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Cite as: [2016] EWFC B120

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IN THE FAMILY COURT AT WEST LONDON

Case No: ZW16C00266

Courtroom No. 4

Gloucester House

4 Dukes Green Avenue

Feltham

Middlesex

TW14 0LR

Tuesday, 1^st November 2016

Before:

HER HONOUR JUDGE DOWNEY

B E T W E E N:

A LOCAL AUTHORITY

and

YK and ZK

(through their Children’s Guardian, Kareen Lain)

Transcript from a recording by Ubiqus

61 Southwark Street, London SE1 0HL

Tel: 020 7269 0370

MS NYLAH ABBASI appeared on behalf of the Applicant Local Authority

MR STEPHEN BARTLET-JONES appeared on behalf of the Respondent Mother, WK

MR MICHAEL BAILEY appeared on behalf of the Respondent Father, XK

MS LAURA BRIGGS appeared on behalf of the Children’s Guardian

JUDGMENT (For approval)

HHJ DOWNEY:

1. These proceedings relate to two children, YK, who was born on 18 December 2013, so she is two, nearly three, and ZK, who was born on 22 February 2016, so he is now eight months old. Care proceedings were instigated by the Local Authority on 19 May of this year after a referral had been received from a hospital on 7 May 2016 regarding suspicious fractures which the then 10‑week‑old ZK had sustained.

2. The parties to this application are: the Local Authority represented by Ms Abbasi; the mother, WK, represented by Mr Bartlet‑Jones; the father, XK, represented by Mr Bailey and the Children’s Guardian, Ms Lain, represented by Ms Briggs.

3. The background of this case is that the father is a British citizen but of South East Asian origin and he is now aged 39. The mother is also South East Asian. She is aged 29. The parties married in South East Asia in 2012. The father sponsored his wife to come to the UK and she arrived in 2013. Their daughter, YK, was born on 18 December 2013 and their son, ZK, was born on 22 February 2016.

4. The family lived in a shared property with another South East Asian family. The father works as a driver and the mother is a stay‑at‑home mother. This family were wholly unknown to Children’s Services and there are no issues of domestic violence or any other welfare issue relating to this family. On 6 May 2016 at 7.00pm, the couple presented at hospital reporting that their then 10‑week‑old son appeared to have a swelling on his left arm and elbow. They reported no incidents that could have caused this injury, though it is right to point out that there were no interpreters available at the time and, though Father has some limited English, Mother does not speak English at all.

5. By the following day, 7 May, X‑rays and a skeletal survey revealed that baby ZK had a dislocated left elbow and numerous fractures to his left arm, right leg, T11 vertebra and both clavicles. Treating physicians regarded the injuries as suspicious in origin. That is that they were probably inflicted injuries or at least raised suspicion that they were inflicted injuries and this prompted, quite properly, child protection procedures. Initially, as I say, the parents gave no explanation, but by 9 May, when the parents were spoken to with interpreters about the fractures, Mother told the police and the social worker of an incident on 5 May when Father was bathing ZK after an oil massage and the baby slipped in the bath and Father grabbed him by his left arm suddenly.

6. By way of background, the parents each explain that in the northern region of South East Asia where they come from it was traditional for parents or carers, usually Mother and female carers, to massage new babies in the morning before a bath with a type of oil. The parents did this with their elder daughter, YK, with no ill effect for several months. Mother had massaged ZK from age three or four days old in the mornings and usually Father bathed the baby afterwards as Mother had had a Caesarean and had a bad back.

7. Mother performed the massaging on baby ZK right up until 5 May and the parents gave this information as background to why the child was particularly slippery due to the use of the massage oil when explaining a possible cause for the presenting injury to the elbow, that is the elbow dislocation. The parents had noted a swelling on the early hours of 6 May and Mother had called Father at work during his working hours on 6 May, but the parents did not go to hospital until 7.00pm after Father had returned from work.

8. As a result of the X‑rays, YK was removed to foster care on 13 May and ZK was discharged to the same foster carer from hospital on or around the same date. Both children have remained there since and have had regular and frequent good quality contact with their parents. Contact is accepted to be of excellent quality and, as I say, there are no other welfare or threshold issues in this case. Care proceedings were issued by the Local Authority on 19 May and expert reports were commissioned and, although there were some delays, particularly in obtaining the final report of Dr Watt, the reports were eventually obtained and a fact‑finding hearing was listed for 30 October.

The experts

9. Dr Stanhope, a consultant paediatric endocrinologist was instructed. He reported on 19 July of this year and in his report he confirmed that baby ZK had significant vitamin D deficiency. He concluded that ZK had biochemical evidence of bone disease without radiological evidence. Dr Stanhope says, ‘I consider that it was likely in early May 2016 that his abnormal bone biochemistry would have predisposed him to fractures. However, the abnormal bone biochemistry does not explain a dislocated elbow and a change in the explanation from his parents’.

10. He added that it may well be that ZK had increased bone fragility, which is difficult to quantify. It is likely that any fractures that he had would have been painful and he would have cried out and would have been difficult to handle, but ZK has now had his nutritional vitamin D insufficiency treated and his skeletal integrity should be normal.

11. Dr Evans, a consultant paediatrician who is now retired, then reported on 19 August 2016. In his report he concluded that rickets was not a factor in the dislocated elbow injury, but accepted that less force may have been required to cause fractures in a child with this level of rickets. For example, he thought that the right clavicle fracture was consistent with a carer applying inappropriate pressure over the right clavicle and that might have meant simply when holding a child under the arms where the thumbs are positioned over the front of the chest and the fingers are positioned behind the chest a fracture might occur if a carer’s thumb was pressed inappropriately hard over the clavicular bone.

12. When asked to consider the possible causes of the fractures, Dr Evans, the paediatrician, noted:

‘The elbow dislocation is indicative of injury. I am minded that it could have occurred as a result of the olive oil massage as the baby would inevitably be more slippery and more difficult to handle. Carers of very young infants should not hold a baby by its elbow of arms. The baby should be held under the arms and around the chest. I can imagine an inexperienced parent grabbing hold of an infant’s arm if the baby was slipping from his grasp.

With regard to the healing fractured radius and clavicle one has to acknowledge that the bones were of reduced strength and that a relatively lesser degree of force would probably lead to a break. The same principle applies to the metaphyseal fractures at the lower right femur, upper right tibia. If the radiology opinion confirms the presence of metaphyseal fractures at the left proximal humerus and left distal radius the same principles would apply’.

13. He was asked to comment on whether or not the fractures could have been caused as a result of increased bone fragility and he answered that this was an extremely challenging question, but said that:

‘One cannot overlook the importance of the biochemical rickets and the consequent increased fragility of the bones to trauma. I do not think any of the fractures occurred spontaneously. Their presence indicates that the radius and clavicle and the metaphysis at the end of various bones were all subject to a degree of force that was inappropriate in the normal handling of a young infant, but the increased bone fragility due to the infant’s rickets makes it impossible to judge whether the handling was due to a degree of force where an adult carer would have known that the force exerted on one or more bones could have led to the baby being placed in harm’s way or whether it was due to inappropriate handling on the part of an inexperienced parent engaging in the usual routines of bathing babies, including giving an olive oil‑based massage and when engaging in other routines, such as dressing or undressing or changing the nappy of a young infant’.

14. He adds, ‘The dislocated elbow is consistent with the description given by Father of the incident where the baby slipped in the bath during an olive oil massage’, but I note the delayed disclosure of that particular event.

15. Dr Watts’ report was somewhat delayed, but eventually came on 5 September 2016. Dr Watt is a paediatric radiologist. He noted the various injuries and fractures and attempted to date them and at his report at E125 of the bundle he notes:

‘It is suggested that the injuries could be the result of baby massage, but no incident where an injury could have occurred has been identified. The father reports bathing ZK on 5 May and grabbing his left arm when he slipped in the bath, but no significant distress is indentified at the time and no loss of function. This explanation is inadequate, therefore, to account for the elbow fracture and dislocation as I would have expected immediate distress and loss of function and it is inconsistent in time with the other healing fractures’.

16. He added at E126 that the blood tests show typical features of rickets and it makes it more likely that ZK’s bones may have been weaker than normal, but he did not know by how much and would be guided by the report of Dr Stanhope. He noted that if bone fragility was shown to be present the degree of force needed would be less than normal and some of the fractures could be caused by normal handling if the bones were sufficiently weak. Common fractures in this situation would be vertebral insufficiency fractures and fractures to the shafts of the long bones. He noted that metaphyseal fragmentation can occur in rickets, but metaphyseal fractures are not typical fractures of increased bone fragility.

17. Finally, in conclusion he said that ZK presented at the age of 10 weeks with a fractured dislocation of the left elbow and numerous previous fractures which had not been identified at the time and for which no adequate accidental or organic explanation had been identified. He considered that either intentional or unintentional inflicted injuries could account for all of the fractures identified.

18. Once all of those reports were obtained an agreed agenda was drafted in order for the experts to discuss their various opinions at a meeting. Again it was all later than initially envisaged, but the meeting took place on 18 September and in that meeting the experts agreed that the child had suffered the following injuries: an acute dislocation injury to the left elbow which was less than 11 days old and then a number of older fractures dating from anywhere between two to eight weeks in age. Firstly, a healing fracture of the left radius. Both clavicles had healing fractures. A healing metaphyseal fracture of the right distal femur, a healing metaphyseal fracture of the right proximal tibia, loss of height at the T11 vertebra, irregularities of the metaphysis of the left proximal humerus, which they did not think in fact was a fracture, and a left distal radius and ulna fracture. In addition, a fracture to the right proximal tibia and the right distal tibia.

19. These later fractures were all not visible and would have presented no obvious clinical signs to the carers save for the fracture to the left radius and ulna, which may have had some pain and swelling over a few hours, but that would not necessarily have been visible or obvious to the carers at the time.

20. In the experts meeting the experts discussed matters at length and agreed that the degree of force required to cause the injury in this child, was less than in a child with normal bone density. Dr Stanhope, Dr Watt and Dr Evans all agreed with that. Dr Watt says, ‘The degree of force is not known. If bone density is reduced then potentially that could be the result of firm handling of an infant, but I don’t know if that’s likely or unlikely’. Dr Evans says, ‘Yes, I think the massage, vitamin D deficiency and inexperienced handler, it’s a combination of all of that that has happened here’. Dr Watt and Dr Stanhope confirm, ‘Yes, I agree with that’. Dr Stanhope adds, ‘With the abnormal bone biochemistry there must be an increased risk of fracturing, but what you can’t do is quantify it’.

21. Dr Evans noted at page eight of the experts meeting that ZK’s vitamin D level was extremely low at six and the calcium level at 1.6 was also extremely low and that the evidence of biochemical rickets was overwhelming and all three experts agreed with that. They, therefore, all agreed that there was increased bone fragility and that this would predispose ZK to fractures. They all agreed this would have no bearing on the dislocated elbow, but for all of the other noted injuries the degree of force required to cause those fractures would be less than in a baby with normal bone mineralisation and all agree that if biochemical rickets had not been diagnosed at that stage the child would have presented with overt rickets by the age of 18 months or so.

22. At page 14 of that transcript Dr Evans felt the fractures, going through them, save for the dislocation, felt they were all consistent with trauma caused by holding on to the part of a baby’s bones too firmly, but the caveat and the qualification is that these bones were of increased fragility and, therefore, they would be more liable to break as a result of a grip that was possibly inappropriately firm in relation to the way that an experienced nurse or a mother would hold a baby, but the fact that the baby’s bones are relatively low in mineral content would make any grip more susceptible to a break.

23. Dr Watt on page 15 of that transcript explained why there was a shift in his position from his earlier report. He says:

‘When I read the father’s description of the elbow injury what was lacking was not enough force to account for the injury. I would normally not have expected that injury to be the result of grabbing a baby’s arm, but I reached that view on the basis that I wasn’t clear as to how significant the fragility was, so I revised that position based on the fact that the bones are likely to be fragile. If you accept that the bones are unduly fragile the degree of force would be lesser. I don’t know how much less, but it is conceivable or reasonable to assume that the method of massaging the baby as described in conjunction with the bone fragility, I can’t really say that wouldn’t have resulted in the fractures that I can see’.

24. Dr Evans also confirms that he cannot exclude that the massage of the child did not cause the fractures and Dr Watt again confirms on page 16 that he considers there is likely to be a significant degree of bone fragility present and, therefore, he accepted that the massage was a possible cause for those fractures. Dr Stanhope said, ‘I would have thought it was possible but unlikely that massaging could cause these fractures’.

25. Later on in the experts meeting Dr Stanhope explains that he had relied on a change in the parents’ account in his earlier report, but Dr Evans explains that it is not so much that the parents’ account is inconsistent, but their accounts were not complete. In other words, there was a delay in disclosing certain things, such as the massage, and there was a delay in the history of the baby slipping in the bath. He said “It is not that they are inconsistent. It was incomplete and it is something you need to factor in, but having eventually got around to saying what they have said there is consistency in what the parents have said. They should have said it straightaway, but they did not.”

26. Dr Watt says:

‘When I approached this case the constellation of injuries was suggestive of a non‑accidental cause as there were no real explanations, but then I had to factor in the fact that the biochemistry is abnormal. That would alter my view as to causation and makes the possibility of the massaging as a potential explanation to account for the fractures, and if the bones were unduly fragile the bath incident could account for the elbow. Yes, I think that’s it’, he says.

27. When looking at his summary of his assessment of things Dr Evans, the paediatrician, says:

‘I think we forget those of us who are not used to dealing with babies how small they are and how completely vulnerable they are, so, therefore, if you have bone fragility on top of all of this I think you end up with this increased risk of trauma. Dr Stanhope confirms he is in agreement with that, as does Dr Watt. None of the factors of a child of normal skeletal strength you would have thought would be the result of normal firm handling. If the bone density is reduced then potentially that could be the result of firm handling of an infant. I don’t know if that’s likely or unlikely, but I am guided by the other experts.’

28. Dr Evans then says, ‘It’s important we try not to be too clever in this particular case because of all the circumstances. In other words, the massage, the vitamin D deficiency, the inexperienced handler, it’s a combination of all of that’. ‘And I agree with that’, say both of the experts. That is Dr Watt and Dr Stanhope. In short, after that experts meeting they all agreed that ZK had undiagnosed rickets at the time of him being X‑rayed. That meant that he had an increased bone fragility and that meant he would have been predisposed to fractures. They all agreed that the cause of the fractures was a combination of the traditional massage the parents used, the vitamin D deficiency and inexperienced and too‑firm handling.

29. They also agreed that a possible explanation for the elbow dislocation is Father’s explanation that ZK slipped from Father’s hand whilst in the bath after using the oils such that Father grabbed ZK by his left arm forcefully and suddenly and that this inappropriate handling was a possible explanation for the elbow injury. They also all agreed that inflicted injury was another possible explanation.

30. In view of that shift in position the parties all invited me to list this matter for an urgent hearing for consideration as to whether the court, in the light of the experts’ consensus thought it appropriate or proportionate to proceed to a fully contested fact‑finding hearing. The parties filed written submissions or position statements and I listed the hearing on 14 October, the fact‑finding hearing being listed on 30 October.

31. In their position statement the Local Authority acknowledged that the experts now accepted that the massage technique, combined with the child’s vitamin D deficiency and inexperienced handling by the parents, was an explanation for the fractures sustained, but the Local Authority still sought a finding that all eight identified injuries were inflicted injuries, inflicted by one or other of the parents, and the Local Authority submitted that the massage explanation and the bath slipping incident were not probable explanations.

32. The Local Authority submitted that they wished to call the three experts to clarify with them why there had been a shift. I took that to mean in fact a shift in the position of Dr Watt and Dr Stanhope as in fact Dr Evans did not change his position, but the extent of the cross‑examination of the experts was only to ask for clarity as to the shift in their position from their original reports to the experts meeting.

33. Ms Abbasi for the Local Authority did not have instructions as to whether the Local Authority would fund the cost of the experts being called and accepted that, whilst her instructions were to pursue findings, the Local Authority would accept the decision of the court if the view was that a fact‑finding was not proportionate in the light of the evidence as a whole.

34. Mother and Father’s counsel invited me to take a robust view of the case on the papers and invited me to conclude that a fact‑finding was not likely to be a fruitful exercise in this case and they submitted that the elbow dislocation, whilst a suspicious injury, was consistent with Father and Mother’s account of the slipping in the bath on 5 May. Of the remaining injuries they said those were consistent with the massages combined with the baby’s increased bone fragility as set out by the experts.

35. As to the delay in the parents providing the account about the bath slipping incident of some four days, the parents submitted that that could be accounted for by language issues in that there was no interpreter available at the hospital, that the parents were shocked and anxious about the process and were not familiar with dealing with authorities having never been involved with any kind of authorities in this country or in their home country, and the parents submitted that in the context of this case as there was no wider canvas – there was a healthy sibling – there was an inherent probability of the parents having deliberately injured their son.

36. They pointed to the fact that the Local Authority had no alternative version of events for how the injuries might have occurred and, therefore, on the weight of the evidence the parents submitted that I could at this stage conclude that the Local Authority could not prove the facts they sought, that these were deliberate injuries that ZK suffered. The parents at my invitation at that hearing on 14 October drafted a narrative account of what they say occurred and that account is as follows:

‘From the day that YK and ZK were each born the parents gave them traditional oil massages over their entire body. Traditionally gingelly oil would be used for such massages, but in the UK olive oil was more widely and cheaply available and so the parents used that instead. The parents accept the view of Dr Evans, which they didn’t know at the time, that olive oil because it is slippery is not a good choice for massaging a young child.

On 5 May at about 7.00pm, whilst soaping ZK down in the bath after such an oil massage, the father felt ZK slide down the baby bath. The father did not have a firm hold of him and ZK slipped so that the water was almost up to his nose. The father panicked and grabbed ZK’s left arm. It was a jerky forceful movement carried out instinctively with no malice.

The father went to work at around 6.00am the next morning. The parents did not initially believe the harm caused to be sufficient to require medical attention, but when the swelling occurred and appeared to be getting worse rather than better at sometime between 8.00am and 10.00am on 6 May, the mother telephoned the father at work. It wasn’t particularly unusual for Mother to speak to the father during the day about minor problems with the baby and Father accepts he did not appreciate the severity of the problem. He said, “Wait a bit. We can take him to hospital”.

He came home as usual at 3.00pm. He accepts he delayed going to the hospital until about 6.30pm and arrived at 7.00pm. The parents accept that Father did not use the usual level of skill to hold the baby safely so as to prevent him from slipping into the water resulting in him instinctively reacting by grabbing the baby with some force to stop her [sic] slipping further. In part because of ZK’s increased biochemical bone fragility, which the parents were not aware of at the time, this caused a dislocation to ZK’s elbow. This caused ZK pain, which caused him to cry shortly after being handed to his mother, so almost immediately. This caused some swelling over the next few hours, which Mother observed.

The parents were initially less frank about the injury and how it was caused than they should have been because they were scared of how Social Services might react after the recent removal of a neighbour’s child. The parents accept that they should have been more open with the hospital on arrival and when Mother phoned the next day Father should have returned home immediately. That is on 6 May. Further, he accepts he should have taken Mother and baby to… Hospital as soon as he arrived home’.

37. In light of the parents’ submissions and that narrative, the Children’s Guardian pointed to the consensus of the expert evidence and noted the narrative provided and submitted that taken at its highest the written evidence does not raise a probable cause of inflicted injuries.

38. This is a rather unusual case. I note that Dr Evans suggests he has only seen one case of rickets in the last 10 years. It is a rare disorder in the United Kingdom. I acknowledge that the picture on 6 May was a very concerning one. If it had not been for ZK’s vitamin D deficiency the medical picture would have pointed strongly to inflicted injuries. The Local Authority were absolutely right to bring these care proceedings and they have acted entirely properly throughout these proceedings.

39. I understand the Local Authority’s approach and their request that the court should hear oral evidence from the experts and from the parents before reaching a conclusion as to the facts in this case, but having regard to the overriding objective and the duty of the court to manage both the resource of the court and to have an eye to the public purse my view is that it is not proportionate to have a fully contested fact‑finding hearing given the weight of the expert evidence and the overall consensus between the experts, the wider canvas and the overall circumstances in this case.

40. I acknowledge that it is usual to hear oral evidence in cases of suspected non‑accidental injury such as this. However, in this case I do not consider that hearing oral evidence from the experts would add anything to the evidence which is already available to me. There is a large degree of agreement between the experts and in my view both Dr Watt and Dr Stanhope gave a clear explanation for the shift in their position from their earlier reports at the time of the experts meeting on 18 September. They have considered the views of all experts and deferred where appropriate to the other experts.

41. I did not, therefore, consider that the information I have could be added to by hearing oral evidence from the experts. As to the parental evidence, in this case since 9 May the parents explained the bath slipping incident and the use of oil massage, which I accept is a tradition in the region of South East Asia where they are from. I also note that save for some slight variations the parents have been consistent in their account both in discussions with the social worker, in their interview under caution with the police and in their statements to this Court as summarised in the narrative which I have just read out.

42. The Local Authority could not undermine these accounts save to point to the delay in reporting the incident and, whilst I would accept that in some cases the delay does provide some support for a suspicious cause of injuries, in this case, firstly, I note that the delay is a relatively modest one of only three days; secondly, the parents have, as I say, been consistent in their account since telling of the massage and the bath slipping incident on 9 May; thirdly, there were language issues and there was certainly no interpreter available at the hospital, but once an interpreter was available on 9 May the account was provided and, fourthly, I acknowledge the shock and anxiety of the parents. As I say, these are not parents who were familiar with the processes or authorities either in this country or in their home country and I acknowledge that those are all factors which fed into the delay.

43. Overall, therefore, when considering whether I would be assisted by any oral evidence I consider that I had sufficient evidence to make the relevant decisions and that I would not have been further assisted by the limited cross‑examination of the parents by the Local Authority. I do not consider that such oral evidence would have affected the outcome of these proceedings and I do not consider that the justice of this case required a full investigation with oral evidence, unusual as that decision is.

44. Having considered all of the evidence in this case, including the expert evidence, the police disclosure, the parents’ statements and the submissions of the parties, I remind myself that it is for the Local Authority to prove their case. It is for them to prove that it is more likely than not that one or other of these parents inflicted these injuries on their 10‑week‑old son. I remind myself of the summary of the well‑established legal principles outlined by Baker J in Re JS [2012] EWHC 1370 (Fam). The key points relevant to this case are, as I say, that the burden lies on the Local Authority, that the burden of proof is the balance of probabilities and also that the court must survey the wider canvas, the court must consider all of the evidence .

45. I also remind myself that this is not a trial by expert, that appropriate attention should be paid to the expert opinions, but their opinions must be considered in the context of all of the other evidence. It is the medical evidence and factual evidence considered together that must determine my decision.

46. The Local Authority’s schedule of findings sets out the list of the injuries, they say ZK has suffered; they list eight injuries that he has suffered, and the finding they seek is that the parents’ explanation that the fractures were caused during bath time massages and ZK slipping in the bath are not probable and, therefore, it is likely that the fractures were inflicted on ZK.

47. In considering that finding I look at the injuries in two categories: firstly, the seven fractures and, secondly, the dislocation. In relation to the fracture injuries it is my view that the Local Authority are unable to prove that the fractures were inflicted and the following are the aspects of the evidence which I consider are crucial. Firstly, the experts agree that this child had biochemical rickets, increased bone fragility and a predisposition to fracture easily; secondly, the parents had no idea that their child had this condition and there were no clinical features of any of those injuries save for the arm injury, and even that may not have been visible to the parents in such a young child. There can, therefore, be no suggestion that any of those injuries were injuries that the parents would have knowingly caused.

48. The experts agree that the cause of the fractures could be the use of the massage in a child with such bone fragility and I note that I have been provided with a medical paper from a medical journal in Northern India where a fracture was sustained by a 15‑day‑old baby as a result of this massage technique.