High Court Judgment Template

1. This is a case about KPW (hereafter ‘K’), a young boy who was born on 8^th 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 28^th January 2005.

2. 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.

3. 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.

4. 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

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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. Arrangements were made for this to take place on the 6^th December 2004.

15. After taking advice on the management of K’s condition with neurologists and discussing matters with the parents, K was discharged home to his parents on the 27^th November, with a plan for weekly review on the ward. It is to be emphasised that at this stage no clinician had suggested the possibility that the cause of K’s symptoms was a non-accidental injury. What had been identified was that K’s condition was unusual.

16. The next couple of weeks passed unremarkably with reviews in hospital and by midwives and health visitors. A picture emerges of a concerned but coping mother and a child who was progressing well enough. K underwent the MRI scan on the 6^th December as arranged.

17. That scan was reported upon by Dr W. St.C. Forbes, Senior Consultant Neuroradiologist on the 7^th December. He found a well-defined ‘cystic’ abnormality in the subcortical white matter of the left parietal lobe in the region of the pre-central sulcus. In addition, there were fairly symmetrical areas of high signal intensity in the subcortical white matter of both parietal lobes consistent with subacute haemorrhage. There was also evidence of a tiny, thin, subacute subdural collection over the parietal-occipital convexity. These appearances were consistent, Dr Forbes felt, with a previous subcortical white matter tear in the left parietal region with evidence of subacute haemorrhages in the subcortical white matter of both cerebral hemispheres. These appearances, he said, raised a possibility of non-accidental injury.

18. For reasons unexplained, this report was not received by Dr Odeka until the 4^th January 2005. On the 6^th January Dr Odeka rang the Neurology department and on the following day spoke to Dr Hughes, Consultant Paediatric Neurologist. In the light of Dr Forbes’ report it was concluded that non-accidental injury must be considered. There were further discussions with Dr Ismayl, Consultant Paediatric Neurologist. His initial impression was that K could have suffered an intrinsic bleed which in his age group might be related to underlying vascular malformation. Dr Ismayl then saw Dr Forbes’ report and felt that in the absence of a history of an accident sufficient to cause the brain damage non-accidental injury must be considered as a possibility.

19. On the 7^th January 2005 a full skeletal survey was undertaken: there was no evidence of bony abnormality. Dr Odeka discussed the findings with the parents, telling them of the possibility of non-accidental injury, and then rightly contacted social services. Social workers attended hospital, discussed the case with the parents and grandparents and K was discharged home.

20. It is important to note that each of the clinicians involved discussed their opinions and findings with each other and went through the processes of taking or considering the history, examination, testing and differential diagnosis to narrow the diagnostic options. Each in their own way deferred to or were involved in the process of referral to Dr Forbes to assist in this process. No-one criticises any of these clinicians. They were all skilled specialists in their own right. Furthermore, the process in which they were involved is an example of a team approach involving inter-disciplinary peer review and referral that is the essence of good practice in health and social care and for that matter in the approach of the both the Government and the family courts to the use of experts (see ‘Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases: A report by the Chief Medical Officer (2006) 30 October and Appendix C to the Protocol for Judicial Case Management in Public Law Children Act Cases ‘the Code of Guidance for Expert Witnesses in Family Proceedings’ [2003] 2 FLR 719 at 771). Despite this, what thereafter happened was a miscarriage of justice in the making.

21. On the 13^th January 2005 the local authority solicitor wrote to the clinicians then involved including Dr Forbes. In the letter to Dr Forbes she said, inter alia, “you will appreciate that the Authority cannot initiate care proceedings unless we have in writing reasonable cause to believe that K has suffered a non-accidental injury. We have not received this as yet.”. She then went on to ask Dr Forbes to address a number of questions including the dates and times of examination, what injuries there were, their likely causation, and whether there was any other possible explanation. One of those questions was: “Whether K’s injuries were likely on a balance of probabilities to have been accidental or non accidental”

22. It should be noted that that letter was focused and direct. To an extent the simplicity of its content is to be commended as is the fact that this local authority committed its request to paper and disclosed the same to the parties and the court despite the fact that this preceded the court’s involvement and did not need their agreement or the court’s approval. It was also written before the decision of Charles J. in A County Council v. K, D and L [2005] EWHC 144 (Fam), [2005] 1 FLR 851 @ para [89] where he said:

“…in civil cases concerning children it might (a) assist all involved, (b) better reflect the roles of the expert and the judge, and (c) demonstrate that the expert is not the decision-maker as to whether the relevant death, injuries or harm is the result of non-accidental human agency and whether the threshold is satisfied, and does not have all the relevant information, if the medical experts were not asked to express a view as to the cause of the relevant death, injuries or harm on the balance of probabilities but were asked to:

(i) identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered;

(ii) state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause;

(iii) compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant death, injuries or harm

(iv) state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view; and

(v) state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view.”

23. For my part I would respectfully add to what Charles J. said in his extensive and if I may so careful and invaluable review of the relevant case law relating to findings of fact and the evidence of experts (at paras [25] to [90] of A County Council v. K, D & L (supra)), that the opinion evidence of experts is often the consequence of the assessment processes and techniques that they use. It will almost certainly be the case that it is not appropriate to characterise (for example) a paediatric or psychiatric risk assessment as being a conclusion to which the civil standard of proof applies in just the same way that a social care assessment, for example in accordance with the Framework for the Assessment of Children in Need and their Families TSO (2000) is neither based upon nor results in a conclusion on the balance of probabilities: Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776 per Scott Baker J. The task of determining facts to a standard of proof is for the court (see also Dingley v. Chief Constable of Strathclyde Police (2000) 55 BMLR 1 (9 March 2000) per Lord Hope of Craighead at 120 and 122) .

24. I do not criticise the local authority in the recommendation that I make that all local authority instructions to experts that they wish to involve before proceedings are taken should follow the good practice guidelines for letters of instruction generally (now conveniently summarised by the Family Justice Council at www.family-justice-council.org.uk and at Annex B para 21 of the CMO’s Report (supra)) and in particular that the principles set out by Charles J. are followed. It is not suggested that Dr Forbes was influenced by the terms of his letter of instruction and he denied in evidence to Judge Newton that he had been. However, the development of good practice since 2004 has a sound empirical basis and was developed after inter-disciplinary consultation and discussion and it must therefore be a possibility that had the instruction been given today, the questions would have been different and accordingly the response to the questions might have been different and that may be just one small part of the jigsaw of what went wrong.

25. In response to the letter Dr Forbes confirmed his earlier opinions. He said that there was no evidence of a major developmental or congenital abnormality. Additionally he reviewed the CT scan seen by Dr Kumar and said that there was an ill-defined area of high density in the parenchyma of the left fronto-parietal region. There was, he said, a suggestion of a similar but smaller abnormality in the right fronto-parietal region. Dr Forbes said that the sub-cortical white matters tears were pathognomonic of non-accidental injury, i.e. especially characteristic or diagnostic of non-accidental injury.

26. That report was dated the 25^th January 2005. The following day the parents and wider family were informed and an agreement was reached that K would live with the paternal grandmother, KW. A child protection agreement embodying the terms of the placement was signed on the 27^th January 2005. Care proceedings were issued on the 28^th January 2005. An initial Child Protection Case Conference held on the 1^st February 2005 concluded that K had suffered a non-accidental injury but that given the fact that proceedings had been commenced, there was an agreement in relation to his care and the family were co-operating, registration was not considered appropriate.

The Proceedings and Medical Evidence Leading to the Finding of Fact Hearing

27. The first interim care order was made by Oldham Family Proceedings Court on the 3^rd February 2005 and the case was properly and immediately transferred on the grounds of complexity and gravity to the County Court. The allocation hearing took place on the 8^th February 2005 before District Judge Fairclough in accordance with the Protocol. Thereafter and in accordance with good practice the proceedings were case managed exclusively by Her Honour Judge Newton, the allocated Circuit Judge. She gave permission for the children’s guardian to instruct Dr Kathryn Ward to undertake a paediatric overview of K’s circumstances.

28. At the Case Management Conference which took place on the 23^rdFebruary 2005 Judge Newton decided that a finding of fact hearing was necessary and fixed that hearing for the first available date which was the 5^th April 2005. The father sought permission to instruct Dr Neil Stoodley, Consultant Paediatric Neuroradiologist, to report in particular on the MRI scan. The application was in essence for a second opinion by a specialist paediatric radiologist who had not previously been involved in respect of the critical medical issue in the case. The application was supported by mother. Neither the local authority nor the children’s guardian opposed it. The parties had flagged-up the need for such a report in their case management documentation and had discussed the issue at an advocates’ meeting prior to the case management conference. The judge refused the application. Her order was not appealed.

29. Whether there should have been a second opinion and the necessity of an early appeal are questions that the Court of Appeal subsequently answered. What has not been discussed is why the careful process of medical peer review and judicial case management concentrated on what came to be regarded as a medical consensus and did not highlight the unusual features of the case that would eventually come to be accepted as a rare example of a medical event that was constitutional not imposed.

30. The overview report of Dr Ward was subsequently received and is dated the 21^st March 2005. She considered, inter alia, issues raised by the parents concerning the swelling to K’s eye and his receiving a blow to the head after his discharge in November. She thought neither was aetiologically connected with the injuries Dr Forbes identified. She concluded that a review of the medical records and of the investigations performed on K revealed no evidence of any underlying medical condition or pathology which would predispose him to the radiological findings described by Dr Forbes. Dr Ward pointed out, however, that Dr Kumar had not seen the MRI scan, and recommended that he did so as:

“the diagnosis and timing of possible non-accidental injury is wholly dependent upon the cumulative information gathered from the CT scan and the MRI scan. It will be very important to ascertain if there is any difference of opinion between the radiologists, and I would defer to radiological opinion in this matter. If however Dr Kumar disagrees with Dr Forbes’ interpretation of the MRI scan then other issues would become important, for example more detailed investigation into possible clotting disorders such as Factor XII deficiency. It is essential to paediatric opinion that there is some consensus from the radiologists.”

31. Dr Ward additionally noted that no-one had at any stage examined K’s eyes for haemorrhaging. She suggested this be done, even at that late stage, as there may be signs of such or their sequelae.

32. In light of this report and at a further directions hearing on the 22^nd March 2005 the father’s legal representative renewed his application for permission to instruct Dr Stoodley. The application was refused again (as was permission for leave to appeal). An appeal to the Court of Appeal was not pursued. The judge did however direct that a report be filed by Dr Kumar as to whether he agreed with the conclusions of Dr Forbes in relation to the MRI scan. A direction was also made providing for a consultant ophthalmologist to report.

33. The Experts’ Meeting that was held on the 24^th March 2005 was without the benefit of Dr Kumar’s report and without his attendance. Drs Odeka, Forbes, Ismayl and Ward attended. Dr Forbes brought his viewing box and demonstrated his findings using the same. Those attending the experts meeting agreed that there were white matters tears and the tiny haemorrhage as previously described. They agreed that the probable cause of the white matter tears was severe shearing forces and that their presence was highly characteristic of non-accidental injury.

34. They agreed that the probable cause of the injury was a single shaking episode involving impact with considerable force being involved. The forces involved were complex, involving rotational and longitudinal forces. The absence of any external signs of injury was consistent with the mechanism as suggested. Dr Odeka confirmed that the ophthalmologist had found no abnormality but this was considered of no significance to the conclusions reached at this late stage. As to the timing, the consensus was that K sustained the injuries between 11.00 am on the 21^st November 2004 and 12.56 am the following day. There was a possibility that the tiny subdural collection may have been caused at birth but it was more likely that the cause was something other than a birth event, given K’s presentation then.

35. At the request of mother’s Solicitor the experts were asked whether they were content to rely on the opinion of only one neuroradiologist. The assembled experts deferred to the court to determine which experts should be involved, but noted that Dr Kumar had been asked to report in advance of the finding of fact hearing and that two neurologists had considered the MRI scans. Drs Odeka and Ward observed that they would defer to the radiological opinion whatever the number of radiologists involved, but that radiology was an essential piece of the jigsaw.

36. The finding of fact hearing was to commence before Judge Newton on the 5^th April. Dr Kumar’s report was filed the day before. Dr Kumar declined to comment one way or the other on Dr Forbes’ report as he frankly confessed he had not come across an MRI scan of a neonate’s brain in 4 ½ years of practice. He suggested that a paediatric neuroradiologist give a second opinion if that was considered necessary.

The Finding of Fact Hearing before Her Honour Judge Newton

37. At the outset of the finding of fact hearing on the 5^th April 2005 junior counsel for the mother (then appearing alone) made an application for permission to instruct Dr Stoodley. This involved an application to adjourn the hearing. The Court was told that Dr Stoodley could report within 8 to 10 weeks of instruction. Dr Ward’s comment that a radiological consensus was essential to the paediatric opinion was brought to the court’s attention. The unusual features of the case were also raised: the white matter tears themselves were very rare signs; Dr Herwadkar felt it to be an unusual site for traumatic lesion and Dr Kumar had considered the possibility of a prominent vessel being responsible for the bleed; the absence of retinal damage; the absence of significant subdural haematomas; and the absence of bony or soft tissue injury. It was argued that such unusual features meant that it was not safe to proceed on the basis of one expert opinion only: Dr Forbes’ opinion was the mainspring of all that followed, all other experts deferred to him as to the identification of the white matter tears and Dr Ward had said that a radiological consensus was essential to the paediatric opinion.

38. The Judge deferred consideration of the application until she had heard all of the evidence i.e. the application could be renewed at the end of the hearing if necessary. Drs Ward and Forbes gave evidence in accordance with their previously disclosed opinions. Dr Ward was asked how many white matter tear cases she had come across in her long career and said “over 5”. Dr Forbes said that he saw only 1 or 2 a year.

39. After the medical evidence the parents gave evidence and continued to deny knowledge of how K may have received such injuries. Their explanation of any activity that might have caused K harm, in particular a twirling movement that was demonstrated in court was not sufficient to persuade the experts of any innocent cause of K’s presentation. Neither parent sought to blame the other. Neither parent believed the medical evidence as to the presence of the subcortical injuries and their causation. An ‘innocent’ parent caught in the glare of accusation and without medical knowledge or support is in a difficult position. Their attempts to find anything that might explain what had happened will inevitably have had something of the character of desperation if not hopeless conjecture. There is little that even an experienced judge can do other than to remind himself or herself of this possibility when considering the credibility of their evidence in this difficult context. The solution lay in an earlier decision to permit them access to a second opinion.

40. In closing submissions counsel for the mother renewed the application for permission to instruct Dr Stoodley. Judge Newton delivered her Judgment on the 8^th April. In a judgment that is, if I may say so, a model of clarity, reason and analysis of the evidence put before her, she accepted what was described as the consensus of medical opinion and found that the white matter tears and the subdural collection were caused non-accidentally when the child was in the care of the parents. She was unable to say which parent was the perpetrator: both were ‘in the frame’, neither could be safely excluded. The Judge refused permission to instruct Dr Stoodley. She held that the delay which would ensue would be unacceptable for the child in the context that there was no realistic prospect of Dr Stoodley coming to a dramatically different conclusion. Whatever the strength of the submissions as to the need for a second opinion given the unusual features of K’s presentation, at that late stage in the case and having regard to the evidence that was before her, Judge Newton could have come to no other conclusion.

41. After some days (to enable the parents to reflect on the Judgment) and as she was required to do in order to pursue an appeal further, the mother sought permission to appeal from Judge Newton, which was refused.

The Appeal

42. By a Notice dated the 6^th May 2005 the father sought to appeal and for permission to instruct Dr Stoodley. On the 9^th June 2005 Thorpe LJ refused permission to appeal. On the 20^th June 2005, the father renewed his application, supported by the mother. On the 21^st June 2006 Thorpe LJ permitted the release of the papers to Dr Stoodley who had confirmed that he could provide a report within a matter of days.

43. That report, dated the 7^th July 2005, arrived at a dramatically different conclusion to that of Dr Forbes. In Dr Stoodley’s opinion the signs in K’s brain were indicative of hypoxia / ischaemia resulting from an event antenatally or intrapartum. Dr Stoodley considered that there were several facets of the case which did not fit with the pattern normally seen in cases of non-accidental head injury (‘NAHI’).

44. Firstly, K was relatively asymptomatic upon his admission to hospital, becoming ill the next day. An evolving picture of symptoms was seen but at the less severe end of the NAHI spectrum. The presence of subcortical shearing injuries suggested to him a non-accidental injury at the more severe end of the spectrum but that was not compatible with K’s presentation. A child suffering shearing injuries would have severe symptoms at the time of admission with obvious signs of severe encephalopathy. Secondly, there was no evidence of multi-focal acute subdural blood to suggest a shaking. Thirdly, the pattern of brain injury seen in the scans of K’s brain is more that of an acquired hypoxic-ischaemic insult or metabolic abnormality. Dr Stoodley favoured the former. He stated that he had never seen such a pattern of brain injury in the context of non-accidental injury. He added that in his view Dr Forbes’ opinion “is not correct, is fundamentally flawed … and … is incapable of withstanding logical analysis.”

45. In the light of that report none of the respondents to the appeal sought to argue against the setting aside of Judge Newton’s order, but the Court of Appeal was invited to provide guidance to the profession on the instruction of experts for second opinions in brain injury cases.

46. The matter came before Thorpe LJ, Wall LJ and Black J on the 25^th July 2005 when the court, by consent, allowed the appeal. The matter was remitted for rehearing before this court as soon as possible.

47. In a Judgment delivered on the 31^st October 2005[1] the Court of Appeal gave guidance on the use of expert evidence. In the context where there has been a jointly instructed expert or an experts’ consensus which a party seeks to challenge, the court held that a second opinion should normally only be permitted where the question to be addressed by the expert chosen to give the second opinion goes to an issue of critical importance to the judge’s decision in the case. The principle echoes an earlier statement of principle that is not diminished by the subsequent case law on residential assessments and which was not cited to the Court of Appeal: Re G (interim Care Order: Residential Assesment) [2004] EWCA Civ 24, [2004] 1 FLR 876 at 891 para [54] per Thorpe LJ where it was held:

“in the case of P,C and S v. United Kingdom (2002) 35 EHRR 31, [2002] 2 FLR 631 the statement of general principles between paras [113] and [120] reinforce the obligation to ensure within the court process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents”

48. The guidance given in the judgment of Wall LJ was predicated by the observation that the application made on the first day of the hearing before Judge Newton was bound to fail. The likely delay in determining the future of a very young child was by then a real issue. The question that had crystallised with the recommendation of Dr Kumar on the 4^th April was the same question that had not been pursued on appeal on two previous occasions, namely that of all the clinicians involved, Dr Forbes was the only radiologist who held himself out as able to interpret and assess the MRI scan. The apparent medical consensus on which Judge Newton relied was not a real consensus at all in that it depended on the opinions of Dr Forbes being correct as all the neurologists and neuroradiologists then involved deferred to him.

The New Medical Evidence

49. Dr Forbes responded to Dr Stoodley’s report in a letter dated the 25^th July 2005. He considered that Dr Stoodley had over-interpreted the apparent basal ganglia changes. He advised that the neonatal scans of the basal ganglia and thalami should be interpreted with caution. He considered that Dr Stoodley stepped outside his field of expertise in hypothesising that the child suffered a profound asphyxial insult, and advised that the opinion of appropriate experts be sought. He said that focal cystic changes are “uncommon to say the least” in cases of profound asphyxial insult. Focal atrophy or more rather generalised cerebral atrophy is the norm, he said, rather than focal areas of cystic encephalomalacia as postulated by Dr Stoodley.

50. Dr Forbes considered that Dr Stoodley was wrong in his assertion that sub-cortical tears are always associated with severe symptoms and Dr Forbes referred to two cases known to him where such tears resulted, in one instance, in fairly minor symptoms, and in the other in no symptoms at all. In the latter case, an MRI scan of an asymptomatic twin (whose sibling suffered acute encephalopathy) showed multiple sub-cortical white matter tears.

51. The views of Drs Ismayl and Hughes were sought on Dr Stoodley’s report. Dr Ismayl, in a report dated the 22^nd August 2005 deferred to Dr Forbes on the radiological findings. He did however observe that children who have suffered NAHI do not always present acutely and unwell. A child having severe hypoxia would definitely be unwell, and in his experience he had not seen a baby who had suffered mild to moderate hypoxic ischaemia that had resulted in cystic leukomalacia especially symmetrical and only in two sides of the brain. Dr Hughes did not consider that any further involvement from her was needed.

52. Dr Stoodley provided a further report dated the 3^rd October 2005 having seen the balance of the papers in the case. He did not alter his conclusions in any way. He expressed how troubled he was by the case as there were many aspects that appeared to him extremely unusual when compared to other cases of NAHI with which he was familiar. He reiterated that K appeared largely asymptomatic on admission whereas if his admission had been precipitated by an episode of NAHI of sufficient severity to cause shearing injuries then it would be “extraordinarily improbable that he would not have been obviously and seriously unwell.” He regarded the signal abnormalities in the thalami to be real, not artefactual.

53. While not subscribing to a ‘tick-box’ approach to cases of NAHI he considered K’s case with reference to the so-called triad of features commonly seen in NAHI cases: acute encephalopathy, subdural haemorrhage, and retinal haemorrhage. These elements were not present in K’s case. The child was not encephalopathic on admission. K’s eyes do not seem to have been examined at the time of his stay in hospital in November 2004. If any subdural haemorrhage was present it was present at one site only and a birth injury could not be ruled out as a cause.

54. Dr Stoodley reiterated that the combination of bilateral signal abnormalities in the thalami (and possibly the left putamen) the perirolandic white matter and cortex, together with the cystic lesions and slightly more extensive subcortical haemorrhagic necrosis, is best explained by a hypoxic-ischaemic insult or possibly an underlying metabolic disorder.

55. A further Experts’ Meeting was held on the 13^th October 2005. Drs Forbes and Stoodley maintained their respective positions including as to the presence or otherwise of signal changes in the thalami. Dr Ward thought that it was highly unlikely that there would be a 2½ week period of normality following birth where there had been a prenatal insult to the brain. Dr Stoodley reiterated his view that a child presenting with subcortical white matter tears would be extremely unwell, with major encephalopathy. Drs Forbes and Ismayl disagreed. Dr Ward agreed that it was not necessary that a child be very unwell with a non-accidental injury. She commented, however, that there was a lack of an evidence base and thus “it is difficult to be objective and we are really down to experience on this and this point must be made to the Courts.” Dr Ward’s words on this and her previous caveats were, if I may say so, very wise indeed.

56. When considering the possible causes of the signs seen Dr Stoodley maintained his view that they are most likely to represent the results of hypoxic ischaemic injury. Dr Forbes likewise maintained the conclusions set out in his reports but looked to confirmation from the clinical background. Dr Ward said that if the radiology was uncertain then as a clinician she was uncertain. Dr Ismayl favoured NAHI. It was agreed that the most common site in which to find traumatic clefts from shearing injuries to the brain would be the frontal and temporal regions and that that was supported by research material.[2] Dr Forbes said that he had seen either 5 or 6 cases of shearing injuries distributed throughout the brain although the preponderance were frontal. There was discussion as to whether a further MRI scan might be useful clinically but Dr Stoodley did not think that that would resolve the issues between them.

57. Dr Forbes reported that he had seen one other case (of twins) with established non-accidental injury and an analogous pattern of perirolandic parenchymal changes. Dr Ismayl had seen two, including the case of the twins. Dr Kumar had seen a couple during his training under Dr Forbes. Dr Stoodley had not seen such a case. All experts agreed that an opinion from a consultant in obstetrics would be needed.

58. On the 11^th October 2005 which was the earliest working day following the withdrawal of the appeal in July, case management directions were given by this court including permission on an application by the child’s solicitor for Mr Philip Bullen, Consultant Obstetrician and Gynaecologist, to be instructed to provide a report.

59. On the 18^th October 2005 Dr Forbes wrote reflecting on Dr Stoodley’s comments and conceded that “on the balance of probabilities the changes in the thalami cannot be fully explained by artefact.”

60. The report from Dr Bullen, Consultant in Obstetrics & Foetal Medicine, dated the 25^th October 2005 concluded that there was a total absence of evidence of significant intrapartum hypoxic ischaemic injury to K. There was no recorded episode in the antenatal period that seemed likely to have caused foetal brain injury. In order to decide whether the brain lesions arose from an indeterminate antenatal insult Dr Bullen considered it vital that it be determined whether the fronto-parietal brain abnormalities were in fact haemorrhagic and thus arose after the foetal period. That was an issue for the neuroradiologists. In an addendum report dated the 24^th January 2006 Dr Bullen (having examined the mother’s cardiotocograph traces) reiterated the total absence of evidence of intrapartum hypoxic ischaemic injury to K.

The Re-Hearing

61. The matter came before the High Court for re-hearing on the 1^st November 2005. In light of the age of K and the effect upon all concerned, time was found in the first available list on the Northern Circuit by triple listing all high court sittings. As is often the case with urgent children matters, making scarce court time available for an essential hearing brings with it significant difficulties in getting witnesses to attend court. Dr Stoodley repeatedly made himself available at short notice to give evidence so that the pre-existing court and clinical commitments of Dr Forbes could be honoured. Only after very significant efforts by the court and the lawyers