England and Wales Family Court Decisions (other Judges)

Important Notice

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 and any other persons identified by name in the judgment itself may be identified by name and that in particular the anonymity of the children, the adult members of their family, and employees of the Hospital Trust and their location must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

IN THE FAMILY COURT

Re M (Care Proceedings: Finding of Fact Hearing: Fractures)

14 July 2017

Before His Honour Judge Patrick Perusko

(judgment handed down on 14 July 2017)

Representation

Kayleigh Long, New Court Chambers - counsel for the local authority

Lianne Murphy, Senate House Chambers - counsel for the mother

Ken Kewley, Cartwright King - solicitor for the father

Philippa Jenkins, New Court Chambers -  counsel for the children

Emma-Louise Fenelon, 1 Crown Office Row - counsel for the Hospital Trust

Judgment

Judge Perusko:

Introduction

1.    These proceedings concern two children T aged 9, and M, aged 7 months. The mother of both children is NM. T’s father has had no contact with her since her parents separated in 2012. M’s father is MM.

2.    On 17 January 2017 M was found to have suffered multiple fractures in a number of her bones.  The primary issue for me to determine at this hearing is the cause of those fractures.

3.    M was born by caesarean section (CS) on 2 December 2016 at 37 weeks 3 days gestation weighing 2310g (ninth centile). Full examination of her two days later showed no abnormality. Arrangements were made for an ultrasound investigation of her hips because of her breech position in late pregnancy.

4.    Mother and M were discharged from hospital on 7 December but mother was admitted to hospital again on 19 December with an infected wound and was not discharged again until 3 January 2017. 

5.    On 10 January 2017 M was seen at the GP surgery because of her parents’ concern that she was chesty. On examination her chest was clear and there were no medical concerns.

6.    The hip ultrasound scan (USS) was undertaken on 12 January 2017 by two sonographers XF (trainee) and her supervisor YH.  The report showed normal findings.

7.    On 16 January 2017 M was again seen at the GP surgery.  The history provided to the GP was that on 14^th January mother noticed swelling on both calves.  The left calf was stated to be increasing in size, the right one possibly going down a little and M was reported to be crying a lot. The parents had contacted the out of hours service on 15 January but there was confusion about the medical consultation which had been arranged as a result (the parents had expected the doctor to visit them at home but in fact the appointment was at the surgery) and so the parents were advised to see the GP the following day, 16 January, which they did.  The GP referred M to the paediatric service at ABC Hospital.  On examination M seemed generally well but there was redness and swelling of the left leg with increased warmth of that leg and she cried vigorously when her left leg was touched. The working diagnosis of the doctor was of cellulitis. X-rays the following day, 17 January, revealed that M was suffering from a number of fractures, a fracture of the left tibia and some metaphyseal fractures.  Later it became evident that there was also a right tibia shaft fracture and multiple metaphyseal fractures.

8.    The issue to be determined at this hearing is how those fractures were caused. The local authority seeks findings that the fractures were inflicted by either the mother, the father or both of them as a result of the use of excessive force. The parents deny having caused any injury to M and suggest that the fractures were caused as a result of a combination of M’s birth and M being handled roughly by one or more of the sonographers at the hospital during the course of the USS.  As a result of the parent’s position the sonographers XF and YH as well as ABC Hospital have been joined as parties to the proceedings and they have been represented throughout this hearing.

9.    Following the discovery of the injuries both children were, and remain, accommodated by the local authority with the parent’s consent,  T on 17 January 2017 (initially she was placed with a foster carer but later placed with a family friend), and M on her discharge from hospital on 20 January 2017.  M was placed with a different family friend who is also a foster carer.

10. The Local Authority made application on 31 January 2017 for care orders and interim care orders in relation to both children.  The applications are listed for final hearing in October.

11. There are a number of important principles to bear in mind which can be summarised as follows;

b.    The standard to which the local authority must satisfy the court is the simple balance of probabilities.  The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred (Re B [2008] UKHL 35 at [15]).   Within this context, there is no room for a finding by the court that something might have happened.  The court may decide that it did or that it did not (Re B [2008] UKHL 35 at [2]).   The legal concept of proof on the balance of probabilities must be applied with "common sense"

c.    Findings of fact must be based on evidence not on speculation or suspicion.  The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence

d.    In determining whether the local authority has discharged the burden upon it the court looks at what has been described as 'the broad canvas' of the evidence before it.  The court takes account of a wide range of matters including its assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence.  The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly.  Within this context, the court must consider each piece of evidence in the context of all of the other evidence (Re T [2004] 2 FLR 838 at [33]).  As Baroness Hale in Re: B said, judges

“Are guided by many things including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and their overall impression of the characters and motivations of the witnesses.”

e.    Amongst the evidence in this case, as is invariably the case in proceedings involving allegations of inflicted injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L  [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.

f.     The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They have had the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).

g.    As to the issue of lies, the court must always bear in mind that a witness may tell lies in the course of an investigation and the hearing.  The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress.  The fact that a witness has lied about some matters does not mean that he or she has lied above everything (R v Lucas [1982] QB 720).

h.    As observed by Hedley J in Re R (Care Proceedings : Causation) [2011] EWHC 1715 Fam “ 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”.  The court must resist the temptation to believe that it is always possible to identify the cause of injury to the child.

i.      Finally, when seeking to identify the perpetrators of non-accidental or inflicted injuries the test of whether a particular person is in the pool of possible perpetrators is whether, on the balance of probabilities,  there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849.  It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).

The fractures

12. It is not disputed that on admittance to hospital on 16 January 2017 M was suffering from the following injuries;

13. The fractures are conveniently noted on a diagram contained in the body of the report of Dr Rylance annotated by reference to the above numbering. There was some disagreement between the experts instructed in the case as to the existence of a further metaphyseal fracture of the right distal tibia (b)vi) and in those circumstances the local authority does not pursue a finding in relation to that fracture.

14. The local authority asserts, and the parents accept, that the fractures were sustained as a result of a non-accidental injury. In other words it is agreed that M did not have an accident or accidents which caused the injuries. The local authority asserts that either the mother or the father or both of them inflicted the injuries on M. Neither of the parents accept this to be the case. Their explanation for the injuries is that they were caused by doctors during the Cesarean section at birth and by one of the sonographers, YH, during the USS on 12 January 2017.

15. XF has been a full-time sonographer performing obstetric and gynaecological ultrasound scans (USS’s) since October 2014. She started performing paediatric hip ultrasound scans in June 2016 following completion a course. She has not had regular sessions because of staff shortages and so she was still under supervision in January 2017. The USS on M was the fifth session of USS’s she had performed. She did not remember performing this particular scan.  She described in the witness box performing a USS and had with her a cradle and a dummy baby so as to demonstrate. She did not remember this particular USS. She described how very gentle pressure was applied to the back of the hip to hold the hip steady whilst the scanner was placed around the ball of the hip bone between her thumb and forefinger. A baby could wriggle and if that happened then the baby would be calmed. Often a parent would assist with calming. If she, as a trainee, was finding it difficult to perform the scan then her supervising colleague would come and take over. She had never been asked by a parent to stop a scan. The pressure applied by her hand to a child’s leg, bottom, hip area was very gentle pressure simply to keep the leg in position. There was no need to hold both legs together. There was no need to have more than one sonographer hold the baby.

16. On no occasion has she ever had to ask another sonographer to position or hold a baby whilst she undertakes a scan. She did not accept that legs were forced into a straightening position for images to be undertaken. It was simply not required to straighten the leg to get an image of the hip. An appointment for each scan was 15 minutes. This scan took 6 ½ minutes from the first to the last image. She could not recall this particular scan so could not recall either parent raising any issue with her. She was sure that she would recall if either parent had been upset or concerned.

17. XF was a nervous and at times emotional witness.  It is suggested by the mother that her emotions are explained by her covering up what had happened during the USS and that she was not being truthful.  I disagree.  Her nervousness was understandable in the context of what was being put to her.  In my view she was a clear, consistent and truthful witness who did her best to give clear evidence in difficult circumstances given that she did not remember this USS.

18. YH was the supervising, or superintendent, sonographer on 12 January. She too did not remember this particular USS. She has been performing general medical, paediatric, obstetric and gynaecological USS’s since 1998. She has been performing paediatric hip USS’s since 2003. She has been the lead sonographer since that time and trained every other sonographer at the hospital since 2003. She performs something like 14 scans each week.

19. She could not remember what assistance she gave to XF in the USS. She, like XF, described the process of the USS. She explained that if a trainee was finding the procedure difficult then the trainee would ask her to take over. She has never held a baby while another sonographer undertakes the scan. She explained that the technique was dynamic and only ever involved one person. If she had to intervene then she would take over completely.

20. Looking at the records, the images of the right hip (three images of each hip are taken) took 3.5 minutes and the left hip took one minute. This infers that the right hip was more difficult and that she took over for the left leg. 3.5 minutes was a typical length of scans for a trainee.

21. She was asked about the angulation of the knees and legs. She said that the positioning or angulation of the legs made no difference at all to the process. There was no need to straighten legs because it is the hip that is being scanned, hence the position of the legs was not relevant.

22. She had never stopped or been asked to stop a scan by a parent because of a baby being too distressed. She would never hold the legs together and she would never hold a baby for a colleague while a colleague scanned a baby. She would not have been able to exert a twisting force. She has never been involved with any baby suffering any injury, even a minor injury, during a USS. She has never known of any complaints about her work. She had never had to put pressure on any other part of the baby other than the hip. She had never, and had never seen anybody, twist or pull the limbs of a baby during a USS.

23. YH did accept that she may have been preparing a report on the computer with her back to the bed / cradle whilst XF prepared the baby for a scan.  She accepted that it was a busy list that day but not overly so.  She denied ever getting frustrated or irritable during a scan and never handled patients roughly.  She denied holding or pulling any baby by the ankles, there would be no purpose doing so because it would not have helped with the position required for the scan.  The position of the legs had no impact on the scan.  She had never had a complaint against her

24. She described XF as being a very careful and sometimes nervous sonographer who always asked parents to be involved for example, in calming the baby and she always asked for advice. She regarded XF as a competent sonographer.

25. YH came over as a very experienced, calm, rational, clear and impressive witness who is clearly experienced in her role.  I accept her evidence as truthful.

26. Dr ZD is a consultant paediatric radiologist at the ABC Trust and the lead consultant at the hospital in paediatric imaging. She was asked to image M on 17 January 2017 by her colleague Dr AM. She was told that M had a swollen and red left leg and the cause was not apparent. Initially she examined M on the bed in the ultrasound room and the appearance of the legs suggested that a fracture was present. Dr ZD directed an ultrasound scan to identify the location of the suspected fracture. Having demonstrated the fracture on the ultrasound she arranged for M to be taken from the ultrasound room to the main department for an x-ray in order to confirm the presence of a fracture.

27. On the way down to the x-ray room NM asked Dr ZD if she thought it relevant that M had an ultrasound scan of her hips the previous week. Dr ZD told NM that she did not think that would explain what had been seen on the ultrasound scan.

28. Dr ZD reviewed the x-ray which confirmed a fracture was present. Having informed the nurse, she contacted Dr AM to explain the findings and, in accordance with standard procedure, a skeletal survey and CT scan of M’s brain was arranged for the following day. 

29. Her interpretation of the X rays revealed a number of fractures of both legs, both arms and at least one fracture of the shoulder. 

30. A repeat skeletal survey was undertaken on 2 /2/ 17

31. Dr ZD had worked with the senior radiographer YH since she started at the hospital 7 years ago and has observed her performing USS’s on many occasions.  Ms YH had much more experience than she did of performing USS’s.  She explained that very little pressure is required to hold a hip for an USS.  She had no doubts about Ms YH’s ability to perform an USS.  She had never seen, read or heard of a fracture being caused by an USS.  In her view the injuries could not have been caused by the USS

32. She was asked about the force required to cause fractures.  She said that normal handling of a baby would cause no injuries.  She explained how a twisting force was required to cause a metaphyseal fracture.  She said ‘generally if you shake a limb you will get a twisting force’.  She had said in her report “the fractures around the joint usually result from shaking type injury and are classically reported in the literature as being caused by inflicted injury rather than by accident”.

33. Dr ZD also knew XF who was much less experienced but Dr ZD had no doubts about her knowledge or experience

34. Dr ZD was a clear, balanced and impressive witness.

35. Dr Offiah is a reader in paediatric musculoskeletal imaging and honorary consultant paediatric radiologist at the University of Sheffield and Sheffield Children’s Hospital. She was instructed by ABC Hospital to review the images taken on 17 January 2017 of the left tibia and fibula and the 17 skeletal survey images taken on 18^th January as well as follow up images taken on 2 February. She reported as follows;

36. Dr Offiah, like the other experts in the case, had a discussion on 15 June 2017. One of the matters discussed was the differing opinions concerning the timing of the injuries.  Dr Offiah explained that the radiological dating of fractures is not an exact science and there are grey areas. Having taken into account what the other experts, particularly Dr Fairhurst, had said Dr Offiah adjusted her opinion regarding timings for the metaphyseal fractures. In her view none of those fractures occurred before 29 December 2016.

37. It was Dr Offiah’s view that none of the injuries could be birth related (‘these fractures did not occur at birth’)  and that it was highly unlikely that a standard hip USS would cause a fracture and almost impossible for it to result in multiple fractures. “Metaphyseal fractures require the application of force directly over the affected site. There would be no reason for force to be applied to the lower limbs or shoulders during a routine hip ultrasound scan”.  In oral evidence she said “it would be very very unusual indeed for a fracture to be caused as a hip USS which is not an aggressive examination”.  She had never seen or heard of a fracture being caused in that way but if it had healing would be seen in the images of the shaft fracture and there was no healing seen here.

38. Dr Offiah explained that with a metaphyseal fracture force needed to be applied over the site of the fracture, often by a gripping twisting and pulling motion. Whilst some of the fractures could have occurred on the same day they could not have occurred at the same time.

39. Dr Offiah was asked about the effect of massaging following a fracture, the mother believing that her having massaged M this prevented the healing of fractures in line with normal timescales. Dr Offiah said she had no experience of that hypothesis and did not think it was a possibility. She did not think massaging would cause displacement in order to stop the healing process.

40. Dr Offiah was an extremely impressive witness who gave clear and consistent evidence. I am conscious that she was instructed by ABC Hospital rather than the parties jointly but that does not in my view dilute the evidence which she gives to the court.

41. Dr Fairhurst was instructed jointly by the parties with my permission. She is a consultant paediatric radiologist of considerable experience. She regularly reports to the court for proceedings such as these. She stopped counting when she had completed 1000 reports. She reported on 27 April 2017, in summary as follows

42. In terms of dating the fractures Dr Fairhurst was of the opinion that the oblique shaft fracture of the left lower distal tibia occurred between 7th and 17^th January and the right tibia between 8th and 17^th January (almost identical to Dr Offiah’s opinion).  In terms of the metaphyseal fractures she gives a wider date range than did Dr Offiah.    I set out below a table showing the final views of Dr’s Offiah and Fairhurst in terms of the timing of the injuries.

43. The dating bracket given for the timing of the metaphyseal fractures b)iii, b)iv, b)v, b)vi, b)vii and bviii are well before the USS on 12^th January.

44. Dr Fairhurst also described the mechanisms of injury for the two types of fracture. Oblique fractures of the tibia required a twisting force to be applied to the lower leg, not from a direct blow. The fractures require a significant force well in excess of that used during normal day-to-day handling of a child, even during rough play. M could not have caused this fracture herself. She would not have the strength to move her body sufficiently to cause the fracture even if her leg got trapped. The majority of tibial fractures in infants are the result of nonaccidental injury.

45. In terms of metaphyseal fractures, these result from a pulling and twisting force being applied to the limb well in excess of that used in normal day-to-day handling of an infant with normal bones. They have also been reported to occur during violent shaking episodes, when the infant is shaken so hard that the limbs flail about to such an extent that a torsional force is inflicted on the limbs. Metaphyseal fractures have been reported as the result of obstetric injury, mostly those have been a breech extraction and difficult vaginal delivery. Three reported patients had distal femoral metaphyseal fractures following uncomplicated cesarean sections however in all of those cases there was clear clinical indication of injury shortly after birth. In M’s case birth injury is excluded because of the dating of the metaphyseal fractures. Save in the exceptional cases noted, this type of fracture has not been reported to occur accidentally and thus is highly indicative of nonaccidental causation.

46. Dr Fairhurst would have expected M to have shown immediate distress in response to the left tibial shaft fracture, lasting perhaps 10 to 15 minutes and to subsequently show distress when her leg was moved and to be reluctant to use the leg. She would expect any reasonable carer present when the fracture occurred to be immediately aware that M had suffered a significant injury and any carer responsible to be aware that they had caused a significant injury. She would expect any carer who was not present when the fracture was sustained to notice that M was in discomfort when her leg was moved for several days thereafter.

47. In relation to the metaphyseal fractures Dr Fairhurst would expect a regular carer to notice a change in the baby’s behaviour although they may not attribute that change to an injury. It is possible for such fractures to cause relatively little discomfort beyond the initial pain at the time of occurrence and the non-perpetrator may be unaware of the injury.

48. In terms of the USS possibly causing the fracture, she said the force required to restrain an infant for a hip USS was significantly less than would be required to cause any fracture.  Had a fracture occurred she would expect the performing sonographer to immediately realise that the child had been injured and to take appropriate action. Dr Fairhurst could not exclude the possibility of inappropriate force being used in the USS but she could not envisage how multiple bilateral fractures could have been caused during the procedure, particularly as only one leg would have been manipulated at a time and had a fracture being caused to one side the examination would not have progressed to the other side. In any event the radiological dating of M’s injuries indicated that the majority of her fractures occurred before the USS which further supports her view that the injuries were not sustained at the time of the hip USS.

49. In oral evidence Dr Fairhurst maintained the opinion she had written in her initial and subsequent reports. In particular she was clear that none of the fractures could have been caused at birth because of the dating of the fractures quite apart from the fact that there had never been a report of multiplicity of fractures of this nature at birth.  In only two cases which she had been involved in had there been isolated metaphyseal fractures at birth. She was aware of a single limb being fractured at birth but it was difficult to work out how there would be multiple fractures. It was put to her that this might be caused by two doctors pulling on each leg in opposite directions but she said that the force required to cause a fracture for example at the ankle would be dissipated by the fracture occurring so that would not cause the knee fracture which would require a similar force by gripping the knee higher up, then again the hip even higher up. In other words this was an extremely rare event happening to both legs at different sites which in her view sounded implausible.

50. Dr Fairhurst was asked about the effect of massage on fractures. She said that although manipulating the fractured limb could cause further separation it would not delay the development of periosteal new bone formation and so did not affect her opinion of the dating of the fractures.

51. In terms of the ultrasound scan she maintained there were a number of reasons why she would not accept that as a cause of the fractures. First the force used to restrain a wriggly infant would be considerably less than would cause these injuries.  Further inappropriate force could have been applied at one site but it would have been visible to the supervisor and examination would have been suspended or the sonographer would have been asked to stop. Here there are bilateral fractures so the child would need to be turned in an inappropriate force applied twice. Further there was no reason in a USS to manipulate the child’s arms in a way to cause these fractures. In her professional experience there were no reports at all of injuries like this caused by a hip ultrasound scan. The degree of restraint to get adequate images was well below the force required to cause fractures like this.

52. Dr Fairhurst was an extremely impressive, clear, consistent and fair witness. I accept her evidence in its entirety.

53. Dr Rylance is a consultant paediatrician.  He has practiced in paediatrics for more than 41 years and for more than 33 years as a consultant. He is frequently instructed to give expert opinion in court proceedings concerning children. He produced a report on the joint instructions of the parties dated 31 March 2017 and gives a paediatric overview.

54. Dr Rylance explores and excludes any organic cause for the fractures.

55. In terms of the tibiae shaft fractures he states that rough handling within the context of reasonable caring does not cause these bones to fracture unless there is an underlying disorder predisposing to easy fracture, for which there is no evidence in M. He would have expected that M would have cried loudly at the time of the fractures and it would be very unusual to have such fractures without a carer being aware of times of causation and attendant pain. A perpetrator would know that excessive force and a particular action had been used and therefore a significant resultant injury might have occurred. A non-perpetrator would recognise that M had a significant problem with her legs and would be expected to seek medical attention forthwith. Dr Rylance concluded that the tibiae shaft fractures were either of non-accidental or of unknown medical cause, and that the latter possibility is remote.  He did not think that the hip USS was a plausible cause of the tibia shaft fractures

56. So far as the metaphyseal fractures were concerned, Dr Rylance wrote “these are common non-accidentally caused fractures and uncommon accidentally caused fractures. They are almost always caused by a pulling and twisting movement with pressure applied from a distal position in the form of a sharp pull (jerk or yank) or twist, and frequently with those in combination. They occasionally occur in a shaking injury when it is thought that the fractures relate to the flailing of the limbs”. Further he stated that “the force required to cause these fractures is considerably in excess of normal handling. It is commonplace for professionals to handle babies ‘confidently’ which may be interpreted as ‘roughly’ and is sometimes commented upon by parents in the context of ‘rough handling’ that that which themselves employ. No fractures seem to occur as a result of such actions”.

57. According to Dr Rylance a perpetrator would recognise that an action involving such force to cause metaphyseal fractures was inappropriate. Many children of M’s age who suffer these fractures “may not have a significant change in behaviour and usual necessary actions may not elicit apparent pain reactions”. A non-perpetrator would frequently not know that any injury had been caused.

58. Dr Rylance did not consider the hip USS as a plausible cause of the fractures. The likely actions did not involve the necessary mechanism of pulling and twisting. Metaphyseal fractures are characteristic of nonaccidental injury and rarely occur in other circumstances.  In oral evidence he said he could not believe that the hip USS could in any way cause the fractures. He could never ever exclude the possibility of fractures being caused by a hip USS but he had never himself seen a fracture as a result of this procedure and he did not believe these injuries had been caused by this USS. “I have never knowingly come across a case where a baby has suffered a fracture as a result of a hip USS. I don’t think it would happen. If one of two sonographers present was applying inappropriate force it would be obvious and the other would step in”

59. In conclusion he felt it was more likely than not that the fractures of the shafts of the tibiae, and the metaphyseal fractures of the humerus, femur, tibiae and fibula bones were nonaccidental in causation.

60. The ‘frogs legs’position referred to by the parents whereby the hips are flexed and externally rotated and knees flexed is commonplace in babies born in the breech position, according to Dr Rylance, has no particular significance.

61. In oral evidence Dr Rylance was clear that the fractures could not be caused at birth for two reasons. First the age of the fractures post date by a considerable margin the date of birth. Secondly the extent of these fractures has never been reported from the manipulations performed as part of the delivery of a baby. “These fractures would not have occurred at birth. To have this number of fractures would be as near impossible as it can get”

62. In terms of massage he said that manipulation can delay healing of a shaft fracture but not metaphyseal fractures.

63. Dr Rylance was an extremely impressive witness. Despite his extensive experience and knowledge, when he was asked questions which strayed outside his expertise he would not offer an opinion.  He was very measured and balanced in offering his opinion on issues which were clearly within his expertise. I accept his evidence in its entirety.

64. Dr VS is a consultant orthopaedic surgeon who treated M following the discovery of the fractures. He set out his involvement in a report dated 17 February 2017. He examined M on the ward on 18 January 2017 when her legs were in plaster slabs below the knee. He later reviewed the x-ray images from 17^th January and the skeletal survey from 18^th January.  His interpretation of the images did not reveal a number of the metaphyseal fractures. He saw M again on 10 February 2017 in the orthopaedic clinic with both parents and foster carer as well as a social worker. He reviewed the skeletal x-rays carried out on 2 February and explained the x-ray findings to the parents. The parents told him about the hip USS on second January, with mother reporting “some difficulties in positioning the baby with the baby crying during this investigation”.   He wrote “It was my personal view, that some degree of rotatory movements could have occurred in the lower legs, which could be contributory to the injuries sustained by the baby”.  He acknowledges in his report that his observations and interpretation of the skeletal images are different to those of Dr Offiah.

65. In a letter dated 13^th every 2017 to M’s GP he said “the parents reported the onset of symptoms following attendance to the hospital to have the ultrasound scan of the hips on 12 January 2017. She also reported some difficulty in positioning the child to carry out the test. She also reported potential use of increased force to hold the baby’s leg down. It is quite possible there may have been some degree of bending or twisting force on these occasions to cause this lower leg injury……. On the balance of probabilities, I feel that both lower leg injuries could have happened at the time of the above-mentioned ultrasound assessment. Due to the lack of any other systemic skeletal or soft tissue injuries and observation of the activities of the parents throughout the consultation, it is my personal view that the injury may not be nonaccidental.”

66. Dr VS attended the professionals meeting on 15 June 2017. A significant part of that meeting was taken up with discussion about the existence of a large number of the metaphyseal fractures with Dr VS maintaining that some of the fractures seen by Dr Offiah and Dr Fairhurst were not present. Doctor VS did accept at the professionals meeting that all the fractures could not have been caused at the hip USS.

67. In oral evidence Dr VS explained that since 2002 he had been managing injuries to children in accident and emergency. 15 to 20% of the patients he treated were children although not very many were less than one year old. Not that many was seen in a clinical capacity with fractures.

68. He said he could not be certain that the hip USS was responsible for causing injury. “The injury is inflicted. From my interaction with the family and the baby based on the history I was given I said a role may have been played by the ultrasound scan. That doesn’t mean it cause the injury. Now I have seen the evidence the injuries are probably not caused by the ultrasound scan”.

69. Dr VS was asked whether he would defer to the opinions of the paediatric radiologists in terms of the dating of fractures and indeed the existence of fractures. He would not do so, saying he was ‘fairly comfortable dating long bone shaft injuries”, and “I have a different view of some of the x-ray images”. When asked whether Dr Offiah and Dr Fairhurst were better experienced than him to offer views about the existence of and dating of fractures he said “they probably have more experience than me in reporting nonaccidental injuries. They have their opinion, I have mine”.

70. He emphasised that he did not agree with the other experts regarding the existence of the upper arm and femur metaphyseal injuries and this was a difference of opinion. He accepted that Drs Offiah and Fairhurst would be expected to defer to him in relation to his surgical opinion given his experience but “I don’t find it difficult to defer. I have a different opinion. I don’t have to defer. I send patients to have a scan and radiological reports are produced. The opinion of the radiologist is accurate in most scenarios but sometimes inaccurate, then we discuss things.” It was put to Dr VS that it was unreasonable for him not to defer to the radiologists. He said “I have to state what I believe in. I did not conclude that the shoulders/hips were injuries”.

71. Dr VS said that he did not often examine images of children less than a year old, perhaps once a week within his group but less than that for his own patients. He did not accept that he had strayed outside his expertise in offering an opinion about the cause of injuries. He said he was just mentioning clinical findings.

72. Dr VS denied being put under pressure by the hospital or by colleagues to change his view.

73. I have to say I really struggled with Dr VS’s evidence. I do appreciate that he has never been involved in court proceedings and thus does not have the court experience of the other experts in this case but even accounting for that it is very obvious that Dr VS strayed outside his area of expertise both in terms of the existence of and dating of these fractures. Having heard him give evidence, and noting the position adopted in the professionals meeting, I am driven to the conclusion that pride and over self-confidence is a real professional obstacle for him. I do not understand the repeated refusal to defer to obvious superior expertise. That is unusual and I regard it as unreasonable. It has contributed significantly to the muddying of waters in terms of identifying and dating the injuries. It has also contributed towards other professionals being implicated in causing injury to this child.

74. It is very obvious to me that no weight at all can be attached to the evidence of Dr VS.

75. NM filed two statements, the first on 24 February 2017 and the second on 4 July 2017. She was also interviewed by the police on 23 January 2017. In her first statement she explained that following her admission to hospital on 19 December 2016 both children were with JS until 23 December 2016, then from 23 December 2016 until 27 December 2016 both children were with Mr MM. From 27^th to 28^th December Mr MM and the children stayed at aunt VM’s house (where she lives with her husband and daughter) and then returned home until 2 January 2017. From 3 until 4 January both children were with MA. Although NM was discharged back home on 3 January the children did not return until fourth January. From 4^th to 16^th January the parents had joint care of the children.

76. In her statement she says, of the hip USS on 12 January 2017, “during the scan the nurse who I believe was a trainee or student nurse, was not able to get a clear picture of her hips, as the baby was moving around crying and screaming so the doctor who was a white female came over and held M’s legs together to stop her from doing so and by doing so this is where I believe she may have sustained her injuries. At one point MM told them to stop as M was in distress but they responded something along the lines of “they knew what they were doing””.

77. “On 14 January 2017 I noticed swelling on the baby. I called the out of office hours surgery on 15 January 2017. There was a misunderstanding, I assumed they were coming at 9:30 PM that evening however it was me who was supposed to go to the surgery. They then called me to inform me that I’d missed my appointment and that they did not have any appointments left. I then called my surgery on 16 January 2017 and they gave me an appointment at 3 PM, after which I went to hospital.”  “We were told at M’s follow-up appointment on 10 February 2017 by Dr VS that the scan could have been the reason for the injuries. He told us that there were no other injuries but the fractures on her legs.”

78. In her statement of 4 July 2017 Ms NM described being hospitalised in November 2016 after collapsing in the town centre due to the stress of being evicted as her sugar levels went down (she is diabetic). Scans showed fibroids and that the baby was growing slowly. Further scans in December again showed the baby not growing satisfactorily which resulted in the Cesarean section the following day and the removal of fibroids. No mention is made in that statement of the birth itself. NM does, though, go into detail about her admission to hospital on 19^th December with an infected wound and bleeding from the wound. She received two blood transfusions, was moved to the high dependency unit and was extremely unwell. Understandably she was very distraught at not being with her newborn baby. She described MM as being of great assistance when she was unwell and that M was very unsettled, especially when changing her clothes or nappy.

79. NM said that on the advice of the hospital medical staff M was massaged to assist with her “frogs legs”. NM is a trained masseur. In oral evidence she said that the massaging she applied might have delayed the healing. When it was put to her that the doctors agreed that the metaphyseal fractures would not be disrupted in terms of their healing by massage she said “I can only go on what I know. If a bone is not fully connected and there is massage it won’t heal”.  She also showed on the baby doll in the witness box how she had massaged which was more a stroking motion.

80. NM confirms in her statement that the swelling on M’s legs was “discovered just two days after the hip scan and we sought medical advice soon after”.

81. “I feel the injuries were caused at the hip scan but the child’s health during pregnancy and after birth also had an impact on the injuries including how she was manhandled once born and how fragile she was including the slow way in which she grew. She was pulled out by the legs and was again held during the heel prick etc.  she was a premature child who went through a lot at the hands of the health professionals….. Both myself and MM have previous experience with children as we both have children from previous relationships. Furthermore I belong to a very close extended family with many children and have never had such an issue arising before and have always taken care of children left in my care. I am aware of the professionals views but I cannot see anyone in the family harming my newborn baby.”

82. NM maintained her position in her oral evidence, having sat through the evidence of all the other witnesses. She described how M’s legs were splayed out after the birth, that nurses had told the parents that they should exercise the legs and stretch them to encourage the legs to drop and that M was uncomfortable with her limbs being moved “it was like a scream”. Nappy changing was very hard and holding her legs together caused her to cry. During the period when she was in hospital after 19^th December MM would bring M to the hospital after dropping T at school some days and she would speak to MM every day on the telephone. When she returned home on third January she was very upset to learn that her uncle had died of a heart attack unexpectedly. Thereafter she and MM would take turns to care for M.

83. When asked about the hip USS on 12^th January she said “the junior sonographer was very reasonable and gentle….. When the senior took over M had already been turned to the other side. To get a clear picture of the senior sonographer held the legs and M was crying. With the junior sonographer M was crying but not so much. With the senior she was crying an octave up. It was uncontrollable. Father looked at me and said to the senior “do you think we could give a minute to calm down”. She said “I know my job, I know what I am doing”. After the hip scan, on 13^th January I noticed the legs swollen and on 14^th January there was swelling from the ankle right up the left leg and at the ankle on the right leg. On 15^th January I contacted the out of hours Dr thinking there may be an infection”. She demonstrated with the baby doll and cradle how she said the senior sonographer pulled M’s knees together to get a clear scan of the hip. She said she was 100% sure that she first noticed the swelling on 13^th January, despite her written evidence saying 14^th January.

84. In terms of the birth, she felt a rough and uncomfortable tugging whilst two doctors pulled at the baby, one from each side of the bed. She maintained that most of the fractures other than the leg shaft fractures were sustained at birth. “You cannot pull and yank a baby without causing injury”. The legs were fractured at the hip USS.

85. NM understood what the experts were saying in terms of the timing of the injuries. She does not accept their evidence. “I’m a human being and mum. You can’t take a child’s leg, twist and hold it without causing damage”. She said that the sonographer’s being emotional before and during their evidence supported her suggestion that they had caused injury. She said that they were lying and the professionals do get it wrong. She was very clear that she did not cause the injuries and wanted answers. “I am 100% sure that the cause of the fractures is what happened at birth and at the hip USS”.

86. I am seriously troubled by NM’s evidence. She is clearly an intelligent woman who understands what all the medical professionals are saying. I can completely understand how traumatic M’s birth must have been and of course NM’s admission to hospital when M was only two weeks old.  The subsequent discovery only two weeks after NM returned home that M had suffered injuries must have been shocking if she knew nothing about how the injuries had been caused. Any mother with those experiences would struggle, both physically and emotionally. Add to the mix that Dr VS expressed his opinion that the injuries could have been caused by the USS one can understand why that was something which would cause any person not responsible for the injuries to question whether the medical professionals had caused these injuries.  The difficulty with NM’s position is that there is not a shred of credible evidence that supports the suggestion that any injury occurred at birth.

87. Miss Murphy says on NM’s behalf that just because mother does not accept the medical evidence does not mean she is not being truthful. I agree with that but there are significant aspects of NM’s evidence which cause me concern about her credibility, in particular her evidence regarding swelling to M’s legs. In her written evidence and her interview to the police (and to the hospital) she had always said she first noticed the swelling on 14^th February, 2 days after the hip USS.  She changed this only in her oral evidence to 13^th February. Dr Rylance had made clear in his evidence that noticeable swelling would be apparent within 24 hours.  I think that is telling and supports the view which I have formed that she was not at times being truthful.  I do not accept her explanation for the inconsistencies about this evidence. 

88. MM has filed three statements, on 2 March , 25 March and 17 June 2017. His evidence concurred with NM’s in terms of the care of the children from M’s birth until mid-January. When M and NM were discharged from hospital together he would continue to take T to and from school so he would be out of the house for 20 to 30 minutes in the morning and a little longer in the afternoon. He would also do the shopping and take the dog for a walk. After 19^th December the children remained with JS until 23^rd December so that he could visit the hospital and he did not visit the children. When the children were staying with their aunt VM from 24^th to 25^th December he visited them and from 26 December the children remained in his sole carer at home until third January. On one or two occasions M was with NM in the hospital whilst he walked the dog.

89. After 4 January, following NM’s discharge from hospital on 3 January, the children were in the parents joint care although the children were left with NM when he did the shopping, went to school with Talitha or walked the dog.

90. MM describes in his statement of 17^th June the cesarean section and two doctors pulling to get M out of NM’s “belly”. After the birth M was very unsettled especially when her nappy was changed and she would resist touching from the waist down. Like NM he describes how a doctor suggested massaging to M’s legs. In oral evidence he said that the doctors pulling the baby out of NM “was too aggressive. I could feel the motion. They were pulling one on each side of the bed. I could see everything. They were holding the baby at the shins, then the knees, then the hips.”

91. So far as the hip USS was concerned he described how the junior sonographer was not coping with M crying and resisting. “The more senior sonographer then assisted her colleague by holding down M with two hands one placed on her thigh on her leg around the ankle area. M was crying very loudly without stopping and was resisting the procedure. Her legs were not straight but were pointed outwards in the senior sonographer was forcing her feet straight so that the scan could be carried out. This involved a twisting force in trying to position M for the scan. The procedure was carried out to M on both sides and M throughout was crying….”. In oral evidence he maintained that the first sonographer was completely appropriate and gentle but the other sonographer held M’s legs near her knee and her ankle whilst the first sonographer undertook the scan.

92. MM said in oral evidence that he had challenged the sonographer’s to give M time to calm during the procedure before proceeding and he said that the second senior sonographer responded by saying “no, this is my job. It’s what I do”.

93. According to his statement, on 14^th January NM told him that she noticed a swelling to M’s leg which he too noticed. On 15^th January he could see swelling to both legs which caused him concern and it was then that NM called 111. In oral evidence MM said that it was 13^th January when NM asked him about like a swollen leg and it was on 14^th January after he gave M a bath that he noticed the left leg a bit swollen and the right leg not that swollen, just a bit. It was put to him that in the written evidence he had always maintained that it was 14^th January when NM had first raised the question of swelling. He could not now recall whether it was 13^th or 14^th January.

94. Like NM, MM explained that Dr VS said at the appointment on 10^th February that the injuries could have been caused by the hip USS.

95. In oral evidence MM explained that he had two other children. He had looked after them as babies. When his son was newborn he had helped look after him and his three half-brothers aged 12, seven and eight with his partner who was sick at home. He denied ever having handled M roughly or lost his temper. He maintained that the injuries occurred at birth, were undetected and aggravated at the hip scan.

96. I am sorry to say that I did not find MM a reliable and credible witness. I am unimpressed by him, for the first time, giving detail regarding events when he has had many opportunities to explain in full all the significant facts which he says point towards these injuries being caused at birth and/or at the hip USS. For example he did not mention at all before giving oral evidence that YH had been angry and frustrated during the hip USS.  Further, he was at times evasive when questions were asked of him. Like NM he changed his evidence in relation to the timing of the swelling on M’s legs from 14^th to 13^th January. I am also concerned that there was no mention to the police when he was interviewed on 23 January 2017  that the hip scan may have caused the injury.  His explanation for that omission was that the police did not ask him about the hip USS but it is obvious from the transcript of the police interview that he was not just being questioned about M’s carers during December/ January but also about the cause of the injuries.

97. I hope it goes without saying that I have considered the other evidence contained in the bundle to the extent that it is relevant. I have read the police interviews and looked at the relevant parts of the medical notes. I should also mention that despite there having been a number of opportunities at case management hearings for the parents to seek permission to file statements from other family members who had cared for M from birth no such statements had been adduced. The local authority did not seek to file statements from other carers following the dating of the injuries by Dr Offiah and subsequently Dr Fairhurst.  On the second day of this hearing Miss Murphy for the mother sought permission to file statements from those carers who had helped look after M after 19^th December. I said I would consider that application once statements had been obtained but in the event none were obtained and the application was abandoned

98. I acknowledge of course that Dr Offiah and Dr Fairhurst do not fully agree with the time brackets for some of the injuries but that is to be expected when their opinion evidence is based upon an interpretation of images.  There are always margins within which radiologists have to work. In this particular case there is no need to prefer either Dr Offiah or Dr Fairhurst where they differ and so I adopt the local authority approach to the timing of the fractures taking the earliest and latest dates respectively. For convenience I have highlighted those dates in the table set out earlier.

99. I make clear that massaging would have had no effect on the dating of any of the injuries, something which is accepted by all the relevant experts but not by the parents.

100.              Although there has been discussion between the experts as to whether the injuries occurred on one or more occasions it is not necessary for the purpose of this judgment for me to determine that issue.

101.              Both parents now accept that;

102.              None of these fractures occurred at birth. That is abundantly clear. There is no doubt about it given the timing of the injuries. I cannot begin to understand why the parents have continued to suggest that the procedure at birth can have in any way caused any of these injuries.

103.              Neither did any of these fractures occur at the hip ultrasound scan on 12 January 2017. There are a number of reasons why that is the case. First a number of the fractures cannot have happened, because of the timings of them, at the USS. It is improbable and unlikely that some injuries were inflicted at the USS and others elsewhere on another occasion.  More importantly I have heard detailed evidence from the two sonographers. They were honest and credible witnesses who simply did not remember this particular USS because it was unremarkable. I accept entirely their evidence.  The fact that M may have presented with splayed legs and bent knees (“frogs legs”) is irrelevant because I accept the sonographer’s evidence that it was not necessary to force the legs together in the way the parents suggest in order to obtain an image.

104.              I do not accept the parents evidence about what happened on 12^th January at the USS. I can accept that M was distressed and crying to the point that YH had to take over but I do not accept that the scan was performed by both sonographers together, that either of them used excessive force in a way which caused injury or that there was anything unusual about the way the scan was performed. This was a routine procedure and the fact that the sonographers did not remember it is consistent with it being routine and unremarkable. It is simply not credible that either of these sonographers caused any fracture. I feel particularly sorry for XF having to give evidence which has obviously caused her distress and has caused her to shy away from performing paediatric hip ultrasound scans. I would encourage her to think again about that decision.  She seemed to me to be very professional and she should be reassured that the parents during their evidence said that she had been gentle with M.  Add to the picture the clear evidence of the level of force required to inflict a single fracture, and the fact that we have multiple fractures it is just not possible in my view for any of these fractures to have been caused at the USS.

105.              In terms of individuals who had the care of M during the periods when she suffered the injuries, both parents cared for M during the periods for each of the injuries. Nobody else cared for M during the periods encompassing all the timescales for all the injuries. No party has suggested that any of the other family members who were assisting in the care of M fall within the pool because of the inherent improbability of injuries being inflicted by two different carers on two separate occasions.  I agree with that approach

106.              Reminding myself of the test, is there a likelihood or real possibility that a person was the perpetrator I am driven to the conclusion that both mother and father are in the pool of perpetrators. Certainly there is likelihood or real possibility that MM was the perpetrator. He was the primary carer of M throughout the period when these injuries were caused and I have rejected the explanations that he has given for the cause of the injuries.

107.              I have given considerable thought as to whether there is a likelihood or real possibility that NM was the perpetrator. I am very conscious of her difficult recovery from a traumatic birth and then her readmission to hospital with an infected wound.  That would have inhibited her significantly after she left hospital on 3 January. She would have had difficulty lifting M and it is clear that most of the routine caring of the baby, for example bathing and nappy changing, was undertaken by MM.  Further, the window of opportunity in respect of some of the fractures is quite limited bearing in mind that she was in hospital until 3 January .  It is also true that she showed understandable emotion when speaking about what had happened.  She desperately wanted to know what had happened to her baby.

108.              I am also conscious that T has been cared for perfectly well by her mother throughout her life and that NM acted in a completely protective way on the one occasion that T has come to the attention of the authorities a number of years ago when she was hit by T’s father. 

109.              I am also conscious that it is for the local authority to prove the facts asserted on the balance of probabilities.  It is not for NM to prove anything.  I do not think on the evidence that I have that she can be excluded from the pool of perpetrators.  I am particularly troubled by her evidence around the dating of the swelling she noticed to M’s legs which, until this hearing, she had always said she noticed on 14^th January. I think she changed her evidence because of Dr Rylance’s evidence that swelling would be apparent within 24 hours. That does not of course mean that she inflicted that or other injuries but it does lead me to a finding of a likelihood or real possibility that she was the perpetrator. To exclude her from the pool would, in my view be straining too far in a way which I should not do.

110.              It follows in my view that the injuries sustained by M were inflicted by either or both of the parents.

111.              It also follows that whichever of the parents caused the injuries they failed to protect M by not seeking timely medical assistance. I do accept that if only one of the parents inflicted the metaphyseal injuries, the other parent may not have known about the injuries. As Dr Rylance said, those injuries may not have been apparent. Of course medical attention was sought in relation to the shaft fractures but not for two or three days after swelling became apparent and this too was a failure to protect M from harm.

112.              I need both parents to reflect carefully on their positions. There will of course now be further risk and welfare assessments but it is very difficult to assess risk moving forward without understanding exactly how these injuries were caused to M. If the parents are to give themselves, and the children, the best chance of remaining with one or both of them then they must explain how M came to suffer these injuries. I hesitate to say that it is fortunate that M did not suffer even worse, longer lasting, injuries but that is indeed the case. Both children deserve to be protected in a way which M has not been. Social workers and medical professionals are there to protect children from harm.  That is exactly what has happened in this case. The parents need to understand that no professional has caused harm to their child.  It is one, or both, of them who has inflicted these injuries on M