Re F (A Child) (Fact-Finding Appeal) – Unexplained Injuries: Less a case of “Who did what?” and more a case of ” Did anyone do anything?”

In May 2019, the Court of Appeal considered an appeal by the father of a 6 month old child F, against a finding that he inflicted harm upon the child. The child presented with petechial haemorrhaging of a pattern that the experts had never encountered before, and which they could not explain. The case gives an insight into the mechanisms that can cause petechial haemorhaging and what other injuries would normally be found and demonstrates the fact that medical expertise cannot always explain the causes of such harm/ injury.

 Re F (A Child) (Fact-Finding Appeal)                                   [2019] EWCA Civ 1244

UNDERHILL, IRWIN and MOYLAN LJJ                                23rd May 2019

In June 2018, the mother, father and grandparents took the child F to hospital. The child presented with extensive petechial haemorrhaging to parts of the face and forehead, with sparing (ie; clearly delineated areas where there was no haemorrhaging). There was also petechial haemorrhaging to the back of the scalp with no sparing. There was swelling around the eyes.

The local authority brought care proceedings and sought findings against the father, that he had inflicted the injuries upon the child. The court heard medical evidence from two expert witness namely a consultant paediatrician and a consultant pathologist, who were jointly instructed pursuant to Part 25 FPR. The court also heard evidence from the treating clinician who made it clear that she was not an expert witness and that she had not undergone expert witness training. She gave evidence with the leave of the court as a witness with expertise pursuant to S13 Children and Families Act 2014. The treating clinician had attended the joint experts’ meeting.

The medical experts gave evidence that they had found the case exceptionally difficult. They had not previously encountered petechial haemorrhaging and sparing of the nature and pattern seen in this case. The consultant paediatrician did not consider that an abusive mechanism was the cause. He could not exclude smothering as a possible cause, but he did not consider this to be a likely mechanism on the balance of probability. He urged caution in making a link between the presence of petechiae and smothering. The reasons for this included that he would have expected to see some other injury such as bruising or trauma to the mouth or nose and because recent research which he had found suggested that petechiae were a relatively uncommon feature in smothering. In his opinion, chest/thoracic compression could account for the petechiae but would not account for the sparing. He was open to the prospect of an ‘unknown cause’, which was not a particularly unusual situation.

The consultant pathologist gave evidence that the case left more questions than answers. In her view suffocation/smothering did not reach the threshold of being the ‘probable cause’. More generally, she was unable to say on the balance of probabilities that the medical findings represented non-accidental injuries. As with the consultant paediatrician, she gave evidence that she would expect to see some other form of injury such as bruising or trauma to the mouth or nose, if pressure had been applied in this way. Leaving aside medical conditions, she identified 3 theoretical explanations: An unwitnessed episode of coughing, vomiting or straining; asphyxiation or smothering which could be accidental or inflicted; and a medical cause that is poorly understood and that has not been identified.

The treating clinician agreed that the mechanism for petechial haemorrhaging would require increased pressure in the small veins. Something else had to be going on to cause the sparing. Smothering with some kind of pressure on the thorax was a possibility. Though compression somewhere else was more likely because the thorax is more protected. Strangulation could not be ruled out, but then some signs on the neck would be expected. The fact that there was sparing at the front but no sparing at the back of the head suggested that two different things needed to be going on. She could not identify a medical cause, such as infection. Blood tests ruled out a blood disorder.

The parents gave evidence. This established that at the time when the petechial haemorrhaging occurred, the mother had been upstairs in the home and the child had been downstairs with the father, who was changing her nappy. When subsequently questioned by police the father said that he had woken up at about 3pm, having worked a shift and then slept. However, it was clear that the above events had occurred earlier in the afternoon. The father could not explain why he had claimed that he awoke at about 3pm, other than the fact that he was not good with times and that he felt under pressure from the police to specify a time.

After ruling out a number of possible explanations, the judge concluded that there were only two options, either an unknown cause or some form of applied compressive pressure. Based on her evaluation of all the evidence, including the parents’ evidence, the judge decided that the haemorrhages had been caused by the father. Her conclusion was as follows: “I am satisfied … that … the petechial haemorrhages to F were inflicted non-accidental injuries … It is not possible, nor is it necessary in my judgment, to determine precisely how he did so. I consider it most likely that it involved some form of compression and suffocation or smothering (which resulted in the clearly demarcated areas of sparing)”. The judge’s conclusion was based on her understanding of the evidence from the treating clinician because the two medical experts instructed for the purposes of the proceedings did not support inflicted injury as being the probable cause. The judge’s summary of the evidence from the treating clinician was that: “She does not put forward a definite mechanism but now favours a combination of smothering/suffocation and chest compression as the probable cause”

The father appealed.

Held: Moylan LJ gave the lead judgment.

The appeal was allowed. The Judgment was set aside. Provision was made for a rehearing.

Understandably, the judge found this a difficult and very troubling case, because the nature and pattern of the haemorrhaging was not an easy ‘fit’ for a mechanism by which all the petechiae and sparing were caused and which fitted with the absence of other injuries. The judge misstated that the treating clinician’s evidence was that she favoured a combination of smothering/suffocation and chest compression as the probable cause. Absent such evidence, the judge’s conclusion that it most likely involved some form of compression and suffocation or smothering was not supported by the evidence.

The judge did not sufficiently engage with the evidence that did not support her conclusion of inflicted injuries. It was not clear from the judgment why she discounted the evidence which pointed against inflicted injuries. These features included the absence of sparing on the back of F’s head; the absence of any other injuries; the speed with which F appears to have recovered from what would have been a life threatening event; and, if this was the mechanism, the considerable difficulty of applying pressure to the face at the same time as applying compressive pressure elsewhere. The judge needed to explain how these features were outweighed by the other evidence.

A feature of this case was the fact that two expert witnesses gave evidence pursuant to Part 25 FPR, and the treating clinician gave evidence with the leave of the court, pursuant to S13(6) Children and Families act 2014. The court was invited to give guidance as to the juxtaposition between expert witnesses who give evidence pursuant to Part 25 FPR and witnesses who give evidence within their expertise, pursuant to Section 13 CFA 2014. The court declined to do so because this issue is the subject of a more detailed investigation by the President’s Working Group. The court did note that it was beneficial for the treating clinician to have been involved in the joint experts’ meeting because it meant that she was not disadvantaged when giving oral evidence. It is open to a court to favour the evidence of a witness with expertise over an expert witness, but the distinction needs to be taken into account. A witness with expertise will not be expected to have undertaken research or to have undergone expert witness training.

Comment: Given the unusual nature of the haemorrhaging, it is unlikely that many legal practitioners will come across a similar case. However, the full judgment is worth reading for the detailed analyses given by the three medical witnesses. The two expert witnesses were clear that sometimes, children do present with conditions that simply cannot be explained medically. The mere fact that no medical explanation can be offered for the child’s condition should not necessarily lead to the conclusion that the condition is the result of inflicted injury.