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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B26.html
Cite as: [2015] EWFC B26
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IN THE FAMILY COURT SITTING AT LEICESTER
CASE No LE14CO0670
Before His Honour Judge Clifford Bellamy
(Judgment handed down on 12th March 2015)
Re FM (A Child: fractures: bone density)
Mr Martin Downs appeared for Leicester City Council
(instructed by Leicester City Council Legal Services)
Ms Hannah Simpson appeared for the mother (instructed by Blavo & Co
Mr Martin Kingerley appeared for the father (instructed by Johnston Astills)
Ms Emma Burden appeared for the child (instructed by Dodds & Co)
Ms Hannah Markham appeared for the Intervener (instructed by RP Robinson & Co)
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.
JUDGE BELLAMY:
1. Leicester City Council (‘the local authority’) applies to the court for a care order in respect of FM. FM is eighteen months old. Her parents are MS (‘the mother)’ and LT (‘the father’). The trigger for these proceedings was FM’s admission to hospital on 9th July 2014 where she was found to have unexplained fractures to her right and left tibia. The case comes before me now for a finding of fact hearing.
Background
2. The mother is aged 23. The father is aged 30. The mother is white/British. The father is White/British/African Caribbean. FM is therefore a child of dual heritage.
3. The parents’ relationship began in July 2012. They never lived together. They are unmarried.
4. The parents’ relationship was unhappy. There was domestic violence. The last incident occurred on 5th February 2014. It led to the mother applying for and obtaining a non-molestation injunction. As a result of that incident their relationship ended.
5. The mother also applied for a residence order and prohibited steps order. On 7th February the court made an interim prohibited steps order prohibiting the father from removing FM from her mother’s care.
6. The mother’s applications were ongoing at the time these care proceedings were issued. They had been listed for a final hearing on 20th August.
7. Within the private law proceedings Jo Wilkins, an officer of Cafcass, prepared a written report pursuant to s.7 of the Children Act 1989. That report is dated 19th June 2014. Ms Wilkins recommended that the father should not have direct contact with FM. She proposed that he should have indirect contact by cards, presents and photographs. The father has never had FM in his sole care.
8. Upon the local authority issuing these care proceedings Ms Wilkins was appointed as Children’s Guardian for FM.
9. Since birth, FM and her mother have lived with maternal grandparents, GM (‘the grandmother’) and AM (‘the grandfather’).
10. On 12th June the mother was involved in a road traffic accident. She was driving down a country lane when her power steering failed. She lost control of the car and ran into a bush. FM was also in the car, strapped in a car seat behind the front passenger seat. Although FM had been distressed she quickly settled when the mother got her out of the car. She immediately stopped crying. The mother says that she ‘seemed fine’.
11. On 9th July the mother noted that FM was out of sorts. She was irritable. She would not take her bottle. She noticed swelling to FM’s right lower leg. She was concerned about her. She made an appointment for FM to be seen by a GP. Following examination the GP advised that FM be taken to hospital. An x-ray disclosed that FM had fractured her right distal tibia. The mother was unable to provide an explanation.
12. The next day, 10th July, a skeletal survey was undertaken. This disclosed a healing fracture to FM’s left tibia.
13. A referral was made to Children’s Services. On 11th July the mother agreed to FM being accommodated by the local authority under s.20 of the Children Act 1989. She was placed in foster care. She remained in foster care until 8th September when she moved into a kinship placement.
14. Although the mother has lived with her parents, it is accepted that as a result of his own frailty the grandfather’s involvement in FM’s care has been very limited. If the court were to find that FM’s injuries were non-accidental, the only possible perpetrators are the mother and the grandmother. The mother and the grandmother both accept that to be the case. Neither has been able to provide an explanation for FM’s injuries.
FM
15. FM was born at full term. She was noted to be in good condition at birth. Since birth her presentation to health professionals has been unusually extensive. I note only the most serious issues.
16. FM was admitted to the Leicester Royal Infirmary (‘LRI’) on 22nd August when she was one day old. She was found to be suffering from erythema toxicum, suspected sepsis and jaundice. She was given antibiotics intravenously. She was discharged on 28th August.
17. During the following weeks FM was seen regularly by her GP and her health visitor. At her six week check the health visitor noted that she had infantile eczema. On 21st November she was referred to the paediatric dermatology clinic. In December 2013 that she was prescribed Eumovate, a topical steroid cream. The significance of this will become apparent later in this judgment. FM is still under the care of the paediatric dermatology clinic and has had regular follow-up appointments since the date of her original referral.
18. On 10th December 2013 FM was again admitted to the LRI. She was shivering. She looked pale. She was diagnosed as suffering from a urinary tract infection. She was discharged on 12th December.
19. On 1st March 2014 FM was once again admitted to the LRI. She was noted to be shaking and mottled. There was concern that she may be suffering from sepsis. She was discharged on 5th March.
20. On 11th March the family’s GP made an urgent referral to the LRI. In the referral letter the doctor said,
‘This 28 week old has had 3 hospital admissions since November, each time she has become suddenly unwell…I would be grateful if you could review and assess her to see whether there is a need to undertake any further investigation…The last episode was quite scary because her mother only noticed that she was quite unwell in the middle of the night. The child had not given any indication of anything happening and I think this is what is particularly scary.’
21. MB became the allocated health visitor on 4th July. She took over from EL. On 9th June they had made a joint visit to the family home. MB says that she did not observe anything that caused her concern. In particular there were no concerns either about mother’s handling of FM or about the condition of the home. Before that visit she had had handover discussions with EL. EL had not raised any concerns about this family.
22. On 4th July FM underwent a kidney scan. Later that day the health visitor, MB, undertook a developmental check. She assessed FM’s gross motor skills. She noted that FM was not then pulling herself up from the floor to a standing position and that she was not yet weight-bearing. When put into a standing position FM pulled her legs up under herself. MB has seen more than 1000 children during her career. She has never seen a child do that before.
23. The health visitor reported that she observed good interaction between mother and baby and that mother was seen handling FM with warmth and affection.
24. On 9th July FM was taken to hospital. On discharge she was placed in foster care. MB visited the foster placement on 14th August. She observed FM to be bottom-shuffling around the living room. She was still not crawling or weight-bearing, When an attempt was made to get her to weight-bear she pulled her legs up under herself or pushed herself back to be seated. The health visitor remained concerned.
25. On 19th August FM was referred for genetic testing and immunological review
26. On 8th September FM moved into a kinship placement. Having moved areas there was also another change of health visitor. The new health saw FM in her new placement on 16th September. She noted that FM favoured her left side, that she would use her hand and left buttock to move across the floor, that she would not weight-bear and that when sitting she would lean more to her left side. FM’s carer reported that she had observed her losing power when using her left arm.
27. On 30th October FM was seen in the Department of Clinical Genetics. It was decided that genetic testing should be undertaken in order to screen for osteogenesis imperfecta.
28. On 20th December FM’s carers called for an ambulance. FM had fallen over and banged her head on laminate flooring. It was believed that she may have had a further convulsion. She recovered after a few minutes.
29. On 6th January 2015 FM was taken by ambulance to the Accident & Emergency Department. The medical chronology records that her carer ‘had picked her up and she went pale, floppy for around 5-10 seconds, lost tone, blue around the mouth, pale lips, not responsive, no seizure, resolved spontaneously.’
Foster care
30. From her discharge from hospital on 11th July 2014 until her placement with kinship carers in September, FM was placed with very experienced foster carers. They have been foster carers for around 14 years during which time they have had many children placed with them, two of whom they have adopted.
31. In her evidence the foster mother noted that FM appeared to be delayed in her gross motor development. She was unable to sit up unaided and had to be propped up with cushions. She had a tendency to bang her feet on the floor so she had had to put a quilt under her feet. She would not stand or weight-bear. She didn’t like her feet on the floor at all. Developmentally she appeared to the foster mother to be more like an 8 month old child than a 12 month old child.
32. Notwithstanding her problems, the foster mother described FM as a happy child. It had been a joy to have her in her care. She had seen the mother and FM together. She had seen no evidence of FM being fearful either of her mother or of her maternal grandmother. The mother had never missed a contact session. She had been present at every medical appointment.
Medical evidence – areas of significant agreement
33. The court gave permission for reports to be obtained from three medical experts: Dr Karl Johnson, a Consultant Paediatric Radiologist at Birmingham Children’s Hospital; Dr Nicholas Wild, a Consultant Paediatrician currently in practice at Spire North Cheshire Hospital; and Dr Jeremy Allgrove, a Consultant Paediatrician and Paediatric Endocrinologist at the Royal London Hospital. There is a significant amount of agreement between the experts but also some important areas of disagreement.
FM’s injuries
34. The presenting injury was to FM’s right leg. X-rays taken on 9th July 2014 (the day of admission) disclosed a spiral fracture of the distal right tibia.
35. A skeletal survey was undertaken on 10th July. This disclosed evidence of a healing transverse fracture to FM’s distal left tibia.
36. The hospital notes record that on admission FM was found to have pinpoint bruising to her inner right leg. The bruising is noted on a body map. The bruising was not recorded by the GP though he did note the swelling. There are no medical photographs
37. No other injuries have been identified.
Mechanism and force
38. Dr Johnson said that there is nothing in the radiological evidence that would enable him to say whether these are accidental or non-accidental injuries. His evidence as to mechanism and force is in conventional terms. He says that,
‘Both these fractures are the result of significant force applied to the bone. The amount of force required to cause these fractures is unknown but in my opinion, it is significant, excessive and greater than that used in the normal care and handling of a child.
These fractures do not occur from normal domestic handling, over exuberant play or rough, inexperienced parenting.
I note at the time these fractures occurred, FM was less than a year old and I would typically not expect her to have the strength or level of development to self-inflict these injuries.
To cause the spiral fracture of the right tibia involves some degree of twisting/torsional force applied to the bone.
The fracture of the left tibia is the result of a blow, impact or snapping action applied to the bone.’
39. That opinion is premised upon Dr Johnson’s finding that there is no radiological evidence of any underlying bone abnormality. Dr Wild agrees that there is no evidence of bone abnormality. Dr Allgrove disagrees. If, as Dr Allgrove suggests, there is reason to believe that the density of FM’s bones may not have been normal, then it would follow that the degree of force required to cause these fractures would be less than that suggested by Dr Johnson and Dr Wild.
40. The mother suggests that the spiral fracture may have been caused by FM poking her foot through the bars of her crib and getting it trapped. In his written evidence Dr Johnson says that even if FM did trap her leg in between the bars of her crib he did not believe that this would generate sufficient force to cause these fractures. Once again, that evidence is premised on the belief that FM did not have any kind of bone abnormality which might predispose to bone fragility. In his oral evidence Dr Johnson conceded that if FM were suffering from reduced bone density, the force required to cause the spiral fracture ‘could be less’. Dr Allgrove said that the suggestion that FM may have sustained the spiral fracture by poking her leg through the bars of her crib and getting her foot stuck was not plausible if FM had normal bones. However, if she did not then have normal bones the hypothesis becomes more plausible.
41. As for the transverse fracture to the left tibia, the mother wonders whether this may have been caused in the road traffic accident on 12th June. Dr Johnson says that the mother’s description of the accident ‘does not appear to imply sufficient force was transmitted to FM’s legs to cause a fracture’. None of the medical experts consider there to be a real possibility that the road traffic accident provides an explanation for the causation of this fracture.
Timing
42. The x-rays taken on 9th July do not show any evidence of bone healing. There is still no evidence of any healing response on further x-rays taken on 11th July. X-ray evidence of bone healing begins to appear between 5 and 11 days after the fracture was sustained. In Dr Johnson’s opinion, from a radiological perspective, this fracture was sustained between 1st and 9th July.
43. On the basis of the skeletal survey undertaken on 10th July, Dr Johnson says that he would estimate that the earlier transverse fracture to be in the region of 3 to 5 weeks of age on 10th July. The window within which that fracture is likely to have been sustained is therefore from 29th May to 19th June.
44. Paediatric evidence may assist in narrowing the window suggested by the radiological evidence. The paediatric approach is to consider the entirety of the clinical evidence and in particular to try to identify the last time when the child was known to be presenting normally. Dr Wild notes that FM appears to have been well on 8th July. In his opinion,
‘If this information is correct, it strongly suggests that the trauma causing the fracture…occurred during the evening or night of the 8th/9th July 2014 prior to the swelling being first seen the following morning.’
He goes on to say that,
‘The absence of any history of bruising or swelling being seen prior to the morning of 9th July 2014, strongly suggests that the bruising was caused by trauma on the 8th or 9th July 2014 prior to the bruising first being seen.’
45. Dr Allgrove agrees with Dr Johnson and Dr Wild as to the timing of the presenting injury. Neither Dr Wild nor Dr Allgrove is able to assist in narrowing the window suggested by Dr Johnson in respect of the fracture to FM’s left tibia.
Pain response
46. Though expressing the opinion that at the time of the fractures FM would have been in pain, Dr Johnson defers to the paediatricians in all aspects of clinical presentation.
47. Dr Wild’s evidence on FM’s pain response follows what I have come to regard as the standard paediatric formulation. He says that,
‘When FM sustained the trauma causing the transverse fracture of her left tibia and the spiral fracture of her right tibia she would have experienced marked pain and discomfort. She would have cried and possibly screamed for a period of at least several minutes. Thereafter her pain and discomfort would gradually have settled over a period of several hours to several days. During this time it would not have been obvious to a carer who had not witnessed the trauma occurring that FM had sustained significant trauma to her leg until swelling and/or bruising was observed. There may have been reduction in movement of the affected limb but as FM was not weight bearing at the time and the fractures were not significantly displaced, this might not have been appreciated by a carer who had not witnessed the trauma occurring.’
48. In his oral evidence Dr Wild repeated another expression oft used by paediatricians in such circumstances, opining that the pain response would make this a ‘memorable event’ for the carer.
49. Even if at the time of the trauma FM were suffering from a predisposition to bone fragility (and he does not accept that she was) it is Dr Wild’s opinion that this would have had no impact on her pain response. The moment of trauma would still have been a ‘memorable event’. Dr Allgrove disagreed. In his opinion, in the case of a child with a predisposition to bone fragility, it is possible that a carer who had caused a fracture would not necessarily have appreciated that they had done so.
Osteogenesis imperfecta
50. There is no radiological evidence of osteogenesis imperfecta. Dr Johnson accepts that the absence of radiological evidence does not by itself rule out the possibility that FM was suffering from osteogenesis imperfecta. He acknowledges that it is possible that ‘in some rare cases the radiological findings are normal, but a child does have a disorder of bone that predisposes them to fracturing’.
51. Genetic testing has been undertaken. The report on the results of the testing states that ‘No pathogenic mutation has been detected in these genes’. This does not give absolute confidence that osteogenesis imperfecta is ruled out. As the report makes clear,
‘…it is unlikely that the symptoms seen in this individual are caused by pathogenic mutations in these genes. This does not exclude a diagnosis of osteogenesis imperfecta as other rare mutational mechanisms not detectable by this analysis may be present or other genes may be involved.’
52. In addition to the radiological and genetic evidence, clinical evidence must also be taken into account. In this case there is no clinical evidence of osteogenesis imperfecta such as, for example, blue sclerae. Dr Allgrove also notes that there is no relevant family history.
53. All three medical experts are agreed that FM does not suffer from osteogenesis imperfecta. Notwithstanding that agreement, I was troubled by an observation made by Dr Wild in his oral evidence. He said that the chance of a child suffering from osteogenesis imperfecta in the absence of radiological, genetic or clinical evidence or family history is 1:2,000,000. He was unable to refer to any statistical evidence to support that assertion. Whilst his statistical observation is of no consequence on this point (because the experts are all agreed that FM does not suffer from osteogenesis imperfecta) it is not the only occasion during this hearing when Dr Wild has given evidence that strays outside his field of expertise.
Medical evidence – areas of significant disagreement
54. At the heart of the disagreement between the medical experts is the question of whether, at the relevant time, FM’s bones were ‘normal’ and if they weren’t whether any abnormality could have predisposed her to bone fragility. That overarching question breaks down into four key issues: (1) the significance of the fact that FM is hypotonic and her joints hypermobile and hyperextensible; (2) whether her bones were under-mineralised; (3) whether the use of topical steroid cream may have caused or exacerbated under-mineralisation of her bones; and (4) whether the combination of the first three factors may have predisposed FM to bone fragility.
(1) The significance of the fact that FM is hypotonic, and her joints hypermobile and hyperextensible
55. On this issue the relevant medical evidence comes from Dr Allgrove and Dr Wild. It is important at the outset to make the point that Dr Allgrove has examined FM. Dr Wild has not. I asked Dr Wild whether, with hindsight, he thought it may have assisted him to have examined FM. He said that it would not. I am in no doubt that on that issue Dr Wild’s response was unwise.
56. In his written evidence Dr Allgrove said,
‘I did feel that she was mildly hypotonic. She had slightly hyperextensible elbows and knees. She tends to sit with her legs in a “frog position”…In my opinion this child is more hypotonic (floppy) than other children. It is not usually possible to determine any particular underlying genetic cause of this but it is sometimes the case that children who are hypermobile have a slightly increased predisposition to fractures. A combination of this plus the topical steroids may possibly have predisposed her to an increased fracture risk.’
57. In his oral evidence Dr Allgrove said that FM had a ‘significant degree of hypotonia and hypermobility’. He said that although he had only seen her for an hour he had been ‘very struck’ by her hypermobility. She sat on the floor in an unusual position, with her legs splayed widely apart, ‘frog-like’. She was not crawling. She was not walking. She was bottom-shuffling. He had lifted her up under her arms. As a result of the hypermobility of her joints she had slipped through his hands. In terms of her musculoskeletal appearance FM was not normal. In his opinion the fact that she is hypotonic, has hypermobility of her joints and is mobile only to the extent of bottom-shuffling, indicate that she is developmentally delayed.
58. Dr Wild accepts Dr Allgrove’s assessment that FM is ‘mildly’ hypotonic and has ‘slightly’ hyperextensive elbows and knees. Mild hypotonia is a very common finding and normally resolves by the age of 2. Dr Wild sees no significance in that finding so far as concerns FM’s fractures.
(2) Under-mineralisation of FM’s bones
59. In his report, Dr Allgrove said that it was his ‘impression that the bones seem a little under-mineralised’ though ‘it is extremely difficult to assess bone density on plain X-ray films’.
60. Dr Johnson makes the point that the resolution and quality of the images when viewed on a laptop (which is how Dr Allgrove had viewed them) is significantly inferior to the resolution and quality when viewed on the high-tech monitors used in hospital. In his opinion the imaging discloses normal bone density. Dr Allgrove accepted that on this point it was necessary for him to defer to Dr Johnson.
61. However, the fact that Dr Johnson’s opinion is that the x-ray shows no evidence of demineralisation, is not the end of the matter. Dr Johnson qualified his opinion, accepting that x-rays cannot give a definitive answer on the level of bone density. He concedes that even when the radiology is normal it is possible for a child to have an increased propensity to fracture.
62. Before this hearing began there had been a telephone conference between the medical experts, chaired by counsel for FM. On this issue, Dr Johnson said:
‘I think there’s a variety of things we’re saying. First and foremost, x-rays are very poor indicators of bone mineralisation, and certainly on the borderline between normal and abnormal it is very subjective…And secondly, a child may have increased bone fragility due to a variety of reasons and one of them may be they’ve lost a lot of calcium in the bones, but the x-rays to all observers look normal. It is also possible that a child may have an underlying disorder of the bones such as osteogenesis imperfecta, and again the bones may appear normal’.
63. Dr Wild does not accept that there is any evidence of under-mineralisation of FM’s bones. In the conference between the experts he said that in his view,
‘there’s no evidence that FM’s bones were demineralised or had low mineralisation. Dr Johnson may want to correct me, but my understanding is that you have to have at least 20% demineralisation for it to be visible on x-rays, and if we accept that it wasn’t visible on x-rays then there wasn’t major demineralisation – and that, in my view, would not be sufficient to increase the risk of fractures occurring in a child of that age who was non-mobile.’
64. A DEXA scan is an enhanced form of x-ray technology that is used to measure bone loss. In adults, it is more effective than normal x-rays in identifying low bone mineral density. However, DEXA is not used as a modality for routine clinical assessment of skeletal health in infancy. Dr Johnson said that he does not undertake DEXA scans on children under the age of 2 because, at that age, such scans are regarded as being very unreliable.
65. It is Dr Allgrove’s opinion that there is a link between hypermobility, hyperextensibility and under-mineralisation of the bones. There is some support for this in the literature. A study undertaken in Brazil, reported on in 2002, concluded that
‘…we observed lower bone mineral density in children with hypermobility (independently of the presence of musculoskeletal pain) and in children with musculoskeletal pain (independently of the presence of hypermobility) with respect to the control. It is possible that structural alterations to the collagen of children with joint hypermobility (independently of the presence of pain) are responsible for these results.’
66. In response, Dr Wild makes the point that the sample group in that study comprised children aged between 5 and 10 years and the tentative conclusions arrived at may not necessarily apply to younger children. Dr Allgrove acknowledges that there is no indication in that paper of any of the subject children having sustained fractures. That paper and the responses to it by Dr Allgrove and Dr Wild serve to highlight the limit of current medical knowledge in this area.
(3) The use of topical steroid cream.
67. Since she was only a few weeks old FM has suffered from eczema. Nurse Wendy Swanson, a dermatology specialist nurse at the LRI, described FM’s eczema as being moderate to severe. During the period from December 2013 to July 2014 FM was prescribed a mid-strength topical steroid cream, Eumovate. Nurse Swanson had advised the mother to administer the cream to the affected area once a day when needed. The use of Eumovate was not wholly effective in treating FM’s eczema. In September 2014, whilst in foster care, FM has been prescribed Elocon. Elocon is a topical steroid cream that is significantly stronger than Eumovate.
68. There is an issue about whether the absorption of steroid from the application of Eumovate could have caused or exacerbated the under-mineralisation of FM’s bones. This is outside Dr Johnson’s area of expertise.
69. The possibility that the use of Eumovate may have caused or exacerbated under-mineralisation is an issue that was first raised by Dr Allgrove in his written report. He said that he was
‘impressed with the amount of topical steroid cream that [the mother] had been using. She explained that she had been using Eumovate which is a mid strength topical steroid three times a day continuously for approximately nine months before the fracture occurred. Although topical steroids are not as problematic as systemic steroids in causing bone problems, it is possible to absorb sufficient steroid from topical applications that has some effect on bone health if they are used frequently enough and in sufficient dose, and it is possible that she used between the aged (sic) of three and twelve months might explain her low bone density and an increased predisposition to fractures. However, I do not believe that she has any genetic condition that might account for her predisposition to fracture.’
70. In his oral evidence Dr Allgrove made the point that during the first two years of life growth is very rapid and is accompanied by an increase in the level of mineral laid down in bone. It follows, therefore, in his opinion, that any use of steroids at a time of rapid growth is likely to have a greater impact than in later years.
71. The issue of how much Eumovate has been used is a difficult issue. Dr Wild made the point that eczema is a very common childhood condition. He has treated much worse cases of eczema and has prescribed far more topical steroid than was prescribed for FM with no evidence of de-mineralisation or predisposition to fractures. Only a small amount of topical steroid is absorbed. He puts the absorption rate at 10% but accepts that that is a guess. At paragraph 133 of his written report he undertakes a calculation of the amount of steroid likely to have been absorbed by FM. He estimates that over the whole of the relevant period it is likely that the amount absorbed was less than that which would be absorbed following a prescription of a single course of oral steroid (prednisolone) for a period of 3 to 5 days following an acute asthma attack. There is no evidence in the literature that a 3 to 5 day course of prednisolone has ever been associated with fractures or other long-term adverse effects.
72. Dr Wild produced an abstract from a study published in the Emergency Medicine Journal. The outcome of the study suggested that whilst there is an increased risk of fracture following the use of more than 2.5mg of prednisolone-equivalent orally per day, no increase in fractures could be demonstrated as a result of topical corticosteroids even at high doses. I assume that ‘high doses’ means ‘high prescribed doses’. Dr Wild informed the court that there is no evidence that the application of Eumovate more than once a day has any greater benefit than application at the recommended (in this case the prescribed) rate of once a day.
73. Dr Allgrove accepts that with normal use of topical steroids there is no risk of fracture. However, he had understood from the mother that she had applied Eumovate three times per day and had not limited this to the affected areas but had applied it to FM’s whole body. He remains of the opinion that if enough Eumovate is applied it is possible for sufficient to be absorbed to cause problems. He is not aware of any evidence in the literature concerning the rate of absorption of topical steroids. However, in his opinion the more Eumovate that is applied the more is likely to be absorbed. Children are more likely to absorb topical steroids than adults.
74. I have some difficulty with Dr Wild’s evidence on this issue. Firstly, as he himself conceded in his oral evidence, his calculations were based on an inaccurate figure in respect of the total amount of Eumovate prescribed during the period prior to 9th July 2014. The amount actually prescribed was 380 grams. That was more than three times the figure he had worked on. Secondly, whilst it is accepted by Dr Allgrove that the absorption of steroid from a topical cream would be less than in the case of an oral dose of steroid, he is not aware of any evidence in the literature concerning the level of absorption of steroid from a topical application of steroid cream. Dr Wild, too, is unaware of any research on this issue. His estimate of a 10% absorption rate is, as he accepted, a guess. It has no scientific foundation. It also takes no account of what Dr Wild accepted would be the likely increase in the absorption rate as a result of the treated area of skin being covered by clothes after application.
75. In addition to those points I note that under the heading ‘Possible side effects’ the information leaflet provided by the manufacturers of Eumovate advises:
‘Very rare (may affect up to 1 in 10,000 people)…bones can become thin, weak and break easily’.
There has been no exploration of the evidence base upon which that warning is based. In Dr Wild’s opinion there is not necessarily any evidence base for that warning which may have been given by the manufacturers in order to cover themselves. That rather cynical view is mere speculation.
76. It is clear that the mother’s use of Eumovate was more frequent (greater than once a day) and more extensive (not limiting application to the affected area) than had been recommended both in clinic and on the information leaflet which came with the cream.
(4) Did the combination of the above factors predispose FM to bone fragility?
77. Dr Wild’s position is clear. There is no established link between hypotonia, hypermobility and hyperextensibility, on the one hand, and predisposition to fractures, on the other. During the experts’ meeting he said,
‘I don’t believe that mild hypotonia is associated with an increased tendency to fractures, certainly in very young children. I can find no evidence in the literature that would support that argument, and I’ve never seen it in my paediatric practice over many years. So my view is that hypotonia is a common finding in young children, they’re often late walking, they sit on air, they’re bottom shufflers sometimes, but they eventually develop normal gross motor skills, sometimes they don’t start walking until they’re 18 months or even two years, but they get there eventually. What they don’t do is sustain fractures.’
There is no evidence of under-mineralisation of FM’s bones and no real possibility that the application of Eumovate more extensively and at a greater frequency than recommended has had any impact on her bone density. This is a simple case of non-accidental injury.
78. Dr Allgrove’s position is equally clear. In his report he said that,
‘it is sometimes the case that children who are hypermobile have a slightly increased predisposition to fractures. A combination of this plus the topical steroids may possibly have predisposed [FM] to an increased fracture risk’
79. Dr Allgrove expanded on these views during the experts’ meeting. Having referred to his finding that FM is hypermobile he said,
‘Now, the question that arises then is, is there any link between…hyperextensibility and hypotonia and abnormal bone density? And I would agree with Nick that in the vast majority of people most of it is benign and there is arguably no link between the two. However, I think there are a few people in whom there is an increased risk of um – there is an increased reduction in bone density which may be difficult to quantify and does make them slightly more prone to fractures…It’s just that, you know, in my experience there are a few people who seem to have an increased risk of fractures in association with hyperextensibility and hypotonia, and whether they fall into the category of – it’s a rather grey area between those who are described as having benign familial hypotonia. And what Nick is describing is exactly these sort of people, they tend to bottom shuffle, they tend to be a little bit late with their motor development, as indeed this child is, but there’s a sort of grey area between that and what is sometimes described as Ehlers-Danlos Type III where they have hyperextensibility, they may have a little bit of increased fragility of the skin and what-have-you, and I think some of them have a slight increased risk of fractures. But it is a very, very grey area.’
80. So far as this issue is concerned, the outcome of the experts’ meeting was that Dr Wild and Dr Allgrove agreed to disagree. In their oral evidence they continued to disagree.
The relevance of FM’s post-admission history
81. It is appropriate to mention one final area of disagreement between the medical experts. Since her admission to hospital on 9th July, FM has not sustained any further fractures. Dr Johnson considers that to be a relevant point in considering the evidence relating to the two fractures. Dr Wild made a similar point. For his part, Dr Allgrove did not accept that this is necessarily a significant factor. The process of bone mineralisation is ongoing. The fact that there may have been an under-mineralisation of FM’s bones at the time when the fractures were sustained does not necessarily mean that that remains the case today.
The mother’s evidence
82. The mother works 18 hours a week as a care assistant in a care home for learning disabled, dementia sufferers and the elderly. She says that her parents care for FM whilst she is working. The reality is that because of her father’s disabilities it is her mother who cares for FM when she is at work.
83. The mother did not work on either 8th July or 9th July. She had primary responsibility for caring for FM over those two days. There was nothing about FM’s presentation on 8th July that gave cause for concern. She slept normally that night. Nothing untoward occurred.
84. When she got FM up the next morning she noticed that she was ‘whinging’ and ‘grumpy’. She thought she may perhaps be teething. Her parents were out that morning. She was caring for FM on her own. She took her into the garden and put her in her walker and, for the very first time, FM put her feet on the floor and tried to walk. However, she didn’t settle. The mother fed her. She then laid her on the floor and lay next to her until her parents got home.
85. She noticed that FM appeared to be in pain if her right leg was moved. She pointed this out to her mother. Her mother advised her to make an appointment to go and see her GP. The appointment was made for later that afternoon. Whilst they were in the waiting room at the medical centre grandmother took off FM’s socks. They noticed a lump on her leg which they thought looked like an insect bite mark.
86. After examining FM, the doctor contacted the hospital for advice. He told the mother that FM needed to go to hospital to have her leg x-rayed. It was not until she was told the result of the x-ray that the mother realised there was something seriously wrong. She has done nothing to cause FM’s injury.
87. Though the mother does not offer this as an explanation, she says that FM was known to put her feet through the bars of her crib. She wonders whether FM may have got her foot stuck and twisted her leg and that that has caused this fracture.
88. The next day, 10th July, as a result of a skeletal survey, it was found that FM had a healing transverse fracture of her left tibia. On 12th June she had been in a car accident. FM had been in a forward-facing baby seat in the back of the car, behind the front passenger seat. It is a small car. When in her baby seat FM is able to kick the front seat with her feet. The mother wonders whether this fracture could have been caused by the impact of the accident if, at the point of impact, FM’s leg was touching the back of the front passenger seat. She does not offer this as an explanation. She accepts that it is speculation on her part. She has no explanation for this injury.
89. FM had a range of health and development issues. She didn’t crawl. She was significantly delayed in starting to walk. It seemed to the mother that she had no strength in her legs. She says that sometimes her right arm ‘looks funny’ and that she struggled to roll over. She said, ‘my beautiful little girl wasn’t normal. I knew something wasn’t right from the start’.
90. As I have noted, one of FM’s health problems is that she suffers from eczema. The mother told Dr Allgrove that she applied Eumovate three times per day. At the time she said that she had not known of any possible link between the use of topical steroid and bone density. If she was exaggerating, it is clear that she was not doing so in order to try to provide an explanation for the fractures.
91. In her oral evidence the mother said that she had applied Eumovate two or three times a day. She had done so as much for prevention as for cure. That was the only way she was able to manage the eczema. If she didn’t apply it regularly then FM would scratch herself, rub her head on the floor and pull her hair out. She noticed that on those occasions when she didn’t apply Eumovate the eczema would flare up again. She had applied the cream to all parts of FM’s body except for her bottom and her genital area.
92. As she gave her evidence there were times when the mother was very distressed. She was clear that she was unable to provide an explanation for FM’s injuries. ‘If I knew what had happened I’d tell you’ she said. In the circumstances, her demeanour and her response to questions were entirely appropriate. I found her to be a credible witness.
Maternal grandmother’s evidence
93. GM is FM’s maternal grandmother. It is clear from her evidence that she is a very ‘hands-on’ grandmother. She has 11 grandchildren. She is a very experienced grandmother.
94. GM cares for FM when the mother is at work. She assists with FM’s care even when the mother is not at work. Her husband does not play an active role in caring for FM. He suffers from arthritis. He has poor mobility and poor motor skills. He finds it difficult to walk.
95. GM has no idea how FM sustained two fractures. She has not caused them. She does not believe that her daughter is hiding anything.
96. GM confirms that the mother was not at work on 8th July 2014 and therefore had primary responsibility for caring for FM that day. There was nothing unusual in FM’s presentation. There was no memorable event. It was an entirely normal day.
97. GM has no explanation for the spiral fracture. She asked rhetorically, ‘how does a child go to bed normal and get up like that?’ She confirmed that on the morning of 9th July FM had been ‘a bit grizzly’ when she got up. As usual, she had taken her granddaughter to school. She had then gone to visit her daughter, T. When she returned home the mother had told her that FM was still unsettled. She said that they should take FM to see the doctor. She made an appointment. Whilst they were in the waiting room she took FM’s socks off and saw what she thought was an insect bite mark on her leg.
98. GM referred to the health difficulties FM has had during her short life. This has clearly caused her great anxiety and concern. She is concerned not only about FM’s general health but also about her development. FM was 10 months old at the time of the second fracture. By that age, all of her other grandchildren had been crawling. FM wasn’t. She noted that FM was resistant to having her feet touched. Sometimes FM seemed to lack energy.
99. GM was aware of the problems caused by FM’s eczema. She has sometimes applied Eumovate. Her recollection is that Eumovate was applied once a day when FM’s eczema was mild but twice a day or even three times a day when the eczema flared up.
100. As she gave her evidence GM was at time distressed. She assured the court that she had done nothing which may have caused FM’s injuries. I found her to be a credible witness.
Maternal grandfather’s evidence
101. AM is FM’s maternal grandfather. AM confirmed his wife’s evidence. His mobility is poor. He cannot walk without holding on to something. He could not care for a baby on his own. He has never cared for FM on his own, though he has pushed her in her pram occasionally. AM is not able to shed light on how FM sustained her injuries. He is confident that they were not caused either by his daughter (FM’s mother) or his wife. He said that if he knew that FM’s mother had caused her injuries he would not be able to cover it up.
The law
102. Before I consider my findings I first set out the relevant law.
Basic principles
103. There is an abundance of case law setting out the principles to be applied when evaluating the evidence in a case such as this. Those principles were set out by Baker J in Re L and M (Children) [2013] EWHC 1569:
'46.First, the burden of proof lies at all times with the local authority.
47. Secondly, the standard of proof is the balance of probabilities.
54. Ninth, as observed by Dame Elizabeth Butler-Sloss P 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 would throw a light into corners that are at present dark."
55. This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA Crim 1. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother's two other children had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed:
"What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
"Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
57. In Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed,
"A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."
‘Non-accidental’
104. The local authority seeks a finding that the fractures suffered by FM were ‘non-accidental’. It is important to bear in mind the observation made by Ryder LJ in Re S [2014] EWCA Civ 25 that,
Discussion
105. The incidence of child abuse is not restricted to a particular class of society. Child abuse in all its forms crosses social boundaries. A child who has been abused may come from a family that is already well-known to Children’s Services, but that is not always so. The child’s parents or carers may be known to have abused drugs or alcohol. They may have a criminal record. They may have mental health problems. But, again, not always so. For the mother, Miss Simpson makes the point that ‘this is a family with a complete lack of the usual markers for child abuse’ – no history of the active involvement of Children’s Services; no history of abuse of drugs or alcohol; no history of maternal mental health difficulties; no criminal record. All of that is true. Indeed, it is true both of the mother and of the grandmother. By itself, it is probative of nothing. However, it does provide relevant contextual background.
106. The local authority expresses concern that at the relevant time the mother was very stressed. Her relationship with FM’s father had been violent. She had been supported in making an application to the court for a non-molestation injunction. She had also begun Children Act proceedings. Those proceedings were ongoing at the time the fractures were discovered.
107. In addition to all of that, the mother was also concerned about FM’s health problems. In the period from birth to 9th July 2014 FM had had 44 health appointments. It is clear that the mother and her family had genuine concerns about FM’s health and development. Although in her police interview the mother said, ‘I am quite a paranoid mum’, the fact remains that there has been no suggestion that the mother presented FM to health care professionals too frequently or that she was being an over-anxious new mum. On the contrary, the evidence suggests that the relationship between mother and daughter was entirely appropriate. The mother’s care of FM has been observed by two health visitors, by her GP and by numerous hospital doctors, nurses and other health care staff. None have expressed any concern either about her handling of FM or about her general interaction with her. Observations of the mother’s care of FM were wholly positive.
108. In Dr Wild’s opinion FM is a ‘normal’ child. Dr Allgrove disagrees. He notes that she is developmentally delayed so far as her gross motor skills are concerned. He also notes that she was significantly hypotonic, hyperextensive and hypermobile. In his opinion her musculoskeletal appearance was not normal. The health visitor, MB, said that she has seen more than a thousand children during her career. She has never before seen a child resist attempts to weight-bear by pulling their legs up under themselves as FM did. A very experienced foster carer, who had FM in her care for around two months, was concerned about the fact that whilst in her care (from the age of 11 months to 13 months) FM could not sit unaided, could not crawl, made no effort to walk or even to weight-bear and didn’t like her feet to touch the floor. The picture of FM which emerges from the totality of the evidence is that she was not a ‘normal’ child. On this issue I accept the evidence of Dr Allgrove (who had seen FM) and reject the evidence of Dr Wild (who had not).
109. So far as FM’s injuries are concerned there is some measure of agreement. It is agreed that she sustained a spiral fracture to her right tibia and a transverse fracture to her left tibia. Dr Johnson’s evidence of timing is unchallenged. That means that the window of time within which the transverse fracture was sustained is 29th May to 19th June and that within which the spiral fracture was sustained is 1st to 9th July. Dr Wild says that the clinical evidence enables that second window to be narrowed to 8th/9th July. That evidence was unchallenged.
110. There is evidence in the medical notes to the effect that on admission to hospital FM had swelling and bruising over the distal right tibia. Mother and grandmother accept that there was swelling. They don’t accept that there was bruising. The GP records swelling but not bruising. A body map completed on admission to hospital shows a small area of bruising. I am satisfied that there was both swelling and bruising. There are no medical photographs of the bruising. The swelling and bruising do not appear to have been significant. They are consistent with the presence of a spiral fracture. They do not provide any assistance in determining the aetiology of that fracture.
111. There is no radiological evidence of osteogenesis imperfecta. There are no clinical markers. The result of genetic testing makes it almost certain that FM does not have osteogenesis imperfecta. All of the medical experts are agreed that FM does not suffer from osteogenesis imperfecta. I accept that evidence.
112. Dr Wild accepts Dr Allgrove’s written evidence that FM is ‘mildly hypotonic’, that her knees and elbows are ‘slightly hyperextensive’. In his oral evidence Dr Allgrove said that she had a ‘significant degree of hypotonia and hypermobility’. Dr Wild made the point that mild hypotonia is a very common finding in infants and normally resolves by the age of 2. He sees no significance in that finding so far as concerns FM’s fractures. It is clear that Dr Allgrove does consider this to be a significant finding. In the context of this child, with the abnormalities I have described, I accept Dr Allgrove’s opinion that this is a significant finding.
113. I am satisfied that there is no radiological evidence of abnormal bone density. However, that finding does not exclude the possibility that FM was in fact suffering from under-mineralisation of her bones at the relevant time. All of the medical experts acknowledge that to be the case.
114. In Dr Allgrove’s opinion, if FM did have reduced bone density then this has two consequences. Firstly, that her bones may fracture more easily than ‘normal’ bones – i.e. that less force would be required. That point is not controversial. Secondly, that the pain response to the fracture may be less than would be the case if her bones were ‘normal’. Dr Wild disagrees. In his opinion, a fracture is a fracture, however much force is required to cause it, and the pain response would be the same. Pain response is not related to force. The reality is that there is no empirical research evidence to support or contradict either view and, for obvious reasons, neither could there be.
115. It is the expected pain response that is the foundation of Dr Wild’s opinion that there must have been a ‘memorable event’. As I have noted, that opinion is frequently give by paediatricians in cases such as this. In my judgment the contention that there must have been a ‘memorable event’ is unhelpful and potentially prejudicial to carers. Not only is it a formulation which invites an inference as to the veracity of any carer unable to describe a ‘memorable event’ in my judgment it also comes perilously close to reversing the burden of proof, suggesting that a carer should be able to describe a ‘memorable event’ if the injury really does have an innocent explanation.
116. Dr Wild does not accept that there is any link between bone density and hypotonia, hypermobility and hyperextensibility. Although the link is suggested in the Brazilian research paper to which I referred earlier, the cohort of children involved in that study were aged between 5 and 10 years. Dr Wild does not accept that there is any basis for concluding that the results of that study can be assumed to apply to children under the age of 5. Dr Allgrove accepts the lack of research in this area but based on his experience he strongly believes that there is such a link. Whilst I respect Dr Wild’s experience and expertise as a consultant paediatrician of many years standing, the point Dr Allgrove makes is more specifically within his particular specialist area of expertise. I accept Dr Allgrove’s evidence on this issue.
117. I have noted the uncertainty about the extent of the use of Eumovate. In interview the mother told Dr Allgrove that she had used it three times per day. In her oral evidence she said she had applied it ‘two or three’ times per day. In her oral evidence the grandmother said that her recollection is that when FM’s eczema was mild Eumovate had been applied once a day but twice or even three times a day when the eczema flared up. I am satisfied that Eumovate was applied more frequently than was prescribed or recommended. Eumovate should have been applied only to the area of skin affected by eczema. The mother said that when she applied it she would do so to the whole of FM’s head and body with the exception of her bottom and genital area. I accept her evidence on that issue. Though it is not possible to be exact about the full extent of the frequency of the mother’s use of Eumovate I am satisfied on the balance of probability that it was at least double the prescribed and recommended frequency and that it was applied by the mother far more extensively than it should have been.
118. What, then, in this case, is the significance of the use of Eumovate? Dr Wild is in no doubt that it is fanciful to suggest that the use of Eumovate caused bone demineralisation even if the mother applied it to the extent I have found. Dr Allgrove was more open-minded. He remains of the opinion that if applied in sufficiently large quantities it could have an impact on bone density. He does not rule out that possibility. The information leaflet suggests that he is right not to rule it out as a possibility even though, by itself, it would appear to be a somewhat remote possibility.
119. I find that there is a remote possibility that excessive use of Eumovate on an infant can lead to fractures. I am satisfied that that risk is increased if such a child happens already to have reduced bone density and happens to be hypotonic, with hyperextensive and hypermobile joints. It is not possible to quantify the extent to which the risk is increased.
Conclusions
120. Where does all of this leave us? This case is, it seems to me, a paradigm example of the kind of case in which the court needs to have firmly in mind the points made by Butler-Sloss P in Re U (Serious Injury: Standard of Proof): Re B [2004] 2 FLR 263 and by Judge LJ in R v Cannings [2004] EWCA 1 Crim to which I referred earlier.
121. I have already accepted Dr Allgrove’s evidence that FM is not a ‘normal’ child. It is his opinion that hypotonia, hypermobility and hyperextensibility are linked to bone density and to a predisposition to fractures; that there is reason to believe that FM’s bone density may have been reduced; that the reduced bone density may perhaps have been caused or exacerbated by the use of Eumovate; that the totality of all of that may have created a predisposition to fractures and that FM’s fractures could have been caused without her carer being aware that something serious had occurred. Dr Wild profoundly disagrees.
122. It is the local authority that seeks a finding that FM’s injuries are non-accidental. It is for the local authority to prove its case. It is not for the mother to disprove it. In particular it is not for the mother to disprove it by proving how the injuries were in fact sustained. Neither is it for the court to determine how the injuries were sustained. The court’s task is to determine whether the local authority has proved its case on the balance of probability. Where, as here, there is a degree of medical uncertainty and credible evidence of a possible alternative explanation to that contended for by the local authority, the question for the court is not ‘has that possible alternative explanation been proved’ but rather it should ask itself, ‘in the light of that possible alternative explanation can the court be satisfied that the local authority has proved its case on the simple balance of probability’.
123. I have come to the conclusion that the evidence of a possible alternative explanation for FM’s fractures is such that I cannot be satisfied on the simple balance of probability that FM’s injuries are non-accidental injuries. It is unnecessary to go on to consider who was caring for FM at the time the injuries were sustained.
124. So far as concerns the threshold set by s.31(2) of the Children Act 1989, the local authority relies exclusively upon the injuries which FM has sustained. In light of my findings it follows that the local authority is unable to satisfy the court that the threshold is met. The local authority’s application will therefore be dismissed.