Ramanjit Kang specialises in family law, with particular emphasis on proceedings involving children both private and public. She deals with the most serious cases, including in the High Court and the Court of Appeal and is frequently instructed in cases with leading counsel. She is also in demand for cases involving serious allegations of harm, complex medical evidence, intractable hostility, and parental alienating behaviour.
FIRST STEPS: Things to look out for.
This is a complex, and sometimes intimidating area. This article is intended to provide a general overview on some of the first things to look out for when representing any client in cases involving allegations of non-accidental head injury to a child.
Typically, in these cases treating clinicians identify bleeding in the brain (subdural haemorrhage), sometimes accompanied by skull fractures, bleeding behind the eyes (retinal haemorrhage) or in the spine. There is often fitting, or loss of consciousness in the aftermath of a head injury. Treating clinicians find themselves unable to rule out non-accidental injury, and this can then trigger the local authority initiating care proceedings.
Early in proceedings you need to be able to quickly evaluate the situation, identify what information is missing, and consider what expert evidence is needed.
Professionals must consider whether the child can be safeguarded in the home whilst matters are being investigated. They will need to consider the support network available, for example can another family member move into the home temporarily?
Carer’s description of events
One of the first lots of information to look at is any eyewitness account of a precipitating incident, or of change in the child’s presentation. This will often be an account of a parent or carer. It is important to look out for descriptions of the child’s behaviour and presentation in the period before and after what is believed to be the precipitating event. For example, did the child lose consciousness? Have they been unwell? Did their colour change in any way? Were their eyes rolling? What was the pattern of their breath? Was there any body rigidity? Was the child making any sounds?
Bleeds to the brain are usually found to be caused by forces consisting of acceleration, deceleration and rotational forces. Such forces can come about in a number of ways, including a shaking motion and/or blunt force trauma.
It is trite that the level of force to cause such injuries is not known but serious head injuries tend not to be caused by normal handling. So to an observer the incident causing the injury would be expected to seem unusual or alarming.
Treating doctors will try to ascertain an explanation from the carer as to what happened, and obtain as much information as they can about the child’s presentation. It is vital to carefully go through hospital and ambulance records to find out exactly what explanation is provided to each professional. Listening to the 999 call itself can be illuminating and assist with confirming whether the explanation provided is consistent.
Family medical history
Whichever party you act for, it will be essential to identify early on if there is a relevant family medical history. The parents and wider family should be asked about this as part of the forensic process. Everyone will want to know whether there is anything in the family’s medical history that suggests susceptibility to certain types of injuries, including any bleeding or clotting disorder. Do not assume that a hospital has undertaken all the necessary testing. You may need to make an application for blood and/or genetic testing.
No child is the same, and their age and development is relevant.For example, a significant number of children are born with subdural haemorrhages, particularly pre-term babies.
With age there is a rapid increase in a child’s ability to support the weight of their head and so children over the age of two are usually less susceptible to shaking type injuries. But this does very much depend on a multitude of factors, including their development (e.g. are they small for their age?) and whether they were in a position to support their neck (e.g. were they conscious at the time?).
If a shaking mechanism is found to be the cause of the injuries seen, it does not follow that it must be a non-accidental injury. An expert is not able to determine whether an injury was inflicted through anger, frustration, or panic. For example, a panicked parent responding to a crisis like a BRUE (Brief Resolved Unexplained Event) may shake their child to attempt to revive them.
There is much debate about ‘low-level falls’ and what level of injury can be caused by such falls. As children do not routinely get scanned for low level falls the data on what injuries are sustained are limited. Mainstream medical opinion has been that low-level falls do not result in extensive subdural bleeding, but there are respected experts known to the family court that do take a different view. Medical opinion continues to evolve, and it is essential to keep on top of this.
The court should not close its mind to the unusual
Whilst a carer’s description of events will form part of the clinical picture, treating doctors, and later experts will consider a number of other factors to come to conclusions about mechanisms for causation of injuries.
As lawyers we need to scrutinise both the procedure adopted, i.e. tests were done, which were not done, etc, as well as the analysis conducted by the various medical professionals. Can there be an alternative conclusion to non-accidental injury? It is important to remember that it is acceptable for a court to reach a conclusion that a medical condition or presentation has an unknown cause.
Ultimately, the judge has to evaluate the medical evidence with all the other evidence to decide whether any finding sought by the local authority has been made out. The medical evidence in itself is not determinative, and the court can depart from the view of expert evidence provided sound reasons are given for doing so.