This judgment is being handed down in private on 04/06/2013 It consists of 35 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
IN THE MATTER OF L and M (CHILDREN)
AND IN THE MATTER OF THE CHILDREN ACT 1989
Strand, London, WC2A 2LL
B e f o r e :
IN THE MATTER OF L and M (CHILDREN)
AND IN THE MATTER OF THE CHILDREN ACT 1989
| A LOCAL AUTHORITY
|- and -
|A MOTHER (1)
A FATHER (2)
L and M (3)
(Children, by their Children's Guardian)
Anthony Kirk QC and Shona Rogers (instructed by Richard Griffiths and Co) for the 1st Respondent Mother
Frank Feehan QC and Alexa Storey-Rea (instructed by Wollen Michelmore) for the 2nd Respondent Father
John Ker-Reid (instructed by Beashel Graham) for the Guardian
Hearing dates: 13th 24th May 2013
Crown Copyright ©
The Honourable Mr. Justice Baker :
through the trauma of losing a baby, felt that they now had a new start in a new home and with a second child.
"Presented with Dad (Mum at home waiting on furniture people). Parents concerned about 'bump' that has appeared on right side of forehead. Dad noticed it when picking M up from her morning sleep. Not aware of any trauma to head . M has been sleeping, eating and drinking as normal .M crying +++ Dad says only since being in medical centre . Right side of forehead does look larger compared to left but no obvious swelling or bruising On holding the left side of M's chest, feels crackly and seems uncomfortable. Dad explained M has had chest infections in the past . Dad wanted to be sure swelling to head was nothing to worry about."
"Dad brought her up because noticed lump right forehead and had no idea how it came there. M recently well and fed/behaved normally after he noticed it. Seen by practice nurse who observed unusual crackling feeling in chest when held her. Dad reported this has been there since birth . Palpable (not audible) 'crackling' left side chest on inspiration, never felt anything like it. Also observed [over] 1 cm round green bruise to right of thoracic spine but no other bruises, moving and responding normally."
"M appeared well alert and interacting normally with her parents. She appeared well nourished and well cared for on her forehead there was a small 1 cm faint bruise on the upper right forehead which is not incompatible with the explanation of banging her head on the cot side. It was probably a few days old. More significantly, on her lower back, there was a 1 cm diameter small purple green bruise, about 1 cm lateral to the spine on the left, overlaying the seventh rib. Adjacent to this I could feel an area of crepitus a crunching sensation coming from the underlying rib bone, which did not appear to be particularly painful.'
with her up to the date of this hearing. All the evidence indicates that they have thrived in her care, although there is also evidence that both children, and in particular L, have been adversely affected at being separated from their parents. Throughout the past 21 months, contact between the children and their parents has been on a supervised basis.
"the skull fractures are spectacular, so complex and extensive that they have been described by the experts as beyond anything they have seen before in a child of M's age in their considerable collective experience. Her clinical presentation, in that she appeared to be reasonably well and suffering no apparent pain of neurological effects was not just unusual in the circumstances, but inexplicable. This conundrum has perplexed the experts and goes to the heart of the case."
"How M's skull fractures were caused remains a mystery, but there must, of course, be an explanation, albeit at this stage unknown. The fact that the parents have not provided a truthful account supports a finding on the evidence, including the drawing of reasonable inference, that it is more likely than not that the injuries are non-accidental."
"I have to say that I would find it very surprising if there is nothing to be found in the literature relating to spectacular skull fractures and only a little less surprising if there is nothing to be found in the literature relating to spectacular skull fractures where there is no associated trauma. Be that as it may, in a case where it was being asserted that something was, from a medical perspective, unprecedented and inexplicable, it would surely have assisted the judge either to be taken to such literature as there is, which might have provided a clue to what had happened, or to be told that an appropriately extensive search of the literature had produced nothing, in which case a finding could more confidently have been made than what had happened was inexplicable."
"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 would throw a light into corners that are at present dark."
"What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
"Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
"A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."
(1) Rib fractures
(2) Skull fractures
(a) The initial consensus and conundrum
(1)on the right side, a long horizontal fracture of the parietal bone extending from the coronal suture to the lambdoid suture;
(2)further fracture lines extending upwards from the first fracture, the larger one from roughly the middle of the first fracture to the sagittal suture, and a smaller one posteriorly;
(3)a further fracture extending from the posterior end of the sagittal suture towards the middle of the parietal bone, meeting the smaller vertical fracture;
(4)on the left side, an even more complex fracture of the parietal bone with limbs that extend to all the sutures on that side of the head;
(5)a complex fracture of the left side of the occipital bone;
(6)mild widening of the posterior end of the sagittal suture (probably reflecting trauma to the suture itself).
(b) Enter Dr. Stoodley
(c) Interpretation of lucencies
"The parietal and occipital bones in particular are common regions for accessory sutures because of their multiple ossification centers. The parietal bone ossifies from two centres while the occipital bone ossifies from six centers. An accessory intraparietal of subsagittal suture is rare but can be seen dividing the parietal bone. They can be explained on the basis of incomplete union of the two separate ossification centers. The occipital bone has a more complex development. The foramen magnum is surrounded by four ossification centers .This pattern of development can therefore give rise to numerous accessory sutures that could be mistaken for fractures especially with plain film evaluation alone. CT scan with 3D reconstruction is vital in the further characterisation of a questionable fracture."
"Simple non-depressed skull fractures are sharp lucencies with non-sclerotic edges. In contrast, accessory sutures usually will show a zigzag pattern with interdigitations and sclerotic borders similar to major calvarial sutures . In terms of bilaterality, accessory sutures are often present on both sides and are fairly symmetric especially in the parietal bones. Occipital accessory sutures can be complex and multiple but are also frequently bilateral."
(d) Bone fragility
"if you want to look at whether a bone is likely to fracture it will have intrinsic properties the material the bone is actually made of and extrinsic properties, which is more to do with the micro-architecture of bone and the macrostructure at a whole tissue level . Often we find the abnormality of both the intrinsic and extrinsic material properties go together, so if the bone is intrinsically abnormal then the architecture is abnormal as well . The fissures are unlikely to be empty spaces. They are likely to have sheets of membrane over them which may in due course turn to bone and that may be reasonably thick in nature. Under that you might find that there was an increased overall flexibility of the skull bone itself. That is speculation and I don't have any evidence to back it up."
(e) Brain damage
(f) Other symptoms swelling and pain
(g) A single impact?
(3) Conclusions on medical evidence as to skull fractures
(4) Some general observations arising out of the medical evidence
"Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings."
5th and 6th ribs fractures
"As I tried to get out of the bath with M, I lent over the side of the bath to put her on some towels which I had set down next to the bath. I realised that I would not be able to reach down to the floor safely and so I held M up to my chest whilst I manoeuvred myself in the bath onto my knees. Once up on my knees, I held M with a hand under each of her armpits and stretched my arms out over the side of the bath to put her on the bath mat. As I started to lean down, I slipped to the left causing me to land against my hip with my knees going out from underneath me. My right armpit landed on the bath rail. It hurt so much that I think I momentarily lost my grip on M and instinctively I grabbed very tightly to stop her from falling onto the floor. M let out a high pitched scream and carried on screaming and crying for the next 15 minutes or so whilst I dried and dressed her. It took her a long time after that to settle in her bed and nearly an hour for me to give her a bottle. She would not settle that night and woke up within two hours of falling asleep which is not her usual routine although she had done this before when she has been suffering with colic and constipation. At the time, I put this down to her having been frightened by the sudden actions that I had made".
8th rib fracture and skull fractures
"M was in her chair placed on the sofa; I picked her up and fed her in my arms whilst I sat on the sofa; she was fine and took her bottle. She had spilt some milk and I needed some wipes to clean it up. We have a solid wood coffee table in the living room which was further away from the sofa than it usually is on that occasion as L was playing with his toys. I stood up to get to the wet wipes and was pretty much stood up fully. M was cradled in my left elbow and I was reaching with my right hand for the wipes. She suddenly wriggled and I lost grip; she fell out of my arm. I heard a big thud on the coffee table and then another one as she fell onto the floor. M definitely hit the coffee table first; I didn't see how she hit it/which part first but the noise also made it clear to me that she had hit it (the thud was clearly from an impact on wood). A hand towel was draped over her body whilst in my arms to prevent milk getting on her clothes and my eyes were focussing on the baby wipes I was reaching for. It all happened in a split second and the towel concealed my view . On seeing M on the floor I panicked and couldn't pick her up quickly enough. She was lying body faced down with her head turned to the side. I think I grabbed her under her armpits to pick her up. She was crying as I was picking her up, not a whinge type cry but a full blown cry; it was a very sudden and very loud cry. I tried to console her by talking to her and cuddling her. I checked her over for any signs of injury; I felt all of her limbs (she was wearing a body suit short sleeved version I think). She had no marks on her. I also felt her neck and head. I was just instinctively checking for any obvious damage by smoothing my hand over her skin. She calmed down to a more normal cry whilst I was cuddling her. I think T [the mother] came back into the house after about 5-10 minutes after the fall. M was still crying. T asked me why she was crying when she came back; I replied I did not know. T took M and she then settled within about five minutes or maybe a little longer. Having not seen any obvious sign of injury, I hoped M was okay but I remained terrified as it was a significant incident. I was scared to tell T as I was worried about everything that had happened in Ipswich and I didn't want to worry T or get social services involved. Although it was an accident, we had already been investigated on numerous occasions due to malicious referrals. I know that this was incredibly stupid of me and that I should have immediately told T what had happened. I haven't forgiven myself for dropping M or from keeping it from T. M seemed to be fine during the evening. I think she was fed by T later that night. I remained scared, praying that she would be okay. When I held M later that night I subtly checked her again for any obvious sign of injury; I did not want T to know what I was doing though and so I was discreet."