England and Wales Family Court Decisions (other Judges)

In the Family Court at Lincoln
In the Matter of the Children Act 1989
And in the Matter of A (A Child)

		3 October 2014

HHJ Swindells QC:

Introduction

1. I am concerned with the welfare of A, who was born on 18 September 2011 and is now aged 2 years and 9 months.
2. The mother of is KP ('the mother') who was born on 14 December 1992 and is now aged 22 years and her father is LC ('the father').
3. On 8 March 2014 A was presented at hospital and was found to be suffering from facial bruising and bruising to her thigh and fractures of her right radius and ulna, right tibia and left femur.
4. The matter comes before the Court for determination as to whether the local authority can establish on a balance of probability the threshold for the purposes of s 31(2) of the Children Act 1989 as set out in the Schedule of Findings which appears at TB1/A 110.
5. The key issues are whether A's injuries were non accidental injuries and, if so, whether the perpetrator of those injuries can be identified out a pool of possible perpetrators which includes the mother, her partner, CG, and the Interveners who each cared for A during the relevant causation window and who each deny causing any injury.
6. I heard evidence from the allocated social worker; a social worker in the EDT team; a Parenting Practitioner; a Health Visitor and the Interveners (save for CG). I also heard evidence from A's treating clinicians, Dr Margaret Crawford, Dr Glynnis Parker, Miss Gwyneth Owen and Dr Olefemi Ogunremi and from the following experts, Dr Karl Johnson, Consultant Paediatric Radiologist, by telephone, and Dr George Rylance, Consultant Paediatrician. I read the reports of Mr Jayamohan, Consultant Paediatric Neurosurgeon, and Dr Keenan, Consultant Paediatric Haematologist. I also carefully read the detailed statements of the mother and CG.

Background

The Child

7. A was born with congenital cytomegalovirus('CVM') which has left her with profound bilateral deafness and delayed gross motor development and speech delay. She was admitted for bilateral cochlear implants on 3 October 2012 and her hearing is now assisted by the use of battery operated hearing processors. She undergoes physiotherapy, speech and language therapy and is supported by a teacher for the deaf.
8. Dr Margaret Crawford, A's treating Consultant Paediatrician, carried out a number of assessments of A's development from the age of 6 ½ months. She noted at the first assessment that A was slightly delayed in her gross motor development. At the 27 month assessment she noted that A had achieved head control at 5 months; sitting with support at 7 months; sitting without support at 12 months; crawling at 14 months; standing and cruising at 22 months and attempting to walk at 24 months. Her fine motor function was normal. In her report dated 7 May 2014 Dr Crawford recorded that A at 27.5 months had started to walk independently and could go from one side of the room to another. A's fine motor function was, however, much more advanced than her gross motor function.
9. DVDs of A's movements over a period from December 2012 to February 2014 were shown in court. They showed a significant delay in A's gross movement compared to fine movement and supported Dr Crawford's assessment of A's development.
10. Miss Gwyneth Owen, A's treating ENT Consultant, has had the role of co-ordinating the investigation into the cause of A's sensori- neural hearing loss. By October 2013 tests had shown the presence of CMV. Genetic screening was undertaken and as at November 2013 was normal. However, in August 2014 Miss Owen became concerned about the delay in A's head control, the delay in her sitting up and her poor balance. She noted that A was walking with a wide based gait. A was referred by her to Dr Glynnis Parker, Consultant Audiovestibular Physician. Miss Owen said that there may have to be further genetic testing. She is planning a referral to a clinical geneticist to advise as to the necessary genetic tests which bear upon A's bilateral sensori-neural hearing loss and balance. A also has an appointment with a paediatric neurologist in October 2014 as Miss Owen is anxious to make sure that she is covering all options given the emerging complexities.
11. In September 2014 Dr Parker observed her balance in clinic. Although she was wearing her Piedro boots, she was noticeably very unstable with a wide based gait on standing and walking with a tendency to hold or lean against an object or person, if possible. She described her gait as 'tottering'. She easily and frequently fell backwards, forwards and to either side on movement. Falling backwards was abnormal and more likely to lead to injury due to lack of reflective reflexes such as putting arms out or falling on knees. Dr Parker had been given a history by A's foster carer of her falling about 20 times a day without any obvious reason.
12. She sustained several falls during the consultation including a minor bump on her head against a sink and a fall backwards during which she only just missed falling on a table. This was notwithstanding the presence of four adults in the consultation room. Dr Parker noted that she did not cry following these incidents. On trying to get A to stand on a simple foam platform, she was unable to stand at all without holding and fell in all directions, which was highly abnormal for a child of her age. She gave the appearance of a child with a significant balance hypofunction.
13. A was tested in the vestibular function test room where she was rapidly rotated in a chair and whilst wearing infra red goggles. A was observed to have no evidence of nystagmus. This is a highly abnormal finding and would be consistent with severe vestibular hypofunction/absent vestibular function.
14. Dr Parker concluded that A had a significant balance disorder, most likely linked to severe vestibular organ hypofunction or absent function. As to prognosis, she said that most children with balance organ hypofunction compensate for this well over time and learn strategies to deal with it. From her reading of the literature it is not likely to be a long term disability.
15. Dr Parker observed DVDs of A's movements during 2013 and 2104 and said that these supported her findings. She also noted that the mother had been very caring during the consultation.
16. Dr Parker identified two conditions linked to deafness and loss of balance: Jervell Lange-Neilsen Syndrome and Type 1 Usher Syndrome. She said that ECG abnormalities would be expected with Jervill Lange-Nielsen Syndrome. She said that Type 1 Usher Syndrome goes on to cause visual difficulties. A's eyes have been tested and are currently normal but she said that there can be a later onset of eye difficulties. Miss Owen in her oral evidence explained that Type 1 Usher Syndrome involves sensori-neural hearing loss, poor balance and retinal pigmentosa. She confirmed that, although there is no current evidence of A suffering retinal pigmentosa, this could develop at any time during her childhood and adolescence and will, therefore, have to be kept under review by an ophthalmologist.

Events leading up to A's presentation at hospital

17. After a turbulent relationship with a former partner and a fleeting non-cohabiting relationship with A's father, the mother commenced a relationship with CG in autumn 2013. On 17 January 2014 she moved with A closer to where CG lived which was closer to where A's medical appointments were taking place. CG began spending more time at the mother's home, visiting most days and staying at her home 2 to 3 times a week. He works day and night shifts as an electrical engineer.
18. Whilst the mother was carrying out her move to her new home, A was cared for overnight by the mother's friends and also by the 5^th and 6^th Interveners, ANW & ALW, who were friends of the maternal grandmother.
19. Upon a recommendation from CG's extended family, A commenced at the LPLN ('the Nursery') on 24 January 2014. In the first meeting the mother gave a full explanation as to A's medical background. A initially attended on Friday afternoons but, on the Nursery's recommendation, this was increased to include Tuesday morning.
20. In early February 2014 the mother also made arrangements for A to be cared for by a Child Minder, the 7^th Intervener, who commenced caring for A on 7 February.
21. On 7 February 2014 whilst A was at Nursery she was using another child as some support and stability, when the child moved away causing A to lose her balance. She fell forwards and banged the left side of the head and close to her head. A red and slightly bruised mark appeared and a cold compress was applied.
22. From 11 February to 4 March 2014 A was variously cared for overnight or in the day by the 1^st Intervener, the 8^th Intervener; the 5^th & 6^th Interveners and the Child Minder.
23. The mother presented A to the GP on 28 February 2014 with a swollen and inflamed right index finger and A was prescribed a course of antibiotics. On 1 March 2014, having set off on her journey with A at 4:00 am, the mother attended A & E at 5: 06 am, as she was very concerned that A's finger was not responding to the antibiotics.
24. On 4 March 2014 A was presented at the Nursery with her finger still infected and swollen, which the Child Minder later saw at 4 pm.
25. The 4^th & 5^th Interveners, who were friends of CG and neighbours of the mother, cared for A overnight from 6 to 7 March 2014 as the mother and CG had arranged to spend the night together. On 6 March 2014 A was delivered by the mother to the Child Minder at 8.30 am. The Child Minder noticed that A had facial bruising which the mother said had been caused by books from a shelf falling down on her. The mother also said that A would not stand on her legs that day. The Child Minder described A was lethargic and sullen and did not seem herself.
26. The 5^th Intervener picked up A at 3.30 pm. She saw the facial bruising but no other injuries. She was also caring for her stepson, aged 5. Although she was involved in the children's personal care she did not notice any other bruising on A. She was adamant that A had not fallen whilst in her care or that any accident or incident had occurred involving A and her stepson. The 5^th Intervener delivered A to the Child Minder the following morning at about 8.30 am, who cared for A until taking her to the Nursery at 12.45.
27. On 7 March 2013 the Nursery noted the bruising on A's face and that her finger had still not healed. The mother telephoned the Nursery at lunch time asking how A was and asking them to check her legs as she was concerned that there may be some discomfort in her legs. She told them that A had pulled herself up using her book shelf and it had toppled on her. After the mother had telephoned A's key nursery worker checked her legs and noticed 'fresh bruising' on the back of A's thigh which consisted of two circular marks. The Nursery noted that A was very lethargic and fell asleep on the manager for about 1 ½ hours.
28. When the mother arrived at the Nursery and was asked about the injuries, she said that she did not know what had happened; A was playing and she heard a bang. She then broke down in tears. She was told to take A to the GP.
29. The Third Intervener took the mother and A to the GP but, as no appointment was available, they went to the Urgent Care Centre where A was seen by Dr Olufemi Ogunremi, Clinical Practitioner. He noted the bruising with which he felt 'uncomfortable' and so he initiated a referral to a paediatric registrar via a referral to Children Services.
30. A child protection medical assessment was requested and A was seen by Dr Rajaran who noted the following relevant bruises:

A small linear bruise 10 mm x 3 mm bright red on the bridge of the nose with bruising on both sides below the eye.

On the lateral aspect of the right thigh

a 20 mm x 7 mm linear bruise, dark purple in colour

5mm x 3 mm linear bruise, dark purple in colour

30 mm x 5 mm linear bruise, dark purple in colour

3 mm x 3 mm bruise just above the knee

5 mm x 3 mm linear bruise, dark purple in colour

31. Dr Guntupalli, Consultant Paediatrician, saw A the following day, 8 March 2014, and confirmed the bruises noted above.
32. On 11 March 2014 A underwent a skeletal survey series of x rays and the Consultant Paediatric Radiologists, Drs Halliday and Somers, noted fractures of the right ulna, left femur and right tibia. They noted that the bones looked 'somewhat osteopenic' and recommended bone biochemical testing and testing for vitamin D. On 13 March 2014 A's vitamin D concentration result was found to be low and she was given a course of vitamin D.
33. A had a CT scan of her head which was compared with an earlier MRI scan from June 2012. The CT scan showed white matter low density in keeping with white matter disorder. Dr Tim Jaspan Consultant Paediatric Neuro-radiologist, stated that it was not possible to do a further MRI scan due to A's cochlear implants. However, he expressed the view that the white matter changes on the recent CT and previous MRI scans were 'likely to represent the late sequelae of CMV'.

Police interviews

34. CG was interviewed by the Police on 13 June 2014 and denied that he had caused any of the injuries. He had seen A take a lot of tumbles on the Karndean covered concrete floor but that she rarely cried at these times. He had seen the facial bruise and been told by the mother that books fell out of a bookcase and caused the bruising under the eye. He had not seen any other injuries on A. He had no explanation for the fractures other than A took a lot of falls on a concrete floor.
35. The mother was interviewed by the Police on 18 March 2014 and she denied causing any injuries. She described the Nursery raising concerns about the bruising and her taking A to the GP for this and the continuing problem with her finger infection. As there was a long wait she took A to A & E where they saw bruises on her right thigh. She had seen a red mark to the bridge of the nose late morning. She had heard a bang. She had gone to A and found ornaments and picture frames on the floor having apparently fallen from a shelving unit. A showed no distress. She had no idea how the bruises on her right leg had occurred .She thought that the finger infection was caused by A biting her finger. She did not know how the femur and ulna fractures had been caused nor was she able to explain the tibia injury other than frequent falls.

Expert Evidence

Dr Karl Johnson, Consultant Paediatric Radiologist

36. In his report dated 14 August 2014 Dr Johnson concluded from the imaging that A had suffered three fractures:

A fracture of the mid shaft of the right radius and ulna which he dated as being in the region of 2-5 weeks of age on 11 March 2014 (ie a window from 4 February to 25 February);

An undisplaced fracture of the proximal right tibia which he dated as being in the region of 1 to 4 weeks of age on 11 March 2014 (ie a window from 11 February to 4 March 2014);

An undisplaced fracture of the distal left femur which he dated as being no older that approximately 6 weeks of age on 11 March 2014 ( ie a window from around 28 January to 11 March).

37. He emphasised that the dating of the fractures was a difficult and imprecise assessment. In his view, all the fractures could have occurred either at the same time or on separate occasions. From a radiological perspective, it was not possible to determine the most likely scenario.
38. Each fracture represented a separate application of force and was the result of a blow, impact or bending/snapping action applied to the bone. In his oral evidence he expressed the view that the fractures of the radius and ulna represented a single injury ie one application of force. He further accepted that the fractures could have been caused by a single event involving multiple applications of force.
39. The amount of force required was unknown but, in his opinion, would be significant. The fractures of the distal left femur and proximal right tibia were a result of some degree of compression. These fractures did not occur from normal domestic handling, over exuberant play or rough or inexperienced parenting. He thought it was unlikely that a child twisting a limb on her own could generate sufficient force to cause a fracture. However, a child jumping and landing from a bed or sofa onto a limb could provide the mechanism but it would then depend on the amount of force.
40. Radiologically, there was no evidence of any underlying bone disorder to indicate that A was predisposed to fracture. Radiology would not detect hypermobility. There were no signs radiologically that A was suffering from congenital insensitivity but in relation to this he would defer to the paediatrician.
41. After expressing his views throughout his report on the basis of 'raising a suspicion', in a letter dated 3 September 2014 (at the invitation of the Children's Guardian's Solicitor to consider the balance of probability) he expressed the view that, if the court were to find that there was no accidental or as yet undisclosed mechanism to account for the fractures, then on the balance of probabilities, the fractures in A's age were the result of inflicted non-accidental injury. He stated, however, that the appearances of the fractures on the imaging were non-specific as to the exact mechanism of causation.
42. In his oral evidence he was asked about the finding of Drs Halliday and Somers that A's bones appeared 'osteopenic'. He said that this refers to the level of bone density which appears as less white on the imaging and reflects the amount of calcium in the bone. He did not think that the bones were osteopenic but qualified this statement by highlighting that an assessment as to the amount of calcium in the bone was a very subjective area of radiology. Bone biochemistry was tested by blood samples but interpretation of the samples fell outside the scope of his expertise and he deferred to Dr Rylance. Vitamin D was part of the calcium pathway but again this was an area of expertise for Dr Rylance.
43. He was referred to a paper Bishop, Sprigg & Dalton 'Unexplained fractures in infancy: looking for fragile bones' Arch Dis Child March 2007; 92(3):251-256. He accepted that his opinion had been based upon plain film x-rays from standard views, which he accepted was a very poor diagnostic tool for bone density and cannot be seen as the final arbiter of bone fragility. He acknowledged that plain film radiography was not as precise as dual energy x ray absorptiometry (DXA) in quantifying bone mineral density. He, however, would not have recommended another medical investigation by an expert in DXA scanning in A's case without asking, first, whether the bone density could be interpreted in a child of A's age and, secondly, if yes, whether it was likely to be of value.
44. From the imaging alone Dr Johnson accepted that he was unable to say whether the fractures were accidental or non accidental injuries.

Dr Russell Keenan, Consultant Paediatric Haematologist

45. Dr Keenan in his supplementary report dated 9 September 2014 concluded that all investigations of A's haemostatic system were normal and that no bleeding disorder had been identified.

Dr George Rylance, Consultant Paediatrician

Bruising

46. As to the differential diagnoses for the cause of bruising, Dr Rylance identified:

Bleeding disorder;

Accidental trauma;

Non-accidental trauma

47. In the light of Dr Keenan's tests he excluded disorders which affect the number of function of platelets and any chronic inherited coagulation disorder.
48. He acknowledged that accidental trauma was the commonest causation of bruising and he considered the shelf explanation was a plausible explanation for the facial bruising, which the majority of paediatricians would accept. However, in his view, when the facial bruising was considered together with the thigh injury, the shelf explanation was an unlikely causation. As to the thigh bruising, although it did not show a classical finger mark configuration, the leg bruising was in a somewhat unusual site and its configuration was difficult to explain in terms of impact against a common everyday object.
49. However, looking at the totality of the bruising alone, his concluded view was that 'it was evenly balanced as regards the likelihood of the bruising being accidental or non-accidental' (my emphasis).
50. In his oral evidence he explained that the major factor for putting the balance of probability at 'even' rather than more likely than not was because of the picture he had gained as to the stage of A's development from the professionals who had seen her and in particular Dr Crawford, namely that A was at the stage of independent walking. He had taken into account that the saving reactions of a falling child who was developmentally delayed were not well developed.

Fractures: Dr Rylance's reports

51. Dr Rylance in his report dated 1 August 2014 and addendum report dated 16 September 2014 considered the differential diagnoses for the cause of the fractures as being:

Predisposing underlying easy fracture disorder;

Accidental trauma;

Non-accidental trauma;

52. At the time of his addendum report he ruled out underlying fracture disorders.
53. As to vitamin D deficiency, he noted that A had no evidence of rickets on her x-rays but had noted that Drs Halliday and Somers had described the appearances as 'somewhat osteopenic.' He said that A had no biochemical evidence of rickets. Her blood tests for calcium, phosphate and alkaline phosphatise were essentially normal. Whilst he recognised that it is not possible to exclude the possibility that deficient concentrations of vitamin D are not associated with an increased incidence of fractures in young children and he considered her vitamin D concentration to be in the 'insufficient' category, he all but excluded her fractures being due to vitamin D, given her general clinical appearance on repeated recent examination, the negative biochemical blood tests and x-ray findings,
54. Mr Jayamohan, Consultant Paediatric Neurosurgeon, in his report dated 11 July 2014 had noted that A had a condition affecting the white matter tracts of her brain, which was likely, in his view, to be caused by a metabolic or genetic cause.
55. As to the white matter changes, Dr Rylance thought that they white matter changes may be attributable to A's CMV. Of the potential causes of white matter abnormalities, he knew of no disorder that causes a child to bruise or fracture more easily than other children.
56. Dr Rylance acknowledged that accidental trauma was the commonest cause but he noted that no explanation had been put forward for the fracture of A's femur. In relation to the ulna and tibia fractures, the mother suggested that A falls over a lot which may be the cause. His comment was that falling over in a child who is developmentally delayed was common and 'saving reactions' were not as well developed or seemingly well co-ordinated and this explanation was plausible. In his view, however, it was not likely, as it was statistically unlikely for three sites to have fractures within a few weeks of each other.
57. In his reports he concluded, therefore, that it was more likely than not that her fractures were due to non-accidental cause. In percentage terms, however, he expressed the likelihood as '75-85% rather than 90-95 % as was common in cases of this nature'.

Fractures: Dr Rylance's oral evidence

58. In his oral evidence he explained that his percentage reduction reflected his more cautious approach in A's particular case because at the stage of his report she fell over more than her mother expected and probably other people but, he added, not to the extent that he now thought in the light of Dr Parker's evidence. Dr Parker's evidence led him to be even more cautious and the percentage reduction had to be greater than he had originally thought and, as he put it, the balance of probability was 'moving backwards'.
59. He said that in arriving at his paper conclusions he had come from a position that A was not suffering from any neurological condition but he was now clearly concerned that Miss Owen had felt the necessity to refer A to a neurologist. This introduced a concerning element of uncertainty as to whether A was in fact suffering from a neurological condition which may be relevant to a condition of easy fracturing. As he had pictured A from the evidence of Dr Crawford, in particular, there had been progression in her development, albeit delayed, but he was now concerned that from July there appeared to have been a change in that she was falling considerably more than previously and considerably more than her level of delayed development. This introduced an extra dimension for which, he said, one has to find another cause. This was not to do with her development and so he would turn to the neurologist to assess whether there was some neurological abnormality.
60. This led him to express the view that this was a very difficult case which was not black and white. He said that he was always the first person to recognise an unknown and he now thought that an unknown cause was not an inconsiderable factor to be placed in the balance of probability.
61. He was further concerned that A was 'scissoring' with her legs and 'toe pointing' which was one of the seven expressions of cerebral palsy. He further noted that A's white matter disorder was different from the features of the disorder generally associated with CMV and he could not, therefore, exclude a neurological component, which, he said, took us 'more into an unknown.' He also conceded that there may be other conditions to be revealed by the clinical geneticist.
62. He further accepted that if A had hyperextension of her joints relative to her age, as the mother suggested, this could lead to bruising and a tendency to fracture with less force. He had seen no evidence of this being expressed in other features, in addition to the bruising and the fractures, but stated that some of those other features come through with age and may not be recognised in the first year or the second year or even after 2 ½ years.
63. Dr Rylance frankly conceded that, as more things were coming to light, the greater the uncertainty and the greater difficulty in reaching a concluded view as to causation.

Analysis

Law

64. The legal burden of establishing the facts rests on the Applicant authority at all times. The standard of proof is the ordinary civil standard of the balance of probabilities; neither the seriousness of the allegation nor the seriousness of the consequences makes any difference to the standard of proof applied: Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35.
65. Findings of fact must be based upon evidence, including inferences that can properly be drawn from the evidence and not suspicion of speculation: Re A (A Child) (Fact Finding: Speculation) [2011] EWCA Civ 12, per Munby LJ (as he then was). For a fact to be proved the judge must first decide whether or not it happened: Re B (above), per Lord Hoffmann.
66. Determining the facts is a difficult task which must be performed without prejudice or pre-conceived ideas. The court is guided by many things including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and the overall impression of the characters and motivations of the witnesses: Re B (above), per Baroness Hale of Richmond.
67. As Dame Butler-Sloss P said in Re T [2004] 2 FLR 838 at 33:

'Evidence cannot be evaluated and assessed in separate compartments. A judge…must have regard to the relevance of each piece of evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof'.

68. The words of Moses LJ in R v Henderson; Butler; Oyediran [2010] EWCA Crim 1269 are apposite, albeit he was applying the different criminal standard of proof, when he said:

'Experts… must reconstruct as best they can what has happened. There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the prosecution is able, by advancing an array of experts, to identify non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such temptation must be resisted. In this, as in so many field of evidence, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As R v Canning [2004] EWCA Crim 1, para 177, teaches, even where, on examination of all the evidence every possible known cause has been excluded, the cause may still be unknown.'

69. Citing the above passage, Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715; [2011] 2 FLR 1384 at [10] went on to say:

'The 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 disputed 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…' See also Re JS [2012] EWHC 1370 [44], per Baker J.

70. The unusual facts of Re R provide an illustration of this process. Three possible causes for a head injury to a baby had been identified by the experts: a perinatal event; a non-accidental injury and an aetiology which was neither known nor understood. There were considerable difficulties with the cause being either of the first two causes and Hedley J found on a balance of probability that the cause was one of unknown aetiology; non-accidental injury and a perinatal event being each less probable.
71. In assessing the expert evidence I must be careful that each expert has not trespassed outside the bounds of their own expertise but has deferred, where appropriate, to the expertise of the expert with the relevant specialty, and that, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The medical experts are not the decision makers; it is for the judge, having analysed the whole of the evidence, including issues of credibility, to reach conclusions as to the facts which may vary from that reached by the medical experts: A County Council & K,D & L [2005] !FLR 851, per Charles J; Re S [2009] EWCH 2115, per King J.
72. In Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA CIV 567 Dame Elizabeth Butler-Sloss P further observed:

'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 may throw light into corners that are present dark'

73. It is also important to guard against a reversal of the burden of proof as occurred in M (Child) [2012] EWCA Civ 1580 where the first instance judge had found that 'absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation.' Ward LJ stated that this conclusion did not necessarily follow, unless, wrongly, the burden of proof had been reversed and the parents were being required to satisfy the court that it was not accidental injury.

Analysis

74. It is for the judge to exercise an overview of the evidence in order to reach a conclusion as to whether the case has been made out by the local authority on the balance of probabilities.
75. In carrying out such an overview, it is important for the court to weigh carefully in the balance the wider canvas evidence, which in this case presented a clear picture of a young mother who has cared for A with love and provided her with good parenting. There is no dispute that she has built up a positive, strong and reciprocated attachment with her daughter. A's Parenting Practioner described the mother as 'very caring, with a very good attachment who responded to A's needs instinctively to which A responded well; A was always well presented and the home conditions were good.' The social worker said that the mother came across as a mother who loved her daughter, who wanted to do her best for her daughter and who engaged positively with professionals and who, when she felt she was struggling, appropriately asked for support, for example obtaining herself a nursery placement and the help of a child minder. Notwithstanding that she was only 19 years of age when A was born, she has faced the daunting prospect of A's complex health needs with courage and, after carrying out research into cochlear implants, she took the difficult decision for the implantation to take place in order to give her child the best chance of some degree of hearing and communication. No-one disputed that she had exercised good judgment in her choice of friends whom she relied upon for overnight or day respite care. She showed insight in recognising for herself that it was not best for A to move from carer to carer during the period from 4 March to 7 March 2014.
76. The local authority had sought to rely upon domestic violence in their Threshold Document but this was historical by the date of the initiation of proceedings and, in my judgment, did not meet the threshold for the purposes of s 31(2) of the Children Act 1989. Reliance was further placed upon missed health appointments and lapses in the charging of A's cochlear implants which are important for her hearing, speech and development. Given her complex health needs, A had a very large number of appointments, including emergency appointments, and, when viewed against her overall appointments, those missed formed only a small proportion and, therefore, in my view, did not cross the threshold of significant harm. There was no established pattern at the Nursery as to the lapses in the charging of A's implants and such occasional lapses as were noted have to be viewed in the context of Dr Crawford's assessment of A's development; her comment being that there was 'every evidence that A has worn these (processors) well.' Again, in my judgment, this allegation does not reach the threshold of significant harm.
77. It is against this backdrop of the wider canvas evidence that I now turn to consider whether the local authority has established, on a balance of probabilities, that the bruising and the fractures were inflicted, non accidental injuries.

Bruising

78. At its height Dr Rylance's properly cautious opinion only reached an even balance of probability and the court, therefore, cannot and does not make a finding, on all the evidence, that it was more likely than not that the bruising was an inflicted injury.

Fractures

79. The graphic and compelling evidence of Dr Parker at the outset of the hearing was, without doubt, a game changer so far as determining the issues in relation to the fractures. This was new and disturbing evidence which caste deep pools of uncertainty as to the likely causation of the fractures and led to Dr Rylance, in effect, rethinking his opinion on causation.
80. Given the complexities of A's known conditions, he had been already been properly cautious in his report which he had telegraphed by his significant percentage reduction of 'likelihood' in relation to non-accidental injury. He now found that he had to place into the balance as 'a not inconsiderable factor' a real prospect of a neurological component and the potential for other genetic causes which he described as taking us 'more into the unknown' as to causation. As he graphically put it, the balance of probability was 'moving backwards' and in the light of this new evidence, he, quite clearly, no longer felt confidant as to his original conclusion on causation.
81. Dr Johnson could not assist as he was clear that the radiological evidence was non- specific as between accidental and non-accidental injury and, consequently, in all other respects he properly deferred to Dr Rylance.
82. I remind myself of the words of Hedley J in Re R (above) that in every case which concerns a disputed aetiology, giving rise to significant harm, the court must factor in a consideration as to whether the cause is unknown. In the light of the ground breaking evidence of Dr Parker, a large measure of uncertainty has been introduced into the three differential diagnoses for the cause of the fractures identified by Dr Rylance and the evidence is now wholly insufficient to exclude an unknown cause.
83. In my judgment, the balance of probability went into free fall following Dr Parker's evidence and finally tipped, on the totality of the evidence, in favour of the cause being one of unknown aetiology with non-accidental injury now being the less probable cause.
84. It follows that I do not find that the local authority has established to the requisite standard the threshold for the purposes of s 31(2) of the 1989 Act. The local authority, quite properly, acknowledged that this was the case following the conclusion of Dr Rylance's evidence.
85. The application for the care order is consequently dismissed.
86. I wish to make abundantly clear in this judgment that I totally exonerate the mother and all the interveners in this case in respect of any bruising or any fractures relating to A.
87. In the light of the original views of Dr Johnson and Dr Rylance as expressed in their reports, no criticism, in my judgment, can nor should be levelled at the local authority for issuing care proceedings or at the Children's Guardian for her stance in her Position Statement. No-one, including Dr Johnson and Dr Rylance at the time of writing their reports, could have anticipated the game changing nature of Dr Parker's evidence.