England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING IN COVENTRY

		140,Much Park street, Coventry
		19/01/2018

Her Honour Judge Watson:

Introduction

1. Baby N sustained a fracture of the distal left femur at the age of just under 8 months. She was sitting up and bottom shuffling but otherwise a non-ambulant child. She was in the care of her mother at the time and her father was at work.
2. Both parents are Eastern European and moved to England in 2015. They returned to their home country to marry. Baby N was born in England. Both parents were in employment although at the time of the injury mother was on maternity leave. The parents had Godparents in England but otherwise the extended family remained in their home country. Father speaks good English but mother has very limited English language.
3. Children's services had no previous concerns about the family. The criminal record checks were negative and home conditions were entirely appropriate. The parenting assessment describes a much loved and well cared for child and parents who are able to meet her needs.
4. Baby N was presented at Accident and Emergency on the Monday morning following the incident described happening late Saturday evening. Both parents attended hospital. Mother had noticed Baby N was unusually distressed on Monday morning when a ball shaped toy rolled against her leg. Her leg appeared swollen and painful to touch and parents took her immediately to the hospital.
5. An x-ray of the left leg disclosed an acute fracture of the distal left femur. The history given by mother to the hospital doctor of a slip in the bath would not in the opinion of the clinician or the reviewing radiologist explain the injury seen. A full body scan was therefore undertaken which revealed no further injury. There was no evidence of endocrine or metabolic abnormality and no underlying bony condition.
6. " Probable non abuse required a history of trauma that was stable with retelling, absent or un concerning additional injuries and an absence of social concerns" [Haney( et al.,2009)]
7. The first element of a non-abusive injury was missing. There was no credible history.
8. A joint police and social care investigation was launched.
9. A Local Authority initiated care proceedings and an interim care order was made and Baby N placed in foster care. As soon as the maternal family in the home country became aware they immediately made arrangements for the maternal grandfather, who is retired, to travel to England to care for Baby N. His wife remaining at home to care for her own elderly mother. The maternal grandfather was assessed to be entirely suitable and Baby N was placed with him in the family home. Parents were allowed supervised contact between 8 a.m. and 8p.m.and met Baby N's care needs. Announced and unannounced visits raised no concerns.
10. In her first interview with the police mother repeated her account of the slip in the bath, whilst she was momentarily distracted picking up the shampoo, as the cause of the fracture.
11. Within the family proceedings mother was appointed a solicitor and was encouraged to tell the truth. 11 days after Baby N was taken to hospital mother gave her second account which described a fall from the bed after the slip in the bath incident during which Baby N fell approximately 29.5 inches of 75cm on to a thin carpet on a hard bedroom floor, landing on her knees.
12. She was re interviewed by the police and the jointly instructed experts in the family proceedings were asked to consider whether the mechanism described in the second incident could have caused the fracture.
13. Since first giving her second explanation mother has maintained a consistent account.
14. Mother admits that she lied. She did not give a truthful account to her husband, the doctors at the hospital, the social worker or the police officer when first seen. She said she was scared of the consequences and believed Baby N would be taken off her. She regrets not telling the truth from the outset.
15. The experts met for an experts meeting and agreed that the mechanism described by mother in the second incident was compatible with the injury seen.
16. A local Authority sought leave to withdraw their application.
17. Baby N was returned to the care of her parents in week 15 of the family proceedings.
18. A Local Authority and the Court accept that if mother had given the second account immediately and had not sought to conceal it from the medical and other professionals caring for Baby N there would have been no need to investigate the injury, which was an accident and would have met the definition of "probable non abuse with the required history of trauma that was stable with retelling, absent or un concerning additional injuries, and an absence of social concerns".
19. With the consent of all parties it was agreed that it would be informative to publish anonymously the facts of this case to distinguish the injury seen in this instance from other fractures of the femur and to demonstrate the consequences for Baby N of a failure to tell the truth from the outset.

The Explanations

The Slip in the Bath

"Baby N was sitting in the bath and all of a sudden she slipped. She didn't go under the water but ended up on her side in the bath. I was worried that she had banged her head slipping in the bath and therefore quickly picked her out of the bath, wrapped her up and took her into the bedroom".

Mother had told the hospital staff and the police in her first voluntary interview that she had not seen it happen because she had turned away to reach for the shampoo but she later said that was not true.

The Fall from the Bed

"I sat her on the bed and bent her forward to check the back of her head and to check if she was ok at which point she seemed to slip off the bed, she simply fell feet first and her knees were the first part of her body to come into contact with the floor then went on to her belly. Baby N did not roll sideways off the bed, she simply slipped feet first off the bed and fell to the floor. Her knees making contact with the thin carpet. I have two mattresses on the bed because of my rheumatoid arthritis. I understand the height from the top of the bed to the floor is about 29.5 inches. I tried to catch Baby N as she fell but it happened in a moment and I was not able to stop her falling."

"After the fall Baby N was crying. It was not her normal cry. I thought she was crying because of the shock of the fall. It is difficult to be certain how long she cried but it was for between 5 and 10 minutes. She cried whilst I dressed her but stopped afterwards when I cuddled and fed her. Baby N was in a legless baby grow as I fed her so I could see her legs. I did not notice any bruises"

"During the night I do believe she woke up between 3a.m and 4a.m.I gave her some water and she went back to sleep until 7am"

"On Sunday morning she woke up as usual, had her breakfast and went back to sleep. Father came home from work and he had a play with her. During Sunday I changed her vest and her nappy. She seemed fine. I didn't put her into a baby grow with legs so I didn't therefore touch her legs. For part of the day Baby N was sitting up playing. She did look uncomfortable at some points but she was not crying. I did keep an eye on her because I was worried in case she had banged her head and I wanted to make sure she hadn't got any signs of head injury".

"On Monday she woke up. After her morning sleep she was sat playing with me. I rolled the ball and it hit her leg above the knee and she cried. I then went to touch the leg and she cried. I thought she must have a problem with it. This was the first time that I was aware she had any injury to her leg. I hugged Baby N and calmed her down. I then went to wake up my husband and told him that Baby N seemed to have a problem with her leg. We both decided we needed to take her to hospital".

The Medical Opinions

Dr Karl Johnson, Consultant Paediatric Radiologist, Birmingham Children's hospital

20. An acute fracture of the distal left femur ( no older than 11 days)
21. The left femoral fracture is the result of a blow, impact, bending/snapping action or a fall onto the knee/lower thigh.
22. The amount of force required to cause this fracture is unknown, but in my opinion it is significant, excessive and greater than that used in the normal care and handling of a child. The left femoral fracture would not occur from normal domestic handling, over exuberant play or rough inexperienced parenting.
23. The fall or impact Baby N had in the bath tub is relatively minor and I would not expect to result in a fractured femur.
24. Baby N slipping knees first onto the floor would be an impact on her knees. In my opinion this mechanism could result in the fracture of the distal left femur. I cannot exclude it as a possible cause.

Dr Alun Elias-Jones, Consultant Paediatrician and safeguarding lead for Leicestershire and Rutland

25. Baby N has been the victim of a probable significant non accidental inflicted injury.
26. The slip in the bath is unlikely
27. A more probable explanation is caused by a direct blow to the leg or a forceful gripping and twisting of the leg
28. The lack of superficial bruising noted at the safeguarding medical makes a blow less likely
29. The more likely explanation is from forceful gripping.
30. No evidence of an underlying endocrine or metabolic abnormality
31. No underlying bony dysplasia or osteogenesis imperfecta ( brittle bones disease)
32. It is concerning that there was delay in seeking medical help
33. Baby N would have been in significant pain when the injury occurred
34. After the injury was caused any subsequent handling for dressing, bathing or changing would have caused obvious discomfort and pain and resulted in Baby N not attempting to weight bear and not using the fractured limb.

Adam Oates, Consultant Paediatric Radiologist, Birmingham Children's Hospital

35. Less than approximately 1 week old. No underlying medical condition is radiologically apparent that would pre dispose to fractures.
36. Very unlikely that the fracture would have been sustained by slipping in a baby bath.
37. I believe it is possible and not unreasonable, that the fracture could have been sustained by Baby N slipping from the edge of a bed (29.5 inches/75cm high) and her knees impacting with the floor.
38. If this latter description does represent the causative event on the Saturday night I do question why there was a delay between the event and the subsequent presentation at hospital on Monday morning.
39. I defer to the expert paediatrician who has greater clinical expertise. I believe that a femoral fracture would be painful and I do question the reason for the delay in hospital attendance but I note the case in the Haney research where there was an overnight delay before hospital attendance.
40. Reviewing the radiology imaging

–fracture of the distal metadiaphysis region of the left femur

–associated mild angulation

–associated oedema within the adjacent soft tissues

–cortical disruption consistent with a transverse fracture

–modest impaction (suggesting the bones are compressed in the vertical plane due to axial loading)

41. Research from Pandya (2009) and Haney (2009) is considered. Femoral fractures are certainly seen in suspected abusive injury patterns, but they are not as statically common as rib or tibia/fibula fractures and are not one of the more highly specific injuries.
42. In the Haney research, a more focussed study, a small cohort of infants with fractures of this type of the distal metadiaphysis were probable accidental in nature.
43. I believe it is important to make the clear distinction between the fracture that Baby N sustained (i.e. at the metadiaphysis) and another type of long bone fracture known as a classic metaphyseal lesion (CML), also known as a bucket handle or corner fractures. Baby N did not have a CML.

Experts Meeting

44. There was a difference of opinion as to the likely mechanism for the fracture in the reports of the two court appointed, jointly instructed experts, Dr Elias Jones and Dr Oates. A meeting was therefore set up before each was called to give their evidence. The meeting was chaired by the Child's Solicitor and a note taken. Specific questions had been agreed and were sent to the two experts in advance. To save time, and with the consent of all involved, the trial advocates listened to, but did not otherwise participate, in the meeting of the experts.
45. Dr Oates described the two forces involved which were the slipping forward and the gravity as Baby N fell to the floor which would have caused her to fall on to her knee and then rotate forward on to her belly and head. Exactly as described by mother.
46. If the femur was at 90 degree angle to the floor the force would propagate up the femur and cause the crumpling effect as seen in the images. The lateral x-ray shows a slight angular position which coincides with the rotation of the fall.
47. Dr Elias-Jones sees this as a possible mechanism and the forces involved strengthened his view that this was a possible explanation.
48. Dr Oates was of the view that a rotational force was unlikely to produce the injury seen.
49. A forceful grip and a yank is a possible explanation. Less of a twisting action but more of a holding and yanking.
50. The Haney research of a fall from waist height whilst being held by an older sibling suggests this explanation is compatible but unusual.
51. Dr Elias Jones said having listened to the description of the forces from Dr Oates and on further reflection, he agreed, this is not a spiral fracture and was more indirectly sustained such as from a fall off the bed. It was therefore possible for the injury to have occurred as in the second explanation given by mother.

Analysis and conclusion

52. A Local Authority properly reflected on the consensus now apparent from the medical experts that the mechanism for the fracture was wholly compatible with mother's second explanation.
53. It is important to note that mother did not initially tell the truth and there was delay in presenting baby N for help but had the explanation been given at the outset the delay would not have been a reason for removing Baby N from her parent's care.
54. There were no other concerning features. Baby N was seen to interact well with both her parents and presented as a well looked after child. They have co-operated fully with professionals throughout the family proceedings and once the second explanation was given.
55. Mother does not speak English and was in an alien culture at a time of great crisis and stress. She told the parenting assessor she was scared. "I didn't trust anyone and no one explained why everything was happening". Her husband said "It was very surprising when she told me. It surprised me she didn't tell me. I think she was scared". He described how when they were told baby N had a fracture his wife started crying and did not stop for 2 days. He didn't know how to calm her down. It was a nightmare.
56. Looking at the totality of the case A Local Authority did not wish to pursue any findings and sought permission from the court to withdraw the application.
57. Permission was given by the court and her parents returned home to resume care of Baby N. A Local Authority will monitor the situation as a Child in Need and address some of the recommendations made in the parenting assessment around bedtime routines and the parents welcomed that help.

Court Order

58. The Order drawn reflects the endorsement of the court that the explanation given by mother eleven days after the presentation at hospital is the correct explanation, and was, in the view of the court, not forthcoming at the outset as the mother was fearful of revealing the cause of the injury as she has set out in her statement, her second police interview and in the parenting assessment.
59. And Upon A Local Authority accepting that when the child presented in distress following a ball hitting her leg on Monday, the mother acted appropriately by seeking medical assistance.
60. And Upon the court stating this was an unfortunate accident.
61. The Court agrees Baby N will be returned forthwith to the care of her parents
62. And Upon Mother accepting that she did not initially tell the truth about how Baby N suffered her injury upon presentation at hospital and that she failed to do so until 11 days later. The failure to be honest was due to fears of the mother that she would be blamed for the injury and that Baby N would be removed from her care because she sat her on the edge of the bed before she fell.
63. And Upon A Local Authority accepting there has been full co-operation since the mother made her disclosure and an expression of willingness to work with the Local Authority
64. And Upon the mother now recognising the importance of being open and honest with professionals and the court in respect of matters relating to the child.
End of Judgment