England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT MEDWAY

In the Matter of the Children Act 1989
And in the Matter of J O-H (DOB 16.8.12)

		Anchorage House 47-67 High Street Chatham Kent ME4 4DW
		29th May 2014

Unexplained fracture in premature baby: osteogenesis imperfecta and osteopaenia in prematurity considered

HER HONOUR JUDGE CAMERON:

INTRODUCTION

1. The focus of this five day forensic fact finding hearing has been the single unexplained injury, a fracture of the left femur, sustained by the then seven week old, non identical twin J, discovered now as long ago as the 8th October 2012. Proceedings were issued very shortly thereafter on the 16th October that year.
2. The delay in this case has been occasioned partly by belated compliance with Court Orders for disclosure and responses and also by the need to undertake further blood tests and a full paediatric assessment of J which, in turn, then prompted yet further queries and professional comments having to be sought. There was then an entirely necessary and proportionate input that had to be obtained from both a dental expert and also a geneticist because of issues generated by those enquiries.
3. The Designated Family Judge for Kent His Honour Judge Polden had reviewed the preparedness of the case on the 28th February this year. He was satisfied himself that, regrettably, the outstanding expert opinion was essential for the matter to proceed fairly, leading to an inevitable further delay in the Fact Finding Hearing being heard.
4. Moreover, there had been real consideration about transferring the matter to a High Court judge bearing in mind the complex medical evidence here and the ongoing controversy about the vexed issues of vitamin D, rickets and unexplained fractures in young children and babies. Ultimately though the case was maintained at this County Court level and detailed written submissions received after the full five days' of live evidence have greatly assisted the Court. Still however there were factual deficiencies and lacuna in the evidence which I will highlight later on in this Judgment which very much exacerbated the troubled nature of the case and left an incomplete jigsaw for the Court to tackle and try and determine.
5. The complete conundrum here is that no memorable event, or indeed any event, at all befell this vulnerable, non-mobile baby as far as his young parents and wider family members are concerned to cause this rare and unexplained thigh fracture in such a young baby, nor was there any immediate aftermath of shock and crying, which would have alerted his carers to the fact that something was amiss or had happened or that he may have suffered an injury in some way, understood or experienced by the parents. The lack of credible history has bedevilled the case throughout.
6. Because the five day hearing finished shortly before 4 o'clock on a Friday it was inevitable that written submissions dealing with all the complexities were necessary and hence this Judgment, inevitably, has had to be reserved. I have had the chance, over many days therefore, to review the evidence very thoroughly indeed.
7. The inevitable parallel police investigation, during which the parents were interviewed formally under caution on the 10th October 2012 only, but never arrested and never again questioned after further x-rays and medical evidence became available, came to a halt, as such investigations often do in these circumstances, with an obvious no charge decision having been made at some point that it is not necessary for me to pinpoint. The case has remained in fact not only a whodunnit but also a whendunnit, howdunnit, wheredunnit and whydunnit, if I may put it like that.

THE ISSUES

8. The Local Authority seeks a Care or other orders on the basis of the Schedule of Findings Sought which I read into this Judgment, they appearing at Page A37 of the trial bundle. They all deal with physical harm:

1) J has suffered physical harm in that he presented at Medway Maritime Hospital on the 8th October 2012 with a transverse fracture of the left femur (the injury).

2) The injury occurred on the 8th October after 8pm whilst the child was in the care of the mother and the father.

3) The fracture was as a result of a significant blow, impact or bending/snapping action applied to the bone.

4) The force required to inflict the injury was significant and excessive force.

5) The injury would not have occurred as a result of handling, play or rough, inexperienced parenting.

6) The injury was not self inflicted.

7) The injury was not accidental.

8) The injury was not a result of a birth related injury.

9) There is no underlying medical condition predisposing the child to the fracture. In particular there is no evidence of such a medical condition in the medical notes, the radiological evidence or assessments conducted to date.

10) The person or persons caring for the child would have known that the child had sustained an injury. A fracture would have been symptomatic from the time it was sustained.

11) The parents have not provided any or any adequate explanation as to how the injury occurred.

12) Either the mother or father caused the injury.

13) Each parent would have known that the other parent was responsible for causing the injury.

I add there that in essence it is alleged that there has been deliberate secrecy and collusion operating between the parents.

9. The mother provided no explanation for the injury but raised her family history of bone fracturing easily and also dental problems. The father also provided no explanation but queried whether placing J in his car seat after a visit to his family to celebrate his younger sister's sixth birthday that day might have caused the leg to fracture. That prospect appeared to emulate from his mother, TF. Certainly it is an issue which has been discussed between the family.
10. The key issues accordingly are whether J has suffered that physical harm by reason of an as yet not fully understood or detected medical condition, or by virtue of a still undisclosed accidental or indeed non-accidental non disclosed injury caused by either of his parents, or one of his parents or any family members who had brief care of him entrusted to them during the day leading up to the injury occurring or being found.
11. The Court puts those three alternative options, as it were, deliberately into that order. As one of the experts Dr David Robinson made plain, is the right sequence of options to consider in that way of not putting non-accidental injury at the top of that list.
12. The second issue is whether their three children in all can safely be returned to their parents' long term care in light of findings that the Court might have made.
13. Thirdly if it had been considered not to be in the children's best interests to return to and remain in their parents' daily care, what alternative long term care arrangements would have been appropriate given the youth of the three children and of these parents.
14. The medical condition raised ultimately is one of osteopenia of prematurity and that is a condition characterised by a reduction in bone mineral content. It is a common disease of pre-term babies between usually the tenth and sixteenth week of life, the baby being deprived of the intrauterine supply of minerals affecting bone mineralisation after his birth. The disease can remain clinically silent or present with symptoms and signs of overt rickets, or rachitism as it is called sometimes and there can be multiple fractures when the condition is severe. Happily J does not have the troubling, inherited disorder of osteogenesis imperfecta, nor has he sustained any further fractures. Nor, should I say also, has his twin J*.
15. There were at times other people, including the paternal grandmother TF, who had had care of J on the Monday afternoon when the parents were out on a shopping trip for a while at about 3.30pm or so. They had been included in the pool of possible perpetrators and an intervener status had been canvassed. Ultimately only the two parents themselves were potential perpetrators in the pool at the time of this trial.

BACKGROUND AND CHRONOLOGY

16. These young parents entered into a relationship in around April 2009 according to the father, so when they were still teenagers and the mother agreed with that but they have never really fully cohabitated. The father had lived sometimes, and I think more recently, with his mother and also elsewhere given the obvious strain of these proceedings and the uncertainties cast over the families. Miss O's rationalisation of that was that Mr H had not had full income from a five day a week job and she wanted to do nothing to prejudice her receipt of state benefits. That is an understandable emotion in her.
17. There is no previous history of Social Services' involvement in their lives. The police though were involved on one occasion, a year before the twins were born on the 26th October 2011 when a domestic abuse report was compiled. The mother had said that the father had been argumentative and aggressive to her and also possessive at times. That particular incident seems to have arisen when she had woken him up to feed L, her older child, their then only child at 4am. I will deal with that matter later on in this Judgment.
18. Mr H though tended to stay over at weekends but much of the time the mother has been the sole carer of the children, albeit with her very strong family support network from her sister and mother who actually live in the same road only a few doors away from her home and visited really more or less daily as the Court heard.
19. The parents' first child L was born on the 19th April 2011 and has therefore very recently celebrated his third birthday. He was 18 months of age at the material time.
20. J, who is twin number 1, and his brother J* were born by emergency caesarean operation on the 16th August 2012 and at 32 weeks gestation, the mother suffering from obviously very concerning pre-eclampsia and placenta abruption. J, the larger of the babies, weighed 1590 grams at birth which I think is only some 3lb2oz. They were both kept in incubators in the neonatal intensive care unit for nearly three weeks and J had to be ventilated for two days and they were then discharged to their mother's care and home on 6th September 2012, when three weeks of age. That was perhaps slightly earlier than usual and that was because the mother had been pronounced, essentially by the hospital staff, as being competent and confident in their handling, she having watched carefully what was required.
21. An outpatient appointment was arranged to review them on 16th October I noted from their medical records. There was in fact a five week check when all was well, that was what was found.
22. The mother had been very careful and keen to watch how the nurses handled these tiny babies who were therefore discharged earlier than they might otherwise have been and all of that is plainly to her credit.
23. Because of the uncertainty about who had injured J and how and why or what had happened to him to fracture his thigh, the father was not allowed to be alone at home with the other boys that night once J had gone to hospital, taken there by a taxi with his mother and grandmother, and the boys were removed that same evening by the maternal grandmother to her home, only a few doors away from her daughter's home.
24. There was a short period when the parents, sensibly and voluntarily, agreed to a Section 20 placement, J* and L being placed with foster carers later on the next day, on the 9th October. Upon discharge from hospital nearly a month later on 3rd November 2012 J joined them there. The parents had very regular contact to maintain their bond and attachment to the twins and importantly of course to L too.
25. Happily following a positive assessment, the boys were able to move to the obviously much more natural family placement back with their maternal grandmother on the 21st December 2012 and have been there ever since. The parents have been able to spend several hours a day with them there every day and there has been no criticism whatsoever of their love for and appropriateness of their care of the boys despite the obvious strain, artificiality and restriction of that arrangement.

THE LAW AND THE COURT'S APPROACH

26. There are a good deal of very learned legal propositions which I have considered and applied to this case. All the evidence here has been subjected to critical scrutiny over many, many hours and days to reach a decision as to whether or not the Local Authority has made out its case to the appropriate standard of proof.
27. I remind myself that the starting point is of course the threshold test, as set out in Section 31, Subsection (2) of the 1989 Children Act. That provides that a Court may only make a Care Order or Supervision Order if it is satisfied that the child concerned is suffering or is likely to suffer significant harm which is attributable to the care given to him or likely to be given to him if the order is not made, that not being what it would be reasonable to expect a parent to give to him.
28. Each case is, of course, fact specific. It is accepted that the fracture to J's femur was significant harm.
29. The threshold test is there to provide protection for children and of course parents also from unjustified intervention in their lives by the State, contrary to their Article 8 rights. As was said in the recent case of Re S (A Child) [2014] EHCA Civ 25 Para 21:

"The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care . . . has not been provided."

30. Re G (Care Proceedings: Threshold Conditions) [2001] 2 FLR established that the Local Authority is also entitled to rely on events occurring since the relevant date which are capable of proving the state of affairs at the date of intervention. That here is 9th October when J was retained in hospital and J* and L moved initially to their maternal grandmother's home. Indeed here there are no after occurring events at all which have impacted on the Court's decision.
31. The burden of proving the allegations or the facts required to establish that criteria rests on, and of course remains throughout, with the Local Authority which brings this case. There is no burden or obligation whatsoever which switches to the respondent carers to come up with alternative explanations, so held in Lancashire County Council v D & E [2010] 2 FLR 196.
32. It is well established law that the standard of proof required of the Local Authority is the usual civil one, the simple balance of probabilities neither more, nor less as Baroness Hale, as she then was, stated in Re B (Care Proceedings: Standard of Proof) [2009] [1] Appeal Cases 11. The case of Re S-B (Children) (Perpetrator: non-accidental injury) [2009] UKSC 17 confirmed that the test for identifying the perpetrator is also that simple balance of probabilities. As Lord Hoffmann observed in Re B:

"If a legal rule requires a fact to be proved . . . a judge . . . must decide whether or not it happened. There is no room for finding that it might have happened. The law operates a binary system in which the only values are 0 and 1."

33. I remind myself also therefore, as stated by Munby J in Re A (A Child: Fact-finding hearing: speculation) [2011] EWCA Civ 12 that:

"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation."

34. That is particularly apposite here when the Local Authority suddenly threw into the mix on Day 4 of the hearing the unfounded, unheralded allegation that the parents were having an argument, or a row, when they had returned home from a lovely, relaxed family visit that afternoon and that one of the parents hurt the child, presumably when cross or angry or resentful, immediately or immediately after when involved in that argument or row. There is no evidence whatsoever that anything like that took place in the five or ten minutes maximum during which the parents had returned home, dealt with the babies and started the evening meal. The Court must not and does not proceed on vague or mere suspicions or by indulging in unsubstantiated speculation or unfounded assumptions about what evidence there might have been. No party actually would wish the Court to do that.
35. The Court's task is to evaluate the facts. It has regard to the relevance of each piece of evidence to other evidence and exercises that important overview on the totality of the written and oral evidence that it has received and all the circumstances, not in separate compartments. That was so held in Re T [2004] EWCA Civ 558 by the then President Dame Elizabeth Butler-Sloss.
36. It is also not permitted for a judge to conclude that out of a series of improbable causes, that the least improbable or least unlikely is nonetheless the cause of the event. That again would be sloppy and inappropriate reasoning and I do not indulge in that.
37. I remind myself too that I and I alone have the huge and unique advantage of seeing all the parties and all the witnesses in Court during the lengthy days of hearing and have been able to gauge their demeanour, affect, credibility, veracity, reliability and honesty during the time both of them have been in the witness box and generally.
38. I too of course have read all the written material and seen the video footage of the parents' interviews, none of which have been seen by the medical experts seeking to assist the Court here.
39. The importance of that global picture was recognised by Coleridge J in B v Torbay Council [2007] 1 FLR 2003 Page 1. The characters and personalities of the parents and the one other lay witness here, the maternal aunt and the impression they made on me are important components to the evaluation for the finding of facts and the decision.
40. As was reflected by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 I place considerable weight on the evidence of the carers and the favourable impression that I have formed of them. I have stressed to the parents the absolute importance of candour and frankness on their part when they came finally into the witness box to give their oral evidence to the Court.
41. As has been stressed in Re D (Children) [2009] EWCA Civ 472 the enquiry must be child focused and people in the pool of perpetrators needed to do all they could to assist the Court and hopefully to keep the children within the family and so that the children too could understand later, if appropriate, why they have had to be removed from the care of their family.
42. As was said in Re K (Children) (Adoption Hearing Order) [2004] EWCA Civ 1981:

"It is the public interest that children have a right, as they grow into adulthood, to know the truth about who injured them when they were children, and why . . . This is a heavy burden for any child to bear . . . children need to know the truth if the truth can be ascertained".

43. I have regard also to the guidance in the Lucas direction given in criminal proceedings to jurors that people may lie to the Court for all sorts of reasons. They may do so out of guilt or fear or shame, perhaps to go back on a previous story or out of a desire to protect another or to implicate or indeed explicate another out of misplaced loyalty perhaps or to support a genuine defence or explanation.
44. As Charles J said in the County Council case, just because the Court concludes that a person is lying or telling the truth about one matter, does not mean that he or she necessarily is lying or telling the truth about another aspect. So it is recognised that there may be all sorts of reasons why a parent might not tell the truth to a Court concerned with the future upbringing of his or her young child.
45. I am also entitled to make finding of collusion, if appropriate, where I am satisfied that the parents have lied or sought deliberately to maintain untrue stories as revealed by later versions of events. CL v East Riding Yorkshire Council [2006] EWCA 49 confirmed that.
46. Because this case and the future of three very young children hinges entirely on the single injury sustained by J and whether or not one of his parents was responsible for causing that, and because there is a total absence of any other cause for concern about their parenting, I have directed myself to be scrupulously careful when analysing the medical evidence here upon which the Local Authority rely completely.
47. In essence, the Local Authority have applied, as I find it to be, the civil law negligence doctrine of res ipsa loquitur. They say: Well the facts speak for themselves. A tiny baby has a broken leg and the parents must have done it.
48. There is though no silver bullet here, no nugget which suddenly has been revealed through the evidence giving process although the Court had challenged the Local Authority at more than one of the Directions Hearings leading up to this important fact finding hearing as to whether it felt it really could prove its case to the requisite standard. The Court was indeed waiting to see how the case ultimately would be put by the Local Authority and whether it would be persuasive and convincing to the necessary criteria.
49. While of course appropriate attention must be paid to the opinion of medical experts, an expert is not in any special position. There is no presumption of belief in a doctor, however distinguished he or she might be. Those opinions need to be considered in the context of all the other evidence, the lay factual evidence of movements and timings and so on, the parents' own descriptions of the events and the Court's own conclusions about the credibility, motivation and indeed opportunity and so on of the participants. The whole wide canvas must be surveyed by the Court and the experts have not been charged with fulfilling that duty.
50. The Court may depart from and disagree with experts' conclusions or recommendations provided it gives sound and articulated reasons for so doing as Theis J recognised recently in LB of Islington v Al Alas & Wray & Others [2012] EWHC 865.
51. As Charles J also highlighted in the Lancashire case, the medical experts do not have as much information as does the Court and they are not the decision makers in these proceedings. Charles J has observed in County Council v K, D & L [2005] EWHC 144 :

"(39) it is important to remember:

i) that the roles of the court and the expert are distinct, and

ii) that it is the court that is in a position to weigh the expert evidence against its findings on the other evidence.

(45) . . . the judge must always remember that he or she is the person who makes the final decision . . ."

52. I regard all of that as being perhaps rather overlooked if I may say so by the Local Authority in its pursuit of this case as a non-accidental human agency causation rather than accidental or natural cause on the balance of probabilities and the Guardian too, with the greatest of respect to him, has rather followed suit. Ryder J had commented in A County Council v A Mother and Others [2005] EWHC Fam 31:

"A factual decision must be based on all available materials, i.e be judged in context and not just upon medical or scientific materials, no matter how cogent they may be or they may in isolation seem to be."

53. The Court needs to be careful to ensure that each expert keeps within the bounds of his or her own expertise and defers where appropriate to the expertise of others, so observed by King J in Re S [2009] EWHC 2195 Fam.
54. The holistic forensic process undertaken by the Court legitimately may lead to the ultimate conclusion which does not occlude with the expert evidence as was recognised in the K, D & L case and also the decision of A County Council v M and F [2012] 2 FLR 939.
55. Moreover as Dame Elizabeth Butler-Sloss, the former President, stressed in Re U (Serious Injury: Standard of Proof); Re B [2004] 2 FLR 263:

"The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw a light into corners that are at present dark."

Those words impacted very much on the Court in this case.

56. That principle of course was drawn from a Court of Appeal Criminal Division decision in R v Canning that same year in which fresh evidence became available about hereditary factors pointing to a possible genetic cause where two children had simply stopped breathing and died and the mother's two older children had also experienced apparently similar life threatening events. A natural cause as opposed to murder there, could not be excluded as a reasonably possible explanation, the frontiers of medical science being ever expanding.
57. It is right therefore to be open-minded to the fact that the scientific certainty of a previous age can be proved conclusively wrong by later generations and today's orthodoxy may well become tomorrow's outdated learning, as was recognised in the County Council v M & F case and other decisions.
58. Indeed only during the week that I was considering drafting this Judgment, there had been fresh controversy in the national press about vitamin D supplementation. Judge LJ, as he then was in the Canning appeal, declared:

"What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."

59. With regard to that last point, more recent case law has emphasised the importance of taking into account the possibility of the unknown cause to an extent that is appropriate in any given case and that was articulated by Moses LJ in R v Henderson & Butler & Others [2010] EWCA Crim 126 at Paragraph 1:

"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 a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings [177] teaches, even where an examination of all the evidence every possible known cause has been excluded, the cause may still remain unknown."

60. The following year in Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam Hedley J, who had actually been part of the Court of Appeal on the Henderson case, developed this point when he noted this:

"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"

Later on he sagely observed this:

"In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made."

61. It is not for those accused to prove that an accidental event has happened in order to rebut the allegations against them. Nor is there anything incorrect in the Court ultimately finding on the evidence that the injury is unexplained and the case unproven as a result, no matter how frustrating that might well be to human nature.
62. The Court has been warned about the need to be cautious of over reliance on typical signs and standard advice which has been confidently stated by experts over many years now as being present in cases routinely of fracture.
63. In Re C v D (Children) [2010] EWHC 3714 a case involving there a six week twin girl with a fractured femur, as here, His Honour Judge Bellamy reviewed the key signs that could be expected by the well known consultant radiologists, Dr Sprigg and Dr Chapman. Those being the child could have screamed when the fracture was sustained. The scream would have lasted for some minutes. She would have been distressed at movement of her leg e.g during dressing, changing her nappy or bathing. She would have had a floppy leg for several days after the fracture. Her leg would have been swollen and the usual comment that this was not an injury which would have gone unnoticed by her usual carers.
64. In fact it was clear in that case that those so-called routine signs and the obvious signs had been missed, not only by the family but also by the many health professionals too over many days when they had handled, x-rayed, tested, treated and cared for that six week's old baby.
65. Referring to Re U, he found that:

"It could be that what has hitherto been so confidently stated by paediatric radiologists as near-certainty is, in reality, much less certain. As a matter of fairness to parents and children, it may be that these radiological 'certainties' need in future to be expressed with a greater degree of circumspection."

I align myself very much with that.

66. The Court has to be very wary indeed of the Local Authority seeking erroneously to reverse the burden of proof absent a clear explanation from the carers. In Re M [2012] EWCA Civ 1580, Ward LJ said this:

"That, too, was the effect of the judge's view of the case . . . there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury."

Again, I echo that.

67. The late Bracewell J had also recognised the inherent difficulty in the earlier case of Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR when she made the point that:

"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."

68. That is particularly apposite in this case as these parents were away from their children's side for some 40 minutes or so, the exact time is not clear, when they went out to the shops that afternoon, and the twins and L were left in the care of the paternal grandmother and others.
69. The Local Authority has opted not to call the grandmother to give oral evidence and to be cross-examined about what she recalls as to the movements of herself, her adult daughter, her six year old daughter and L, the then 18 month old brother, and also others coming into the house that afternoon, her partner arriving home and also her older daughter's boyfriend certainly arriving at some time.
70. The decision not to call her was based on the premise that it would prevent familial disharmony and avoid putting her in a difficult position. I will deal with that proposition and approach later on in the judgment.
71. Charles J in the 2010 Lancashire County Council case, referring to causation and the analysis as to how, when and by whom an injury could have been inflicted was concerned about that switching of the burden of proof. He said this:

"In my view at times the approach of both the local authority and the Guardian in this case came perilously close to an approach which, on the basis of the expert medical evidence, proceeded on the basis that: 'R' was the victim of a shaking injury because the medical opinion was that this was the most likely cause of his injuries, and the relevant exercise was to consider whether, given their care, and thus the opportunity they had to so injure 'R', the parents could show that they did not injure him.

. . . In my view it is important to remember this because it removes or reduces an approach which considers the overall question from the standpoint that someone with the opportunity to injure a child has to show that he or she did not do so. . . .

If the assertions of the parents with the opportunity to injure a child that they did not do so are true, a medical conclusion that the most likely cause is inflicted injury would be wrong and therefore in determining whether such assertions are true or false the decision maker has to consider all the possibilities and circumstances of the case. On existing authorities, in these proceedings the truth or otherwise of such an assertion by parents is determined by an application of the civil standard, and if the court concludes that it is more likely than not that either or both of the parents did not injure 'R' by shaking him, then that is thereafter, as a matter of legal policy, treated as a fact."

72. All of that dicta is highly relevant in this case that I am dealing with, particularly in light of the Local Authority's concluding submissions that:

"There simply has been no adequate explanation offered by the parents."

73. Finally in relation to the issue of perpetrators the Local Authority, leaving it wholly to the Court, seeks a finding that one of the parents caused the injury, either the mother or the father causing the injury, while the Guardian asserts unequivocally that no trauma occurred while J was at his paternal grandmother's home, but that the injury:

"Would have to have occurred whilst J was at home in the care of his parents."

And that:

"Each parent would have known that the other parent was responsible for causing the injury."

74. I am reminded by the case of Re S-B [2009] UKSC 17, that if a Court cannot identify the perpetrator then it is still important to identify the pool of possible perpetrators.
75. The Local Authority, as referred to, originally had served notice on all four adults present that afternoon at the grandmother's home, advising them that they should take independent legal advice about some of them intervening the proceedings.
76. The correct test for establishing whether or not a particular person is a possible perpetrator of the injury is the real possibility test and not whether someone can be ruled out and excluded as a perpetrator. If the Court has not found it possible to determine which person was the perpetrator on the balance of probabilities, it is not appropriate to seek to apportion responsibility as between possible perpetrators and then find that one is more likely than the other to be the actual perpetrator. That again is sloppy and inappropriate thinking.
77. Wall LJ had stated in Re D (Children) [2009] EWCA Civ 472 that the Court is not required to strain to identify the perpetrator of NAI, but that it was still important to identify the pool of possible perpetrators if that was at all possible. He added this:

"There will inevitably be cases . . . where the only conclusion which the court can properly reach is that one of the two parents - or both - must have inflicted the injuries, and that neither can be excluded."

78. Charles J in the Lancashire County Council case referred to the 'uncertainty and fog' created because the pool has more than one member and whether that can be removed or cleared away by applying a more likely than not approach. He referred to consideration of the parents' respective roles and opportunity by reference to presence and timing and the events of the relevant day or period being considered and whether all the circumstances showed that there is not a real possibility that the mother or father injured the child, or that it is more likely than not that he or she did not do so.
79. Without actually stating it, therefore, the Local Authority, supported by the Guardian at the end, asked the Court in this case to find that the father in some way and for some reason hit or kicked or bent a sleeping child's leg, or perhaps fell on him by mistake in some undelineated way, during his brief absences from the mother's eye-line or awareness in the kitchen, or that the mother herself broke the child's leg when putting the child into his Moses basket or changing him, in some way perhaps I suppose, it is suggested, becoming impatient and cross and over tired, after that nice afternoon out, and that thereafter they have colluded in a dreadful silence and an act of concocted innocence, fearful of exactly what did happen, their children being removed from their daily care for many, many months.
80. In my judgement, when it is stated in that way the complete nonsense of that is exposed, even before the Court starts to factor in the possibility of organic or genetic causes, or some incident occurring still wholly unknown and unrevealed to the parents during their short absence earlier in the day.

TURNING THEN TO THE MEDICAL EVIDENCE

81. Dr Paul Robinson, a highly experienced former Consultant in Oral and Maxillofacial Surgery at Guy's and St Thomas' Hospital, was instructed in December 2013 to examine both the mother and the then 48 year old maternal grandmother in relation to dentinogenesis imperfecta and report accordingly as to whether either of them suffered from the same.
82. DI, as I will call it for convenience and shortness, is an autosomal inherited genetic condition causing weakness of the dentine of the teeth with several different genes being implicated. There are at least three different types apparently which produce fragility, the teeth being liable to break easily and being prone to excessive wear, but not necessarily more prone to dental caries, that is decay.
83. That came about because there was a volunteered maternal familial problem with tooth loss and decay. He concluded that there was no clinical evidence of either of the women suffering from DI. The mother's dentition was in a poor state, eight teeth were already missing or listed for extraction, and others were carious and needed treatment. The grandmother had no teeth at all present in the upper jaw and only three remaining in the lower jaw. However, neither of these women's mouths have the characteristic features of DI, the barrel or bulbous shaped crowns appearing translucent or opalescent, with discolouration of brown, blue, grey or yellowish tint, and the shortened roots.
84. Dentition that is affected by DI is very weak and comes to grief rapidly, Dr Robinson explained to the Court. Moreover, he examined J also at that time and found that none of his then six teeth in the mouth were discoloured or had unusual contour and again detected no clinical evidence of DI.
85. In fact because the mother, through her Counsel, stated that she had noticed recently that there was some brown discolouration on J's teeth but not on J*'s and that she could not remove that with her fingernail or brushing at all, the Court permitted Dr Robinson to view J's mouth briefly at Court during the first day of the hearing, the twins being brought to Court.
86. In his oral evidence to the Court Dr Robinson explained that there was a now better understood complex relationship of DI with osteogenesis imperfecta, but the correlation between the two, bone and tooth development, not being fully known. He reported though that some mild cases of OI are in fact diagnosed by a finding of DI.
87. He made it plain that he was not a geneticist or indeed a specialist in children's dentistry at all, but that it was an unusual place for decay to start on the front face on only part of the labial face of four of J's teeth, as he had seen when he looked at him. He thought it to be a surface stain on the enamel which might be removed by brushing, although of course he had no equipment with him to try to do so at Court that day, but he did not view it as pigmentation.
88. He said it might be either inherent or absorbed into the more porous surface of the enamel. It could have been caused by colouring agents in drinks, confectionary or any foodstuffs, but was no significant in relation to this case, he thought. However, J*, who has the same diet and cleaning routine, has white, unmarked teeth.
89. Dr Robinson said that once a tooth had been formed and has erupted the dentine is complete at that point. The tooth will not change colour once it has erupted into the mouth, nor will it change its internal structure after birth. Some of the calcification of the cusps is laid down before the third trimester in the womb. Teeth, of course, may be weakened by plaque or acid attack, which will cause tooth decay.
90. He confirmed that it is possible to make a clinical diagnosis of DI in a child of J's age. While he could not confirm that it is absolutely excluded, he had excluded it clinically by examination and appearance, and also radiologically here, there being no evidence, in essence, to support the presence of the disease, nor, happily, had J displayed the obvious to spot chalky white appearance for a different and relatively rare developmental syndrome.
91. Dr Robinson made it plain, when cross-examined, that he could not see the link between tooth and bone, that was implying something totally different with which he did not agree. Enamel is ectodermal tissue which needs collagen for its formation and is nothing to do with the formation of bone, and he said J has no problems with his hair, nails and skin.
92. He was prepared to agree that this family, on the mother's side, do appear to have teeth susceptible to caries which could be an unexplained vulnerability in the enamel, but he would not be drawn into speculation in trying to identify the condition producing that vulnerability, and he agreed that might be called a lacuna in the evidence.
93. He agreed that the problem appears to be familial, probably genetic in that there was that high caries rate and early tooth loss in the two older family members, whose mouths he had examined, and he was aware, also, of an eight year old brother who had fluoride mottling and other family members with dental problems.
94. However, no work had been done to identify a specific diagnosis regarding teeth being vulnerable to dental disease and that running in families. Significantly he said that he suspected that there were causes at work which we do not understand fully and which are outwith current medical knowledge, very much echoing some of the cases that I have referred to already.
95. He was pleased to hear that Dr Melita Irving, Consultant in Clinical Genetics at Guy's Hospital, who did not need to be called to give evidence, had reported in October 2013 that very fortunately J was not carrying any mutations in the genes col-101 and col-102, which are responsible for bone fragility, which Dr Robinson called 'flaws in the building blocks of collagen'.
96. Dr Irving had concluded that the results greatly reduce the possibility of J having bone fragility but do not exclude completely the possibility of OI, which can be present in around 10% of families but not show in mutations in either of those two genes.
97. In conclusion Dr Robinson made it clear that J has discoloured enamel, which was not there during the December 2013 examination, but which is now visible in May 2014, but probably does not have problems with his dentine which had arisen in utero. He was emphatic that he was not aware of any imperfection that arose in utero and only declared itself coming up to the second year of life.
98. Accordingly, properly though it has been explored, the Court cannot on present knowledge find any link beginning to explain any alleged weakness in J's bones or a greater susceptibility to any fracture and his maternal family's apparently repeated dental health problem. It may be, I know not, that a generally poor diet, perhaps lack of calcium from a diet not rich in milk or dairy products, perhaps also lacking in fluoridation where the mother lived in Portugal until the age of six, and perhaps irregular dental treatment has led to the sorry and what appears to be neglected state of the mother's and grandmother's mouths. It is not for the Court to comment any further about that.
99. However, the Court has been made aware also that the Gibraltar House Clinic, the family's general dental practitioner, has referred J for a paediatric dental consultation at Guy's Hospital following on from a dental appointment as recently as the 12^th May. While J*'s teeth appear to be fine, J's demand a more specialised look now. The family's medical notes apparently do show a history of dentinogenesis imperfecta so much more clarification is still called for in relation to the dental aspect and any correlation with a bone issue.
100. A different expert, Dr David Robinson is a Neonatal and General Paediatric Consultant from Queen's University Hospital in Romford. He provided five reports in all to assist the parties and the Court between March 2013 and April 2014, having been instructed initially to provide a paediatric overview. The cumulative effects of his professional conclusions were summarised very helpfully in the Local Authority's final case summary.
101. After his initial paediatric assessment he stated that:

"1. A transverse fracture can occur when a child falls from a significant height or is accidentally impacted on a hard surface, i.e. swinging a child and hitting them accidentally in play.

2. In J's case there is no history of fall from height or injury in play given.

3. Fractures occur more commonly in toddlers learning to walk but are uncommon in a non-mobile infant.

4. It is possible that the injury was caused by a grab and a twist being applied to the leg.

5. J could not have self-inflicted his injury.

6. Placing infant in a car seat would not account for the injury.

7. There are no rough handling incidents which may explain the injury.

8. In the aftermath an infant will scream in a manner not previously heard by a carer who may comment on the unusual scream.

9. If the carer's accounts are accepted the fracture occurred after 8 PM on 8^th October.

10. The injury is unlikely to have occurred at the home of the paternal grandparents. Although J cried at the time, it was not the scream described later and he seemed settled in the car on the way home.

11. Considerable force was required to inflict the injury. A grab and bend during nappy changes could result in the sufficient force required to fracture the femur, but equally a loss of control and abuse could account for the fracture.

12. In light of the maternal history of OI a paediatric review for OI and gene testing is suggested.

13. In summary the causes are non-accidental injury, an undisclosed accident or a medical cause."

102. Having met J and his parents Dr Robinson concluded in an Addendum Report that osteogenesis imperfecta should be ruled out by investigations from a geneticist, to include genetic testing if felt appropriate by that specialist, and I have referred already to Dr Irving's input.
103. Having undertaken blood investigations on J at his own hospital on the 17^th February 2014 Dr Robinson concluded that none of the results indicated osteopenia or rickets or a diagnosis that would increase a child's propensity to fractures.
104. In his oral evidence he told the Court that he has been assessing newborn babies for over 30 years and has that continuous experience as a neonatologist for the primary care trust and actually started up the intensive care baby unit and he has also worked in casualty. They have 8,000 to 10,000 deliveries a year at his hospital, and 60,000 patients are seen in A&E, 40 or 50 cases a year of children presenting with fractures which have to be carefully investigated.
105. He said that injured babies' levels of response varies, when asked about crying. He was circumspect when referring to the standard response from experts that a baby who had sustained a fracture will scream out in a manner not previously heard before by the parents and then settle down. The history is variable, is how he put it.
106. His evidence was clear that preterm babies are not at an increased risk of susceptibility to fracture at birth, and stressed that medical staff do not see babies at birth with osteopenia unless there are other risk factors. It is a very rare phenomenon, unless, for example, the mother herself has osteopenia due to a vitamin D deficiency and the condition is seen particularly in Asian families who pursued a vegetarian diet.
107. He told the Court that by the third or fourth week doctors must be on the look out for it. It evolves over several weeks and appears after ten weeks, usually. By then, of course, J and his twin had already been discharged and were home in their coping parents' care. Dr Robinson said at eight to ten weeks it is more common.
108. He agreed that unless there is an underlying bone disorder, which he did not find here clinically or radiologically in J's case, J being premature made no difference to the likelihood of fracturing, so prematurity on its own was not a contributing factor.
109. On the balance of probabilities his professional opinion was that J, at then 39 weeks gestation and seven weeks old, did not have osteopenia on the day he was admitted, his x-rays and blood tests, such as they were, being normal.
110. He confirmed also that a femoral fracture in a pre-mobile infant, not yet beginning to mobilise as a six to nine month old baby would, was uncommon and unlikely. Such an injury in his opinion would be associated with a credible history and a memorable aftermath, but unfortunately here there was nothing, no history at all, and therefore nothing else to drill down into to see what was going on in the family.
111. It was a single injury, one trauma to an otherwise healthy infant with no associated injuries and there was consistency between the parents who had adopted the same line and had not come up with things as the experts reports had come in. That is something that experts and the Court are certainly used to seeing regularly, tailored accounts and extra bits coming in later.
112. It was positive, he said, that the parents, appreciating that something was wrong on the Monday night, had caused no delay in getting the child to hospital and they were always very empathetic, very appropriate and caring and wanting to know answers during the two occasions when he had met them to take blood samples from J. Indeed he had spoken to them after giving his evidence, the Court heard later, and had offered to see them again and was reassuring, it would seem, saying something to the effect that there was still a question mark in his own mind.
113. He distinguished between a momentary loss of control much regretted by a carer, or a baby being held who then slipped and was caught by the leg, which would be an end to the matter of understanding what had happened, and a pattern of child abuse, which certainly was not the situation here.
114. His strongly expressed view was that this baby must have suffered a trauma and he would scream out at the point of breakage. He said there was no case that the baby can have sustained a fracture and you would not know about it. On a subsequent movement too it would be apparent.
115. He said a trauma must have occurred at some time. In his March 2013 report he had referred to the mainstream view of Paediatric Orthopaedic Surgeons and other professionals that in the aftermath of an injury an infant will scream out in a manner not heard previously by a carer, who may comment on this unusual scream and will recognise that excessive and inappropriate forces had been applied accidentally or otherwise. He added also that complex fractures, including displaced fractures, may be more painful after that first immediate distress, but that this is difficult to quantify.
116. Nappy changes, dressing and undressing, putting into a one piece suit, any procedure that creates movement and means that fingers impinge on the fracture during those procedures in his opinion would cause pain and fractiousness. There would be a reluctance to use the limb, or it would not be used.
117. He was surprised, therefore, to read the observation in the medical notes at the hospital 8^th October evening, that the baby was moving all four limbs. He considered that that might be an error and felt it unlikely for a doctor to say that this child was moving his legs, but it had been recorded. There was also an anomaly, or typographic error on an x-ray report which referred to the tibia, when of course the femur was involved here.
118. He was entirely clear that this child does not have osteogenesis imperfecta. If there is that underlying diagnosis a fracture can result after very minimal trauma and you would accept that that was the very likely result of natural disease, and he said you do not need multiple fractures to make that diagnosis but can accept that.
119. He said though that usually in osteopenia there are a number of rib fractures and long bone fractures too can occur. A one off isolated fracture of the thigh bone is not within the usual clinical picture of osteopenia, he said in answer to a question from the Court.
120. Whether stable or unstable, a fracture can move at any time. An undisplaced fresh fracture may move over a period of days, whether due to movement by others or by the child's muscles tensing and the fracture moving. He was aware of that, he said. That would then cause more pain and fractiousness because of the bleeding into the muscle and the bone ends rubbing.
121. However, he did not think the term 'grizzly' as had been used when the infant was at his grandmother's home, is enough to describe how a child would respond if his leg was broken at that stage and the raw ends of the bone rubbing against each other and the nerves being stimulated in that way.
122. The carers had not said, for example, that the baby was not sleeping or feeding, and screaming out occasionally, although it is known that unusually J did not take his full feed later in the afternoon. I have referred already to the fact that of course the parents' evidence has not been seen by the doctors, but he said there was no history of that here.
123. There could be what he called waxing and waning of the symptoms, with the baby being settled for long periods and then crying, the neonatal reflexes of automatically kicking out causing pain again.
124. If the injury had occurred 48 hours earlier, which is a very long period of time he said, he would have expected the carer to notice something amiss, the baby being settled for periods of time but then being very distressed. A limp leg would be noticed by carers at nappy changes, whereas as usual a baby of seven weeks would be kicking around during nappy changes, looking for a bottle and flexing his legs. J disliked, the Court heard, the cold wet wipes, perhaps every baby does, but certainly Dr Robinson would have expected, if the fracture had been up to 48 hours old, a real recognition by his carers of something being wrong.
125. If a fracture is untreated the infant will cry when the leg is moved, whereas immobilisation, of course, by close holding or perhaps being supported in a car seat, or plastering, takes the pain away. He considered that there would be no differentiation between the cries at original break and at a later displacement. It would be a severe and piercing unusual cry, as both would be very severe painful episodes. However, he also said that the threshold of pain can be different in different babies and nurses handling injured children often do not notice a great deal of discomfort being shown by injured babies.
126. The absence of bruising was not a significant feature and did not alter the analysis, as often bruising is not seen when a limb fracture was sustained. The painful swelling seen later by the doctor and the mother at hospital, which had not been known to Dr Robinson before he gave his evidence, forensically dates an injury to within 48 hours of that being recognised, generally. That was his evidence.
127. Swelling usually reduces over 48 to 72 hours while tenderness over the facture can last for up to 14 days. Dr Johnson had measured J's upper leg as having the circumference of a pen, and the mother had described his legs as very thin and skinny.
128. Dr Robinson confirmed to the Court that osteopenia of prematurity cannot be excluded completely, but that it is very unlikely at birth and evolves over a period of weeks. He stressed that they do not see babies at birth with osteopenia unless there are other risk factors, such as the mother having it. That of course is one of the deficiencies here and that the mother very regrettably has still not been tested, not even, I think, for vitamin D levels. He said generally vitamin D levels and PTH blood tests for newborns are never requested unless there is a specific request to do so because the first usual three tests they do and the x-rays are abnormal, then there would be a request for more testing.
129. The two vitamin D level tests that he undertook himself on the 18^th April 2013, and again this year on the 17^th February, were completely normal. The raised calcium levels are probably due to the child's arm being squeezed when the blood was taken. In osteopenia, calcium would have been depressed and there would have been a different result.
130. Moreover, if all three of the usual tests and the x-rays and vitamin D and PTH levels are normal, then osteopenia is very unlikely on the balance of probabilities, in his professional opinion. But it was those last two tests which were not done at the relevant time.
131. However, he said because of recent concerns on both paediatric wards and in the Courts, raising awareness about rickets and fractures and so on, vitamin D levels now are recommended for completeness for any fracture in order to exclude precisely vitamin D problems. There is that evidential vacuum here, therefore, that no blood investigations were taken for these infants in the early days when they were at hospital after their premature birth.
132. Dr Robinson said that he would usually anticipate daily testing in his hospital and his cases in intensive care, and weekly thereafter until discharge, and usually discharge would be at 1700 to 1800 grams. However, he said it was unfair to criticise the Medway Maritime Hospital as plainly the clinicians there felt at the time that they were confident that things were going in the right direction and the parents were competent and capable, and there is also no information about this baby's bone density prior to the date of admission on the 8^th October.
133. He explained that you cannot extrapolate back from the tests subsequently undertaken to October 2012, as to whether there was osteopenia at birth. It was not his clinical concern, indeed, to look back. The bloods were behaving normally on the 12^th October 2012, but there is no baseline data to compare, only that snapshot on the 12^th and nothing before.
134. His opinion was that there was no evidence on the 12^th October radiologically or biochemically, no copper deficiency, nothing of concern, for osteopenia bar that caveat, and it is an important caveat in the Court's view, that no vitamin D or PTH tests were carried out until he took the bloods in April the following year. He said he could not comment on the trabecular strength at 28 weeks, only when the baby was born.
135. The condition, if established, is not self-healing and requires treatment of vitamin D and sulphate and follow up, up to three to six months of age, for resolution. Of course it is known that J was being given supplements in his milk.
136. In cross-examination by the mother's counsel Dr Robinson was taken to a 1986 paper from the Italian Journal of Paediatrics, and a further paper on fragile infants, a paper emanating from Greece. He confirmed that probably 20% of bone loss is required before the condition would show on x-ray and there is that acknowledgement, therefore, about the limitation of x-ray. So there would be up to a one fifth less bone density without anybody knowing. In one of his reports he said this:

"Whilst there is no radiological evidence of the condition, considerable demineralisation is required before x-ray changes become evident."

137. As he told the Court, DEXA scans are not used in clinical practice routinely, and although he would defer to the radiologists about this, he very much doubted that ultrasound either would be helpful and he said we are learning more and more as time goes on and are better able to assess the probabilities, in essence, though we have very little to help us make this diagnosis, he accepted. He accepted also that there is an increased risk of fracture in the first three to six months of life, depending on the degree of prematurity and osteopenia, if it is present.
138. Preterm babies have increased disposition to underlying medical conditions which predispose to fracture, he agreed, having been asked questions about eliminating a diagnosis of osteopenia of prematurity. In his February 2014 report he opined this:

"Normal values for calcium phosphate and alkaline phosphatase with normal x-rays in the neonatal period, whilst not completely excluding osteopenia would make this diagnosis on the balance of probabilities unlikely. Without this information it is correct that a diagnosis of osteopenia at birth cannot be excluded."

Those comments seem to me to be highly important.

139. Asked about the bulk of mineral being put on in the third trimester he said that if a baby is born with an inadequate store, supplements, and I think also vitamin D, are given, in addition of course to the usual milk. The supplements are designed to negate any findings of osteopenia and the twins had received, the evidence appeared to be, a combination of expressed breast milk and formula for the first two weeks, and thereafter the formula took over.
140. All this baby's findings on admission were that all his results were within normal limits and the objective facts at that time rendered osteopenia unlikely but not excluded. He told the Court moreover that babies are not born with rickets.
141. Dr Robinson was asked about the various risk factors operating here, to enumerate them; a reduced growth rate in utero, it being recorded on the 15^th August 2012 that there was reduced growth rate in utero from what had been recorded on the 19^th July. Although it was noted that J was on the 25^th centile, which helpfully did not sound like retardation in utero, he said.
142. There was the inadequate placenta, which of course is why the caesarean had to be undertaken. There was the low birth weight. He commented about this, that J was on the cusp of being at risk in relation to that, given that he was born at less than 32 weeks of birth and at 1590 grams. He said he did not want to comment on J's size, but he felt that he was not significantly small for his gestational age.
143. Fourthly, there was a lack of foetal movement in utero. He said that he was not aware that that has any major impact. The scenario that would be relevant, that he would factor in, is a child, for example, born with cerebral palsy or who has been in hospital for the first year of life, perhaps with cardiac problems and having a prolonged period of care in an incubator, whereas J certainly was not inactive for many weeks.
144. But he stressed that he was a clinician and not an obstetrician and he said also that he would not wish to stray outside his own area of expertise and comment on physiological factors about absorption from the gut in relation to premature babies metabolising vitamin D and receiving inadequate calcium phosphate from the mother.
145. He was entirely clear that there is no evidence that the steroid, the two doses of dexamethasone, perfectly properly given to the mother, certainly not directly to the newborns, designed to improve the lung function and respiratory status of the infants at birth, would increase the risk of fracture or affect bone density in the infants themselves.
146. In his clinical and research experience he had never seen babies having bone problems whose mothers had been given those two doses of dexamethasone. Babies who have been given dexamethasone directly, because for example, they could not be weaned off the breathing machine, yes he had seen develop subsequent bone changes.
147. One of the other factors, the fifth factor, was pre-eclampsia in the mother involving high blood pressure and protein in the urine, and he said absolutely that would diminish foetal growth.
148. Asked about the degree of force if metabolic bone disease is present, then a fracture may occur spontaneously or with very minimal force. It is known that there is increased frequency of fractures where there is osteopenia. As a clinician he could not answer any questions about how tensile J's bones were. He repeated that on the day of the baby's admission there was no evidence of underlying bone disease and he would expect, therefore, the degree of force required to break this child's leg to be the same force for any other child of that age.
149. He was informed that Dr Irving's gene test had credibly excluded osteogenesis imperfecta. As he had given his opinion on osteopenia he concluded that there was no link to increase bone fragility in J's case.
150. Happily, Dr Robinson confirmed that J certainly is not suffering from any metabolic disease now. The calcium and phosphorus results were all in a normal range and there was no evidence that J was taking up phosphatase. As he said, if he had heard the evidence of everyone else he would be better informed. These days, he opined, a full investigation is required in such cases.
151. Because the experts gave their evidence on separate days and have not been able to confer or indeed asked to hold a joint experts meeting or hot tub, the usual approach had been assumed by the legal representatives that where an expert did not demure from a colleague's professional opinion he was assumed to agree. This aspect became relevant when considering the minimally displaced ends of the ribs that Dr Karl Johnson, the last expert, was referred to.
152. Turning therefore to the evidence of Dr Karl Johnson, he is the very well known Consultant Paediatric Radiologist from Birmingham Children's Hospital. He was first involved in this case by Dr Marietta Higgs by her letter of the 25^th October 2012, seeking his opinion on J's x-rays.
153. He provided in all four reports or responses, dated the 15^th February 2013, the 28^th March of that year, 12^th April of that year and finally on the 18^th December 2013, as well as his response to Dr Higgs, which the Court asked for during the hearing. In that report he said that the 9^th October x-ray depicted no obvious periosteal new bone formation, suggesting that the fracture was no older than about 11 days of age on the 9^th October. He had not, at that time, been sent the first 8^th October x-ray.
154. Looking at the skeletal survey x-rays taken on the 23^rd October that year, he noted no evidence of bony bridging across the fracture margins but some new periosteal new bone formation around the fracture site, stating that a fracture of this nature in a child of J's age need a suitable history of causation.
155. In his main report, his summary of conclusions was as follows:

1. J has normal bone density and there is no evidence of bone disease.

2. He is not at increased risk of fracturing compared to any other child of his age.

3. He has suffered a transverse fracture of the mid shaft of the left femur, the fracture being in the middle of the thigh bone.

4. At the time of x-rays on 8^th October fracture is no older than 11 days old.

5. Fracture, the result of a significant blow, impact or bending/snapping action applied to the bone, a single episode of trauma to the bone.

6. Force required is unknown but significant and excessive.

7. Fracture would not have occurred as a result of handling or over exuberant play or rough, inexperienced handling.

8. At time of fracture occurring J would have been in pain and showing signs of distress lasting for some moments.

9. The injury is suspicious of NAI in absence of suitable history.

10. The injury could not have occurred due to birth trauma.

11. J is too young to self-inflict the injury.

12. No radiological evidence to suggest OI or underlying metabolic bone disease or any other disease which would predispose the child to fracturing.

156. He said in his oral evidence that widening of the rib cage can appear in rickets and would be a significant radiological finding. It can be a sign of osteopenia or metabolic bone disease:

"Minimal swelling of the anterior ends of the rib cage"

had been reported by Dr Tam, the Radiologist, and referred to by Dr Reddy the reporting Consultant Radiologist, after the full skeletal survey carried out on the 23^rd October 2012.

157. That remained, therefore, unchallenged evidence, and there was also reference in Dr Reddy's report to mild kyphosis and flexion along the PIP joint of J's left index finger. Although it was suggested that this was postural, they too are signs of osteogenesis or something unusual perhaps.
158. It was not appreciated in advance that this would be a controversial comment at all, but Dr Johnson, during his video live link evidence said that he had looked specifically at the x-rays just then and confirmed that the ribs are within normal limits. Dr Robinson, in fact, had said about this aspect, that he would defer, of course, to Dr Johnson, the radiologist.
159. The Court was left, therefore, with a most unexpected and unhelpful question mark over that feature of the evidence which was unresolved at the end of the case, and as Dr Johnson rightly said, it is not for the Court's untrained eye on poor quality flat photographs of x-rays to resolve such an issue. So that matter was left, sadly, in the air.
160. Dr Johnson made it plain that he and Dr Robinson were dating things from two different aspects. Dr Robinson was dating it clinically, while he, Dr Johnson, was dating it radiologically. If Dr Robinson was confident in his clinical diagnosis, Dr Johnson said he would not question that and would defer. He said that if you strike a bone or impact it with a large amount of force, that force will cause displacement of the bone. He also said that where a fracture occurs the muscles in the thigh or the ligaments can pull the bone fragments apart, so it can be a consequence of both of those factors.
161. He believes though, that when the fracture occurred there was displacement of the bone, whether that was made worse or better later he did not know. He was not able to give any view as to when any subsequent displacement could take place. The leg being manipulated for x-ray or to stop movement and to allow healing when it was put in a plaster of Paris, or all of those could result in displacement.
162. The appearance of this fracture and very similar fractures that he had seen, had occurred in a recognised single accident. To cause a bone to break is a single episode trauma that is significant. As a radiologist he could not say that the fracture occurred some time and then subsequent to that further force was applied to the site of the fracture to cause it to pull apart.
163. However, he said also that further trauma or further force could cause further displacement. So that was quite confusing evidence as far as the Court was concerned. It could happen that you could have a fracture and the bone fragments subsequently could be moved in whatever direction or further apart by further forces applied to the leg.
164. He said generally there would be what he called an overwhelming desire by the baby to immobilise the fracture because of course further pain would be caused by the exposed bone ends rubbing together, but again he would defer to the paediatrician about that.
165. Although he does report on children, and has done so in hundreds of cases of children with fractures, he acknowledged that he does not work with a neo-natal unit in his own hospital. He was aware that twin pregnancies do have complications, but again he deferred to Dr Robinson in that area. He admitted that the medical profession simply do not know what degree of force is required to fracture bone in children and could not quantify it.
166. In his report he said that his clinical experience was that there is an associated history with the bone experiencing a blow or impact or a bending and snapping action, the human skeleton being relatively resistant to injury and femoral fractures being uncommon in pre-mobile children.
167. Taken to the research papers produced by counsel for the mother, there was a 2000 paper in paediatric research and also the judgments in Re C and D of 2010 and the AI v M & Others case, the paper being about the effects of dexamethasone treatment on bone and collagen, and a 2009 review also of metabolic bone disease in preterm newborns, an update on nutritional issues.
168. Dr Johnson agreed that graphs in the Italian article appeared to show a significant fall off in bone mineral density in children born prematurely, which continues to about 38 weeks of gestation, J, of course, being 39 weeks at the relevant time. He made it plain though that he was not an expert in the area of bone metabolism at all and again deferred to Dr Robinson.
169. He was asked about the accretion of bone and the impact on the tensile strength of an infant's bone between birth and 38 weeks, and said he simply did not know. So the Court was left with a real gap in its understanding and knowledge there.
170. The 2009 Italian Journal of Paediatrics had referred to infants born prematurely being deprived of the intrauterine supply of calcium and phosphorus affecting bone demineralisation, because of course the foetal accretion of calcium and phosphate from the placenta has suddenly ceased. Also babies with uterine growth restriction may be osteopenic.
171. Many factors were said therein to affect calcium absorption, including the mother's vitamin D status, which I have dealt with already and which has here never been checked. Nor were PTH or phosphate levels taken of the mother and hence those were not available to the doctors.
172. Dr Robinson, just referring back to him, in his further report prepared on the 8^th April this year commented that the mother's alkaline phosphatase results were consistent with a normal pregnancy and her calcium levels were normal, but he had proposed repeated investigations at that stage, which of course have not been done.
173. Although radiologically the bone seems normal, Dr Johnson said, and in his opinion there was no evidence of metabolic bone disease or any underlying bone disease predisposing J to fracture, he accepted that x-rays are poor discriminators of bone density and also of calcium content too, as he had said in his report, accepting that the bone may be inherently weaker.
174. He too confirmed that DEXA scan at the moment is simply not available yet to give more advanced understanding of that issue of bone density. He could not disagree he said, as it was not his area of expertise, that there could be an increased propensity to fracture up to the age of two and then it levels out, and the bones could be weaker although radiologically look normal. While they do not see lots and lots of factures occurring in children preterm, again they simply do not know what degree of force is required to fracture bone in a premature infant.
175. Asked about this child's 9 centimetre long femur, and 7 millimetres at the fracture site of those skinny legs, Dr Johnson could not quantify what degree of force would break such a bone, whilst stating the well known creed that normal handling and physical activities with children with normal bones do not cause fractures. There is a huge amount of variation and he could not comment on the correlation between fragility of bone and reduced amount of force required to cause a fracture.
176. He confirmed too the findings in the 1986 paper, that there can be a significant loss of calcium in the bone before it shows up on x-ray. While 20% was the usual figure quoted, other papers had said it could be as high as 30% to 40%. It can then take a while, up to two years, for the body to heal itself with sunlight and vitamin supplements, depending on the situation, be it rickets or anything else, and that the child's body ultimately can make up that 20% or more deficit.
177. In his report he stated this, when asked is there a body of research in respect of fractures in preterm babies:

"It is recognised that children who are born prematurely can be at risk of having problems with their bone formation and the bones may be weaker than normal. There may be reduction in the amount of calcification in the bones, so called osteopenia of prematurity. It is my understanding and my own experience that it is children who are born very premature, of low birth weight and who have other medical problems which are at the greatest risk. In my clinical experience children who are born a few weeks early preterm and who have no problems with feeding or other medical conditions do not typically suffer from any underlying bone density issues. I would defer to the paediatricians as to whether or not there is any clinical or biochemical evidence or altered bone metabolism as radiologically the bones appear normal."

178. Asked to comment about the appearance of osteopenia in cases of unexplained fractures, or whether such a question should be directed to Dr Robinson and/or Dr Irving, he said:

"Radiologically the bones do not appear osteopenic. I would defer to Dr Robinson as to whether or not there are any medical risk factors which would suggest that J's bones are weaker than normal."

179. So really one goes round in a circle, if I may say so, as between those two experts and this tiny premature baby, with his very thin legs and both those doctors, it seems to me, properly admitting that not all is known and that there still can be a possibility of osteopenia or something similar or something unknown having been operative here.
180. Finally, and for completeness just in relation to the medical evidence, the Court noted the medical report dated the 28^th April 2011 which appeared in the papers. That is in relation to a 57 year old maternal family member, MOE. She suffers from osteopenia of the lumbar column and of the femur and of the neck of the femur, with a loss of 18% of bone mass in the neck of the femur and a 21% loss in the femur itself.
181. Dealing then with the lay witness evidence. LH, the father's sister, was also video interviewed under caution by the police on the 31^st October 2012 when she was 20 years of age. Nobody required her to be called to be questioned about any of the events and I simply therefore reread that transcript.
182. She confirmed the timeline that her brother, D and the boys arrived at about 3 or 3.30, when the twins were asleep in the Moses basket and L was playing around. The parents were then out for between half an hour to an hour to do some shopping, her mother, TF, having offered to babysit. She had not fed or changed or handled J herself, only changing J*'s nappy while the mother was there.
183. She had gone out herself, her boyfriend had arrived at one time, returning only when the couple were about to leave, whereupon she it was who carried a sleeping J out to the car at about 7.38 ish. She picked him up and held him in exactly the same way, she demonstrated to the interviewing officer, as she does every day with her then own six month old baby sister.
184. She said J stirred a bit as she picked him up, he was in a sleep suit and she noticed nothing happen to his leg. He stayed asleep. He did not cry out or yelp. This was when she was handing him over to her brother and her brother then put him in the car seat, the middle one she thought, which the parents have confirmed was the one used for J. She then changed her mind in fact to say it was behind M's seat and D had put J* in the middle. For what it is worth I accept that unchallenged account detailing the timings but with little fine detail in the interview.
185. The mother's own sister, Miss VO gave brief sworn oral evidence. Her English was not particularly good and it was plain that some of her evidence, while well meaning on her part, was not particularly accurate and her statement had not been translated back to her for careful checking, as I found.
186. She had stated that the mother had spoken to her on the phone for 15 to 20 minutes on the evening of the 8^th October, which plainly was not right, and when the telephone records were obtained, very, very late on the day, it confirmed that they in fact had had a very short call of 1 minute 49 seconds while quickly she gave the mother the ingredients of a simple tomato sauce to go with chicken and potatoes that the mother was preparing. Miss VO said it was water, salt and tomato puree. Those were the details. No stock cubes she recalled.
187. She said that her sister sounded perfectly normal to her and there was nothing concerning, no panic or upset, no row going on, nothing at all. She said, perhaps understandably, that it all happened a long time ago and when asked to make the statement this February in 2014 she, understandably, could not remember the timings at all. Having read the statement subsequently at home she had realised that the timing was wrong but had not ventured to say anything to anyone to try and correct it.
188. She accepted that that call was foreshortened when her sister D told her that the baby was crying and she needed to put the phone down and see to the baby. Miss VO could not explain why she had immediately called back her sister to see what was happening without giving her an opportunity to deal with the child, but she herself, V, was worried. There was a three second voicemail because D did not answer the phone.
189. Miss VO said that she herself had heard a high cry from the baby over the phone and was worried about that as she had not heard that cry before. She did not hear the father's voice. She had asked her sister earlier, at the beginning of the conversation, about the kids as all seemed quiet, to be told they were all asleep.
190. She said she was not sure if her sister was talking to her very loudly or was on a loudspeaker on the phone in the kitchen, but she thought it was directly because plainly her sister was talking to her from the kitchen asking about ingredients.
191. She confirmed that they are a very close family. D tells her and their brother T everything. They also have a younger 12 year old brother. She and the mother see each other every day as well as their own mother and they all live very close to each other and they pop in and out of each other's homes very regularly.
192. She confirmed that that morning, on the 8^th October, after the school run, at 9 o'clock Mr H came to pick up L's toy car which had been ordered and which had been delivered to her home. She and the mother had then gone out shopping to buy a present for Mr H's six year old sister L*'s birthday. They did go to the council office, as Miss O had said they did but they did not wait as there was a queue of people, and they got back home at about 11 or 11.30.
193. She knew that their brother T had in the past called the police worried that D was in a violent relationship. She thought that her sister was a strong woman who would tell her family if MH had hit her. She knew that the couple had money worries and they had borrowed sums of money from her, that was every two or three months, sums of no more than £10 to £20 and she had been happy, in essence, to let them have that money because it was always paid back later on.
194. That was at times when things were more difficult for her sister as Mr H was gambling and she knew about that. Indeed her sister had knocked on her door that night, not telephoned her again, but needing money urgently for a taxi cab to the hospital. She knew about the gambling and that her sister had told M to go if he did not stop his gambling habit. She said that was all before her sister fell pregnant with the twins and the relationship has changed now. She and her sister speak in Portuguese.
195. I am satisfied that although Miss VO was rather cavalier about the timing, and perhaps did not fully understand the real import of signing off her statement as truthful and accurate as she did at the beginning of her evidence in the witness box, and not understanding the phrase 'no build up', which clearly were not her words, there was no malice or desire in her to obfuscate in all of that, or to hide any important detail. I do not find therefore that she has deliberately lied or colluded with her sister and/or her sister's partner to give false evidence to this Court.
196. Turning finally therefore to the parents' own evidence and their demeanour and affect. I have had the opportunity during many hearings, including this far from easy five day crucial final hearing, and both inside and outside Court, to observe at length the behaviour and relationship of this couple.
197. They have been in a lengthy relationship now for some five years and obviously each have grown and developed and undergone periods of change, particularly the father, as I will deal with in a few minutes. It is plain that they absolutely adore the twins and L too, who is particularly close to his father. They positively glowed when talking about their children, that was immediately noticeable in the witness box and are obviously thrilled and proud of their family of three boys.
198. They are loving, supportive and mutually attentive. The sheer strain of these proceedings and the separation from their children, together with being under suspicion and the spotlight for so many months, in the Court's experience can often be such an overwhelming experience that it breaks up a relationship. That cannot be underestimated. But they have withstood all of that, calmly and bravely, and they have stuck together, to their credit as I find, each trusting the other as a loving, careful parent and they each paid credit to the other.
199. They have been loyal to each other and to their children and believe that each has told everything they know to assist the police, the Local Authority, the guardian and the Court. They have not accused each other or anyone else and they have each credited the other as being a very involved and safe carer for all three children.
200. They have properly racked their brains, to use that phrase the Court hears often, to try and rationalise what could have happened to J, but have not been able to come up with anything despite obviously tortuous and emotional discussions. They desire nothing more than to be allowed to raise their three children in a family unit and to put this whole ghastly chapter behind them, and they are fully entitled to do so, in my judgement.
201. But for them immediately contacting the emergency services and responding to J's loud cry and obvious distress whenever his by then floppy or limp left leg was moved, at around 8.26 or so on the 8^th October, they would very likely indeed never ever have come to the attention of Social Services, the police and the Court. There were no signs of neglect, no poorly nourished children, no poor home or neglectful home conditions to alert anyone that anything was amiss with this young family.
202. Bar the call out in October 2011, generated by Miss O's brother, and the mother's own call to the police in March 2012 there has been no further police involvement whatsoever and no alcohol or drug issues in this couples lives whatsoever either.
203. To deal with that police involvement, in 2008 Mr H, then 22 years of age, had spat at a then girlfriend after an argument when she had told him their relationship was over. They were shouting and screaming at each other. He admitted it was wrong and he accepted a reprimand.
204. The report from Mr O on the 26^th October 2011 had been of his sister's boyfriend hurting her six or seven times and smashing her mobile. In fact it was throwing the phone down, was the mother's evidence. When spoken to by the police Miss O had said that the night before there had been that argument at about 4 AM her asking him for help to feed the baby. She stated they were as bad as each other, shouting at each other, and Mr H's evidence was certainly that Miss O could shout as well as he could.
205. He had thrown a candle at her, but she was not hit by it or assaulted. She admitted that Mr H was getting more aggressive towards her every couple of months, could be jealous and had a gambling problem and when he runs out of money they argued. The couple were considered to be happy together, by the police, although Mr H had agreed to leave for one night. But the family were concerned that she was not revealing matters to the police, that is what was recorded.
206. Although the report concluded that Miss O was unlikely to contact the police in the future, it was significant that she in fact did take her own initiative to call the police just after midnight on the 1^st March 2012, so five months later. She felt that M was in a bad mood and that that might turn into an argument and he was complaining about having to leave for work. There was no struggle, she was calling the police because she had been told by patrols in the past to call the police to prevent arguments and was properly doing exactly that. She was reported not to be upset, worried or caused any alarm by him, but was told she had done the right thing in calling, as the police acknowledged. That showed maturity and strength of character and individuality, in my estimation.
207. I was particularly impressed by the fact that the parents' evidence about what happened after they returned from the grandmother's house has been entirely consistent, and when they were not quite sure, 18 months down the line, they said so. They both strove to be accurate and entirely understandably said what they had said contemporaneously to the police, two days after the events, was probably correct and more factually accurate.
208. The father demurred to the mother about her being a more accurate time keeper, and about her commentary about J's crying. J was screaming quite a bit until M's mother, who of course had been called, the grandmother, had calmed him down a bit at the house. He was not screaming to the level that the father had said in his police interview.
209. In her police interview Miss O recalled these details:

"I had to go to Morrisons to get some nappies for the twins. We laid L on the sofa and J* and J on one of the Moses baskets. M's mum said well you're better off doing it now because the twins ain't due a feed and J* and L are asleep, so I had a bit of time. I was gone for about 30 to 40 minutes, me and M went down to Morrisons. When we came back I asked T how the babies had been. She said oh, J has been stirring a bit, but nothing major, I've changed him, nothing to worry about. L was, by that time, awake sitting on the sofa watching telly. I fed J*, changed J*'s bum. Then J was due, M's mum asked if she could feed J. I said yeah no problem. So she changed J's bum and started feeding J. In the meantime J did cry for about 30 seconds. It was quite a loud cry, but then he settled down really well so I didn't think nothing of it. Then she passed J over to me because her seven month old baby was crying. I fed him, winded him, laid him back down, he seemed alright. Since the minute he did cry at her house he had a bit, not a crying, but a bit of a moaning noise as he was moving. He was like stirring loads and like (makes a grizzly noise) doing a type of noise to him."

210. Later on she said he had done a different noise on the Monday, a low moaning noise, a funny noise she had not heard him ever make before, and then she went into the detail, that they got in about 8 ish, L was asleep:

"We laid L down in his rocker in front of the telly."

She took J*'s coat off, laid J* in his Moses basket, took J's coat off, laid him in his Moses basket, and then said:

"I'm going into the kitchen, and put dinner on. M was with me in the kitchen then we heard a big cry.

This was in the meantime she had got on the phone to her sister:

"M went to get J and then he came back from the living room into the kitchen and said I don't seem to be able to calm him down D. So I said let me try to do him a bottle, as he didn't finish his bottle around your mum's he might be a bit hungry. I done him a bottle, where he was screaming so much he wouldn't close his mouth to realise that the bottle was in his mouth, he wasn't having it so I told M that he might have a dirty nappy"

And so on.

211. The mother was honest and genuine, as I find it, in all that she reported to the emergency services, which the Court has both heard and read. She was calm and sensible. She responded properly to all the questions that were put to her and she was not panicked. She was consistent to the paramedics on arrival and at hospital, and to the police, Social Services and then to the Court.
212. The father too has been consistent and has tried to be accurate. There has been a complete absence of any tailoring of accounts to fit the later bill when further medical evidence came in, as the Court sees far too often in these not easy cases. Once the parents got home after a short, uneventful car journey with no jarring or jolting, the father was busy with L.
213. The mother said in her interview that J was doing a grizzling noise, heard at the 6 o'clock handover between her and TF, when the mother had put the snowsuit on him and when she laid him down at home but not crying. However, within a few minutes of starting to cook the dinner they heard him cry. His screaming went sky high, she said, when she took his left leg out of the babygrow.
214. L was definitely in his rocking chair with the strap done up 100% the father said. The mother had removed the twins' ski jackets and had put them in their separate Moses baskets and then went into the kitchen to cook the evening meal. He was satisfied that both babies were absolutely fine as he left the room, having noticed them stirring and put their dummies in and placed J*'s little blanket, or muslin, under his arm to tip him onto his one side, as he has always been cautious of the twins and reflux which they had had at times. That was when he was reminded in the witness box about what he had said so long ago to the police and he reminded himself that that was the detail then.
215. Both parents recall the phone call with Miss VO during their police interviews, and those records obtained only very recently, 18 months down the line, confirmed that call, hence there has been no manufacturing of that important piece of evidence. The call ended only because J screamed. The sister confirming that she heard no sound of an argument or anything untoward until the child's cry when she was talking to her sister.
216. Accordingly the mother simply could not have injured the child that evening and there was no reason whatsoever advanced for the father suddenly to do so, in what I would have found to have been a completely out of character, unforced and unloving way. I do not find either of these parents capable of that.
217. Mr H was also engaged in checking that the charger for L's new electric car, which had been confirmed by the sister had arrived that morning, was properly plugged in and charging, and he was also collecting all the clothes for the wash as he likes to be organised and help out with the practical tasks. He may have taken some washing out of the machine, not washing up, as the Local Authority's closing submissions refer to, or put some in, he truly cannot recall, but he described himself gathering up the clothes he had taken off L.
218. In her oral evidence the mother, about this, said that M was in and out of the kitchen. He was checking on the babies, as they always do. Out of the corner of her eye, facing the window, as she was trying to get a good phone signal, she was not able to see exactly where M was. He was talking to her but he was not always there, but she could not remember how many times he left the kitchen. So she did not know where he was placed, but she could hear his voice.
219. She said he would still have been dealing with L and then he had come in after a short time, and then he was in and out and off to do something else. She thinks he was standing between the kitchen and the dining room door, from what she could picture now, when they both heard the unusual cry, but she was not 100% sure as she was still then on her telephone call to her sister. It was, she thought, five or ten minutes maximum after they had got home and she had gone into the kitchen and started the supper that they heard the cry.
220. While the mother had said in her statement that the father was in the kitchen with her, I would have been more concerned if the parents had had exactly matching pat stories about exactly where each of them was when the cry was first heard. It was a fluid, normal situation of one parent cooking and the other clearing up and doing other things and checking on the baby, each doing their own thing, and the father also wanting to ask D about the charger, but aware that she was still on her call. The did not know that something major was going to happen that day, which would still be affecting them 18 months later.
221. The discrepancies are not the significant or concerning inconsistencies that the Local Authority purport them to be, in my judgement. The father was not fully in the kitchen at the time the cry was heard, but just on the threshold, he said, just walking or stepping into the kitchen as he heard the cry and the screaming sound. He turned round and panicked, rushing into the room, and picked up the baby who was red in the face, absolutely red with screaming, and it was, he said, quite vividly:

"Not a cry to walk to and you go to it quicker than what you normally would."

222. He had said in his interview that he had got L's dirty clothes and put them in the wash, spoke to D for about 30 seconds and:

"All we heard was waah, a massive cry."

He then said to D stay there, I will get it, stay on the phone, and he went and looked at J and saw that red face. He tried to comfort and shush him, but the screaming went from bad to worse, like the baby was trying to get his breath back, and he passed J to D who came off the phone and asked him to make a bottle with the usual medication.

223. Mr H said that normally J would turn his head to the side and gasp when he had his milk, but he would not take it, so the father queried if it was a dirty nappy, although he could not smell anything. D then put the baby on the sofa and then said oh my God he is moving his leg but not this one, and she wanted Mr H to go round to her mother's straightaway and also to ring an ambulance.
224. That little detail about the baby having his mouth open and being in such a state that he was bright red and trying to catch his breath but would not latch on to his bottle the Court thought quite significant, showing how very distressed he was and that both parents vividly remember the baby's distress.
225. Miss O noticed also that the baby was tensing and pushing the other leg against her in the normal way, but she could not feel any reaction or anything at all on his left leg. Very appropriately she wanted her mother there immediately to come and have a look at the child's leg, and Mr H whizzed straight down the street to get her, I think it was in fact past Miss VO's home on the route in the same road.
226. I am clear that the parents were always careful and diligent parents and strove to do their best to remember the small detail of what had happened 18 months earlier. The father said that never in a million years would he lie about his kids. He loves them from the bottom of his heart, I think he might have said world actually, and would never do anything to them. He said also that if he had tried to cover up anything he would not find out that anything was wrong with his child and he wanted to know what had happened.
227. He said with evident and very genuine distress, I felt, that not knowing what had happened to J had hurt him. He was disgusted, if it was him, he would have put up his hands and said something a long time ago. He just wants to find out what had happened to his baby and protect his family. It did cross his mind that L had got out of his seat, although he was also aware that 100% he had strapped him in as he always does, and he knew that there was nobody else in the room, but he was just concentrating on getting in there quickly having heard that unusual scream.
228. He said that they had talked about it a few times each week and the more they talked about what had happened the more muddled up they became. He explained that having three children under the age of two was something different and a challenge. That may be an underestimation. He was not there every day as he went to work, and the mother knows best. He said that really she was a wonderful young mother.
229. If he needed a break when he was there, because he was a little bit stressed, but not in an angry way, he would never just walk away from the children but would ask D to look after them and he would just go out for a few minutes. It would just be a little tiny moment for a cigarette and a breather and not be a massive problem at all. He said it was not like the anger when he had the gambling problem and D would keep going on and on at him about money and tell him he could not do and not have this or that, including one of her cigarettes because he had no money.
230. He knows 100% that he had not hit D with the candlestick. He had gone to pick it up, she had no lumps on her head, he had never hit her, but he said all of that was a real eye opener for him, it was more shouting and pushing her out of the way, which he accepts was totally inappropriate to do that to a woman who is very much smaller than him and just not on for a man to do that.
231. Everything had changed since D had threatened to throw him out. It was a big shock to him. She had then taken charge of his finances and helped him with his problems and he was thankful for that. He had never lied about his kids but had, yes, lied in the past to get more money for gambling, only that, to try and get a better life for them. He learnt from it, got himself banned from betting shops, had taken that initiative, and it was all in the past now. He said the worse thing he could ever do was to lie to D. He knows that would be it and there would be no going back.
232. He told the Court a little bit about his background. His father had hit his mother and he said that if he ever did that to D he would have to live with that for the rest of his life and he could never repair that and would never do that. He had learnt from the past. It was inappropriate for him to push her around and he knows it is much easier just to go out to have a cigarette and calm down; that is best for the kids and best for them.
233. The mother, I should say, completely denies that she has ever been hurt or hit by the father, certainly not six or seven times as her brother had said. I should say there was no double-checking about that with him, he has not given a statement in this case, and all that has happened is that she has been moved or pushed out of the way by her partner; that was the height of it.
234. The mother, turning to her evidence again for a moment, said at the hospital that J was fine when he was being cradled, but cried loudly the moment she passed him over to her mother who then settled him. That had been very much the same story when they were still in the house before the taxi had arrived. She said that was not as loud a cry as she had heard in the kitchen, so it was a slightly quieter cry at hospital. There was a bit of a moan too, when her mother had held him and she had fed him.
235. The doctor, it may have been the radiologist, I am not clear, had noticed the swelling and the mother noticed it too at hospital, it had not been there at home, and he had commented to the mother that there was no doubt that this baby was in pain and he said I bet this baby had been crying, which plainly was the case.

THE COURT'S FINDINGS AND CONCLUSIONS IN RELATION TO THE TIMING OF THE INJURY

236. One of the several deficiencies here is that the Court was denied the important opportunity, as I find it to be, to examine in fine grain detail what occurred at the grandmother's house when the parents were out at Morrisons. LH in that police interview that I have just referred to, said that the parents were out for between half an hour and an hour and that L was playing around. She was not called to go through her evidence in any more detail. Mr H thought that they were out for about 35 to 40 minutes and the mother pretty much agreed with that timescale.
237. The Local Authority's refusal to call live evidence from TF, first of all having required her to complete a witness statement, and that being on the basis that the injury was inflicted or as a result of inappropriate handling, that being the Local Authority's case, has left a real gap in the evidence, and in that crucial period when the parents were not in charge of their babies at all.
238. The grandmother's videoed statement to the police was removed from the court bundle and her evidence effectively was abandoned by the Local Authority, which therefore failed to adduce any evidence relating to the quality and the personnel responsible for care of J on the day of the injury when critically the parents were not there to witness any event or to witness who was handling the babies or around them or how they were being handled.
239. There was a toddler of 18 months, there was six year old L* in the room where the babies were, and Dr Johnson had opined, dependent on the strength of each of them, that either of them could have caused the injury. It is easy indeed to visualise them playing around, having fun, perhaps stumbling and landing on one of the babies by accident. Perhaps when TF was, for example, dealing with her own seven month old baby, or popping upstairs to get something, or going out of the room momentarily to get a cigarette, to make a cup of tea, to answer the phone, to answer the door, or whatever, something may have happened. I am not going to indulge in further speculation because all of that, it seems to me, should and properly could have been explored with Mrs F.
240. It appears, however, that two days before the trial was about to start on the 2^nd May that the Local Authority had emailed the parents' solicitors, that was on the 30^th April, stating that their instructions were not to seek a further statement from her, purportedly:

"On the basis that it adds nothing more to the evidence at hand and also to preserve the familial relationships/avoid putting her in a difficult position (the Local Authority does bear in mind this issue all the time in its decision making)."

241. In my judgement that was woeful, not credible or appropriate in the scheme of things when this Court is being asked to find that one or both of these parents was responsible for the deliberate infliction of a nasty injury, not caused accidentally or through rough or inexperienced handling, and with a shared knowledge and collusion thereafter. The inevitable consequence and impact of that on three young children's future lives meant that the stakes could not be higher here, and that was a real and fundamental missing piece of the jigsaw at the behest of the applying party, particularly where there is no other scintilla of maltreatment or negligence alleged with any of the children whatsoever.
242. Mr H in his oral evidence told the Court that he had tried his hardest to sit down and question his mother and discuss it with her, but her response had been then to question if he was criticising her motherhood, saying you are fine, all my kids are fine and then crying about her lost little boy. She had lost a child at some stage.
243. He said he was pretty sure that if his mother had noticed anything she would have told him and he believed she would not have hidden anything for the world, but the Court has not had its own opportunity to gauge her honesty and veracity at all. She may have had her own agenda or vulnerability operating once it became known that the police and Social Services were involved with a fractured limb to this baby; one simply knows not.
244. Both Doctors Johnson and Robinson had agreed that there could have been a fracture followed later by a displacement of that fracture when J suddenly cried out at home after 8 PM.
245. Given the unchallenged evidence that all was fine and normal with J on the Saturday and then on the Sunday when the parents visited Mr H's grandmother entirely uneventfully and happily, and on the Monday morning when the mother was out and about in the town, while J was cared for at home by the father, who said it was a lovely, calm time for him looking after the three children, and then with those paternal relatives for a while, the Local Authority's case, as it has been presented to the Court, can succeed only if the Court can find on a balance of probabilities that the only point at which J could have been injured was in those few minutes after the parents had returned to their own home. I am wholly unable to find that, on the totality of the evidence.
246. The mother's evidence was that when they returned from Morrisons TF reported that J had been a bit fidgety, the mother then heard that grizzling sound that she had never heard J do before, it had started off at T's house and then she had heard a whinge as well. She knows her baby's cries and J is not a child who cries generally, was her evidence, only when his bottle is overdue or when he dislikes the coldness of wet wipes used to clean him at nappy changes.
247. Unusually for him too he did not take his full feed when the parents returned from the shopping trip. The grandmother, for whatever reason, told the mother that the child had been supervised throughout. When she heard the baby grizzling and moaning the mother simply assumed, perfectly understandably, that that was the reason for him making that noise, the cold wet wipes, and in fact he had been changed by the grandmother at that time.
248. There was the same noise when they heard the grizzly noise when she placed him in the Moses basket at home, on the living room floor I think it was, and she said it was a noise I did not know. That unusual grizzly noise was heard again later at the hospital prior to the x-ray.
249. The mother had said there was no argument at all. The sister had not interrupted an argument during that short call. Miss O said that they were happy at T's house, they drove home happily, they were really calm at home, everything was fine and she had started making a Portuguese dish for dinner.
250. The father's evidence was absolutely plain, there was no row, no argument, no friction that day. He said, in fact, that it was probably one of their best days that they had ever had. He likes to go and see his family and to show off his three children, with obvious pride, and that was nice. As they had been restricted to the number of visitors they could have in the special care baby unit, to go to his mother's home with his twins made him really happy and he had been looking forward to it. He had been over the moon, really happy, when the twins were born.
251. Extraordinarily, as I find it to be, there had been no suggestion at all about any argument, which was raised by the Local Authority only on Day Four of the trial. I find it to be highly speculative and smacking perhaps rather of desperation and a makeweight. It would have to have been based on collusion by the aunt too. It was also completely out of character and against the weight of the evidence given the parents' changed and very much improved relationship after the mother had given the father that ultimatum of ending the relationship if he did not stop his gambling. There was obviously also the evident mutual joy at the birth of the twins and mother handling them very well and father being very careful in his handling also.
252. While the father had said in his police interview that he did not think that his mother or sister would have caused the injury, or indeed anybody else, and if there had been an accident his mother would have told them, and it would not have been done deliberately, it is not his task to try and get inside his mother's head and countenance the unthinkable. He told the Court that relations with his mother at the moment were very strained and he has had to move out to live elsewhere.
253. To state the obvious, yet unthinkable, Mrs F, with her own baby, and Miss H too, might not have welcomed the attention of the professionals involved or it might have been the situation that they now cannot go back on their own stories, the Court, again, simply does not know. Moreover, Mr H stated that if he strongly thought it was any action of his, that for example he had been too heavy handed in handling J, he would have said something immediately and a long time ago. I accept that.
254. I found the father to be a quiet man, not over-reactive in the way that young men on a short fuse often are in the witness box. He told the Court that he would not even put first L and then the twins, when they arrived, upstairs until they the parents went up to bed too, and he liked to settle the children altogether upstairs. He said that he cannot sit down and relax if his kids are upstairs. He is cautious like that in any event.
255. Accordingly I am content that the predominant mood that day was one of pleasure and pride and happiness. It had been a wholly enjoyable day, rather than there being any tension or any upset between the young parents resulting in one of them damaging one of their tiny babies.
256. In my judgment none of those accounts from the parents help to establish the Local Authority's case by one jot. It would be completely unfair and unsafe and invidious without the clearest possible evidence to identify one of the parents as the perpetrator. It is not for the Court or for the parents themselves to make good the lack of evidence; that is entirely wrong footed an approach.
257. Others, including the paternal grandmother, may have had their own reasons not to be entirely frank. The Court knows not, the evidence not being led, let alone tested in the witness box. Other potential perpetrators who may have had care or contact during the critical time simply cannot be discounted.
258. The Court is wholly unwilling and unable to strain to make the events fit the Local Authority's desired hypothesis and find that the parents must be covering up one for the other. They believe in each other's innocence, as does the Court. The Local Authority sadly has failed to facilitate a proper forensic examination of the relevant period and singularly failed to discharge the requisite burden in this prolonged and troubling case.
259. Another of the evidential difficulties is that neither of the doctors was ever asked to look at, or at least read, the parents' recorded police interviews, to see their body language, to see how they depict handling the babies and the size of the babies. Accordingly, they therefore did not have a blow by blow account of the sequence of events that day, until indeed the Court itself provided some context. That arose as a result of the unusual way in which the case slowly had proceeded because of ongoing concerns about the medical evidence and the need to go back with yet further questions being posed, and even as late as April of this year Dr Robinson suggesting yet further tests.
260. Any case has to come to a point when it crystallises, but the Court was left with real gaps here. Furthermore the doctors, of course, did not have the opportunity as I did, of seeing the parents give their evidence and depict how, for example, J's tiny frame fitted into the palm of his father's hand, with his head resting on his wrist and his legs at his father's fingertips. Nor did they see how the baby doll utilised in the witness box itself was swamped by the size of the smallest babygrow and the all in one snowsuit, not requiring a great deal of lifting and pulling in of the leg, as would be done with a bigger baby. Nor did the doctors hear the mother's calm and sensible responses during the 999 and paramedic calls.
261. The mother may be small in stature, she may be a young mother, but she has real confidence and maturity in her own sense of judgement and what is and what is not acceptable. While she told the Court that she thought it was going to be a lot harder with the three babies, they were really easy babies and she had got into a lovely routine quickly. Mr H was really proud of being a dad and would go on and on talking about being a dad and he shared her joy. She said:

"I can only guarantee you that M told me he had not done it and as I see him dealing with the children he has not done it."

She earlier had said:

"If I knew he had hurt this child he would be out. The pain I'm going through since October 2012 I don't think I would ever be able to forgive him for making me go through that pain and all this time he was not able to stand up and be a man and face the fact he had done it and let me have my children back."

THE COURT'S FINDINGS AND CONCLUSIONS AS TO ALTERNATIVE CAUSES OF THE INJURY

262. While I have stressed in my review of the case law that no burden of proof ever moved to the parents, an enormous amount of time and effort has been devoted by their very dedicated legal representatives to show that J's most unfortunate experience falls into that unusual but well recognised and accepted realm of unexplained injury or unknown cause, acknowledging that we are fearfully and wonderfully made, as Hedley LJ rightly put it. Not everything in life can be neatly and tritely understood and have a definitive answer, however irritating and annoying and frustrating that might be, and that has been recognised recently by those senior judges in that plethora of cases that I have cited, binding on this lower court.
263. The fact that the parents, although they have tried to do so over many months, going through it over and over, as they said to the Court, are unable to provide an explanation for the fracture, does not of itself justify the Court finding that that injury is non-accidental. The Local Authority has failed to satisfy the Court that it was a non-accidental injury and that the parents have hidden the cause.
264. I do not accept the Local Authority's swingeing closing contention that:

"There is no credible medical evidence that supports the parents' assertion that there is an underlying medical condition that means he has a propensity to break bones and of course he has had no other broken bones."

That is simply too dogmatic an assertion, given my review of the medical evidence and the osteopenia, indeed had it been operative here, which we know not, would have been a time limited past phenomenon now in any event. The gravamen of the medical conclusions was that it was unlikely but could not be excluded.

265. There is not a real possibility at all, in my judgement, that on the evidence adduced to the Court that one and/or the other parent was the perpetrator of the injury sustained by their child. On the other hand I find that the fracture, be it displaced or not initially, possibly could have occurred at the paternal grandmother's home while the parents were out at Morrisons, but that the Local Authority has failed properly or at all to investigate that itself.
266. Moreover, the Guardian's final closing submissions too, with respect to his very great experience and thorough approach, I find too to be inappropriate and to go too far and to result in that ill advised switching of the burden of proof. I do not depart lightly ever from the Guardian's professional view, but the evidence here simply is not there. The closing submission was this:

"In the absence of evidence that there is an organic reason for bone fragility which may have led to or contributed to the fracture, the Guardian accepts the evidence of Dr Karl Johnson and Dr David Robinson that this injury must have been non-accidental. On the balance of all of the evidence the Guardian does not suggest that the trauma sustained by J occurred at the paternal grandmother's address. It would have to have occurred whilst J was at home in the care of his parents."

267. In fact Dr Johnson, in particular, as I have reviewed his evidence, was far less dogmatic and more equivocal about his evidence than the Guardian would have it be, and left open the possibility of something not yet fully understood being at work here. Accordingly I am satisfied that it is necessary and appropriate for me overall to depart from the Guardian's professional viewpoint.
268. This was a significantly premature baby. He was a tiny twin, sharing a womb in a very small statured woman, only 4 foot 9 inches, as she told the Court, and I am not sure that the doctors appreciated that, who may or may not have had particularly good nutrition throughout her pregnancy. He was an infant who had not yet achieved his normal full term gestation age of 40 weeks, indeed.
269. There was a miscellany of risk factors that could have impacted on his bones in ways not yet appreciated by the medical profession, as referred to by the Judges in those very important and recent cases, depicting a real understanding that we do not yet know everything and that medical science is perhaps always in a state of catch up, if I can put it in that way.
270. The unusual, different and grizzling or moaning sound heard for the first time by the mother later on that afternoon, after she had returned from the Morrisons trip, supports that, in my view. It was certainly not for the mother to suspect at that point in time that her baby's leg had been fractured or indeed that he had been injured in any way and that that was the cause of his grizzliness.
271. There may well be an underlying but still not understood medical condition that predisposed this baby to fracture in the very early stages of his life, but never to do so again, happily. He had a number of risk factors present and there was that lack of routine testing from birth, which would have been a counsel of perfection as both the Court and Dr Robinson accepted, but which has not, of course, assisted thereafter the need to try and determine what went on.
272. I therefore cannot exclude an underlying genetic or other weakness which may have affected his bones at that stage of his development and there are those unresolved radiological issues between Doctors Johnson and Reddy, which did concern the Court and which rather ambushed the medical evidence because it had not been understood that there would be an issue as between them.
273. I do not accept that the persons caring for the child would have known immediately that the child had sustained an injury, although clearly something was wrong by 8.26 PM. Miss O, indeed, said she knew it was broken only when they came out of the x-ray room, and indeed the father had referred at the time to it being dislocated, although he did not remember in his evidence in the witness box uttering that, I believe.
274. I do not accept that the injury necessarily would have been symptomatic at the time that it was sustained. There may or may not have been an adult in the room at the time. The baby may have self soothed rapidly by sucking at his dummy, and the response to an injury thereafter waxing and waning, as Dr Robinson characterised it, and with those variable signs and symptoms as Dr Johnson described it.
275. When held by LH on the way out and in his car seat, given his small frame and the over large snowsuit on him, and that very supportive car seat, which again I saw and the doctors did not, he would have had some measure of support.
276. While the mother was told by the paternal grandmother that the children had been supervised throughout, that may have been no more than a perfectly proper reassuring comment by one mother to another, but this mother cannot know the absolute truth of that. She was not there. The grandmother may have popped out, I have referred to that already, to do all sorts of things, we simply do not know and the Court has been denied that opportunity to explore and have all of that challenged in fine or any detail.
277. I have referred already to the older brother L or E, or it may have been L* - the father's 6 year old sister, having had an opportunity to jump on him and so on and to play around. There is that window of opportunity there that has not been entered or explored at all, and another adult may briefly had come on the scene, something may have dropped on the sleeping child and so on. Again, we simply do not know.
278. As both the leading doctors conceded there is no presently available research which deals with the strength of premature infants' legs. Dr Johnson had accepted that any loss of calcium would be a factor in bone strength and that therefore, inevitably in my perception, relevant to the degree of force required to create a fracture.
279. It appeared to be accepted the bones in such infants may be weaker although they appear radiologically normal. Because of the faster rate of growth in the womb than post birth, growth retardation after 30 weeks may well affect the degree of force required to break the femur, which Dr Johnson stated was outside his area of expertise in any event, leaving the Court only with the Italian Journal of Paediatrics to rely upon, and of course that is not the Local Authority's evidence, it is the mother's. Inevitably, as a radiologist, Dr Johnson relied on the radiographic evidence, while acknowledging the real limitations of that.
280. The Court was left, therefore, without any cogent, credible medical evidence of the force needed to break the leg, nor could it be satisfied to the requisite standard that J's bones were of normal strength at 38/39 weeks. There as a huge lacuna there, therefore. No testing had been undertaking to exclude the condition and there was no possibility, of course, of extrapolating levels from the later results.
281. I was struck by how both Dr Robinsons had confirmed that medical understanding is ever developing and growing in sophistication. What had been accepted by experienced clinicians only two years ago, for example in relation to blood tests, as conclusive evidence, has now moved on apace. Our understanding plainly must not atrophy and become stultified.
282. It is not for the parents to prove what had happened or what might have happened or by whose hand or whatever. The Local Authority is the investigating power here, once the police very early on had left the scene.
283. I am wholly unable and unwilling to indulge in speculation about a fight over money or any sort of argument that night, as the Local Authority have put in their closing submissions. That unfair proposition had never been advanced before in the long lead up to this trial and the various case summaries and in any directions hearings.
284. The parents' evidence was that they had purchased everything they needed for that week in any event, the mother had been able to buy a birthday present for Mr H's younger sister that morning, and the father would receive his wages that Friday. While they had to borrow that money for the taxi, suddenly and unexpectedly that they had to use that night, they had that ready and willing facility from the sister living in the same road, to be able to borrow money if they needed to do so and then to pay her back, and the close support of those two maternal family members doors away.
285. The mother happily was cooking and the father was happily walking in and out checking the babies and neither of them were in the living room. They were together in or near the kitchen, or in the doorway, when they heard that child make that dreadful sound and they could not have injured their child, therefore, in any event.
286. I cannot find without a whole lot more, and the Local Authority has failed to prove, that the father, after one of his best days ever as he said, and carefully putting L down to sleep and lovingly turning J*, suddenly grabbed or swung or dropped or snapped J's tiny leg, or kicked him or did anything like that at all when the baby was in the Moses basket.
287. That would have been totally uncharacteristic in my understanding of the father's character and behaviour since the babies have been born. It would have been a completely uncharacteristic level of direct violence, which I do not find he has ever employed before, and whether that was allegedly because, and again this has not been pleaded as such, J was tired or irritable or would not settle or whatever, I do not find that to have happened at all.
288. Nor do I find that the parents have, or one of them, feigned shock and surprise to the other one and then maintained that pretence over 18 months. I did not find Mr H to be a young man on a short fuse. Like Miss O he demonstrated pure joy and pride in his children.
289. The assertion also from the Local Authority that one of the parents must be covering up for the other and it being concerned about the absence of recriminations as between them does not find favour with the Court whatsoever. I am not prepared to assume that that is what happened here. I find that to be unthinkable on the weight of all the evidence, and of course one can only launch recriminations at another if you seriously believe that somebody else is guilty and do not trust that person, and that was not the situation here at all.
290. While the Local Authority of course has as its fundamental duty the need to protect children and to discern who may have injured a child and why, the fullest ventilation of all the evidence here made available over five days has failed to establish the facts as the Local Authority, and the Guardian too, would have them be. There is still an incomplete picture here of the complex medical evidence.
291. As the judge at first instance in Re C and D found, applying the Re B [2008] case, there is no room for a finding that a fact might have happened. There is a binary approach. If the burden of proof is not discharged the fact did not happen. It is not for this Court, having exercised that overview of the totality of the evidence to try and pinpoint some possibility and announce that as a result, if the evidence is not there, and it is not.
292. While properly acknowledging that it was obviously challenging having these three young children under the age of two with their competing needs and on a limited income, each parent gave credit to the other for their child caring abilities and they have shown patience, love and commitment to their children's care.
293. I accept the mother's particularly compelling evidence that she would never cover up anything to protect herself or her partner. She said with real emotion and clarity:

"I would not put myself in this boat if I knew M had done it."

I am clear that she would have disclosed any untoward behaviour by him, both to prioritise her children's needs, to exculpate herself and, more importantly perhaps overall, to regain the care of her children, always putting their needs above the father.

294. I find therefore that the parents reacted entirely appropriately and immediately once they realised that something was seriously amiss with J. There was no delay in seeking the grandmother's and professional medical advice and discussing the matters openly at hospital and in interview and throughout the course of these proceedings.
295. They have genuinely attempted to try to get at the truth. They have not lied I find. Their individual accounts given and their behaviour in response to their child's obvious distress is both clinically significant and an important aspect in the overall diagnosis, as it were, of the case, and as the two experts stated, it is factually important from the Court's point of view and shows real consistency. I have accepted and dealt with the fact already that the experts, of course, did not understand much about the factual chain of events or hear the parents' evidence.

CONCLUSION

296. It appears to me that these parents have done everything required of them over the lengthy months of these proceedings and demonstrated themselves to be wholly involved, dedicated and loving parents who have been able to maintain their own relationship and also their relationship with their children while fully cooperating always with the Local Authority's and the Court's requirements of them.
297. There has been not one jot of criticism of their handling of their children nor any question marks over their competence or emotional warmth. Indeed they have been exemplary in their behaviour throughout in their acceptance of limitations placed on them in a way which again is not always or usually experienced by the Court in such cases.
298. At the end of it all the Court is left simply with too many unknowns and a still incomplete picture, with the possibility of a spontaneous fracture as a result of some as yet not fully understood bone deficiency, or secondly, a fracture caused when the child was out of the parents' sight and care and then perhaps displaced by the baby later kicking his leg involuntarily in his sleep at home and experiencing sudden pain and alerting his carers in the only way a baby can.
299. Thereafter he did not behave at times, it would appear, in a manner expected by the experts, and had what might be termed an unusual reaction to pain. He was of course, and I have referred to this already, recorded by the consultant in unchallenged evidence, as moving both lower limbs at hospital, although Dr Robinson expected that a child injured in this way instinctively would not move his limb. He had been handed over between the mother and grandmother, both at home and on the way to hospital and grizzled and cried then.
300. That depicted the broad range of pain tolerance accepted by Dr Robinson. It was only when the leg was specifically manipulated to facilitate the second x-ray plate being taken, that the baby then became inconsolably upset, assuaged only by immobilisation in plaster.
301. I conclude that neither of these parents hurt J in any way at all after their happy weekend and fun day out, and exclude both of them without hesitation. It is not a real possibility, in my judgement, that either of them inflicted this injury on their child. I accept their evidence as credible and truthful. The Local Authority has therefore failed to prove its case. The Section 31 criteria are not established and there is real uncertainty here. The precise cause of J's injury must be designated as of unknown origin.
302. That concludes this Judgment and the very lengthy life of these proceedings. The Court wishes the parents luck and happiness with their children in the future. The Court also extends particular gratitude to all Counsel and Advocates here for their really valiant work. A lot of work I know has gone on, a lot of research also, and that very greatly assisted the Court in its not by any means easy task in this challenging case.