The recent case of LB Islington v Al Alas and Wray, (where I was led by Ian Peddie QC [also of Garden Court Chambers] in representing the father, Rohan Wray) should have some pretty significant implications in cases involving alleged non-accidental injuries.
In summary, this was a fact finding hearing where the parents were exonerated of killing their baby son, Jayden Wray (DOB 7th march 2009) through a non-accidental head injury, as well as inflicting multiple fractures on him. The parents had previously faced a murder trial at the Central Criminal Court, where the Judge had directed the jury to acquit the parents due to conflicting expert evidence. However the Local Authority pursued a fact-finding hearing regardless, having been granted an interim care order of their daughter, Jayda Wray (dob 17 October 2010).
The parents were teenagers when Jayden was born. When he was 4 ½ months, they took him to the GP, as he was not feeding and showing signs of fitting. The GP referred them to University College Hospital, where he showed further symptoms of fitting and was referred to a resuscitation unit in A & E. His condition then deteriorated rapidly, and he was placed on oxygen support. When he was x rayed, he was discovered to have multiple fractures, including a fracture to his skull. The radiologist further queried signs of rickets, although the significance of this was not picked up on. He remained in the radiology department for 4 hours while he underwent further x rays and an MRI scan, which showed he had suffered a brain injury and a subdural haemorrhage. Professionals at the hospital were now suspicious that the parents had inflicted injuries onto Jayden, and Jayden was transferred to Great Ormond Street. In the meantime his condition had further deteriorated, and he was still showing signs of seizures.
Once at GOSH, Jayden was found to have retinal haemorrhages, and the clear suspicion of the clinicians was that the parents had shaken Jayden due to the triad of injuries (subdural haemorrhages, retinal haemorrhages and encephalopathy). He was further x rayed by Dr Hiorns, who concluded that all his fractures were likely to have been caused by non accidental injuries, but did not pick up on signs of rickets. The parents were arrested on suspicion of GBH, and never saw Jayden again. He died three days later at GOSH on 25th July 2012.
Dr Scheimberg was instructed by the Coroner to perform the post mortem. She discovered signs of rickets on the x rays as well as on Jayden’s bones and skull. This was further confirmed by Professor Malcolm (histopathologist), and it then transpired that Jayden had suffered from congenital rickets, as his mother had low levels of vitamin D. This meant that he had suffered from the condition in utero and throughout his life, as he had been exclusively breast-fed. Professor Malcolm also dated the skull fracture as 7 – 14 days old, which meant it was not connected to Jayden’s death.Dr Scheimberg’s report for the Coroner concluded that the cause of death was hypoxic ischaemic encephalopathy, and multiple fractures with a background of congenital rickets.
However Dr Cary (forensic pathologist instructed by the metropolitan police) concluded that Jayden died as a result of non accidental injuries and the parents were charged with murder and causing or allowing the death of a child.
Meanwhile Jayda was born on 17th October 2010. She was removed at birth under a police protection order (the mother was prevented from handling her child and no family members were allowed to be present at birth).
The issues at the fact finding was whether or not Jayden had died as a result of a shake and /or inflicted trauma, and whether or not the skull fracture and 5 of the other fractures were non-accidental injuries.
The parent’s case was that Jayden had died as a result of seizures, triggered off by a combination of low calcium levels and an infection, which were not properly treated whilst he was at UCH. They also argued that all of his fractures were the result of congenital rickets which no one had diagnosed in life, and would been caused by normal handling.
The Local Authorities case was that the triad of injuries showed that Jayden had either been shaken or suffered non accidental trauma. They also argued that some of his fractures, including the skull fractures had been inflicted by the parents.
In respect of head injury and ‘the triad’, there was expert evidence suggesting that the retinal haemorrhages could have been caused by raised intra-cranial pressure, the subdurals had been caused through hypoxia, which had been caused through sustained seizures. It also became apparent that Jayden was conscious (and therefore not encephalopathic) when he arrived at UCH. This contradicted the evidence of prosecution witness Dr Mark Peters, (paediatric intensivist at GOSH) who had stated at the criminal trial that he would have expected the child to have collapsed immediately or 2 minutes after having been subjected to trauma. When he learned that the parents had brought Jayden to UCH on the GP’s by bus, and that Jayden had been assessed as ‘alert’ soon after arriving at the hospital, he was surprised. At the fact-finding, he attempted to argue that the health professionals had been mistaken in believing Jayden was conscious on arrival at the hospital, as well as suggesting that Jayden wasn’t having seizures, but was suffering from ‘decerebate posturing’, where limbs stiffen and become jittery as a result of brain injury. It also emerged that Jayden’s carbon dioxide levels had risen to a dangerous level whilst he was in the radiology department, which could have been due to the hospitals failure to intubate him with oxygen properly. Expert evidence, (although contradicted by Dr Peters) suggested this could have contributed to his deterioration, as well as the hypoxic-ischaemic injury he suffered. Both opthamolagists agreed this could have been the cause of his retinal haemorrhages. There was also evidence to suggest that Jayden’s condition had not been properly managed whilst he was in the radiology department, and that he had not received the appropriate medication to deal with his seizures, which continued until after he left UCH for GOSH.
In respect of the fractures, the local authority relied on the evidence of Professor Malcolm, who stated that whilst some of the fractures could have been due to rough handling, the skull fracture, the metaphyseal fractures and two other fractures were due to non-accidental injury. However it emerged that Professor Malcolm had only ever come across a case of rickets as severe as Jayden’s in the 1970’s, and the medical research he relied on was flawed. It emerged that Jayden had been seen by health professionals on 30 occasions right up to 5 days before they brought him to UCH, and at no stage did they see any signs of bruising or pain. The parents argued, through American experts Professor Barnes’ and Miller, that as a result of rickets, it was impossible to conclude that any of Jayden’s fractures could have been caused by anything other than normal handling.
Mrs Justice Theis concluded that she couldn’t be satisfied that any of the fractures were a result of inflicted deliberate harm. Dealing with the triad of injuries, the she concluded that the retinal haemorrhages were more likely to be secondary to Jayden’s hypoxic ischaemic injury, and the encephalopathy was not due to inflicted trauma. However she concluded that the subdural haemorrhages were more likely to be caused by trauma on the basis that there needs to be more research into establishing that subdural haemorrhages can be caused by hypoxic ischaemic injury, as argued in this case by Dr Cohen and Scheimberg. But she stated that this finding had to be looked at in the context of her findings about the other component parts of the triad, and finally concluded that although the evidence of subdural haemorrhage pointed Jayden’s injuries as having been caused by trauma, the balance of the evidence pointed the other way.
Theis J further found that Jayden was conscious and was suffering from seizures when he arrived at UCH. She also found that he had been subjected to sub optimal care whilst he was at UCH.
The judgment has now been published, but already there are other cases in the family division that are making use of it in their own proceedings. This is mainly due to the fact that rickets is on the increase, and in Al Alas / Wray, it was very much the key issue which went to explaining the cause of Jayden’s death and injuries. It was also undiagnosed throughout Jayden’s life. Practitioners are therefore eager to explore whether rickets or vitamin D deficiency may well be a feature in cases they are involved in, and are therefore applying for appropriate experts to be instructed in their cases.
A worrying feature of the case was that the GOSH radiologist failed to diagnose rickets in this case, and insisted that it could not be seen on the x ray images, in spite of other experts having picked up on it clearly. However rickets, especially in infants less than 6 months, may never be radiologically diagnosed, and yet frequently radiologists (as was the case with the GOSH radiologist) will suggest that the fractures are NAI. The two American experts, Dr Barnes and Dr Miller were clear in their opinion that with rickets, it is possible that fractures can be caused my normal handling. Whether this means that a plethora of NAI cases are re opened remains to be seen. But what this case has highlighted is that causation of fractures, especially in infants, is a complex area that needs to be more fully explored in family proceedings.
So far as the triad is concerned, Theis J has been cautious in endorsing the Cohen/Scheimberg/Squires opinion that subdural haemorrhages can be caused by hypoxia. Her findings were that on the balance of probabilities, the SDH’s were more likely than not caused by trauma (although she did not say inflicted trauma). This is only because of the current state of research into this area. However looking at the triad in the round, and given that there were no other markers for baby-shaking (no bruising, broken ribs, spinal injuries etc), and that there were other explanations for the retinal haemorrhages and the encephalopathy, Theis J was able to say that causation of the triad of injuries pointed away from trauma. Although she stated that this was a fact specific case, the judgment does perhaps open the door a little further for parents accused of shaking their baby to argue alternative causes.
The case also highlighted the need for the right expert to be instructed in a case. The family proceedings were fortunate to inherit experts instructed by the parent’s solicitors, who got funding to get experts from all around the world due to their unique expertise in their relevant disciplines. Whether there is a chance of the LSC funding experts in family proceedings in the current climate is highly questionable. And with the proposals that family proceedings are concluded within 6 months means it is even less likely that these kind of experts would find the time to report in such a case.
Camilla Cavendish in the Times recently commented on the unfairness of the parents having to face family proceedings when they had been found ‘innocent’ at the Old Bailey. Of course she misses the point regarding the different standards of proof in crime and family. However in the criminal proceedings there was a written judgment from HHJ Kramer QC stating that the case should not go before a jury due to the conflicting medical evidence, and the transcripts from the criminal proceedings were made available to the family proceedings. In retrospect, one could have perhaps analysed those transcripts and reached the same conclusion without the need for a live hearing.
The case raises important issues about the family justice system. There has been much public horror expressed about the ordeal these parents had to go through, as well as the need for a fairer and transparent system within the family courts. However there is also a public hunger for proceedings to take place more swiftly, and for more children to be adopted at greater speed. But this will inevitably mean a more hurried system, where the right expert would not be instructed. The reason why Jayda is now living with her parents is because of the quality of experts in this case. But getting those kind of experts on board requires time and money, something which the current government is wholly against.