IN THE NORWICH COUNTY COURT
							
									NR03C00997

									The Law Courts
									Bishopgate
									Norwich

									Friday, 21st May 2004

Before:

HIS HONOUR JUDGE BARHAM

Re:  A Minor

MR P BUTTERWORTH    appeared on behalf of the Local Authority
MISS S JONES    appeared on behalf of the Mother
MR J WARDLOW    appeared on behalf of the Father
MR H HIGGIN    appeared for the Children

Transcribed by Barnett Lenton & Company
(Official Court Reporters to the Crown Court)
Clifford’s Inn, Fetter Lane
London EC4A 1LD
Telephone No: 0207 405 2345

Judgment
(Approved by the judge [and subsequently anonymised by Mr Justice Munby]

Friday, 21st May 2004

JUDGMENT

(Approved by the Judge [and subsequently anonymised by Mr Justice Munby])

[1]	JUDGE BARHAM:  The applicants in these proceedings are the Norfolk County Council. The first respondent is Nicola Webster, the mother. The second respondent is Mark Webster, the father. The respondents are the parents of three children; [A], who was born [in early] 2000 and who is now aged 4, [B],  who was born [in late] 2001 and who is aged two and a half, and [C], who was born [in mid] 2003 and who is now about nine months old. All three children now live with specialist local authority foster carers and have done so since November 2003.

[2]	There are two issues which I have to decide in connection with these proceedings; firstly, did [B] suffer non-accidental injuries and, secondly, who are the likely perpetrators of these injuries?

[3]	The burden of proof is on the Norfolk County Council, the applicant. The standard of proof is the balance of probabilities, but I adopt the standard or approach set out in Re H and others (minors sexual abuse: standard of proof) reported at [1996] 1 A11 ER page 1. The court will bear in mind as a factor that the more serious the allegation the less likely it is that the event occurred, and hence the stronger the evidence before the court concludes that the allegation is established. The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and hence to prove it.

[4]	I do not propose to go through the history of this family in any detail. However, it is significant to note that [B] suffers from [32 words omitted referring to a particular condition affecting B]. 

[5]	In November 2003 the parents had been living apart since April 2003. It seems that this separation was more technical than real. The father was living with his brother who lives a minute’s or so drive away from the family home. He visited the family home daily and has done so since April 2003. The reason behind the separation is, according to the respondents, a financial one. The respondents were heavily in debt. They were having arguments over money. The father was unemployed. They needed to maximise their income which was through state benefits to pay off their debts. Thus it was agreed that the father would live outside the family home.

[6]	The events which led to this investigation of [B]’s injuries are as follows: on 6th November 2003 [B] was taken by his parents to the GP. He was not using his legs and shuffling along on his bottom. On 8th November 2003 he was seen at the hospital. X-rays of his hips were taken.  There was nothing abnormal.

[7]	On 9th November 2003 his mother was concerned because his left leg was red and swollen and once again he was taken to hospital. He was treated initially for osteomyelitis.  It was felt there might be a bone infection. Fractures were discovered, as a result of which an emergency protection order was obtained in respect of [A] and [C] on 14th November, and on 19th November they went to the current specialist foster carers where they live. [B] joined them after he left hospital.

[8]	Two experts gave evidence before me. Dr [D], a consultant radiologist and Mr [E], a consultant orthopaedic surgeon. Dr [D] examined the relevant x-rays. He concluded that there was a recent fracture of the anterior end of the right tenth rib. He concluded that there were metaphyseal corner fractures of the proximal humerus bilaterally, that is the long bone of the arm at both shoulders. There were further fractures at the distal right femur, the distal left femur and the distal left tibia. There were thus six fractures in all. He also concluded that the fracture to the distal left tibia was ten to fourteen days old at least and that the rib fracture was recent in the sense that it was within the last ten days. He also noted that the bones were of normal density. There were no wormian (?) bones seen on the skull x-ray. He concluded that the multiple metaphyseal corner fractures were caused by an unacceptable degree of rotary force; that is forceful twisting. He concluded that such fractures do not occur in the course of rough and tumble play between children, nor are they caused accidentally. The rib fracture was likely to have been caused by forceful squeezing. He described these injuries as high specificity for non-accidental injury.

[9]	Mr [E] agreed with Dr [D] to this extent, that he agreed that there were two fractures to the left leg, fracture to the chest and fracture to the right femur. Thus he agrees that there were four fractures. His written report is somewhat misleading. He said in evidence that when he used the term describing an x-ray as “indicating” or “could present” a fracture he meant that there is a fracture. He concluded that the metaphyseal corner fractures were caused by pulling and twisting forces. They are unlikely to be caused by a fall or other accidents. He said that they are much more specific, to use his terms for child abuse than other fractures; He said that the fracture to a rib was rarely caused accidentally. He pointed out that even a cardiopulmonary resuscitation does not cause rib fractures in children.

[10]	He excluded, as indeed, did Dr [D], brittle bone disease and diet as possible causes.

[11]	He concluded that non-accidental injury was the most likely cause of the injuries.

[12]	In his evidence Mr [E] said that he did not disagree with Dr [D] when Dr [D] alleged there were six fractures whereas he, Mr [E], only found four. Mr [E] said there may be other fractures there. “I cannot be sure. I am not convinced that those factures are there.” He referred to giving the parents the benefit of the doubt. He was clearly being very cautious in his diagnosis.

[13]	I accept Dr [D]’s evidence that there are six fractures, those which he identified and I accept his evidence that the fractures inflicted occurred on at least two occasions and possibly on more than two occasions.

[14]	I turn to consider the various alternative possibilities put forward as being the cause of these injuries. They are these: one, osteomyelitis, two, brittle bone disease, three, poor nutrition, four, scurvy or rickets, five, inflicted by [A].

[15]	Each of the experts who gave evidence rejected these suggestions. Dr [D] said that there was nothing to suggest osteomyelitis, a nutritional deficit, rickets or scurvy or brittle bone disease. He said that the density of the bones would not make fractures of the type found in [B] more likely or easier to cause. He excluded as a possible cause of the fractures parental restraint or the child getting a leg caught in a stair gate.

[16]	Mr [E] agreed with Dr [D] but not in quite such emphatic terms. He couched his evidence in terms such as it was very unlikely, for example, that diet affected the bone quality and it was speculation to suggest so.

[17]	The issue of brittle bone disease was considered in detail by the experts. It seems that [B]’s maternal grandmother and other members of his family have had brittle bone disease. However, there is no evidence that [B]’s mother has brittle bone disease. The x-rays suggest that he does not have brittle bone disease. He has no other signs of brittle bone disease. Mr [E] said it was very unlikely that [B] has brittle bone disease and I accept his evidence to this effect.

[18]	I have also read the written reports of two other specialists. Firstly, Dr [F], a consultant paediatrician who made a report dated 13th November 2003; and, secondly, Dr [G], a consultant community paediatrician who made a report dated 26th January 2004. In her report Dr [F] said the x-rays and blood tests do not suggest nutritional deficiency causing bones which are easily fractured, nor are they suggestive of osteogenesis imperfecta, that is brittle bone disease. Dr [G] stated that [B] was not at risk from the nutritional point of view and that he did not have osteogenesis imperfecta type I, nor does he have any evidence of any other bone disorder.

[19]	Finally, I consider the possibility that [A] could have inflicted these injuries on her brother. [A] has been in the care of [H], the foster carer, since November. She has noted that [A] is jealous of her brothers. There was an occasion on 25th November 2003 when [H] initiated a conversation with [A] about how to break somebody’s legs. [H] said “I do not know how to do this”. [A] apparently said “I do”, and then grabbed her leg with both hands and twisted it and said “this is how to break a leg and then you hit it. My friend does it”.

[20]	On 31st January 2004 there was a discussion in which [H] said that they, the children, would be staying there until we find out how [B] hurt his leg. [A] said “I did it”. There was an interview with her subsequently with a social worker on 19th February 2004 in which [A] said that she had lied in saying that she had broken [B]’s ankle. Reliance is placed, however, on the fact that the foster carer, [H], felt [A] was capable of breaking [B]’s ankle because she was very strong when she is angry.

[21]	Dr [D]’s evidence was to the effect that the injuries could not be caused by a child. There was nothing in the literature to show such injuries could be caused by a child. In addition his own clinical experience was such that he had never seen a fracture like this caused by a child. He expressed derision at the suggestion that [A], who would have been under four at the time, would have caused those fractures.

[22]	Mr [E] also rejected the suggestion that [A] could have inflicted these fractures, although he concluded his evidence by saying it was unlikely and you could not exclude it as a possibility.

[23]	The parents do not think that [A] caused these injuries.

[24]	I conclude that [A] did not cause these injuries.

[25]	I conclude that these injuries are non-accidental injuries.

[26]	I turn to consider the possible perpetrators. The evidence from the mother and the father is that each helped to care for the children on a daily basis. They were the only people who had the care of the children with these exceptions: firstly, the mother’s parents, and, secondly, a couple who I believe are neighbours. Even so on their evidence the children were left in the care of those people for no more than a hour or so at a time. I consider that the injuries inflicted on [B] would have been inflicted on more than one occasion and would have caused distress to him which was likely to have lasted more than an hour. The parents do not record any incident when they found [B] distressed after leaving him in the care of others.

[27]	The guardian interviewed both parents in December 2003. She asked them carefully who had cared for the children in the period leading up to [B] being taken to hospital. She was told that there had only been one occasion when [B] had been out of their care. That was an occasion during October 2003 when he had been left for an hour with the friends referred to while the parents went shopping. On their return [B] was playing happily and showing no sign of distress.

[28]	The guardian also interviewed the maternal grandparents. They said that they did care for [A] on occasions but had never cared for [B].

[29]	Accordingly, it seems, if the guardian’s evidence is correct, that the parents were saying it was only one occasion, that being in October 2003, when [B] was not being cared for by one or other of them. I accept the guardian’s evidence as being accurate.

[30]	I conclude that the only possible perpetrators of [B]’s injuries are the two parents, and I exclude anyone else as being a possible perpetrator of these injuries.

[31]	Accordingly, I find that [B] has suffered non-accidental injuries, namely those injuries identified by Dr [D], and I find that the mother and the father are the only possible perpetrators of these injuries.