal grandmother following care proceedings.  The family household is no longer the same as that which existed when the circumstances that led to the findings of fact were made ie the partner is no longer in the household or in contact with the mother.  

6.	  An issue has arisen about the risk to which each of the children might be subject if in the care of the mother or in contact with her and that issue has triggered an application for permission to appeal the findings of fact to this court.  The application is, of course, long out of time and the court would need to scrutinise the reasons for the delay and what approach this court should take to both the application for permission to appeal and to adduce additional evidence.  It is convenient, however, to concentrate on the merits for the purpose of this judgment.

7.	  As will become clear, at the conclusion of the hearing the court decided that the application for permission was misconceived, refused permission to appeal and accordingly dismissed the appeal.  In deference to the careful way in which Miss Langdale QC puts the mother’s detailed case about the medical evidence that exists, I shall deal with it in judgment so that the mother might know why we came to the conclusion that we did.

8.	  Although there are ten grounds in the amended grounds of appeal that have been filed, there are three bases upon which Miss Langdale pursues the appeal.  The three bases are that:

a.	The medical consensus was based on an insubstantial assumption of inflicted injury;
b.	The process adopted during the hearing involved a procedural irregularity in that the judge released all of the expert witnesses after Dr Chapman had given evidence when he should have permitted cross examination thereby scrutinising the detail of the evidence; and
c.	There is new evidence from a consultant paediatric radiologist, Dr Halliday, which casts doubt on the findings that were made.

9.	  Miss Langdale acknowledges that so far as the merits are concerned she needs to identify how the original and/or new material casts doubt on the accuracy of the findings that were made if she is going to succeed in satisfying the second limb of Ladd v Marshall. 

10.	This court has had the benefit of informal agreed notes of the fact finding hearing.  From those notes the following matters can be ascertained.  The mother was represented by counsel.  The court was told that it was agreed by the experts and the parties that the injuries had been inflicted ie they were not accidentally sustained.  The court was informed by counsel for the local authority that the identity of the perpetrator(s) of the child’s head injuries and lower limb fractures was in issue.  There was neither objection taken by the mother to the way the case was opened nor to the identification of the issues raised by the local authority.  

11.	Counsel for the mother and for her partner independently confirmed to the court their instructions, namely that the child’s injuries were likely to have been inflicted rather than accidentally sustained and could not be birth related.  It was made clear to the court that each adult denied being the perpetrator of any of the injuries.  It was common ground that the issue of perpetration was in part informed by the question of timing which was the subject matter of the expert evidence.  

12.	The court had available to it the experts’ reports, the answers to the questions posed to the experts on behalf of the parties and the oral evidence of Dr Chapman.  No party challenged any of the evidence given by Dr Chapman with the consequence that it was agreed that the maternal grandmother could no longer be considered to be in the pool of possible perpetrators.  The judge heard oral evidence from each of the remaining three adults in the pool.

13.	At the end of the evidence of the potential perpetrators the judge considered whether the remaining experts should give oral evidence.  Given the limited although important nature of the issue before the court, the judge came to the conclusion, without objection from any party, that the nature and extent of the agreement between the experts and the lack of challenge to the evidence that was relevant to timing and/or perpetration did not necessitate any other expert giving oral evidence.  No-one asked for any other expert to be tendered for cross examination.

14.	It is in that difficult context that Miss Langdale seeks to persuade this court that the mother’s appeal should succeed.  It is worth commenting, although I do so with some hesitation, that an appeal is not necessarily the way in which this mother should be considering the question of likelihood of harm and risk that the appeal is intended to highlight and/or resolve.  This court has not heard submissions on the question because it is not the subject matter of the appeal, but it is clear that the nature and extent of the risk that arises out of the findings of fact made in 2009 is different from any risk that may be alleged to be relevant to at least the third child who was not the subject of the original proceedings.  The household is different and the section 31 threshold would have to be proved.  It would not be sufficient to simply say that one person is in a pool of perpetrators of injury relating to another child in other proceedings and that accordingly the threshold for intervention is satisfied in respect of a child who was not a party to those proceedings.  That issue is not for this court.  There is authority on the point and I propose to say no more about it.

15.	The unchallenged medical evidence included the following propositions:

a.	There were inflicted lower limb fractures;
b.	The brain injuries were acute, not accidental in origin and unconnected with the child’s birth;
c.	The injuries occurred during a single event;
d.	There was no evidence of underlying congenital or metabolic disorder; a car accident and the presentation of the child at the GP on 3 June 2009 were unconnected with the causal event.

16.	Dr Chapman’s oral evidence confirmed the following:
a.	The window for the metaphyseal fracture is between 5 and 8 June on the following basis: the evidence of healing suggests a 7 to 14 day timescale working back from 19 June ie 5 to 12 June and the injury was known to exist on 8 June and so the window is 5 to 8 June; 2 to 3 June is very unlikely;
b.	The fracture would cause initial distress of several minutes but then not many signs at all;
c.	A child with such a serious head injury would be expected to show symptoms very soon afterwards; the child was unwell on 5 June but had been noted to be ill for quite a bit longer;
d.	The child would be expected to collapse and become profoundly unwell soon after the head injury (to include for example a change in the level of consciousness, a convulsion and possibly the cessation of breathing).

17.	The challenges that are now made to the medical evidence are based on the following:

a.	A clavicle injury which is likely to have been caused during delivery and that was not known until radiology at five weeks of age;
b.	The forceps delivery caused extensive bruising to the child’s head;
c.	The child’s mother reported on admission of the child to hospital on 5 June that the child had screamed on being picked up or handled from birth, had taken time to calm down and was generally much happier when left lying quietly ie clinical symptoms of irritability; the mother’s partner said that on 3 June the child was screaming, ‘it wasn’t screaming loud it was more a low moan’;
d.	The mother said in oral evidence that she had reported to the GP on 3 June that from about four days prior to admission she had noticed brief pauses in the child’s breathing for about 3 to 4 seconds and the child had not been eating; to the GP she said that the child was sleeping a lot, was not feeding properly and was quite unresponsive; the mother’s partner said that the child had been breath holding all the time and bringing up her food;
e.	The absence of any evidence of a clear deterioration in the child’s condition consistent with acute injury;
f.	A complex picture of head injury compatible with chronic injury; and
g.	The absence of birth records relating to the injuries undoubtedly sustained at birth.

18.	The first basis of the appeal would involve the re-examination of the medical opinion evidence to establish whether the cause of the lower limb fractures and the head injuries were inflicted or accidental in a manner that was not conducted at the hearing before the judge and in contradiction with the concessions made by the parents.  Ms Langdale submits that the court below should have identified evidence from the experts and the parties which would have supported an alternative cause of injury compatible with the assertions now pursued.  It is possible to extract out from the experts’ written evidence that which is compatible with unknown or alternative causation hypotheses.

19.	Mr Richard’s report dealt with the question whether the presentation of brain injury was acute or chronic ie recent or birth injury in the context of this case.  He opined that the clinical presentation of sequelae including the absence of retinal haemorrhaging was unusual.  He identified an indicator of chronic injury, namely the ‘mismatch in the weight on the 9th centile and the head circumference on the 75th centile [which] may favour slightly the process having been going on for some time’.  He concluded, however, that was not diagnostic  and, albeit marginally, that the overall presentation of brain injury was more compatible with recent injury.  

20.	Dr Chapman was concerned about the presentation of the child after such a significant head injury and also said that the evidence of timing was problematic.  His conclusions, however, were those set out at paragraph 15 above.

21.	Dr Stoodley compared and contrasted the patterns of hypoxic ischaemic brain injury caused by shaking and/or impact.  He was of the opinion that it was very unlikely that the child would have behaved normally after the causative event.

22.	Dr Mecrow was of the opinion that ‘the triad of features is incomplete [which] reduces somewhat the degree of certainty that can be held with regard to the likelihood of non-accidental head injury’. He remarked on the research indicating that as many as 20 to 40% of those who are thought to have suffered inflicted injury present without retinal haemorrhages.  He was not aware of any naturally occurring conditions that could induce the combination of findings that were observed and concluded that it was likely that the child suffered an episode of trauma.

23.	Dr Mecrow went on to observe that metaphyseal fractures of the femur have been described after traumatic and even normal deliveries but concluded that ‘the overall picture of metaphyseal fractures and subdural haemorrhages points very strongly indeed towards non-accidental causation being most likely’.

24.	It is clear from the evidence that exists that each of the medical experts considered alternative causative mechanisms and identified the clinical findings or reported material that was inconsistent with their overall and agreed conclusions.  It is important to note that each expert relying upon their own specialist skill and experience came to the conclusion that the injury or injuries they were examining had been inflicted despite such evidence as there was to indicate an alternative conclusion.  It is not suggested that any expert strayed outside of their skill and expertise and for those experts whose clinical skill involves looking at the broad picture of injury, that broad picture only served to reinforce their conclusion about causation.

25.	In my judgment, there was insufficient in the evidence of the experts to which this court was taken that casts any realistic doubt on the conclusions to which they came as reflected in the evidence of Dr Chapman.  That deals with the first basis of the appeal.  Given the lack of challenge to his opinions on causation and timing, the concessions of the parties and the lack of any clear prima facie case of accidental or birth trauma, it was proportionate for the court to release the remaining experts after Dr Chapman had given evidence.  Even at that late stage, the parties could have asked to cross examine on any of the bases that has been put to this court.  They did not.  There was no clear alternative hypothesis of harm ie no real possibility of an alternative to inflicted injury that the court of its own motion should have pursued given its obligation to safeguard the welfare of the child. That is my conclusion in relation to the second basis of the appeal.

26.	During case management for the appeal hearing, the court was persuaded to investigate the hypothesis pursued by the mother by permitting the instruction of a further expert on the basis that there has been a miscarriage of justice.  Given what this court now knows of the opinions of the experts and the way the mother puts her case, there has not been a miscarriage of justice and I would not give permission to adduce the additional evidence on the appeal.  Dr Halliday’s evidence is however before the court and the mother sought to rely on the same.  For completeness, I shall deal with it on its merits.  

27.	Dr Halliday does not give an opinion about the head injuries and so these remain to be explained.  As respects the lower limb fractures, she is of the opinion that the skeletal X-ray films are of poor quality but agrees with Dr Chapman that they show a metaphyseal fracture to the proximal left tibia and the distal right femur which was inflicted.  She disagrees with Dr Chapman about whether the films also show fractures to the distal left femur and the proximal right tibia.  

28.	On any basis, therefore, there remain questions to be answered about inflicted injuries to the child.  Dr Halliday disagrees with Dr Chapman about the timing of the injuries ie she opines that the confirmed metaphyseal fracture probably occurred 7 to 10 days earlier than 8 June.  Even were she to be right, the question of perpetration is no clearer.  

29.	It is accordingly submitted by the local authority that the new evidence taken at its highest does not provide real reason to cast doubt on the findings made in 2009 to justify re-opening the same.  I agree.  Even if it is taken together with the materials from the experts that were before the Judge Orrell it is insufficient to satisfy the Ladd v Marshall test and the third basis for the appeal is not made out.

30.	For these reasons, I came to the conclusion that permission should not be granted and with the agreement of my Lady and my Lord, the appeal was dismissed.

Lord Justice Sales:

31.	I agree.

Lady Justice Black:

32.	I also agree.