England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING AT LEICESTER

CASE No LE14CO0621

 

 

 

 

Before His Honour Judge Clifford Bellamy

(Judgment handed down on 28^th October 2014)

 

 

 

Re V (A Child: Identification of Perpetrator)

 

 

 

 

 

Miss Nassera Butt for the Local Authority

Mr Brendan Roche for the mother

Miss Hannah Markham for the father

Miss Hari Kaur for the child

 

 

 

 

 

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any 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.

 

 

JUDGE BELLAMY

1.         Leicester City Council (‘the local authority’) applies to the court for care orders in respect of two children, W, a boy now aged 17 months and V, a boy now aged 6 months. The children’s parents are A (‘the mother’) and B (‘the father’). On 22^nd May 2014 V was presented at hospital with swelling to his left leg. An X-ray revealed that he had a fracture to his left femur. A skeletal survey undertaken the next day disclosed evidence of several other healing fractures. There are seventeen bony injuries comprising 16 fractures and one instance of subperiosteal haemorrhage. The parents deny that they have caused these injuries.

2.         This finding of fact hearing is taking place in order to determine which, if any, of these injuries are non-accidental injuries. With respect to any non-accidental injuries the court must endeavour to determine the identity of the perpetrator. If that is not possible the court must identify those who should be placed in a pool of potential perpetrators.

Background

3.         The mother is aged 36. The father is aged 39. Although the mother has adopted the father’s surname, the parents are not married.

4.         The mother was married in 2008. Her marriage broke down in 2011. She began a relationship with the father in 2012. Later that year she became pregnant. W was born in May 2013.

5.         Prior to the arrival of W, the mother worked as a carer for the elderly. She wanted to be a full-time mother and therefore gave up work when W was born. The father is a solicitor.

6.         It is clear that this is a close family. Maternal grandparents have provided a lot of support for the mother since W was born. Both grandparents are qualified nurses. Grandmother retired in 2013 and so is available to provide help and support for the parents. Grandfather is semi-retired. He is a bank nurse. W has a strong attachment to his grandparents.

7.         When W was born the parents spent the first week staying with maternal grandparents. They then returned to their own home. The paternal grandparents then came to England for three months to provide help and support.

8.         There were no problems in the parents’ care of W. There were no concerns about W’s growth and development. Health Visitor records relating to W record that ‘family environment observed, safe, secure and appropriately equipped. Finance, housing and support to the family appropriate.’ Prior to V’s admission to hospital on 22^nd May the family was not known to the local authority.

9.         V was born on 13^th April 2014. Upon his discharge from hospital the family again went to stay with maternal grandparents. They stayed there for around three weeks, returning to their own home with both children on or around the 8^th or 9^th of May.

10.     On the evening of 21^st May, whilst bathing V, the father noticed that his left leg was swollen. The mother telephoned maternal grandmother for advice. The advice given was to keep an eye on it overnight and if still concerned in the morning to take V to see his GP.

11.     The parents followed that advice. V’s leg was still swollen the next morning, 22^nd May. The parents took him to their local medical centre. Their GP advised them to take V to hospital. They took him to the Leicester Royal Infirmary.

Medical evidence – treating clinicians

12.     At the Leicester Royal Infirmary V was first examined by Dr Hall, an Associate Specialist in Paediatrics. In a report dated 10^th June, Dr Hall says that V’s

‘left leg was obviously swollen, painful and the distance between his hip and knee on that side was shorter than on the right hand side. He was obviously in pain with a high pitched cry and an x-ray was arranged’

 

The x-ray showed that V had a displaced fracture of his left femur.

13.     Dr Hall took a history from the parents. She records that,

‘A’s mother tells me that his father noticed his leg to be swollen when he undressed him for his bath at around 8pm on 21^st May 2014. His mother had been slightly concerned about his leg at nappy change earlier in the day but otherwise he had been well and certainly not behaving differently from normal in his mother’s opinion.

V’s mother tells me that she phoned her mother and her sister, who is a GP, at approximately 10.15pm that night to discuss what action they should take about the swollen leg and it was decided that she should make an appointment to see her GP in the morning which she did.’

 

14.     The next day V was examined by Dr Venkataraman, a consultant paediatrician. Dr Venkataraman also took a history from the parents. In her report she notes that,

‘Parents could not recall any incident or incidents of trauma over the previous few days which could have caused this injury. They also had not noticed any episode which stood out because V cried more than normal. In this context, they reported that V had always cried a lot, from birth. They had sought advice for the crying from the GP and the Health Visitor. V had been treated for gastro-oesophageal reflux and colic with Gaviscon and Infacol but this had not improved his crying…

I discussed possible mechanisms of injury again with V’s parents following receipt of the skeletal survey report. Parents reported that they had regularly massaged him from birth. They had done the same with their first son W. Both parents individually described their technique of massage. They demonstrated the pressure applied using my arm and mimicked the movements they used while performing massage. All the movements were along the long axis of the bones i.e. the join’s (sic) were not twisted in any way. The pressure demonstrated on my arm was firm but not undue or uncomfortable. Parents reported that as V cried a lot anyway, they had not noticed him cry out more when massaged.’

 

15.     Dr Venkataraman concludes her report with the following summary:

‘V has presented with an unexplained fracture of the femur. The femur is a very strong bone and it would take a significant force to fracture it.

Skeletal survey shows many other fractures in multiple sites of different ages, highly suspicious of non-accidental injury.

V has been reported to have been crying repeatedly which may have been due to pain from the multiple fractures. This crying has now improved significantly in hospital.

Parents’ demonstrated massage technique appears to have been appropriate. The fractures could not have been caused by the use of appropriate pressure during massage.

No abnormalities have been identified which might point towards bony fragility.’

 

16.     Dr Venkataraman also gave oral evidence. She said that the parents had been amazed when told the results of the skeletal survey. They tried very hard to recall any specific incident which may have caused V’s injuries but were unable to think of anything.

17.     The only explanation the parents could put forward was that they massaged V each day. They had both demonstrated how they did this. Dr Venkataraman was very clear that this could not have been the cause of either the fracture to the left femur or the constellation of other fractures.

18.     Dr Venkataraman did not see anything inappropriate in the parent’s interactions with V. She could see that V was a well-nourished, well kempt baby.

19.     There was also nothing inappropriate or concerning about the parents’ presentation or their relationship with each other. However, she did notice that although the mother understood what she (the doctor) was saying she appeared to be slower than the father at processing information. She noted that the father took the lead in discussions. She also noted that for much of the time the father was in tears (as has also been the case during this hearing) but that the mother did not exhibit the same degree of emotion. Dr Venkataraman thought that that was probably due to the fact that the mother was processing information more slowly.

20.     Dr Venkataraman could not remember whether the nursing staff had commented on V’s high-pitched crying. She could not recall hearing it herself. However, she noted that by the time V was discharged from hospital he ‘settled very nicely’. This made her think that perhaps V’s high-pitched crying may have been related to the pain he was experiencing.

Medical evidence - experts

21.     Within these proceedings permission was granted to the parties to obtain expert medical evidence from Dr Stephen Chapman, a consultant paediatric radiologist, Mr Christopher Bache, a consultant orthopaedic surgeon specialising in children’s orthopaedics and from Dr Richard Stanhope, a consultant paediatric endocrinologist. Each expert has produced one written report. I have also heard oral evidence from Dr Chapman and Dr Stanhope.

Dr Stephen Chapman

22.     Dr Chapman is a consultant paediatric radiologist based at Birmingham Children’s Hospital. He is a radiologist of immense experience and with an international reputation. He appears regularly as a medico-legal witness in the Family Court.

23.     Dr Chapman has examined radiology images taken on 22^nd, 23^rd and 30^th May, 6^th June and 28^th July. The injuries apparent from the imaging include a long oblique/spiral fracture of the mid shaft of the left femur, fractures to the anterior end of the right 4^th to 7^th ribs (five fractures), to the anterior end of the left 4^th to 8^th ribs (seven fractures), a healing metaphyseal fracture of the lower end of the right humerus, a healed or almost healed metaphyseal fracture of the right distal radius, a metaphyseal fracture on the medial side of the right distal femur and a periosteal reaction along the mid shaft of the right femur which Dr Chapman considers to be pathological, not physiological.

24.     Fractures cannot be dated with precise accuracy. The extent of the healing response apparent on radiological imaging makes it possible to give an approximation of the dates within which a particular fracture is likely to have occurred. Subperiosteal new bone formation is typically seen from 7 to 10 days post injury.

25.     Based on the x-ray taken on 22^nd May, Dr Chapman is of the opinion that the fracture to the left femur is at least 12 hours and perhaps at least 24 hours old at the time of the x-ray, probably not more than 5 days old and certainly not more than 10 days old. It is more likely than not that this injury was sustained on 21^st May. Further refinement depends upon the court’s assessment of the truthfulness of parental accounts of the time when they first noticed something to be amiss.

26.     Fractures to the anterior end of the right 4^th, 5^th, 6^th and 7^th ribs are likely to be the result of a single application of force and to have been two to three weeks old at the date of the skeletal survey. The fractures to the anterior end of the left 4^th, 5^th, 6^th, 7^th and 8^th rib are also likely to be the result of a single application of force and are likely to have been sustained during the same time period.

27.     So far as concerns the right 7^th rib and the left 5^th and 6th ribs, the x-rays show that in each of these ribs there is a second fracture. The skeletal survey provides no evidence of healing of the 5^th and 6^th ribs but ‘a little healing response’ to the 7^th rib. Further x-rays taken a week later show the same degree of healing in all three of these fractures. This enables Dr Chapman to revise his opinion as to the timing of these three fractures which he now concludes are likely to have occurred on or around 13^th May.

28.     There are three metaphyseal fractures. On the basis of the x-rays, Dr Chapman is of the opinion that the metaphyseal fracture to the right humerus is likely to have occurred between 2^nd and 9^th May, the metaphyseal fracture to the right femur between 2^nd and 16^th May and the metaphyseal fractures to the lower end of the right humerus between 25^th April and 2^nd May.

29.     So far as this last fracture is concerned, Dr Chapman accepts that on the basis of timing, this could be a birth-related fracture. However, he makes the point that a child being delivered by a normal vaginal delivery (and in this case there was no use of either forceps or Ventouse) would not have had his wrist pulled and so birth does not provide a mechanism for this injury.

30.     Dr Chapman does not accept that massage could account for V’s injuries. The femur is the thickest and largest bone in the human skeleton. It requires considerable force to fracture a femur. With respect to the femoral fracture he said that this ‘is such a significant injury that it is difficult to understand how the person performing the massage at the time could not have realised that he or she had injured V’. Significant compressive force is required to cause rib fractures. Cardiopulmonary resuscitation (‘CPR’) requires compression of the chest. There is very little evidence of CPR causing rib fractures in children. Using that knowledge by way of comparison, Dr Chapman was dismissive of the possibility that the rib fractures had been caused by massage.

31.     Dr Chapman was asked about V’s likely presentation at the time these injuries were sustained and in the hours and days following. He said that the femoral shaft injury is the most clinically obvious injury and that it is quite possible that the perpetrator would have heard or felt the bone break. The probability is that at the time of injury V,

‘would have screamed and this distress would have lasted for 10s of minutes…He would probably have stopped moving the leg, partly because he would have quickly learned that movement caused renewed pain, but also because of the mechanical difficulty of moving a broken bone…’

 

However, in his oral evidence he accepted that if V had already been screaming at the time the fracture occurred then a carer may not have noticed and may have believed the screaming to have been normal behaviour.

32.     Apart from the swelling to V’s left leg there is no evidence of any visible signs with respect to the other fractures. In Dr Chapman’s opinion these other injuries are likely to have resulted in pain as the predominant symptom with little, if any, external evidence of injury to indicate to the perpetrator, or to a carer not present at the time the injuries were occasioned, that fractures had been sustained.

33.     There is no radiological evidence of any metabolic or other form of bone disorder. In particular, there is no radiological evidence of osteogenesis imperfecta, Vitamin D deficiency, Ehlers Danlos Syndrome, Vitamin C deficiency (scurvy) or copper deficiency.

34.     Dr Chapman concludes that all of the fractures are the result of non-accidental injury. He was at pains to make it clear that it is the lack of an explanation for any of these fractures that leads him to that conclusion.

Dr Richard Stanhope

35.     Dr Richard Stanhope is a consultant paediatric endocrinologist based at The Portland Hospital in London. He has practised solely in the field of paediatric endocrinology for the last 25 years.

36.     Dr Stanhope’s conclusions can be stated shortly. He says that,

‘There is still an outstanding result for genetic studies into osteogenesis imperfecta, although V has no clinical evidence for this. I have no data about how he has progressed in foster care and whether he has had any further fractures.

V suffered from non-accidental injury, resulting in numerous fractures during the first few weeks of life. I can find no evidence that he had an underlying bone or metabolic disorder…

The genetic testing for osteogenesis imperfecta was still outstanding in the medical records that I was given. However, I can find no evidence that V has osteogenesis imperfecta. I would not expect V to have any further fractures whilst in foster care…’

 

Further x-rays have been taken whilst V has been in foster care. There is no evidence that he has sustained any further fractures.

37.     The results of genetic testing were available on the first day of this hearing. Dr Stanhope was able to consider them before he gave evidence. The report from Sheffield Children’s NHS Foundation Trust, where the testing was undertaken, reports that,

‘Sequencing of genomic DNA from V for a panel of genes associated with autosomal dominant osteogenesis imperfecta has now been completed. No pathogenic mutation has been detected in these genes.

Thus it is unlikely that the symptoms seen in this individual are caused by pathogenic mutations in these genes. This does not exclude a diagnosis of osteogenesis imperfecta as other rare (<1%) mutational mechanisms not detectable by this analysis may be present or other genes may be involved.’

 

38.     The testing carried out in Sheffield had screened only COL1A1 and COL1A2. As a result, as the report from Sheffield indicates, the test results do not exclude osteogenesis imperfecta absolutely. Dr Stanhope explained that the only way to be absolutely certain that there are no other mutational mechanisms present would be to sequence the whole collagen gene. That would be very expensive. It was clear from Dr Stanhope’s evidence that he also regarded it as unnecessary. The results of the genetic testing are sufficient to confirm the opinion set out in his written report. There is no clinical evidence that V is suffering from osteogenesis imperfecta.

39.     There is some evidence that the mother has suffered from Vitamin D insufficiency. Dr Stanhope was at pains to underline the difference between Vitamin D insufficiency, a common occurrence in Asian women living in northern Europe, and Vitamin D deficiency. He explained that whilst it is known what level of deficiency can cause bone disease, it is not known what the optimum level of Vitamin D is. The area between what is believed to be the optimum level and what is known to amount to a deficiency is properly to be regarded as an insufficiency. There is no evidence that either the mother or V suffers from Vitamin D deficiency. In particular, there is no evidence that V suffers from rickets.

Mr Christopher Bache

40.     Mr Christopher Bache is a consultant orthopaedic surgeon based at Birmingham Children’s Hospital. The opinions expressed by Mr Bache are consistent with those expressed by Dr Chapman and Dr Stanhope. It is unnecessary for me to refer to the detail of his report.

The mother

41.     The mother came to live England in January 2003. English is not her first language though she speaks it fluently. She gave her evidence in English. She did not need assistance from an interpreter.

42.     The mother has a visual impairment. She has no sight in her right eye. The Children’s Guardian has observed that the mother also ‘holds her right arm differently and walks with a slightly uneven gait’. The mother accepts that she has a weakness in her left arm though she was clear that this does not impede her ability to look after her children. However, because of her sight problem, she does not carry either child up or down stairs. The father always does that. Their stairs are steep. She is concerned about falling whilst carrying the children. She said that she sometimes misses the bottom two steps.

43.     The Children’s Guardian discussed the mother’s physical problems with her father (maternal grandfather). In her initial analysis she records that he,

‘12. …told me that when his daughter was a very small baby she became ill…[The grandfather] said that the true cause of the illness was never identified but it was thought to be a possible subdural haemorrhage. He explained that scans were not available at that time.’

 

There is no medical evidence before the court in respect of the mother’s physical condition.

44.     Observations that the mother appears to be slow in processing information led to concerns about her cognitive ability and thus about her litigation capacity. During the course of these proceedings the mother has been assessed by Dr Kelly Gaskin, a consultant clinical psychologist. Dr Gaskin’s report confirms that the mother does have capacity to instruct her solicitors. However, her report raises a number of other issues which it is appropriate the court should have in mind when assessing the mother’s evidence.

45.     The psychometric testing undertaken by Dr Gaskin shows that the mother’s ‘processing speed abilities were her poorest area of functioning and her performance on this index fell with[in] the “extremely low” range’. Whilst the mother does not have a learning disability she does have ‘a specific difficulty with the time it takes her to process information’. Dr Gaskin goes on to say that her low processing speed score may have been affected by other factors:

‘For example, her visual impairment may have impacted on her performance. In addition, I observed A to only use her left hand to complete practical parts of the WAIS-IV assessment. When I asked her about this, she said it was because she was left handed, however I note from the report of the Children’s Guardian…that she noted A to hold her right arm “differently” to her left…’

 

46.     Dr Gaskin goes on to say that although the mother’s early medical records are not available, ‘her clinical presentation (right sided weakness and visual impairment) would fit with the account given by her father’.

The mother’s evidence

47.     The mother accepts that V has sustained the 17 bony injuries identified by Dr Chapman. The only explanation she can offer is that they may have been caused whilst massaging him. She cannot recall any particular incident which may have caused any of these fractures. She denies that she has inflicted these injuries, either deliberately or accidentally.

48.     It is clear from Dr Chapman’s evidence that the overall window within which these injuries were sustained is the period from mid-April to 22^nd May (the date when V was admitted to hospital). Although the mother is able to describe the normal daily routine throughout that period, she is not able to describe anything abnormal prior to 21^st May.

49.     After leaving hospital with V she and her family went to stay with her parents until 8^th or 9^th May. Whilst staying with her parents the father would bath both children in the morning before going to work. She would give V a massage before he had his bath. During the day she would have responsibility for caring for V and her parents would look after W.

50.     After returning to their own home, the pattern changed. The father would get both children up in the morning at around 7.30am. She would give V his morning feed whilst the father bathed W. The father would leave for work between 9.30am and 10.00am. Her mother would come and stay with her on alternate days. She normally arrived after the father had gone to work. On the other days W would be looked after at her parents’ house. Either the father would drop him off at the grandparents’ home on his way to work or maternal grandfather would collect him. The mother would have sole care of V on those days.

51.     On those days when he was looked after at his grandparents’ home, W would be returned at around 6.30pm. The father normally returned home from work between 7.30pm and 8.00pm. There was therefore a window of time every day, both morning and evening, when the mother had sole responsibility for caring for both children.

52.     After returning to their own home, the father would bath V in the evenings, after returning home from work. The mother would massage V before he had his bath. Apart from the evening of Tuesday 20^th May, the mother alone had massaged him. The 20^th May was the only occasion when the father had undertaken this task.

53.     Because of her sight problems the mother does not consider it safe to carry either of her children up and down stairs at home. The father always does this. She is also apprehensive about bathing the children in case they should slip out of her hands. The father always baths the children.

54.     The mother is able to describe the events of 21^st May in some detail. The father had gone to work in the morning as normal, having first got the children up and bathed W. She had had the care of both children until mother arrived at around 11.00am. The mother had changed V’s nappy at around 1.00pm and had not noticed anything untoward. She changed V’s nappy again at around 4.00pm. The grandmother was outside in the garden playing with W. When interviewed by the police on 23^rd May, the mother said,

‘he woke up around 1 o’clock…He was – then he start crying and then I fed him…then usually he cries and then you know my mum was here with (inaudible) one other time and, umm, I put him back to sleep. He slept and he was sleeping. He did sleep till I think half four…and then he woke up. Changed his nappy. When I changed his nappy I did notice there was something on, on the – on the leg…But I didn’t pay attention. I said may be that’s the way it is…’

 

Later in the interview she went on to describe the leg as being ‘a little big’. That is the description she used in her oral evidence. She said that the top of his leg was ‘a bit big’. She was insistent that it was ‘not swollen’. It was not as big as it became later in the day.

55.     The mother told the police that that evening, when the father was preparing to bath V, he had pointed out to her that V’s leg was very swollen. That is what she told Dr Hall too. In her written evidence this became ‘my husband and I noticed that his left leg was slightly swollen’.

56.     As a result of their concerns the mother rang maternal grandmother for advice. In her written evidence she says that,

‘My husband felt that it was simply an insect bite and we gave him his bath. However, after the bath, I immediately rang my mum and asked for advice and explained our observation. She asked if V seemed distressed or was crying and I stated that he didn’t seem to be in pain or distress and had settled down comfortably after his bath…My mum advised that [we] should take him to the GP in the morning even if he appeared settled. That night V slept from 10.30pm till 3am and as usual, woke up crying. I fed him and he wasn’t settling with me, so my husband took over and he slept till 7.30am.’

 

57.     By the next morning, 22^nd May, the swelling had worsened. They took him to see their GP. She was asked why she had not taken him to the hospital during the night. She said that when he cried during the night his cry appeared normal.

58.     During the day time the mother had regularly used her mobile phone to send the father photographs and video clips of the children. She did not send him text messages. In particular, she never contacted him whilst at work about any problems she may have had in caring for the children.

59.     Prior to 21^st May the only aspect of V’s presentation which had caused the mother concern had been his high-pitched crying and the difficulty she sometimes had in settling him. V’s cry was very different to W’s cry at that same age. The Health Visitor made a visit to the grandparents’ home on 28^th April. V was then just two weeks old. The mother says that she raised her concern about V’s crying. The Health Visitor gave reassurance. The problem persisted. The mother took V to see his GP on 1^st May. The doctor diagnosed reflux and prescribed Gavison and Infacol. Still the problem persisted.

60.     The mother’s description of V’s crying is supported not only by father, maternal grandmother and aunt but also by the Children’s Guardian who says in her initial analysis,

‘21. I noticed that when he cries, V has a very high pitched squeal. This might be associated with the type of cry synonymous with a baby in pain. The nature of his cry would, in my view, make it extremely difficult to identify a problem with pain.’

 

61.     The mother is now pregnant with her third child. Her baby is due on 22^nd March.

The father’s evidence

62.     When he gave his oral evidence on the first day of this hearing the father’s position was that he accepts that V has sustained the injuries described earlier in this judgment, that he does not know how they were caused, that he has not caused them and that the only explanation he can offer is that they may have been sustained whilst being massaged.

63.     There is little difference between the evidence given by each parent. The father agrees with the mother’s description of the daily routine whilst living with maternal grandparents. He agrees that there was a change in routine after they had moved back to live in their own home, in particular that he had bathed V in the evenings instead of before going to work in the morning. He agrees with the description of the concerns about V’s high-pitched cry and the steps they had taken in response. He agrees that, because of her sight problems, he had insisted that only he should carry the children up and down the stairs. He agreed that because the mother is frightened of the children slipping out of her hand, only he ever baths the children. He agrees that the mother has regularly sent him pictures and video clips of the children whilst he was at work but that she had never contacted him to tell him of any problems with the children. He agrees that on 20^th May he had massaged V before bathing him that evening. This is the only time he has ever massaged V.

64.     On 21^st May he had returned home from work at around 7.30pm. At around 8.30pm he undressed V in order to bath him. At that point, normally the mother would have massaged him. On this occasion he noticed that V’s left leg was swollen so no massaging took place. He asked the mother what had happened. She told him that nothing had happened. He had thought the swelling may have been caused by an insect bite. Later that evening the mother had telephoned maternal grandmother for advice.

65.     The father now knows that the swelling was a result of a fracture of V’s left femur. He does not know how it happened or when it happened. He was equally unable to explain how or when the other fractures had been caused. If the mother had caused the injuries he was confident that she would not have done so intentionally.

66.     The father has been a very hand-on father. He has a very close relationship with W. W would be waiting for him when he gets home from work. W’s face lights up when his father walks into the room. His distress at being separated from his children was palpable.

67.     By the third day of this hearing the father had changed his position. His counsel, Miss Markham, informed me that she was no longer instructed to challenge the medical evidence and that the father now accepts that the injuries must have been caused by the mother.

Evidence from the maternal family

68.     The parents, W and V stayed with maternal grandparents for three weeks following V’s discharge from hospital. The mother’s parents and her sister had contact with V on a daily basis during that period. All three agreed to give voluntary interviews to the police. The interviews were given under caution. Transcripts of those interviews are contained in the hearing bundles. I have also heard oral evidence from maternal grandmother and from the mother’s sister (V’s aunt).

Grandmother

69.     In her police interview there is an obvious note of shock when the grandmother is told about the multiple injuries which V had sustained. That same sense of bewilderment was present when the grandmother gave her oral evidence. She was unable to shed any light on how V came to be injured.

70.     The grandmother retired from nursing in April 2013, the month before W was born. She had been available to help out with caring for W. It is clear that she has been a very supportive, hands-on, grandmother. After the parents and their children had returned to their own home the grandmother helped out on a daily basis. She spent alternate days at the parents’ house helping the mother to look after both children. On the intervening days she looked after W at her own house. On those days V was in his mother’s sole care.

71.     The grandmother was at the parent’s home on Wednesday 21^st May. So far as she can recall, she arrived at around 11.00am and left some time between 5.30pm and 6.00pm. The father had left for work before she arrived in the morning and had not returned from work when she left in the afternoon.

72.     At around 4.00pm the mother had changed V’s nappy. The grandmother was outside playing with W so did not see the nappy change take place. The mother says that when she changed his nappy she noticed that V’s left leg was bigger than his right leg. Grandmother says that the mother did not tell her about this.

73.     At around 9.30pm that evening that she received a telephone call from the mother. The mother told her that V’s leg was swollen. She asked what she should do. The grandmother had advised her to keep him under observation and had said that if he appeared to be in discomfort or pain then they should take him to the hospital. The mother had told her that V didn’t appear to be in discomfort.

74.     The grandmother knows that it has been the practice of the parents to massage the children each day. She had not massaged them herself. She volunteered that babies in her home country are regularly massaged by their parents but they don’t get fractures as a result.

75.     The grandmother said that before V’s admission to hospital the mother appeared to be managing well coping with two children. She had never complained about being too tired. There had been a problem with V crying – a high-pitched cry which the whole family had heard. He cried a lot. They had consulted their GP and health visitor about this.

Aunt

76.     The aunt is a GP. She works four days a week. She has had far less involvement in the children’s care than has her mother (maternal grandmother). She confirmed that her parents support the mother as much as they can. She was also able to confirm the parents’ account of V’s high-pitched crying. She said that she herself had mentioned that to the midwife during a routine visit. She had never seen anything untoward in the parents’ handling of V.

77.     The aunt said that she had not been at home when the mother telephoned on the evening of 21^st May. Her mother had told her about the call the next morning. She had gone to the hospital to be with the parents and V. The father had then gone to work. As soon as they were informed about the femoral fracture she had telephoned the father and asked him to come back to the hospital straight away. He did.

78.     The aunt helped the parents to write a letter to the hospital on 26^th May expressing their concerns about the treatment V was receiving and in particular asking for further specific investigations to be undertaken. Although Dr Venkataraman readily accepted that the letter had been entirely appropriate and was evidence of the parents’ concerns for their son, the investigations requested by the parents were not part of her normal practice and she had not considered it appropriate to undertake them. She had carried out some further tests, not as a result of the letter but because of the nurses’ concern for V’ hearing.

The law

Standard of proof

79.     It is the local authority which seeks findings that V’s injuries are non-accidental injuries. The burden of proof rests upon the local authority. The standard of proof is the civil standard; that is the balance of probability. In Re B (Children)(Fc) [2008] UKHL 35. Baroness Hale said that she would

‘70. …announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…’

 

80.     That same standard of proof must be applied in endeavouring to identify the perpetrator. In Re S-B Children [2009] UKSC 17, in giving the judgment of the court, Baroness Hale said

‘34. The first question listed in the statement of facts and issues is whether it is now settled law that the test to be applied to the identification of perpetrators is the balance of probabilities. The parties are agreed that it is and they are right…the same approach is to be applied to the identification of perpetrators as to any other factual issue in the case…’

 

Identifying the perpetrator

81.     Whilst the court should not hesitate to make a finding identifying the perpetrator of an injury if the evidence is sufficient to support such a finding, the court is not obliged to make a finding identifying the perpetrator at all costs. As Lord Justice Wall put it in Re D (Care Proceedings: Preliminary Hearings) [2009] EWCA Civ 472, [2009] 2 FLR 668, at para 12, judges should not strain to identify the perpetrator:

“If an individual perpetrator can be properly identified on the balance of probabilities, then . . . it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification.”

 

Uncertain perpetrator

82.     Upon consideration of the totality of the evidence the court may conclude that it is not possible to identify the perpetrator of any of V’s injuries. If that proves to be the case then the court must consider who falls within the pool of possible perpetrators. The approach of the court should be as set out by Butler-Sloss P. in North Yorkshire County Council v SA [2003] EWCA Civ 839:

‘26. …if there is not sufficient evidence to [identify the perpetrator or perpetrators] the court has to apply the test set out by Lord Nicholls of Birkenhead as to whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused the injury to the child. For this purpose, real possibility and likelihood can be treated as the same test…I would therefore formulate the test set out by Lord Nicholls of Birkenhead as, ‘Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?’.

 

Multiple injuries sustained on different dates

83.     Where, as in this case, there are multiple injuries sustained on different days the court must consider separately the question of who is the perpetrator of each injury. If the court is able to identify the perpetrator of the presenting injury on 22^nd May, the question would then arise as to the extent to which the court is entitled to rely upon that finding in order to identify the perpetrator of the earlier injuries.

84.     That issue was considered by the Court of Appeal in Re M (A Child) [2010] EWCA Civ 1467. The case involved a child who, at the age of 10 weeks, was admitted to hospital having suffered an Acute Life-Threatening Event (‘ALTE’). He was in the sole care of his father at the time of his collapse. After four days he was discharged home to the care of his parents. Six weeks later he was again admitted to hospital, this time because of multiple bruising. The judge found that the ALTE was caused by partial suffocating of the child by his father. However, the judge came to the conclusion that he was unable to identify the perpetrator of the bruising and placed both parents in a pool of potential perpetrators. The father appealed. The mother cross-appealed. Wilson LJ (as he then was) said,

‘37 The first basis of the cross-appeal is the father's responsibility for the October event. Is it likely, asks Miss Hodgson on behalf of the mother, that, within the space of less than seven weeks, the partial suffocation of a baby is caused by one parent and yet injuries to his body are, or even just may be, perpetrated by the other? It is certainly not unknown for judges to give a negative answer to that type of question and, by reference to it, to proceed to identify the perpetrator of a second non-accidental injury. When they do so, their reasoning is – in my view – in principle valid…’

 

Evaluating the totality of the evidence

85.     The medical evidence does not stand alone. The court is under a duty to evaluate the totality of the evidence. In Re T (Abuse: Standard of Proof) [2004] 2 FLR 838, at para [33] Butler-Sloss P made the point that evidence

‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other 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.’

 

86.      A similar point was made by Bracewell J in In Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200:

‘[24] …Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened.’

 

Non-accidental injuries

87.     The expression ‘non-accidental injury’ is frequently used in care proceedings. In this case it has been used both by treating clinicians and by medical experts. Whilst use of the expression can be a useful form of shorthand, it is important to be clear on what the expression encompasses. In Re S (A Child) [2014] EWCA Civ 25 Ryder LJ made the point that,

'19.    The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

'20.    The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, 'accidental injury' is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a 'non-accidental injury', there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.’

 

Unknown cause

88.     In this case Mr Roche, who appears for the mother, makes what is in the circumstances of this case the brave submission that it is open to the court to find that V’s injuries have an unknown cause. In R v Henderson, Butler and Oyediran [2010] EWCA Crim 1269 the court considered the issue of ‘unknown cause’. Moses LJ made the following points:

‘1. 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 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…

‘21. …There are limits to the extent of knowledge and no conclusion should be reached without acknowledging the possibility of an unknown cause emerging into the light of medical perception and that the mere exclusion of every possible known cause does not prove the deliberate infliction of violence…’

 

Discussion

89.     As I have observed these parents in court over the three days of this hearing it has become clear to me that both the mother and the father are devoted parents, loving, caring and concerned. The finding of multiple fractures and the placement of their children in foster care with no certainty about when – or even whether – they will be returned to their care has been devastating. It is a nightmare which they are still living through. The police records note that the parents,

‘are visibly torn by this investigation – they were in tears as they showed me how they are hiding toys and items belonging to their children as it is too painful to have them around the house’.

 

90.     Whilst it is important to make those points, the fact remains that by the time he was only 40 days old V had sustained 17 bony injuries including fractures to both legs, to 9 ribs and to his right arm.

91.     It is important to establish the cause of V’s injuries. The possible causes are either that he sustained the injuries as a result of a series of accidents and/or that he suffers from an underlying metabolic or bone disorder predisposing him to easy fractures or that they have an unknown cause or that they are the result of negligence, recklessness or deliberate infliction (invariably referred to using the umbrella description of ‘non-accidental injury’).

92.     There is no evidence that would justify a finding that any of these injuries was caused accidentally. Apart from daily massages, neither parent describes any event which might explain an accidental cause for these injuries. The possibility that the injuries may have been caused by baby massage is not supported by any of the medical evidence. The amount of force required to fracture a femur – even a baby’s femur – and the compressive force required to cause multiple rib fractures is plainly beyond that which could be expected from normal handling (and normal massaging) of a baby. Even the metaphyseal fractures would require a degree of force that is outwith normal handling. I am satisfied on the evidence that there is no evidence to justify a finding of accidental injuries.

93.     The next possibility is that the injuries are the result of underlying bone fragility caused by, in particular, either osteogenesis imperfecta or Vitamin D deficiency (more specifically, rickets). There is no radiological evidence of any underlying metabolic or bone disorder. The clear evidence of Dr Stanhope, supported by the recent results of the DNA testing undertaken in Sheffield, is that V is not suffering from osteogenesis imperfecta. Whilst there is evidence that during her pregnancy the mother suffered from Vitamin D insufficiency (though not Vitamin D deficiency) and that that, in turn, means that at birth V, too, was suffering from Vitamin D insufficiency, there is no evidence that that was ever at or near a level which could properly be described as Vitamin D deficiency. In light of the totality of the evidence I am satisfied that V was not suffering from Vitamin D deficiency or, more particularly, from rickets.

94.     Mr Roche raises the possibility that V’s injuries have an unknown cause. In support of that submission he points to the fact that neither parent comes across as likely child abusers – they are placid, loving parents both of whom are desperate to find out what has happened to their son; that it is clear from the evidence of Dr Gaskin that it is unlikely that this mother would be able to cover up her inappropriate handling; that there is no evidence of any significant external injuries such as bruising; that their care of W has been beyond criticism; that notwithstanding the medical evidence concerning osteogenesis imperfecta and rickets the strength of a child’s bones must vary from child to child and a combination of weak bones and clumsy handling by the mother could have been the cause of V’s injuries. Medicine does not provide all the answers. There are limits to the extent of knowledge. All of this points to the cause of V’s injuries being unknown.

95.     The fractures sustained by V are not unusual. Even the number of fractures in such a tiny baby is not unusual. Cases involving children who have sustained such injuries are regularly seen in the Family Court. The medical evidence before the court in this case is neither unusual nor controversial. It is mainstream, widely accepted within the medical profession and accepted by the Family Court. There are no unusual features in this case that would enable me properly to conclude that any of V’s injuries has an unknown cause. I reject Mr Roche’s submission on this issue.

96.     I am satisfied that V’s injuries are non-accidental injuries. I shall return later in this judgment to the issue of what that description implies in this case.

97.     I turn next to consider whether the perpetrator of V’s injuries can be identified. Over the course of the 40 day period within which these injuries were sustained, V spent three weeks living with his maternal grandparents and aunt as well as with his parents. There is no evidence that grandparents and aunt have had sole care of V for more than a few minutes on a couple of occasions. No-one suggests that there is any likelihood or real possibility that maternal grandparents or aunt may have been responsible for causing any of V’s injuries. I agree. The perpetrator of V’s injuries is either his mother or his father or, conceivably, both of them

98.     There is no evidence before the court of any incident which may have caused the rib fractures or the metaphyseal fractures. If they were the only injuries the court would be unable to identify the perpetrator. However, they are not the only injuries. The presenting injury, the most serious injury, was the fracture to V’s left femur. There is some evidence relating to the background to that injury which may assist the court to identify the perpetrator of that injury.

99.     The medical evidence, in particular the evidence of Dr Chapman, is that this injury was sustained at least 12 hours and perhaps 24 hours prior to the x-ray taken at 12.04pm on 22^nd May. It is important to note that those are not fixed timings. Dr Chapman was clear that 24 hours could mean anywhere between, say, 18 hours and 30 hours. That is important because it means that the father cannot be excluded on the basis of timing. The time he normally goes to work is more than 24 hours before the time the x-rays were taken but less than 30 hours.

100. Neither parent gives any account of there having been anything untoward in V’s presentation prior to the time when the father left for work. The mother says that she changed V’s nappy at around 1.00pm. She did not notice anything wrong. She next changed his nappy at around 4.00pm. On this occasion she did notice something wrong. She told the police, ‘I did notice there was something on, on – the leg…But I didn’t pay attention. I said may be that’s the way it is’. Later in the interview she described his left leg as being ‘a little big’. Dr Hall records that the mother told her that earlier in the day she ‘had been slightly concerned about his leg at nappy change’. If the mother did indeed notice something unusual when she changed V’s nappy at 4.00pm, and I am satisfied that she did, her response to what she saw is of particular importance.

101. Firstly, it is surprising that she did not get her mother to come and have a look. Her mother was outside in the garden playing with W. Later that evening her mother was the first person she thought of contacting when the swelling had increased.

102. Secondly, when the father came home from work that evening the mother said nothing to him about what she had noticed. It is clearly something she considered important (for why else would she have told Dr Hall and the police) and yet she did not tell the father.

103. Thirdly, it was when the father was preparing to bath V he noticed that his left leg was swollen. He says that he asked the mother what had happened. She told him that nothing had happened. I accept the father’s evidence on this issue. Why did the mother not tell him what she had seen when she changed V’s nappy earlier in the day?

104. Fourthly, when the mother telephoned maternal grandmother for advice later that evening, she mentioned the swelling observed at bath time but once again did not mention what she had seen when she changed V’s nappy earlier in the day.

105. As I have noted, the medical evidence does not rule out the possibility that the femoral fracture was sustained on the morning of 21^st May, before the father went to work. However, that evidence must be balanced against the four points I have already made.

106. In a case such as this the court has likened the process of analysing the evidence as akin to piecing together a jigsaw puzzle. When all the available evidence is pieced together is there a picture which is sufficiently clear to enable the court to be satisfied on the balance of probability what that picture shows or are there too many pieces of the puzzle missing? In this case I am satisfied that the pieces of the puzzle that are available – the medical evidence, the police evidence and the evidence of the relevant adults – are sufficient to enable the court to be satisfied what the picture shows. I am satisfied that the femoral fracture was sustained on 21^st May. That the mother did not notice it at 1.00pm but did notice it at 4.00pm suggests that the causative event occurred after the father had gone to work. What the mother saw at 4.00pm was the beginning of the swelling caused by the fracture. That she did not tell her mother what she had seen either at the time or during their later telephone call and that she did not at any point tell the father what she had seen point convincingly, in my judgment, to the mother having something to hide. The fact that the next day she did tell both Dr Hall and the police what she had seen at 4.00pm is in my judgment an acknowledgment by her that what she had seen was both relevant and important.

107. That analysis leads me to be satisfied, on the balance of probabilities, that the mother caused the femoral fracture.

108. Does that finding justify the court in coming to the conclusion, on the balance of probability, that the mother is also responsible for causing the rib fractures and the metaphyseal fractures? In light of the decision of the Court of Appeal in Re M (A Child), to which I referred earlier, I am satisfied that it does. I have found the father to be a gentle, caring father. In my judgment it is highly improbable that he, too, has caused injury to V. There is nothing in the evidence to suggest that the father is a perpetrator of all, or indeed of any, of those injuries. On the contrary, the evidence suggests strongly that he is not a perpetrator.

109. I am satisfied on the balance of probability that the mother is responsible for all of V’s injuries. I am also satisfied that on the basis of that finding it is appropriate for me to find that the threshold set by s.31(2) of the Children Act 1989 is met.

110. The finding that the s.31(2) threshold is met is the gateway which enables and requires the court to consider what orders should be made in the best welfare interests of these children. That is an issue which must await a further hearing. However, it is necessary that at this stage I should say more about the extent of the mother’s culpability.

111. Earlier in this judgment I described V’s injuries as ‘non-accidental injuries’. I also reminded myself of the observations made by Ryder LJ in Re S (A child). Were these injuries the result of negligence or recklessness or were they deliberately inflicted? In answering that question I take account not only of the evidence of Dr Gaskin but also the evidence concerning the mother’s impaired vision and the evidence concerning her right sided weakness. So far as concerns the mother’s physical impairments, there is no medical evidence to assist me in understanding either their aetiology or their impact on her functioning. However, what I do know – what I have already found – is that she is a loving, caring mother.

112. I am satisfied on the evidence that these injuries were not deliberately inflicted. I am equally satisfied that they were not caused recklessly. I accept the evidence that both parents had been concerned about V’s high-pitched crying. That finding, when considered along with the medical evidence, means that it is entirely possible that the mother may not have appreciated that she had harmed her child. That said, the force required to cause these injuries is plainly outwith that which would be used in normal handling of a child. I find that the injuries were sustained as a result of the mother’s negligence.

113. In the event that I am able to identify the perpetrator, as I am, the local authority seeks a finding that the other parent, the father, is guilty of failure to protect. In my judgment such a finding would be wholly inappropriate. It is clear from the medical evidence that a carer who is not the perpetrator of the rib and metaphyseal fractures and who was not present at the time those injuries were sustained would be unlikely to be aware that the child had sustained injury. I am satisfied that in this case there is no credible basis for a finding of failure to protect.

114. The one remaining finding sought by the local authority is that ‘the parents delayed in seeking medical attention for V on the night of the 21^st May 2014’. It is understandable that the parents should turn to the grandparents, both of them nurses, for advice on medical issues. However, it is not difficult to envisage circumstances in which it would be blindingly obvious that urgent medical assistance is needed and a visit to the hospital more appropriate than a telephone call to a grandmother. Is this such a case?

115. In order to answer that question it is necessary to go back to the evidence from Dr Chapman. V is likely to have screamed at the time the femoral fracture was sustained. He is likely to have remained distressed for ‘10s of minutes’. Over the course of the next few hours and days it is likely that he would become distressed on moving the limb – for example when being dressed or undressed or having his nappy changed. He would himself adjust to the pain by not moving his leg. His leg would become floppy and immobile.

116. I accept that given that it was normal for V to have a high-pitched cry it is possible that his distress on movement of his left leg may have been misinterpreted and not understood as being evidence of a serious problem. However, it is rather more surprising that the parents did not notice that his leg was floppy, as I am satisfied it must have been. A combination of swelling and floppiness ought to have alerted the parents to the need for medical assistance. The telephone call to the grandmother was not an adequate response. In my judgment the finding sought by the local authority is made out.