11-19 Station Road,
Hertfordshire WD17 1EZ.
B e f o r e :
| A local authority
(4) S (by her Children's Guardian)
John Larking Verbatim Reporters
(Verbatim Reporters and Tape Transcribers)
Suite 91, Temple Chambers, 3-7 Temple Avenue
London EC4Y 0HP.
Tel: 020 7404 7464 Fax: 020 7404 7443 DX: 13 Chancery Lane LDE
MR UPALI JAYATILAKA (solicitor) appeared on behalf of the Respondent Mother.
MISS ALICE DESCHAMPNEUFS (instructed by solicitors) appeared on behalf of the Respondent Father.
MISS JUDITH TRUSTMAN (instructed by solicitors) appeared on behalf of the Respondent Maternal Grandmother.
MISS SORREL DIXON appeared on behalf of the Children's Guardian.
Crown Copyright ©
'cried a lot last few weeks
More over last 2 weeks and then doesn't want to be fed
Tends to cry more in the evening…
Have used Infacol under advice from the H/V but no improvement yet.
Wanted a review
(Under 'P') Discussed with Mum and Dad – possible colic – will continue with Infacol and see how she gets on over next week. If no better, to review or sooner at any time if concerns…'
The record confirms the father's account that they had been advised to use Infacol, had done so and that it was not working. The advice to 'persist with Infacol' also bears out the father's account. The mother, father and grandmother all said that Infacol did eventually help for a time before her crying became worse again.
'crying inconsolably for weeks –
Usually after feeds in the evening. Infacol was helping –
When they stopped giving her that the crying worsened.
Small vomits with it – usually just food coming up with burping…
Started bottle feeding 1/12 [one month] ago.
Yesterday, note that [baby] not happy straightening her left knee. No temperature.
(On examination) Crying ++. Apyrexial. Left knee is swollen, feels hot and tender. Erythematous [reddening on the skin].
S was referred to hospital as a paediatric emergency, the GP's impression being "?? septic arthritis."
'non-tender, baby permits passive manipulation. No local tenderness in leg or hip"
S was x-rayed, but nothing abnormal was observed. She was described as remaining "settled in A&E, observations in normal range, apyrexial." She was discharged home, with instructions to the parents to phone on Monday [19th] to have her reviewed or returned if they were concerned, and to re-present her over the weekend if her temperature, swelling or redness of the leg increased, if she was unsettled or if her feeding reduced. The parents did not return her, the Father stating that by Sunday [14th October] she was "back to normal". The Father said in evidence that when the hospital phoned on Monday morning, his wife told them that S was "fine".
"crying more since Thursday morning
Not moving her left arm – noticed yesterday
Today noticed swelling of left arm"
The history squares rather more comfortably with the account given by the father in his statement than in his oral evidence. It was noted that the parents were unsure how the fracture may have happened and there had been no recent accidents of falls. S had only been in the house with the parents, grandmother and T. Investigations were put in hand. At 22.30, a further medical clinician's note was written, although the authorship is not clear. The note records both mother and grandmother as being present. Earlier records that day mention mother and father being present. It also records the following:
"…Mother is not able to recall how the fracture might have occurred: S, she advises, was using her arm less and appeared irritable from Thursday a.m. on 19/10/11 [sic – 19/10 was a Wednesday] – then went with Mum to have immunisations Thursday 1pm, where she was placed on a couch and not, to mother's recollection, held tightly, then seemed intermittently in discomfort with on-going reluctance to use her left arm as much as right, then today arm appeared swollen. Hence attendance at A&E."
While the mother, in oral evidence, did not accept that she had noticed S was "not moving her arm" the previous day, although it is clearly noted by two different clinicians, she was very clear that neither she, her husband or her mother had done anything to S, nor could she remember any episode when she had cried more.
1. Rib fractures to the antero-lateral aspects of the left 8th and 9th rib (15th-28th September 2011).
2. Right lower leg fracture, a metaphyseal fracture of the proximal right tibia (shin bone) (12th September-10th October 2011).
3. Left leg thigh bone fracture, a torus fracture of the distal left femur (30th September-10th October 2011).
4. Left lower leg fracture, a metaphyseal fracture of the left tibia (shin bone) (3rd-10th October 2011).
5. Left upper arm fracture, a spiral fracture of the distal shaft of the left humerus (16th-19th October 2011).
6. Right wrist fracture, a metaphyseal (bucket-handle) fracture of the distal right radius (difficult to date).
The fractures at 2, 3 and 6 above were only identified by Dr Fairhurst. She took the view that the two left leg fractures (3 and 4) could have happened at the same time.
1. The local authority alleges that the injuries were suffered by S and caused by an adult carer and they are non-accidental.
2. The local authority alleges that the potential perpetrators of the multiple injuries to S are the mother, father and grandmother, who were the carers of the child.
3. In relation to the spiral fracture of the distal shaft of the left humerus, the local authority allege that S's arm has been gripped and twisted by an adult carer; she would have shown immediate distress lasting 10-15 minutes; any regular carer would have noticed a change in her behaviour as a result of the fracture with discomfort which would last for up to a week.
4. Fractures of the antero-lateral aspects of the left 8th and 9th ribs were caused by (a) a direct blow or compressive forces applied to her chest by an adult carer, (b) she would have shown distress for 10-15 minutes and shown discomfort when her chest was moved such as when she was dressed and a regular carer would know this was as a result of these fractures with discomfort lasting for a week.
5. Torus fracture of the distal left femur caused by (a) her left leg being gripped and forcibly bent; (b) she would have shown distress for 15 minutes and would have shown discomfort when the leg was moved; discomfort would have lasted for several days.
6. Metaphyseal fracture of the proximal left tibia caused when (a) her left leg had been pulled and twisted by an adult carer; (b) any person present would be immediately aware she had suffered a significant injury with discomfort lasting several days.
7. Metaphyseal fracture of the proximal right tibia caused when (a) her right leg had been pulled and twisted by an adult carer; (b) she would have shown distress for 10-15 minutes and would have shown discomfort when her leg was moved.
8. Metaphyseal bucket-handle fracture of the distal right radius caused when (a) her right wrist had been pulled and twisted by an adult carer; (b) any person present would be immediately aware she had suffered a significant injury.
7. Injuries to S could not have been caused by a person rolling onto her.
8. S could not have been injured when in a bouncy chair from normal use.
9. On the balance of probability T could not have caused the injuries to S either by (a) jumping on the family bed whilst S was lying on it or (b) pulling her bouncy chair when she was in it.
10. A diagnosis of OI (osteogenesis imperfecta) is exceptionally unlikely.
11. There is no radiological evidence that S suffers from rickets or any other vitamin deficiency.
12. None of the fractures could have occurred at birth.
13. S has suffered multiple fractures which have occurred on at least three separate occasions.
14. No plausible explanation has been offered for any of these injuries.
15. On the balance of probability T could not have caused the injuries to S.
16. Several of these fractures are highly specific for non-accidental causation by an adult.
17. The constellation of findings is highly indicative of non-accidental injury by an adult.
18. The mother and/or the father and/or the grandmother is the perpetrator of the injuries to S.
19. The parents/grandparent who did not inflict the injuries on each occasion to S failed to protect her.
20. One or both of the parents, and/or the grandmother knows what has happened to S on all the occasions she has suffered injury.
"There are areas of ignorance. It is very easy to try and fill those areas of ignorance with what we know but I think that it is very important to accept that we do not necessarily have a sufficient understanding to explain every case."
I have also noted the guidance to be derived from Re U: Re B (above) given by Butler Sloss P at paragraph 23:
"In the brief summary of the submissions set out above there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following:
i The cause of an injury or of an episode that cannot be explained scientifically remains equivocal;
ii Recurrence is not in itself probative;
iii Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of a natural cause;
iv The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice;
v The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts, or that scientific research will throw light into corners that are at present dark."
(1) Dr Fairhurst, consultant paediatric radiologist, and read her reports, notably that of 13th February 2012;
(2) A Consultant Paediatrician and his report of 5th March 2012;
(3) I have heard the evidence of Professor Steven Nussey, Professor of Endocrinology, and read his reports of 10th and 22nd July 2012;
(4) I have heard the evidence of the mother; the father; and the grandmother, and read their statements filed in this case;
(5) I have heard the evidence of the health visitor.
I have also had the benefit of the considerable amount of documentation in the bundles to which extensive reference has been made in the course of the evidence.
(1) that while there was a possibility that there could be a Vitamin D deficiency there is little, if any, supporting evidence at present for fractures occurring with lower than normal levels of Vitamin D but no radiological evidence of rickets;
(2) that there is no correlation between a Vitamin D deficiency and fractures, and a mechanism is required to cause a fracture;
(3) she did not accept that there was an increased propensity to fracture due to Vitamin D deficiency and maintained that a sub-optimal bone that is not manifesting itself as radiologically subnormal leaves itself at sufficient strength to resist fractures;
(4) S did not show radiological signs of rickets, but Dr Fairhurst stated that she did not know whether S may or may not have had a vitamin level low enough to manifest as rickets;
(5) there will inevitably be a stage in the bone changes resulting from insufficiency or deficiency of Vitamin D which will be present but not visible on X-ray, i.e. sub-optimal bones that have not yet developed radiological signs of rickets;
(6) I note that she was not in a position to give an expert opinion on metabolic bone disease which she identified as a very complex subject beyond the radiological aspect and that she would defer to a metabolic expert;
(7) she accepted that the lack of evidence for fractures occurring in patients with lower than normal levels of Vitamin D (who did not have radiological evidence of rickets) is the current state of research and acknowledged that there is a need for more study to be done; she further accepted that this is a developing and controversial area of medicine;
(8) I noted that it is accepted by all medical experts that it is unknown what level of force would be required to cause the injuries in a baby that had a Vitamin D deficiency or insufficiency; understandably it is not possible for experiments to be carried out.
Thus the view of Dr Fairhurst, a considerably experienced and respected radiologist, is that all of the injuries would have required a force in excess of that used during normal day to day handling and that several of the fractures were highly specific for non-accidental causation of injuries. She also offered the view that the fractures were likely to have occurred on three separate occasions; the constellation of injuries was in her opinion highly indicative of non-accidental injury.
'Children's Services have only become involved with this family since 23rd October 2011 therefore there has been limited time to complete any thorough assessment with regards to this family. A number of strengths however have been identified during this short involvement. It is positive that Children's Services have no history of involvement with this family and furthermore the family have no history of involvement with the police. It is further positive that the professionals involved with the family have reported no concerns regarding the children's wellbeing whilst in the care of their parents prior to S being admitted to a local hospital with a fracture to her left femur.'
At para. 16 the following conclusion was offered, and the parents are referred to as N and D:
'Throughout the assessment period N and D were observed to provide a high level of emotional warmth, mental stimulation and basic care for S and T which they sustained throughout the contact sessions. They were able to discuss and demonstrate that they were able to sustain routines for S during contact sessions and with T in the home. At no point did I observe either child to be wary of their parents. I never observed either parent react angrily towards each other or either child. N and D are in a stable relationship and have known each other from childhood as they lived in the same village. They both appear to value education and a need to promote this ethos with their children. I considered that the family members have a very close bond and I did not observe any concerns regarding their attachment. N and D appeared able to actively provide a high level of basic care for their children.'
(1) Professor Nussey has a clear and far-reaching understanding of endocrinology and the systems involved with Vitamin D and bone mineralisation. He has extensive experience and a mature knowledge of research done in this field. He has been able to contribute vital knowledge and information towards understanding S's condition in August, September and October 2011. I note his evidence as to the prevalence of Vitamin D deficiency, particularly in Asian sub-groups, and his view that the absence of radiological evidence does not mean that there is 'no rickets' i.e. there is a stage of rickets before it is identifiable radiologically.
(2) I note his evidence that there is no uniformity of Vitamin D testing in the United Kingdom and that Vitamin D is difficult to measure.
(3) It is not known why some patients with rickets become hypocalcaemic, one of the clinical pictures of rickets or Vitamin D deficiency, and why in some patients with rickets patients have fractures, some have two or three, others have none.
(4) He accepts that in relation to injuries such as these some force has to be applied.
(5) S's Vitamin D levels, which were on the borderline on 2nd November 2011, were never higher than insufficient. It is reasonable to conclude that they were lower before then because she was breastfed. Formula feeding for 8-9 weeks before the test would have provided some improvement but not enough, as breastfeeding would provide none.
(6) It is not possible to say what difference formula feeding might have provided because there is no baseline to measure from.
(7) It is safe to extrapolate from the mother's levels taken in May 2012 that Vitamin D levels would have been lower in pregnancy.
(8) It is not unreasonable to assume that S's levels would have been at 21 nanomls per litre in pregnancy.
(9) He anticipated that S's level was 30-35 when she was born, not adequate and markedly deficient.
(10) His view was that it was likely that S was Vitamin D deficient in utero and in the early neonatal period. I note his conclusion that although this did not render S more likely to injury, it might increase bone fragility and thus give rise to fractures at a lower force than would otherwise be the case. If there is some innate contradiction in that sentence it appears that the latter part of that sentence represents the stronger conclusion. But in clarification of this remark Professor Nussey said that it would be reasonable to use the words 'increased vulnerability to fracture' in relation to S.
(Orders made included discharge of interim Care Order and approval of revised care plan for phased return of S to the care of her parents.)