England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
COVENTRY DISTRICT REGISTRY

		18th April 2011

1. This finding of fact hearing relates to a little boy, L. L is now 14 months old (born 19^th January 2010). His parents are GT ('the mother') and BR ('the father'). On 3^rd March 2010, when he was just six weeks old, L was admitted to hospital. He was found to have sustained a number of fractures. He also had a number of marks to his face, left arm and right hand. The local authority (Coventry City Council) and the police were informed.
2. The parents were arrested. They were taken to the local police station where they were later interviewed. Both were subsequently released on bail. On 15^th July the mother was informed that no action was to be taken against her.
3. The parents agreed to L being accommodated under s.20 Children Act 1989. The local authority agreed to L being cared for by his maternal grandmother, NT ('the grandmother'). The grandmother was then living in Scotland. She was employed as a head teacher. She agreed to come to Coventry to care for L. She took early retirement. The mother moved out of her home and the grandmother moved in. L was placed with his grandmother on being discharged from hospital on 10^th March.
4. On 25^th March, with the agreement of both parents though without the knowledge or agreement of the local authority, NT took L to Ireland. They arrived in Ireland on 26^th March. Later that day the local authority began care proceedings, unaware that L had been taken to Ireland. They did not become aware of his removal until 29^th March. L was finally returned to England in August. In the intervening months there was considerable legal activity both in England and in Ireland in order to secure L's return to this country.
5. On 21^st May, in London, Mr Justice McFarlane granted a declaration that at the time the local authority issued proceedings L was habitually resident in England. He made L a ward of court. The judge ordered that the grandmother must return L to England forthwith and that upon his return he be placed in the care of the local authority.
6. The local authority then began proceedings in Ireland. The grandmother was the respondent to those proceedings. On 27^th July, in the Irish High Court in Dublin, Mr Justice MacMenamin made a declaration that the grandmother had wrongfully retained L from the jurisdiction of the courts of England and Wales - Coventry City Council v S [2010] IEHC 303. The grandmother appealed. Her appeal was heard by the Supreme Court of Ireland on 30^th July. The appeal was dismissed. The court ordered that L should be handed over to social workers at 8.30 p.m. that evening. In defiance of that order the mother and grandmother took L into hiding in the west of Ireland. Two days later they were found by the Garda. L was removed from his mother's care. He was subsequently handed over to social workers who returned him to England.
7. Upon his return to England L was placed with local authority foster carers. The parents have had regular contact with him. That contact has been supervised by the local authority. Since December 2010 the court has permitted the grandmother to have unsupervised contact with L. The level of contact has gradually been increased. L currently spends four nights a week with his grandmother. There is in place a robust package of measures to protect against a second removal from the jurisdiction. There is no evidence to suggest that either the parents or the grandmother have been anything other than scrupulous in complying with those measures.

Background history

8. The parents are not married. The mother is aged 33 and single. After leaving school she trained in dance and figure-skating. She returned to full-time education at the age of 25 and graduated with a degree in English literature in 2007. Whilst studying she supported herself by working part-time. It was there, at work, that she first met BR.
9. The father is 36 years old. He is divorced. He works full-time. He holds a responsible position as a manager. He has three other children from another relationship: C (aged 9), R (aged 8) and D (aged 4). He has a residence order in respect of C. He has contact with R and D. He and C live with his parents.
10. The parents' relationship began in late November 2008. By January 2009 the mother found that she was pregnant. The pregnancy ended in a miscarriage in March 2009. The mother soon became pregnant again. The second pregnancy was not planned though both parents were delighted. According to the mother it was a difficult pregnancy. The decision was taken that she should go into hospital to be induced on 19^th January. In the event, she went into labour spontaneously. Foetal distress led to the decision to perform an emergency caesarean section.
11. In the early hours of 22^nd January a midwife noted that L had low body temperature and that he looked jaundiced. He was noted to have strange eye movements. Testing of his blood sugar level showed him to be hypoglycaemic. He was also suspected to have an infection. He was admitted to the Neonatal Medical Unit. He recovered quickly. He was returned to the maternity ward on 24^th January. Mother and baby were discharged from hospital on 27^th January.
12. Following discharge from hospital L was cared for at his mother's home. Although the mother was his primary carer the father was a frequent visitor to the house and normally stayed overnight four or five nights each week.
13. The mother had regular contact both with her midwife and her health visitor. This included both routine visits and occasions when she contacted them just for advice. Contained within the hearing bundle is a statement by her health visitor who says that she

'found GT to be a very caring and conscienscious (sic) mother, attending to L's needs well. She has actively sought out professional help and acted upon information given. GT has appeared to lack some confidence as a new mother and support has been given to overcome her concerns. Encouragement to attend groups has been offered…Weekly support has been offered to this family and readily accepted by GT. Contact has been made with professional (sic) when advice and support needed and information taken and implemented well. GT has been very keen to continue and successfully breast feed and it is apparent that she wants to do what is best for L. It has been observed that GT is not a confident Mother and support and reassurance has been given to help overcome this.'

14. It is appropriate to note one further entry in the health visitor's statement. The mother contacted the health visitor on 2^nd March, the day before L was admitted to hospital. The note reads:

'Telephone call from GT. Reports L has been awake all night, crying and constantly feeding. GT sounded tired and anxious. Reiterated advice about feeds and colic medication.'

L's admission to hospital

15. At 3.59 a.m. on the morning of 3^rd March 2010 the mother telephoned NHS Direct. She told the call-handler:

'I'm calling about my six-week old son. He had been very, very unsettled the last two nights and we thought he had colic and he still might have colic but just now we've noticed that his left arm's really floppy. He is moving it but it's really floppy compared to the other one. And because he is crying quite a lot he usually waves his arms around but the left one feels much floppier.'

Asked whether L had had an injury to his arm the mother replied 'No'.

16. The call-handler asked the mother whether there was any bruising. She said 'No, nothing'. A little later the mother said 'The only other thing I did notice was a little blue area in the forehead, I don't know…just haven't noticed it before.' She was asked 'Does he have a blue-ish, purple-ish discolouration to his skin that looks like bruising' to which she responded 'He just has that slightly blue area on his forehead, don't know what that is. It doesn't look like a bruise.'
17. The call-handler then transferred the call to a nurse. The mother repeated her account. She was advised to take L to hospital so that he could be seen by a paediatrician. The parents took L to the University Hospital. They arrived at 4.26 a.m.

Dr Khan

18. At 4.50 a.m. L was examined by Dr Abdul Khan. Dr Khan is now a GP Registrar. In March 2010 he was a GP trainee. He was in the first month of a six month placement in paediatrics. Dr Khan took a history from the parents. They told him that L had been unsettled for the last two days and had been crying a lot. At 3.30 a.m. that morning they had noticed that he was not moving his left arm and that it was very floppy.
19. On examination Dr Khan noticed a mark on the right of L's forehead which he noted as '? small bruise', and a red mark on the palm of L's right hand. There was also a mark on L's right cheek which the father told him had been caused by L scratching himself. Dr Khan noted 'no obvious bruising/swelling of arm'.
20. Dr Khan said that as an inexperienced doctor he had taken longer over his examination of L than an experienced doctor might have done. He had wanted to be sure he didn't miss something. He did not notice any mark or bruise on L's left cheek or to his right eyelid or to his left forearm. Dr Khan said that he could not be sure whether he had touched any of the marks on L's face and hand to see whether they blanched. Although he had carried out his examination in artificial lighting he regarded the lighting as having been 'perfectly adequate'.
21. Dr Khan arranged for an x-ray to be taken of L's left arm. The x-ray was taken at 5.18 a.m. and was reported on by Dr Emma Helm, a consultant radiologist. Dr Helm noted that

'There is a non-displaced spiral fracture through the mid left humeral diaphysis. I understand that a full skeletal survey is being organised.'

Dr Karthikeyan

22. Dr Khan arranged for L to be seen by a more senior colleague, Dr Ambika Karthikeyan. At that time Dr Karthikeyan was a specialist paediatric registrar. She saw L at around 5.30 a.m.
23. The history the parents gave to Dr Karthikeyan was similar to that given to Dr Khan. Dr Karthikeyan noted the marks already identified by Dr Khan. In addition she noted a circular mark measuring 0.5cm in diameter over the left cheek bone and a red linear mark measuring 0.4cm in length on the outer aspect of L's left forearm. In her police witness statement she says that

'There were no other bruises noted anywhere else. The left arm was not obviously bruised or deformed. However, L was noted not to be moving the left upper arm and not lifting it off the bed. I was not sure if he was in pain when the left arm was touched as he was crying throughout the examination, irrespective of whether or not the arm was being touched or moved.'

24. Dr Karthikeyan noted the marks to the palm of L's right hand. Her description of it is similar to that given by Dr Khan. She drew a diagram of these marks in the clinical notes. The diagram is of two semi-circles, one opposite the other with a slight gap between them, almost forming a circle. Medical photographs were taken nine hours later, at 3.00 p.m. The diagram and description of the bruising do not match the photographs. In the photograph the lower mark is not semi-circular in shape and is shorter in length than that shown in the diagram. When challenged about the discrepancy Dr Karthikeyan said 'I recorded what I observed'.
25. As for the marks to L's right cheek, the father again explained that L had scratched himself. Dr Karthikeyan accepted that this was a credible explanation. With the exception of this bruise the parents were unable to offer any explanation for any of the marks.
26. Although she noticed two marks not seen by Dr Khan, Dr Karthikeyan did not see the marks to L's right upper eyelid later observed by Dr McLachlan. She said that the fact that L was crying when she examined him would have made it difficult to look closely at his eyelids.
27. Before beginning her examination Dr Karthikeyan had seen the x-ray of L's upper left arm. She could see that it showed a possible fracture to the left humerus. At the end of her examination she received a telephone call from the radiographer to say that she wanted to carry out a second x-ray. Dr Karthikeyan saw the second x-ray at around 7.00 a.m. This time there could be no doubt about the fact that L had suffered a non-displaced fracture of the shaft of his left humerus.
28. Dr Karthikeyan was concerned that these injuries could be non accidental injuries. She therefore informed the consultant paediatrician on call, Dr Neuling, and admitted L to the children's ward for review and further investigations. She also contacted social services.

Dr McLachlan

29. Dr Karen McLachlan is a consultant paediatrician and the named doctor for child protection at the University Hospitals Coventry & Warwickshire NHS Trust. Dr McLachlan examined Lat 10.15 a.m. She took a history from the parents. She made her clinical notes during the course of the examination. She also completed a body map. She noted the same five marks noted by Dr Karthikeyan. In the clinical notes she describes them as 'marks/bruises'. She described the mark on the palm of L's right hand as an 'odd red lesion'. With respect to the mark on his left cheek she wrote 'I am not convinced of a bruise over the left cheek bone but will review in different light later'. She looked at the mark again at 2.15 p.m. the same day. She then made a further timed note on the body map: 'circular bruise over maxilla 1cm (measured)'. In the clinical notes she wrote that this bruise was 'now obvious'.
30. Dr McLachlan knew that x-rays had shown there to be a spiral fracture of the left humerus. She was uncertain whether L's left arm was swollen. She noted that

'In the absence of any other explanation at present this is non accidental injury. Also very odd time to present and notice not moving arm.'

With respect to this last comment, Dr McLachlan explained that she had been concerned that L had apparently sustained a humeral fracture in the middle of the night.

31. Within the clinical notes Dr McLachlan has drawn a diagram of the marks on the palm of L's right hand. Her drawing is very similar to the drawing made by Dr Karthikeyan. Dr McLachlan accepted that the photograph of these marks, taken at 3.00 p.m. that same day, does not match the drawing. She remained confident that what she had drawn is what she had seen. She had at first wondered whether it might be a bite mark. On balance, she thought it was a bruise caused, perhaps, by someone squeezing L's hand.
32. A skeletal survey was undertaken later that morning (3^rd March). Dr Helm reported on the x-rays. In her report she says:

'There are metaphyseal corner fractures of the right distal femoral metaphysis. I am also suspicious that there are corner fractures of the left medial proximal tibial metaphysis, the left distal ulna and the left distal tibial and fibular metaphyses…Findings are highly suggestive of non-accidental injury.'

33. Dr McLachlan was in no doubt that the fractures and bruises were the result of non-accidental injuries. She explained to the parents that both social services and the police would want to talk to them.
34. Dr McLachlan arranged for a CT scan of L's head to check for evidence of skull fracture or intracranical haemorrhaging. The results were negative. It was whilst the CT scan was being taken that the police arrived at the hospital. The parents had gone with L for the scan. The police asked Dr McLachlan to bring them back to the ward. They told her that they intended to arrest the parents.
35. Dr McLachlan was not present when the parents were arrested. She did not see them being handcuffed. She has not previously seen parents being handcuffed whilst still on the ward. Though the parents were distressed, they had been co-operative and polite throughout their time on the ward. There had been nothing inappropriate either about their behaviour or their language.
36. In the clinical notes Dr McLachlan wrote 'mum very upset, seems to have no idea how L has broken his arm'. She also noted 'Dad? tired? slurred speech'. What she did not know at the time was that the father had been working shifts and that he had had very little sleep in the previous 24 hours. Although she referred to his speech as being 'slurred' she accepted that he did not smell of alcohol.
37. When she examined L on 3^rd March Dr McLachlan did not notice any marks to his right upper eyelid. At 4.00 p.m. that day L was examined by an ophthalmic registrar. The ophthalmic registrar drew three very rough diagrams of L's face. On each of them the only lesion noted was the one on L's right cheek. When Dr McLachlan examined L at 11.00 a.m. on 4^th March she noticed a linear bruise on L's right upper eyelid. She had not noticed it the previous day. She said she was 'surprised' the ophthalmic registrar had not noticed this mark. She thinks it possible that she had noticed it on 4^th March because L was more settled and therefore easier to examine.
38. Liver function tests were carried out. The results were slightly abnormal. The tests were repeated. The repeat tests showed some improvement. The cause of the abnormal test results could have been a viral infection or trauma to the liver. Dr McLachlan arranged for an ultrasound scan of L's abdomen. She described this as a 'soft' test which would pick up major trauma of the liver but not more subtle changes. She was satisfied on the evidence that there had been no trauma to the liver.
39. From the outset the mother had been convinced that the fractures and bruising had their roots in an undiagnosed medical condition. She had undertaken a great deal of research on the internet. In her second police witness statement dated 30^th March 2010, Dr McLachlan says

'L's mother, does not believe that her son has been the victim of non accidental injury…I and other professionals have had repeated discussions with her about the significance of all of his injuries. I have undertaken, as requested by the family, to look into the evidence around temporary and other brittle bone disease in explaining unexplained injuries to children.'

Dr McLachlan was as good as her word. She did spend time undertaking research. Her conclusions accord with the opinions provided by the medical expert witnesses, to whose evidence I shall refer in detail later in this judgment.

40. By the time Dr McLachlan made that statement L was in Ireland. On the basis of the evidence then available to her she arrived at the following conclusions:

'L sustained a spiral fracture of the humerus. This is caused by a twisting injury. No explanation of this was given to me by parents when I questioned them about the possible mechanisms of his broken arm…Bruises in pre mobile children over soft tissue areas, particularly around the face, are strongly associated with non accidental injury. There is no evidence that L had any other form of trauma to account for any of the bruises around his face or hand…There is no unifying diagnosis that explains L's fractures and the bruising to his face and the lesion on his hand. The bruising to his face is, in my opinion, finger tip bruising…'

L's progress since discharge from hospital

41. I have already noted that since his return to England L has been in foster care. He was placed with his present carers on 3^rd August. In October the foster carers provided what they describe as a 'health report' on L. One particular passage of that report has attracted interest at this hearing. The foster mother wrote

'Sporadic marks – Within a day of L's arrival we noticed that he comes out in sporadic red marks on a daily basis. Said marks are about one inch in length and a couple of millimetres wide. At first glance one would believe such a mark to be a birthmark, or a scold, but they disappear as sporadically as they appear and leave no trace.'

42. These marks, red in colour, had appeared regularly until November. They usually appeared on L's limbs. Occasionally they would be on his torso. They did not appear on his face. They normally appeared singly, as straight lines. They would be around an inch in length. They were mostly noticed at bath time. L did not seem disturbed by them. The foster carer had mentioned them both to the health visitor and to her GP though neither ever saw the marks themselves. It would seem that neither the health visitor nor the GP was unduly concerned about these marks.
43. The parents believe that whilst in foster care L has had a mark on his right forehead which is similar to that noted in hospital on 3^rd March 2010 and considered by the treating clinicians to be bruising. They rely, in particular, on photographs taken by the mother in November. The foster mother says that a mark on the right side of L's forehead was first brought to her attention by L's father, through the contact book, on 4^th November and was verified by his mother that same day. She describes the mark as 'a small shadowed indent on the right side of L's forehead'. She has noticed that the shadowing is more apparent on some days than on others. Looking back on photographs she herself has taken of L she can 'see a shadow in the same location in the majority of photographs'. However, when shown the medical photograph taken on 3^rd March of what appears to be a bruise to the right side of L's forehead, she said that that 'is not what I saw in November'.
44. More recently the foster mother has been concerned about problems with L's gait. He is now walking. She has noticed that when he walks he has a tendency to splay his right leg. Although this does not cause him to fall over, she has been concerned about it. She has drawn it to the attention of health visitors. The week before this hearing began L's GP referred him to Birmingham Children's Hospital for investigation.

The expert medical evidence

45. The parents are convinced that there is an underlying medical cause for L's injuries. I gave permission for the instruction of five medical experts from four different specialties.

Dr Stephen Chapman

46. Dr Stephen Chapman is a consultant paediatric radiologist at the Birmingham Children's Hospital NHS Trust and Honorary Senior Clinical Lecturer in the Department of Paediatrics and Child Health at the University of Birmingham. He is a past Chair of the British Society of Paediatric Radiology and a past President of the European Society of Paediatric Radiology.
47. Dr Chapman has reviewed x-rays of L's left humerus taken on 3^rd, 10^th and 15^th March. He has also reviewed the results of the skeletal survey undertaken on 3^rd March, a CT head scan taken on 3^rd March, an ultrasound scan of L's abdomen taken on 5^th March and a chest x-ray taken on 15^th March.
48. The x-rays of the humerus confirm that there is an undisplaced spiral fracture. The fact that x-rays were taken over a period of three days enables Dr Chapman to note the development of callus formation and thus to express an opinion as to the likely timeframe for this injury. He concludes that this fracture must have occurred between 1^st March and L's admission to hospital during the early hours of the morning of 3^rd March. The fracture would have required a degree of force outside that which would be found in normal handling of a child of this age. In Dr Chapman's opinion, the person who caused the fracture would have been aware that the level of force being used was excessive. The left arm would immediately have become floppy. Such a fracture would be the result of a twisting force applied along the axis of the upper arm. Though not diagnostic of non-accidental injury spiral fractures such as this are widely regarded as an important pointer to such a diagnosis in a child of this age.
49. During his police interview the father explained that during the early hours of 2^nd March he had tried to settle L by wrapping him tightly in a blanket. L had managed to get his left arm free. The father had tucked it back in. He wondered whether he may inadvertently have caused the fracture. Dr Chapman accepted that the mechanism described by the father could have caused the humeral fracture though that explanation would only be credible if the father had twisted L's arm, if L had screamed and become very distressed and if his arm had immediately become floppy. If this incident did cause the fracture Dr Chapman said that he found it 'difficult to understand' how it could be that it was not until 24 hours later that it was first noticed that his left arm was floppy.
50. The skeletal survey disclosed a number of metaphyseal fractures which Dr Chapman identifies as follows:

(i) the inner side of the left distal ulna

(ii) the right distal femur

(iii) the right proximal tibia

(iv) the left proximal tibia

(v) the left distal tibia

(vi) the left distal fibula

The dating of metaphyseal fractures is less precise than the dating of shaft fractures. The majority do not show the normal signs of bone healing typical of shaft fractures. When there is a well-defined fragment of bone it may be possible to suggest that the fracture is recent, by which Dr Chapman means not more than two weeks old. A metaphyseal fracture would be expected to be fully healed within five to six weeks. On this basis, in Dr Chapman's opinion metaphyseal fractures (i) and (ii) are 'probably not more than 2 weeks old'. The other metaphyseal fractures 'could have been sustained at any time in the previous 6 weeks'. It is not possible to say whether all of the metaphyseal fractures were sustained on the same occasion or on different occasions.

51. On the day of his admission to hospital L was six weeks and one day old. He was delivered by caesarean section. The parents contend that at least some of the metaphyseal fractures could have been sustained at birth. That is an issue that was considered by Dr Chapman at the experts' meeting and in his oral evidence. He referred to a paper published in Pediatric Radiology (2007) 37: 488-91 ('the Dublin study'). This study comprised a review of an obstetric practice that delivers 8,500 babies per year and covered a 22-year period (i.e. a survey of approximately 187,000 births). The review identified three neonates born by elective lower segment caesarean section who appeared to have sustained metaphyseal fractures at birth. Two of these were breech presentation. One, like L, was a cephalic presentation. Under the heading 'discussion' the paper notes that

'The pattern and distribution of injury associated with child abuse has been well documented. Although shaft fractures are the most common skeletal injuries in abused children as a group, metaphyseal injuries are more common fractures in young infants. The distal femur and the proximal tibia are the two most commonly affected sites…In the patients reported here the injuries were suspected clinically on day 2 of age, prior to the infants' discharge from hospital. Hence it was easier to distinguish these from injuries due to child abuse. A thorough history and examination always needs to be undertaken. Generally, unless there is a good obstetric history or history of accidental injury, these [classic metaphyseal lesions] are specific for abuse.'

52. Dr Chapman makes two points in response to the Dublin study. Firstly, this study is one of only three such studies published in the world literature. Metaphyseal fractures occurring during caesarean birth are, therefore, likely to be rare. Secondly, in the studies that have been published there is no history of any child having sustained more than one metaphyseal fracture during a caesarean birth. Dr Chapman regarded it as 'fanciful' to suggest that there could be more than one. So far as L is concerned, Dr Chapman said that he had 'no doubt that these fractures do not relate to birth'.
53. Apart from the humeral and metaphyseal fractures, Dr Chapman found no evidence of any other old or recent bony injuries. In particular, there is no evidence of skull fracture or intracranial abnormality and no evidence of rib fractures. The ultrasound scan was performed because biochemistry test results gave rise to a suspicion of liver injury. The ultrasound scan did not demonstrate any abnormal findings.
54. More controversially, so far as the parents are concerned, Dr Chapman says that 'there is no evidence of any underlying medical condition that would have predisposed to fractures'. It is the parents' case that L did have an underlying medical condition. In particular they have raised the possibility of bone fragility caused by osteogenesis imperfecta or vitamin D deficiency.
55. Dr Chapman confirms that there is no radiological evidence of any underlying bone condition and in particular no radiological evidence of either osteogenesis imperfecta or rickets. From the x-rays, the appearance of L's bones is normal. When a child suffers from vitamin D deficiency the end of the bones become frayed, cup-shaped and much wider than they should be. Dr Chapman described these as 'major signs' of vitamin D deficiency. There is no radiological evidence of any of those signs in this case. Dr Chapman made the point that when a child has a medical condition such as osteogenesis imperfecta or rickets it would be more usual for the child to suffer long bone fractures, not metaphyseal fractures.
56. Dr McLachlan was asked by the mother to arrange for a bone density test to be undertaken. Dr McLachlan did not consider this to be appropriate. Dr Chapman agrees. So, too, does Professor Pope. There is insufficient data available to establish what might be regarded as 'normal' so far as bone density is concerned. The results of bone density tests would therefore be of little value.
57. The mother has suggested that her own experience of suffering scoliosis during her teenage years may have caused bone fragility in L. Dr Chapman did not consider there to be any link between the two.
58. I noted earlier that a few days before this hearing began L's GP referred him to Birmingham Children's Hospital for assessment of the cause of problems with his gait. Again, Dr Chapman could see no link between this problem and the fractures found in March 2010.

Dr Amaka Offiah

59. Dr Chapman was instructed by the local authority and the Children's Guardian in April 2010. At that time L was in Ireland and the parents had dispensed with the services of their respective legal teams. The parents were not involved in instructing Dr Chapman. After the parents appointed new solicitors I granted permission to enable them to obtain their own independent radiological evidence. They obtained a report from Dr Amaka Offiah. Dr Offiah is a clinical senior lecturer at the University of Sheffield and Honorary Consultant Radiologist at Sheffield Children's Hospital. Dr Offiah has prepared two written reports. There is only one area of difference between Dr Chapman and Dr Offiah and that relates to the dating of the metaphyseal fractures. Dr Offiah agrees that the first two were likely to have been sustained within two weeks of the date of the x-rays. As for the others, she dates them as being between two and four weeks old at the time of the x-rays.

Dr Patrick Cartlidge

60. Dr Patrick Cartlidge is a consultant paediatrician at the University Hospital of Wales and a Senior Lecturer in Child Health at Cardiff University. He is a member of the Academic Board of, and a Senior Examiner for, the Royal College of Paediatrics and Child Health.
61. Dr Cartlidge defers to Dr Chapman on the interpretation of the x-rays. So far as concerns the fractures, Dr Cartlidge's evidence relates primarily to L's likely presentation at the time the fractures were sustained and to the possibility of there being an underlying medical condition giving rise to bone fragility.
62. Dr Cartlidge says that the humeral fracture would have been extremely painful at the time the injury was sustained. He described it as an 'intense, searing pain'. L would have been very distressed. His extreme distress would have been very noticeable. It would have lasted for ten to fifteen minutes. It would then have begun to subside. Until the healing process was well-established he would have continued to experience the same searing pain each time his arm was moved, for example when changing his clothes. The metaphyseal fractures would have been less painful. Initially the pain would have lasted for around five to ten minutes. Thereafter the pain would have lessened. Over the next few days there may have been pain on movement though it may not have been obvious to a carer what was causing the pain.
63. Dr Cartlidge was aware of the explanation given by the father of a possible mechanism for the humeral fracture. The event described by the father occurred during the early hours of 2^nd March. The mother's evidence is that L slept for most of the day on 2^nd March, from around 7.00 a.m. until around 8.30 p.m. In Dr Cartlidge's opinion, if the mechanism described by the father was the cause of this fracture then there was 'no chance' that L would have slept throughout the day as described by the mother. Every time his arm was moved that day he would again have experienced pain.
64. Dr Cartlidge could find nothing in the evidence to indicate an underlying medical condition which may have caused bone fragility. However, he was concerned that the investigation of vitamin D deficiency had been less thorough than he would have liked. In his opinion L's vitamin D level should have been measured.
65. Much has been made by the parents of the testing of L's serum calcium level undertaken whilst he was in hospital. There were at least four tests undertaken but only one test result. The test was successfully carried out on 3^rd March. A subsequent test on 6^th March records 'Regret sample contaminated. Unsuitable for full analysis…' A further test on 7^th March records 'sample insufficient and suspect potassium EDTA contamination. Suggest send repeat sample a.s.a.p.' A further sample was sent that same day but so far as concerns calcium levels it notes 'insufficient sample'. To add to this concern a brief statement has recently been provided from Nurse Elaine Greenway in which she says

'Whilst working on Ward 15 at 21.25 on 6/3/10, I took a telephone call from the Biochemistry Laboratory. The message was that the blood sample sent for analysis of urea and electrolytes showed a low Calcium level. The laboratory said they would regard this as an erroneous result. I recorded this in L's notes, and informed the doctor on call. The doctor said that they would repeat the blood sample in the morning…'

66. Dr Cartlidge accepted that low calcium levels could give rise to the possibility of a diagnosis of rickets. The one successful serum calcium test was carried out on the day of L's admission. Dr McLachlan regarded that result as normal. Dr Cartlidge agrees.
67. In his report Dr Cartlidge says that in his opinion

'there is a significant possibility that L had mild rickets (not sufficient to cause radiological changes) at the time the fractures were sustained. The investigations for rickets are incomplete.'

Having had the benefit of hearing from Dr Mughal at the experts' meeting Dr Cartlidge now defers to Dr Mughal on this issue. However, even if L were suffering from mild rickets, Dr Cartlidge did not consider that that would be sufficient to explain his fractures. Although he accepts that the presence of mild rickets would have increased bone fragility this would only have been 'to a minor degree'.

68. Dr Cartlidge could find no evidence to support a diagnosis of osteogenesis imperfecta. Osteogenesis imperfecta is sometimes associated with skin fragility and easy bruising. Dr Cartlidge notes the bruising found upon examination of L on 3^rd March 2010. With respect both to the fractures and the bruising Dr Cartlidge regards it as significant that there has been no evidence of L having sustained any further fractures or bruising since his admission to hospital in March 2010.
69. Dr Cartlidge was unable to find any evidence to support a finding that L has an underlying medical condition which could have led to a degree of bone fragility sufficient to account for the fractures. He was equally unconvinced by the suggestion, based on the Dublin study, that the metaphyseal fractures may have been caused at birth. In more than thirty years working in the field of paediatrics he has never come across a case of a metaphyseal fracture being sustained in the course of a caesarean birth. Furthermore, if there had been any difficulty during L's birth he would have expected it to have been recorded in the delivery records. There is nothing in the delivery records to suggest that there had been any difficulty.
70. The bruising is more problematic. At the experts' meeting Dr Cartlidge said that he was 'always loathe…to diagnose a bruise from a photograph. You really have to press it, the lesion, to see whether it blanches or not'. It follows, therefore, that what matters most is what the treating clinician observed in real time. In this case Dr Cartlidge agrees with the clinicians that the mark to the right of L's forehead, the mark to his left cheek, the mark on his right upper eyelid and the mark on the palm of his right hand are all properly described as bruises. He is less certain about the mark on L's left forearm.
71. The timing of bruising is notoriously difficult. In Dr Cartlidge's opinion all of these bruises were likely to have been less than 48 hours old at the time they were first observed in hospital.
72. Dr Cartlidge was shown the photographs taken by the mother in November 2010 which appear to show a blue mark on the right of L's forehead in a similar position to that shown in the medical photographs taken on 3^rd March. He accepted that this, too, looks like a bruise. If the two marks are one and the same then plainly the mark seen on 3^rd March cannot have been a bruise because a bruise would have resolved soon after it was first noticed. He could not think of any medical condition that would lead to the transient appearance of such a mark. If this mark is not a bruise then Dr Cartlidge expressed surprise that no health care professional had commented on it in the intervening months between March and November. Dr Cartlidge remains convinced that it was a bruise.
73. With respect to the bruise to the palm of L's right hand Dr Cartlidge remains convinced that this, too, is a bruise, albeit an unusual one. He does not believe it to be a bite mark. It could have been caused by someone forming L's hand into a clenched fist and squeezing tightly. On behalf of the father, Mr Messling suggested to Dr Cartlidge that these marks may, in fact, be eczema. Dr Cartlidge did not agree.
74. Dr Cartlidge remains uncertain about the mark on L's left forearm. He notes that this mark had not been seen by Dr Khan but had been noticed by Dr Karthikeyan and speculated that perhaps it could have been caused by a blood sample taken between those two examinations. Dr Karthikeyan said that no blood was taken between those two examinations. Somewhat reluctantly, Dr Cartlidge was prepared to defer to Dr McLachlan and accept that this was a bruise.
75. As for the mark to L's upper right eyelid, Dr Khan, Dr Karthikeyan, Dr McLachlan and the ophthalmic registrar had all failed to notice this on the day of L's admission. It was not noticed until the next day, 4^th March. Dr Cartlidge said that he could not be certain of the mechanism for this injury but in the absence of a plausible alternative explanation 'the probability of this lesion being non-accidental is high'.
76. With respect the alleged bruising, again the parents raise concerns based upon the test results. I noted earlier that when he was two days old L became very ill with hypoglycaemia. Test results carried out at that time indicated a low platelet count. Dr Cartlidge acknowledged that a very low platelet count (20 or below) could give rise to spontaneous bruising. The test result concerned (dated 22^nd January 2010) gave a platelet count of 98. In Dr Cartlidge's opinion, though low, this result is not so low as to be likely to lead to spontaneous bruising.
77. Liver function test results were slightly abnormal. That is what prompted the decision to undertake an ultrasound scan of the abdomen. The scan showed no abnormality. There is no evidence of liver damage. In Dr Cartlidge's opinion the likely cause of the slightly abnormal liver function tests is an infection. Although he accepted that severe liver disease could be linked to easy bruising, there is no evidence that L was suffering from severe liver disease.
78. Some of the test results indicate a raised potassium level, what Dr Cartlidge described as a 'high-ish' haemoglobin level, and also a raised alkaline phosphatase level. In Dr Cartlidge's opinion there is no relationship between any of those results and either the fractures or the bruising found on 3^rd March.
79. I have noted that when two days old L became seriously ill with hypoglycaemia. Dr Cartlidge said that he was unable to see that that illness had any relevance to the injuries found in March.

Professor Michael Pope

80. Professor Michael Pope is Honorary Professor of Connective Tissue Matrix Genetics at Kings College, London, and Honorary Professor of Clinical Genetics and Honorary Consultant Clinical Geneticist at the University of Wales College of Medicine. His special expertise lies in the clinical diagnosis and classification of Inherited Diseases of Connective Tissues. These include the role of abnormalities of connective tissue components such as collagen and elastin in the causation of disorders such as Osteogenesis Imperfecta and Ehlers Danlos Syndrome. Professor Pope is also a dermatologist. He has held appointments as Consultant Dermatologist at the West Middlesex University Hospital and as Honorary Consultant Dermatologist at the Chelsea & Westminster Hospital. Professor Pope was instructed to consider whether L suffers or suffered from a genetic propensity to sustain the lesions identified in March 2010.
81. Professor Pope has undertaken a very detailed and careful analysis of the medical and photographic evidence. He also met with the parents, maternal grandmother and Lon 29^th January 2011. His first report was written before meeting the family. The information gathered at that meeting, and the conclusions it gives rise to, are set out in an addendum report. There is a concern on the mother's part that further tests should be conducted before the court can conclude that osteogenesis imperfecta and Ehlers Danlos Syndrome can appropriately be excluded. To address that issue it is necessary to consider Professor Pope's evidence in sequence.
82. In his written report, Professor Pope expresses the following opinions:

'Since my particular expertise is in respect of inherited defects of Connective Tissue, I address only those possible conditions, in which bone fragility, easy bruising and skin fragility might be pertinent. Specifically…these include mild, previously undetected forms of Osteogenesis Imperfecta, or certain forms of Ehlers Danlos syndrome. Thus even though the paediatric and radiological evidence strongly suggests that OI is unlikely (and I do not disagree with those opinions) it has not been formally eliminated. Furthermore under the particular circumstances of this case history, especially the numerous metaphyseal fractures, OI and NAI are not mutually exclusive. However should a gene anomaly of COL1A1 or COL1A2 be identified, then the case for diagnosing NAI would be weakened.

With respect to EDS, although there is no obvious documented evidence to suspect this possibility, and just as with mild OI, easy bruising and skin fragility are common. Whilst there is variable evidence that L bruised on March 3^rd, there is little evidence of skin fragility. However, EDS types VIA, VIIA & VIIB are known causes of bone fragility and occasional fractures…

There is no evidence in the medical notes of physical features such as blue sclerae, wormian bones, reduced bone mineral density. Similarly, the available, but scanty family history, does not suggest this either. On the other hand, OI mutations can still occur even in these circumstances…

If baby L was affected by mild OI, then any of his fractures could have occurred more easily than in a normal child of the same age. However in L's case they would not have been [either] spontaneous [or] symptomless.'

83. In Professor Pope's addendum report those views are modified, to some extent, in the light of his meeting with the family. His clinical assessment of L is set out thus:

'Given that he is only 12 months old clinical assessment was confined to observation, whilst sitting on his mother's knee, crawling on the floor, or whilst being closely supervised by his father. I was then able to observe him partially undressed, to assess skin texture, thickness, limb shape, general appearance and also form an overall impression. Apart from slightly blue sclerae, which he shared with his mother…but which varied photographically…he had no specific features to suggest a general inherited defect of connective tissue and osteogenesis imperfecta in particular. My impression was of a sturdy, healthy child, without any bruising, skin extensibility or thinning…He had only two teeth (both central lower incisors) which were of a normal white colour, so excluding dentinogenesis imperfecta, which can be an added feature of Osteogenesis imperfecta…His back was straight and unremarkable…even though the foster carer, through the social worker had questioned whether his middle spine was abnormally prominent. He had no external clinical features to suggest any form of Osteogenesis imperfecta or other inherited defect of connective tissue, such as Ehlers Danlos Syndrome.'

84. Having undertaken an assessment of the mother, Professor Pope notes that she has various connective tissue features, including blue sclerae, tall stature, early-onset scoliosis (now surgically corrected) and mild hypermobility. There is no significant history of easy fractures. Her bone mineral density is apparently normal. These features fit with Marfanoid hypermobility syndrome. They do not explain L's unexplained fractures
85. Professor Pope's assessment of the father leads him to a similar conclusion. There are mild focal abnormalities of connective tissue, including hypermobile knees, which do not reach the threshold of the Benign Hypermobile Syndrome. There is no personal or family history of bone fragility. These changes are best considered a mild non-specific connective tissue variant. They are not specific enough to explain L's fractures.
86. Professor Pope sets out his overall conclusions based upon the family visit:

(i) L is clinically normal without any overt clinical evidence of Osteogenesis imperfecta or other similar disorder, such as Ehlers Danlos syndrome. On the other hand detecting subtle connective tissue features is notoriously difficult in children under the age of three years.

(ii) He does however have mildly blue sclerae as does his mother, although illustrating this varies considerably in the various photographs taken at the visit…

(iii) Neither parent has a convincing personal or family history of fractures or bone fragility.

(iv) Both parents do show connective tissue features, including blue sclerae, a previously corrected scoliosis and increased joint laxity in mother and cutaneous stretch marks and bendy knees in father.

(v) In my opinion individually, or in combination, these are insufficient to convincingly explain L's various fractures, including his arms and lower limbs.

(vi) It is unlikely that further testing, such as sequencing L's COL1A1 and COL1A2 genes, or testing his urinary cross-links, will alter this conclusion.

87. The issue of further testing was canvassed with Professor Pope in his oral evidence. At one point he said that 'the way to be sure is by DNA sequencing'. He went on to say that 'if there are hints' then DNA sequencing should be undertaken. As for the first of those points it later became clear that 'sure' does not mean absolutely sure. If DNA sequencing were undertaken then that might increase the level of confidence that L does not have osteogenesis imperfecta to around 90%. However, there are no tests that are capable of excluding absolutely the possibility that a person may have osteogenesis imperfecta. As for the second point, Professor Pope conceded that in this case he did not consider there to be any 'hints' that would justify DNA sequencing. There is no compelling case for undertaking such tests.
88. L has not sustained any further fractures since being discharged from hospital on 10^th March 2010, nor any further bruising. He is now walking. It is normal for toddlers to tumble from time to time and also for them to bump into things. If L does have very mild osteogenesis imperfecta then one would expect him to sustain further fractures at the toddler stage. Professor Pope accepted that the fact that L has not sustained any further injuries since March 2010 is 'significant'. It is, he said, 'very, very unlikely' that L has osteogenesis imperfecta. He is equally confident that L does not suffer from Ehlers Danlos Syndrome.
89. There is uncertainty amongst the clinicians and the experts as to the cause of the lesions to the palm of L's right hand. I noted earlier that in addition to his expertise in the area of connective tissue disorders, Professor Pope is also a consultant dermatologist. He said that in his opinion it is possible that the cause of these lesions may be a resolving inflammation. Although it would be 'slightly unusual' to have eczema on the palm of the hand he nonetheless thought that to be a possibility.
90. I have noted Dr Cartlidge's uncertainties about the lesion on L's left forearm. On the basis of the photographic evidence Professor Pope said that he believed this to be either eczema or an abrasion. He did not believe it to be a bruise.

Dr Mohammed Mughal

91. Dr Mohammed Mughal is a consultant in paediatric bone disorders at the Royal Manchester Children's Hospital. He is also honorary senior lecturer in child health at the University of Manchester. Until he took up his present post in November 2010 he worked at the same hospital as a consultant general paediatrician with a special interest in childhood bone disorders. Dr Mughal has published over 120 original scientific papers, reviews and chapters, mainly on children's bone health and diseases. He is actively involved in research into childhood bone diseases arising from vitamin D deficiency in the UK, India and Afghanistan.
92. Dr Mughal was instructed to consider the role of nutritionally derived deficiencies (vitamin D and vitamin C) in the causation of L's skeletal and soft tissue injuries.
93. A key issue in this case is whether there is any evidence that L was suffering from vitamin D deficiency. A range of tests were undertaken during L's time in hospital. I noted earlier that although there were at least four attempts to measure L's serum calcium level, only one was successful. That result was normal. The mother believes that that the test should have been repeated. Dr Mughal saw no reason for that test to be repeated. His greater concern was not about tests which were not repeated but about two tests which had not been undertaken. Serum level of 25-hydroxyvitamin D (250HD) is considered to be a reliable measure of an individual's body stores of vitamin D. In his opinion (shared, as I noted earlier, by Dr Cartlidge) this should have been tested. He is also of the view that there should have been a test of L's serum parathyroid level. The mother's requests for these tests, declined by Dr McLachlan, were, in his opinion, reasonable requests.
94. The mother arranged for her own vitamin D status to be tested three times between 19^th March 2010 and 2^nd July. These tests showed that her stores of vitamin D were low. She is concerned that as L was being breastfed this could have had an effect on L's own vitamin D level. Dr Mughal accepts that that may be the case though he does not regard this as significant. Notwithstanding the absence of testing of L's vitamin D level on admission to hospital, Dr Mughal considers it likely that the level would have been low. He arrives at that conclusion for the following reasons:

(a) The mother's body stores of vitamin D are likely to have been low in January, 2010, when L was born.

(b) The majority of maternally derived vitamin D is likely to have decayed by 3^rd March 2010, when he was admitted to hospital.

(c) After discharge from hospital he was fed on breast milk, a poor source of vitamin D.

(d) He did not receive multivitamin supplements containing vitamin D.

However, Dr Mughal considers that L's vitamin D deficiency is likely to be subclinical because

(a) L did not have radiological evidence of rickets;

(b) His serum level of calcium and phosphate were not low and his serum alkaline phosphatase activity was not markedly elevated as one would expect in an infant with rickets.

95. Dr Mughal conceded that there is a paucity of research studies that have examined the influence of maternal vitamin D status during pregnancy on bone mineral content and density in infants. However, such limited research evidence as is available suggests that maternal vitamin D deficiency does not adversely affect bone mineral accrual in an infant's skeleton.
96. What, then, has been the impact of subclinical vitamin D deficiency upon L? Does he, for example, suffer from rickets? Rickets is a bone softening condition caused by severe vitamin D deficiency. In its early stages there may be mild biochemical derangement before it is possible to see radiological evidence. Biochemical derangement will not necessarily include low calcium levels. In growing children rickets can lead to skeletal deformities such as bowed legs, knock knees, swollen ends of long bones and deformed rib cages. Other manifestations of rickets include poor growth, muscle weakness, general irritability due to bone pain, dental problems, bossing of the forehead and swollen wrists. L did not and does not display any of these features.
97. I qualify that last point to the extent that it is appropriate to note the closing submissions made by Mr Messling, on behalf of the father, in which he made reference to some measurements of body length taken at birth and in the three months following birth. Although Mr Messling invited me to accept that this constituted evidence of poor growth, this was not a point put to Dr Mughal or any of the other medical witnesses. The medical experts have seen all of the medical records. Had any of them considered there to be any concern about any aspect of L's growth it is reasonable to assume that they would have said so and expressed an opinion on the relevance of it. They didn't.
98. Dr Mughal said that although there is evidence that, very rarely, severe vitamin D deficiency rickets can result in atraumatic fractures, in his opinion there is no evidence in this case – radiological or biochemical – that L was suffering from severe vitamin D deficiency rickets. Dr Mughal goes on to make the point that he practices in an area of the country where clinical and subclinical vitamin D deficiency is widespread. In his clinical practice he sees lots of children with vitamin D deficiency but he doesn't see fractures. That experience leads him to conclude that subclinical vitamin D deficiency in young infants is not likely to cause atraumatic fractures.
99. With respect to the possibility of vitamin C deficiency, Dr Mughal notes that Lwas breastfed. Breast milk is a rich source of vitamin C. Although L's vitamin C level was not measured on admission to hospital in March 2010, on the basis that he was being breast fed it is Dr Mughal's opinion that 'it is highly unlikely that L would have received insufficient intake of vitamin C'. The x-rays do not indicate any radiological features of scurvy. In any event, Dr Mughal says that he is 'not aware of any evidence that subclinical vitamin C causes fragility fractures in young infants.' His conclusion is that it is unlikely that vitamin C deficiency can be blamed for L's skeletal injuries or bruises.
100. I have already referred to the slightly abnormal liver function tests and to the fact that this led to an ultrasound scan of L's abdomen. Dr Mughal said that the cause of the deranged liver function tests could be infection (Dr Cartlidge's view), trauma or of the presence of a toxic agent. He notes that liver function tests had been carried out during the first week of L's life and were carried out again in Dublin in June 2010. Both were normal. This adds to the curiosity about the abnormal test results obtained following L's admission to hospital on 3^rd March. The ultrasound scan did not disclose any damage to the liver. It is clear from the evidence of both Dr Mughal and Dr McLachlan that an ultrasound scan is not a particularly sensitive test. It may not, for example, detect bruising to the liver. The gold standard would have been to undertake a CT scan of the liver. Dr Mughal said that he would have considered arranging for a CT scan. On this issue the evidence does not permit any clear conclusions to be reached. The local authority does not seek any finding.

The mother's evidence

101. The mother gave birth by caesarean section on 19^th January 2010. So far as she was aware she had given birth to a healthy baby. Because of the effects of the anaesthetic she was unable to begin breast feeding L until he was two days old. It was then, on 21^st January, that she became concerned that he was unwell. He was lying on his back in his cot and she noticed that his arms and legs were shaking. She drew this to the attention of the staff. They seemed unconcerned. Both she and paternal grandmother noticed that L had puffy eyes. Again the ward staff seemed unconcerned. Later, as the mother was feeding him, L suddenly stopped feeding and became more and more unsettled. He was crying very loudly. Although at first the staff again appeared unconcerned eventually the mother persuaded one of the nurses to test his blood-sugar level. This was found to be dangerously low. It was clear that L was very unwell. He was taken to the Neonatal Unit. The mother thought she was going to lose him. This was a very distressing time both for her and for L. Happily, L responded well to treatment. He was returned to the maternity ward on 24^th January. Mother and child were discharged home on 27^th January when L was just six days old.
102. Following their discharge home the mother says that she coped well with caring for L. Although she had occasional anxieties, which she raised variously with her midwife, her health visitor and her GP, during that period from 27^th January to 3^rd March she had not thought L to be unwell.
103. The mother has her own house which she is buying. Although the father had been a frequent visitor and a good support to her when he was there, not only did he have a full-time job he also had to spend time with his older children, not least C in respect of whom he has a residence order. Although they had been a couple, they had no beent living together as most couples do. The mother had no grievance about this. She was grateful for the time the father had been able to spend with her. She had been able to cope on her own when he was not there.
104. The most significant problems the mother had with L were during the two days before his admission to hospital on 3^rd March. She had two very disturbed nights with him. It is necessary to explore her evidence about the events of these two days in some detail.
105. The father works shifts. He says that he left the mother's home on 1^st March at 1.30 p.m. and returned, after work, at 02.40 a.m. on 2^nd March. On 2^nd March he left the mother's home at 1.00 p.m. and returned at 00.40 a.m. on 3^rd March. The mother agrees these timings.
106. The mother's first account of the events of these two days was in her first police interview on 3^rd March. She said

'Monday night, he was awake from half past nine at night…till half seven in the morning, which is a really long time for a baby to be awake and he was up, he was unsettled, upset for most of that time…I was feeding him on and off, and BR and I were looking after him, sort of giving each other a chance to rest and erm, the next day I phoned the midwife and the health visitor and I told them this, about how unsettled he'd been and how long he'd been awake for and this, they seemed to think that it could be collic (sic).'

107. Monday night was clearly a long and difficult night. When L finally went off to sleep she and the father also went to sleep. The father got up to go to work, leaving at around 1.00 p.m. L slept for most of the day, until around 8.30 p.m. that evening, waking only for feeds and to have his nappy changed. The mother goes on to explain what happened next. She says

'I fed him from about half eight till half nine on Tuesday evening, then I got myself some dinner and then he was kind of unsettled from then on, from about ten, half ten onwards.'

108. In her most recent witness statement the mother says that she noticed a mark to the right of L's forehead at some point before the father arrived at her house 00.40 a.m. on 3^rd March. She describes it as a 'very pale blue mark'. She says that

'When BR came in from work at around 1am…he did not notice the mark on L. I decided that I would monitor this mark.'

Although she noticed this mark, in her police interview she was very clear that she did not notice that L had a floppy left arm.

109. We then come to the period between the father's arrival at her house at 00.40 a.m. on 3^rd March and her telephone call to NHS direct at 3.59 a.m. In her first police interview the mother gave this account of what happened during those hours:

'BR came in from work at 2 a.m. we gave him the collic (sic) drops, I went for a shower about half past two, cos I hadn't done anything all day apart from sleep. BR was settling him, erm, then we both went up to bed about three o'clock, or just before three, well I went up. We put him in his moses (sic) basket. I tried to settle him with a dummy…so I could encourage him to sleep. BR got ready for bed and BR went to sleep for a bit it was only about half an hour or something. He wasn't settled in the moses (sic) basket, so I then took him into the pram, which was in his nursery and I rocked him a little bit, cos that had worked the night before…and he was starting to dose off, it looked like he was going to sleep, but then he started crying again, and the crying started getting worse, so I thought that's obviously not working, so then I fed him and after I fed him, he was fine while I was feeding him…and then after I was feeding him, he was still upset, so I woke BR up and said to him, can you comfort him for a bit while I try and lie down and have a sleep. I tried to sleep but I couldn't really and then it was after that that BR said, as he was comforting him, he said one of his arms isn't moving as much as the other and that really frightened me and to touch it it was, his arm was really floppy and I was really worried then…'

110. Later in the interview the mother added further detail. The layout of the ground floor of her home is that the kitchen is situated in between the bathroom and the living room. Whilst she was in the bathroom having a shower, the father had been caring for L in the living room. She was in the shower for around ten minutes. The bathroom door was closed though the door from the living room to the kitchen was open. She was asked whether L had been unsettled whilst she was in the shower. She replied

'I don't know, I don't think I would've heard him. I know that when I came out the shower, I didn't know before coming out the shower whether he was awake or asleep. And when I came out I could hear that there was no sound, and BR had him and he was asleep on his arms, in his arms.'

The mother had thought L looked cute and had taken a photograph of him on her mobile phone.

111. The mother was asked to describe what she saw when she went into the living room. She said

'BR was walking round in circles in the living room, calmly. And he usually settles like that, but then the problem is when you put him, you think he's asleep and then when you get him into the moses (sic) basket and you get up, he'll wake up. So he was walking round'.

They then went upstairs to the mother's bedroom. The mother was initially uncertain who had laid L down in his Moses basket but then remembered that the father had passed Lto her so that she could do it. L began to stir. She told the father to go and get ready for bed. The father went down to the bathroom. He was there for a few minutes. L was unsettled throughout. She tried to pacify him with his dummy. She tried rocking him in his pram. None of this worked. She handed L over to the father so that she could get some sleep. She was asked what happened next. She said:

A: Well I was tossing and turning, but also checking on Land having a look at him and

Q: Where was, where was he when you were looking at him?

A: BR was holding him, sitting up in bed.

Q: Ok, so he's still sitting in bed.

A: Yeah…

112. The mother was asked about the bruising. She told the police that the only marks she had noticed before L's admission to hospital were a self-inflicted scratch mark on his right cheek and what she described as a 'blue dot' on his forehead. She had first noticed this on the Tuesday evening. She said

'It didn't cause me a great deal of concern, cos I kind of thought you know how you see veins under the skin, I thought may be it was a vein thing or something like that rather than a bruise. I didn't automatically think it was a bruise.'

113. In the mother's subsequent accounts of the events of that evening there are some differences as to timing. For example, she accepts that the father returned to her home at 00.40 a.m. and not 2.00 a.m. as she told the police. In her final witness statement she is able to pinpoint the time she came out of the shower. It was at 2.07 a.m. She knows that was the time because it is recorded on the photograph she took of the father holding L.
114. The mother's subsequent accounts give some added colour to the detail provided but the basic sequencing of events remains unchanged.
115. The mother said that during the first six weeks of life L had been a 'chilled-out' baby. She denied having been depressed during those first few weeks. On the contrary, she had been very, very happy. She felt she had coped well with the demands of caring for a baby for the first time. She could not think of anything she may have done which could have caused the fractures or the bruising. The father had not raised any concerns about her handling of L and neither had her own mother. She denied ever having lost her temper with him.
116. The mother agreed that whilst at the hospital the father had expressed concern that he may have caused the humeral fracture by swaddling L too tightly in a blanket. She had reassured him that that was unlikely. She dealt with this issue in her final police interview on 16^th March:

'Right well, I mean I don't know, I, you know, how much force would be needed to break a bone but I can't imagine that wrapping a blanket around a baby even if you were to do it very tightly would do that but I don't know.'

She went on to say that she had never seen the father wrap L so tightly that it had caused her concern.

117. The mother was then asked about the father putting L's arms inside the blanket:

Q: OK, So you have never seen him do that?

A: No. I don't, I sometimes, I mean if it is at night-time I might put his arms, oop, I might put his arms in the blanket but as I said as soon as I wrap him up they are out again if he is, if he is awake and moving them around.

Q: OK. Has BR ever spoken to you about putting the arms down into the blanket?

A: Yeah he suggested doing it to help soothe him.

Q: Right, So tell me about that then. When did that happen?

A: I think it was Monday he suggested because it was Monday night and Tuesday night that he was very unsettled. He suggested putting his arms in the blanket just to sort of stop him waving them around to try and soothe him.

Q: OK and did he do that?

A: Yeah I think he said he did that.

Q: OK. Did you see him do that?

A: I don't know, because I have seen him wrap L up plenty of times…

118. The mother described the father as being 'gentle'. In the course of their relationship he has never been aggressive or abusive. If he had been then she would have ended the relationship. As for his care of L she had never seen anything that caused her concern. If she had seen anything untoward she would have challenged him. The mother told the police,

'Well, you know, I have known BR for a long time. I have been going out with him for nearly a year and five months and I can't imagine that he would do something that forceful to a baby. He has been so gentle with L from the day he was born, the way he handles him I can't imagine that he would do…something with that much force.'

119. The mother sets out her position very clearly in the final paragraph of her final witness statement. She says:

'I did not cause injury to my son, L. I have never seen or heard anything which would lead me to suspect BR of causing these injuries/lesions. I do not believe that BR has had the opportunity of causing the injuries that L sustained. L's welfare is, always has been and always will be my top priority. He is my son and I love him unconditionally. He is my pride and joy and I will always seek to protect him from harm.'

120. The mother has given evidence not only at this hearing but at two contested hearings in August and September 2010 when she opposed the renewal of the interim care order. Her position has been consistent throughout. She believes that there is an underlying and as yet undiagnosed medical condition which accounts for L's injuries. She has raised a wide range of concerns. All of these were considered by the medical experts. All were discounted as having had any part to play in the fractures and bruising found on 3^rd March. At the end of her evidence in chief the mother said that having heard the medical evidence she accepts that non-accidental injury is a possibility. However, it was clear from the evidence she gave in cross-examination that she does not believe that at all. She still holds firmly to her belief that an underlying medical condition is the cause of the fractures and bruising. She said that she had a very strong feeling on his admission to hospital on 3^rd March that L had been a poorly child. She had had that same feeling in January 2010 when : was two days old. She had been right then. She strongly believes that she is right again.

The father's evidence

121. The father confirmed that he had been as involved as he could be in L's care prior to his admission to hospital. He had taken two weeks paternity leave when L was born and also two weeks annual leave. Although he lived with his parents and his oldest son, C, he slept at the mother's home several nights a week. He had tried to juggle his responsibilities as father of L, resident parent for his oldest son, C, and full-time work.
122. The father has no previous convictions. There have never been any concerns about his care of his older three children.
123. The father has no explanation for any of the injuries though in conversation with the mother whilst at hospital on 3^rd March and subsequently during his police interviews he has spoken of an event which occurred during the early hours of the morning of 2^nd March and wonders whether that may have caused the fracture to L's left humerus.
124. The father's first account of the events immediately leading up to L's admission to hospital is that given in his police interviews. He confirmed that L had been unsettled for the last two days. He then described an incident that occurred during the early hours of 2^nd March. He was working a late shift that week. He had arrived at the mother's home at 02.40 a.m. He said

'Right, in terms of how he got this injury, I'm not going to lie to you. It was, it wasn't done forcefully, it wasn't done forcefully, like I made reference to, he had been unsettled since, for a couple of days. It was the night before yesterday where we, where we tried everything within, within reason to try and put him to sleep. Everything from rocking him, walking him, putting him on the shoulder, putting him in a bounce, in a bounce, in a baby bouncer, his poor, his poor mum even walked down the stairs and brought his pushchair up and…placed him in it in order to settle him. He wouldn't. I suggested I take him off, I take him off her, placed him in the crib, erm, at the time he was still very unsettled and every time he placed the dummy in his mouth, he was swaying with his arms around and as soon as the dummy had come out, he would scream at the top, so I says to her,, erm, if we can, if I can manage to hold him, stabilise the dummy inside his mouth and stabilise his arms in one place that would be half the battle, and this is where, this is the important, this is the important bit, in doing so, I'm gonna be totally honest and I'm totally honest, I had, I applied pressure to both his arms and where, where, whether I put more force on one, I remember his swinging his ar…swing his arms around so I tucked, yeah, I tucked his right arm first, tucked his right arm in first, he was swaying around with the left one, as I went to put the blanket over, over him, he managed to slip, he managed to slip his arm out, the dummy fell out, he started screaming again, so I, so I grabbed it, I grabbed his left arm again and I pushed, I pushed it down, and not with, and this, not with excessive force or extreme force or with any intent to hurt him because I didn't, that was not my intent. I forced, I forced his arm down, wrapped the duvet really tight around it, really tight around him and I could see, and I could, and placed the dummy, placed the dummy in his mouth, not forcefully, but enough for him, enough for, to stabilise in his mouth so he could have settle and at that time I can remember, I can recall…his right arm, his right arm was secure, his left arm was still loose, he was swaying it all over, so I therefore put, put my hand inside the duvet, inside the duvet, slightly tugged on his arm with my other arm, erm, got his blanket and wrapped it even tighter…'

125. Through the remainder of this interview, and the second interview the following day, the father's description of this event was investigated minutely. The father's position is that he had been exceptionally tired during the first interview, in particular, and that his choice of words, particularly his use of the word 'force' had not conveyed the message he had intended to convey. For their part, it is clear that the police took the father's description of this event to be a confession. In a second interview of the mother on 16^th March an officer told her that 'We have got BR saying that he caused these injuries…'
126. The father used the word 'force' several times during the course of his interviews. In his second interview, on 4^th March, there is the following passage of dialogue concerning the humeral fracture:

Q: …Can you give any explanation to why L has got such a fracture

A: Like I, like, like, like I explained, with my, with my, with my, with the method which I'll illustrate time…

Q: Yeah

A: and again, by pulling, pulling, applying pressure, twisting on his arm, twisting on his arm to place back, to place back into the, into the triangular blanket…

…

Q: Can you give an explanation as to why your son has these injuries

A: No I can't, like I said he's, he's always handled with, he's always handled with care, he's not, never been, he's never left unattended. I personally have never used any aggressive force with the exception of, with the exception of that, that night on a Monday, on a Monday where I used excessive force, force to stabilise his, stabilise his arm.

127. In the father's first witness statement filed within these proceedings, he again uses this word 'force. When referring to the humeral fracture he says

'When I was interviewed by the Police initially about this injury, I did tell the Police about an incident which had happened the previous night, in the early hours of Tuesday 2^nd March, when I thought that I may have caused an injury to L's arm by wrapping him too tightly in his blanket…I am not sure whether this was the cause of the injury because, when I forced L's left arm down, there was little, if any, actual twisting…'

In his oral evidence the father repeatedly said that he had 'tucked' L's left arm back inside the blanket.

128. It was clear that wrapping L tightly in a blanket to try to settle him is a technique that the father had used several times before this particular night. The mother knew about it. She was not concerned about it. She did not believe the father was hurting Lin any way. Whilst at the hospital on 3^rd March the father had raised with the mother the possibility that in wrapping him so tightly he might have caused the fracture. The mother was reassuring and had told him, in terms, not to be so silly.
129. On 2^nd March the father left the mother's home at around 1.00 p.m. and returned to his own home before setting off for work later in the afternoon. Whilst at work he received a message from the mother that the midwife had advised her to get some colic drops for L. She asked him to get some. He arranged for a work colleague to get them for him. He had the colic drops with him when he arrived back at the mother's home at 00.40 a.m. on 3^rd March. In his police interviews, the father describes what happened between arriving at the mother's home and the telephone call to NHS Direct:

'I came, I came back from work yesterday at roughly twenty to one…twenty to one in the morning, My son L was, was unsettled, unsettled at the time, he was erm, in the process of being breast fed by his mother. A short while, a short time later, I took over while, while she had a shower and erm, I tried, I tried one or two ways to try to settle him and put him to sleep.'

In his oral evidence he confirmed that before the mother had her shower they had given L some colic drops.

130. By the time the mother had had her shower he had succeeded in getting L off to sleep in his arms. The mother had taken a photograph of them. He then took L upstairs. The mother followed them up. He tried to put L down in his Moses basket in the mother's bedroom but L then woke up. The mother took over. She told him to get ready for bed. He went downstairs to the bathroom. He thinks he was downstairs for around 20 minutes. He then went back upstairs and got into bed. L was still awake and unsettled. The mother had Lin the nursery. The father pulled the duvet up over his head and held his pillow over his ears to shut out the sound of L's crying in the hope that he would then be able to get off to sleep. He succeeded. The next thing he remembers is the mother poking him on his left shoulder to wake him up to take L off her. He didn't get out of bed. The mother passed Lto him. He told the police:

'At that point I put him on my left, on my left shoulder, his mum was lying right next to me. I proceeded to rock him back and forth without, without any joy. At that point as I, at that point, as I tilted him backwards, my right hand, was behind his head, I was kind of sitting upright, he was very unsettled, it was at…that point I noticed that his right, he was very unsettled, his right hand was swinging and swaying all over the place, his left arm was motionless, so at that point, we both freaked out…'

131. There were some minor variations to that account in the father's oral evidence. For example, he said that he had lowered L down from his shoulder and laid him on his legs, L's feet pointing towards him and his head away from him. It was then that he had noticed L's floppy arm. Neither that nor other minor variations in the father's oral evidence undermined the basic outline of his account of the sequence of events.
132. The father was pressed about changes in the pitch of L's crying. He was very clear that he had never heard L let out a piercing cry as if in pain. However, in his oral evidence he did appear to downplay some of the statements he had made during his police interviews. For example, he told the police that at the time he first noticed L's floppy arm 'He was still screaming at the top of his lungs'. In his oral evidence he said that he had 'used a very, very bad expression'. There was also the following exchange with the police:

Q: Ok. At that stage…obviously you've, you've had an unsettled baby over the last few days. On a scale of, zero being not so, he was, you know, unsettled but not too bad, through to ten, at what, how unsettled was he at that point? If you could put your memory back to then. Ten being the worst he's ever been.

A: …about 7 I'd say. 7.

In his oral evidence the father said that that was not accurate and that 5 would be more appropriate.

133. The father spoke very positively about the mother's parenting of L. He acknowledged that she loves him very much. He is her first priority. She is very gentle with him. He has never had any concerns about her parenting. She had taken to motherhood 'very, very well'. He thought she had been doing a good job of looking after L. He had never been concerned that she was not coping.

The law

Standard of proof

134. The burden of proof rests upon the local authority. The standard of proof is the civil standard; that is the balance of probability. In Re B (Children)(Fc) [2008] UKHL 35. Baroness Hale said that she would

'70. …announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…

135. It was also made clear in Re B that with respect to any fact alleged by the local authority the court is not entitled to come to the conclusion that, on the one hand, the local authority has failed to establish that fact on the balance of probability but that, on the other hand, the possibility that the circumstances may be as alleged by the local authority cannot be discounted completely. As Lord Hoffman put it

'2. If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.'

Identifying the perpetrator

136. With respect to any injuries conceded to be, or found by the court to be, non-accidental injuries the burden again falls upon the local authority to prove, on the balance of probabilities, who inflicted that injury. If the local authority is unable to establish who the perpetrator is, the court must consider who falls within the pool of possible perpetrators. On that issue the approach of the court should be as set out by Dame Elizabeth Butler-Sloss P. in North Yorkshire County Council v SA [2003] EWCA Civ 839:

'26. …if there is not sufficient evidence to [identify the perpetrator or perpetrators] the court has to apply the test set out by Lord Nicholls of Birkenhead as to whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused the injury to the child. For this purpose, real possibility and likelihood can be treated as the same test…I would therefore formulate the test set out by Lord Nicholls of Birkenhead as, 'Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?'.

137. Further guidance has been given by the Supreme Court. In Re S-B Children [2009] UKSC 17, in giving the judgment of the court, Baroness Hale said

'34. The first question listed in the statement of facts and issues is whether it is now settled law that the test to be applied to the identification of perpetrators is the balance of probabilities. The parties are agreed that it is and they are right…the same approach is to be applied to the identification of perpetrators as to any other factual issue in the case…

'35. Of course, it may be difficult for the judge to decide, even on the balance of probabilities, who has caused the harm to the child. There is no obligation to do so. As we have already seen, unlike a finding of harm, it is not a necessary ingredient of the threshold criteria. As Lord Justice Wall put it in Re D (Care Proceedings: Preliminary Hearings) [2009] EWCA Civ 472, [2009] 2 FLR 668, at para 12, judges should not strain to identify the perpetrator as a result of the decision in Re B:

"If an individual perpetrator can be properly identified on the balance of probabilities, then . . . it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification."…

'39. The second and third questions in the statement of facts and issues ask whether judges should refrain from seeking to identify perpetrators at all if they are unable to do so on the civil standard and whether they should now be discouraged from expressing a view on the comparative likelihood as between possible perpetrators...'

Her Ladyship answered 'yes' to both these questions.

Assessing the medical evidence

138. In this case I have heard evidence from four very well respected medical experts. Two of them have international reputations. How should their evidence be approached? Guidance on that issue was given by the Court of Appeal in Re U (Serious Injury: Standard of Proof): Re B [2004] 2 FLR 263. Dame Elizabeth Butler-Sloss P said that

'[23] …there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following…

(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

(ii) Recurrence is not in itself probative.

(iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.

(iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.'

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

Evaluating the totality of the evidence

139. In this case there is almost complete agreement between the medical experts. And yet that evidence is only part of the evidence in the case. In Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200, Bracewell J made the point that

'[24] …Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened.'

140. A similar point was made in In Re T (Abuse: Standard of Proof) [2004] 2 FLR 838. Dame Elizabeth Butler-Sloss P said that evidence

'[33] …cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.'

Truth and lies

141. It is also appropriate to remind myself of the point made by Charles J in A County Council v K, D and L [2005] 1 FLR 851 that

'[28]…in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 203. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B….'

Discussion

142. At the contested interim care hearing last August I assured the mother that no reasonable stone would be left unturned in determining the cause of L's injuries. I am satisfied that that assurance has been honoured. In addition to the evidence of the treating clinicians I have also had the benefit of receiving evidence from five medical expert witnesses of high standing in their particular specialty. The quality of the medical expert evidence in this case, both written and oral, has been very high.
143. My task now is to assess not just the medical evidence but the totality of the evidence before me, to make findings based on that evidence and, in the words of Bracewell J, to assess whether the pieces of the jigsaw form into a clear convincing picture of what happened. In essence, there are three questions to be answered. Firstly, I must consider whether any of the fractures and bruises are non-accidental injuries. Secondly, if I find that one or more of the injuries is a non-accidental injury I must then go on to consider whether I am able to identify the perpetrator. Thirdly, if I am unable to identify the perpetrator then I must consider who falls within the pool of possible perpetrators.

Which of these injuries are non-accidental injuries?

144. I begin by considering the fractures. The most serious is the non-displaced spiral fracture to L's left humerus. Dr Chapman's evidence was that though not diagnostic of non-accidental injury spiral fractures such as this are widely regarded as an important pointer to such a diagnosis in a child of this age. As for the metaphyseal fractures, in children of this age these are often regarded as pathognomonic of abuse.
145. The parents' position, held with particularly strong conviction by the mother, is that the fractures are atraumatic and relate to an underlying and as yet undiagnosed medical condition.
146. The mother has queried whether L may suffer from a mild form of osteogenesis imperfecta. Dr Chapman is in no doubt that there is no radiological evidence to support that view. Professor Pope is equally clear that there is no other cogent evidence to support such a diagnosis. I set out his conclusions in full at paragraph 86 above. He is satisfied that L does not suffer from osteogenesis imperfecta.
147. Notwithstanding that evidence, on behalf of the parents Mr Lopez and Mr Messling both submit that the court should direct that DNA sequencing be undertaken. Mr Messling advanced the curious submission that the court should determine the factual issues on the basis of the evidence currently available but should also direct that DNA sequencing be undertaken. If I understand him correctly, in proceeding in this way the court would then be able to review its conclusion in the event that DNA sequencing confirmed that L is suffering from osteogenesis imperfecta. I am not attracted to that suggestion. Decisions need to be made about L's future. Assessments need to be undertaken. That process needs to be informed by clear findings made by the court, not on the basis of provisional findings.
148. That then leaves the question of whether I should adjourn this hearing part-heard to enable DNA sequencing to be undertaken. On the basis of the evidence before me I am satisfied that that is not appropriate. That issue was fully argued at a case management hearing on 13^th January 2011. I considered the guidance given by the Court of Appeal in Re M (Care Proceedings: Best Evidence) [2007] 2 FLR 1006, in particular at paragraphs 12 to 14. I came to the conclusion that a direction for DNA sequencing was not justified in light of the increasing body of medical evidence by then available. I suggested that the issue be considered at the experts' meeting on 14^th February. I indicated that any party may renew the application, if considered appropriate, immediately after the experts' meeting. The application was not renewed until closing submissions. I have now heard the expert medical evidence, tested by rigorous cross-examination. I am satisfied that the decision I made on 13^th January was the right decision. There is no merit in the suggestion that I should adjourn this hearing for DNA sequencing to be undertaken.
149. The evidence is equally clear in respect of the suggestion that L may be suffering from rickets. There is no radiological evidence to support such a diagnosis. The biochemical evidence is equally unconvincing. Although Dr Cartlidge was of the opinion that L may have been suffering from mild rickets, he deferred to Dr Mughal's opinion on that issue. Notwithstanding the hospital's failure to test L's serum level of 25-hydroxyvitamin D, a point which concerned both Dr Mughal and Dr Cartlidge, Dr Mughal was of the opinion that L was suffering from subclinical vitamin D deficiency. That was his working hypothesis. It was with that working hypothesis fully in mind that he concluded that L was not suffering from rickets.
150. As for the possibility that L was suffering from a vitamin C related disorder such as scurvy, Dr Mughal was equally clear: L did not have a vitamin C related disorder. His opinion on this issue was not challenged.
151. The medical evidence in this case all points in one direction. There is no evidence to justify a finding that L was suffering from osteogenesis imperfecta, Ehlers Danlos Syndrome, rickets, scurvy or any other disease or disorder likely to cause bone fragility.
152. That leaves the question of whether the six metaphyseal fractures, or one or more of them, may have been caused at birth. In Dr Chapman's opinion the idea that a baby may suffer multiple metaphyseal fractures during a caesarean birth is 'fanciful'.
153. The Dublin study reports on three instances of metaphyseal fractures believed to have occurred during a caesarean birth. Those three instances occurred out of a total of 187,000 births over a period of 22 years – i.e. in 0.0016% of births. In each of those three cases, within two days of birth there was clinical suspicion of injuries. Nowhere in L's clinical notes is there any evidence to suggest concern about any of his limbs prior to his discharge from hospital at 6 days old. Furthermore, in this case the radiological evidence as to the timing of these fractures is not consistent with any of them having been birth injuries. I am satisfied that none of the metaphyseal fractures is a birth-related injury.
154. There being no evidence of any medical condition predisposing to bone fragility the only alternative explanation for these injuries is that they were non-accidental injuries. I am satisfied on the evidence that all of the fractures sustained by L were non-accidental injuries.
155. I turn next to the bruising. The local authority seeks findings that five of the marks found upon L on his admission to hospital were bruises and that those bruises were non-accidental injuries. These are the mark on the right of L's forehead; the mark to his left cheek; the linear mark on his right upper eye lid; the mark on his left forearm; and the marks on the palm of his right hand. It does not follow that if one of these lesions is a bruise that they must all be bruises. Each needs to be considered separately.
156. The mark to the right of L's forehead was seen by Dr Khan, Dr Karthikeyan and Dr McLachlan. All three considered it to be a bruise. That is also the opinion of Dr Cartlidge. The only real doubt about this mark arises from the photographs taken by the mother in November. They were taken on her mobile phone. They are of poor quality. It is difficult to differentiate between marks and shadows. If the mark seen on 3^rd March was not a bruise and had been there for some months, it is surprising that in the months following his discharge from hospital on 10^th March no health care professional noted it. Notwithstanding the mother's photographs, Dr Cartlidge remained confident that this was a bruise. I am satisfied that it was.
157. Dr Karthikeyan noticed a mark on L's left cheek. She was satisfied it was a bruise. When she first looked at it Dr McLachlan was uncertain. When she looked at it again four hours later, in different light, she had no doubt at all. The medical photographs in this case are of good quality. To the untrained eye it is exceedingly difficult to see any bruising to the left cheek. That has caused me some concern. Dr McLachlan said that it was the flash from the camera reflecting off the cheek that obscures the view of the bruise. Dr Cartlidge made the point that significant reliance should be placed on the observations of the treating clinicians who observed the lesions in real time. Dr McLachlan took care not to arrive at a conclusion until she had taken a second look at this mark in different light. She is confident that it was a bruise. Dr Cartlidge agrees that it was a bruise. I, too, am satisfied that it was.
158. The linear mark on L's upper right eyelid was considered by Dr McLachlan to be a bruise. Dr Cartlidge agrees. I am satisfied that this was a bruise.
159. Dr Karthikeyan and Dr McLachlan both considered a mark on the outer aspect of L's left forearm to be a bruise. Dr Khan did not see this mark. Dr Cartlidge had some doubts about whether it was a bruise. In his opinion, based on the photographic evidence, it does not look like a bruise. Although his inclination was to defer to the treating clinician, it was clear that so far as this mark is concerned he did so very reluctantly. Professor Pope said that in his opinion this mark was likely to be either eczema or an abrasion. Although Dr McLachlan remained confident that it was a bruise, and I respect her opinion, on the basis of the totality of the evidence before me I am not satisfied that it was.
160. The final marks are those on the palm of L's right hand. I have noted the discrepancy between the description and diagrams provided by Dr Karthikeyan and Dr McLachlan and the medical photographs. There is disagreement between Dr Cartlidge and Professor Pope concerning these marks. Dr Cartlidge did not accept that they may have been caused by eczema. Professor Pope, a consultant dermatologist, believed that they might have been. I am not satisfied on the balance of probability that these marks were bruises.
161. With respect to the three marks that I have found to be bruising, the next issue is to consider how they were caused. The parents have given no explanation that would account for any of them. They suggest that the bruising may be associated with some underlying undiagnosed medical condition. In some of the bone disorders to which I referred earlier, skin fragility and easy bruising are consequences of the disorder. I have found that L did not have an underlying bone disorder. I am satisfied that these bruises cannot be explained by reference to an underlying medical condition.
162. Of the three marks that I have found to be bruises, two were observed within the first two hours of L's admission to hospital. In Dr Cartlidge's opinion, these bruises were no more than 48 hours old at the time of admission. I am satisfied on the evidence that both of those bruises were sustained prior to L's arrival at hospital. They are unexplained. I am satisfied that they were non-accidental injuries.
163. The third bruise is that to L's right upper right eye lid. It is an unusual bruise in an unusual place. It was not seen by any clinician on the day of L's admission to hospital, not even by the ophthalmic registrar. Dr Cartlidge expressed the opinion that this bruise was less than 48 hours old when first seen at 11.00 a.m. on 4^th March. By then L had been in hospital for more than 30 hours. Dr Cartlidge was not able to suggest any mechanism which may have caused this injury. The absence of any understanding as to the likely mechanism for this injury coupled with the fact that it was not noticed until more than a day after L's admission at hospital lead me to the conclusion that I cannot be satisfied, on the balance of probability, that it was a non-accidental injury.

Who is the perpetrator?

164. In their closing submissions both Mr Lopez and Mr Messling very properly reminded me that the parents are both of good character. Each parent speaks very positively about the other. Each describes the other as truthful. Each describes the other as 'gentle'.
165. The mother is an articulate, intelligent mother who is devoted to her son. Though a first-time mother, in the father's opinion she took to motherhood very well indeed.
166. The father is an experienced father. L is his fourth child. No concerns have been expressed about his care of his older three children. There has never been any suggestion that he has ever abused any of them. Although he does not enjoy a good relationship with his former wife she has told the local authority that he 'was a good father to his children and that he would not harm them'.
167. The fact remains that sometimes good people do bad things. I have found that L has sustained several non-accidental injuries; seven fractures and two bruises. The parents accept that they alone cared for L during the first six weeks of his life. The sad but inevitable truth is that one, or perhaps both, of them is responsible for causing these injuries.
168. The parents sought medical assistance on 3^rd March because they noticed that L had a floppy arm. X-rays disclosed that L had sustained an undisplaced spiral fracture of his left humerus. When presented with this fact in hospital neither parent had any explanation. Outside the confines of the hospital walls the father queried with the mother whether he may have caused that fracture accidentally by wrapping L in a blanket too tightly. The mother had seen him do that many times. She reassured him that that could not be the cause.
169. Notwithstanding the mother's reassurances, the father raised the same issue during his police interviews. The police officers latched on to this, treating it almost as if it were a confession. The interviewing officers did not have the benefit of the medical evidence that is before the court. Had they been aware of the medical evidence they would no doubt have realised that this 'explanation' from the father does not stand up to close scrutiny.
170. The primary reasons why it does not stand up to close scrutiny can be stated shortly:

(a) The father says that this happened during the early hours of the morning of 2^nd March, after his return from work at around 3.30 a.m. The mother agrees. There is no evidence to the contrary. I find that that is when this 'swaddling' episode occurred.

(b) The very clear medical evidence is that immediately L's arm was fractured it would have been floppy and he would have cried because of the searing pain. The parents noticed the floppy arm at around 3.30 a.m. on 3^rd March. Had his arm been floppy on 2^nd March I am in no doubt that the parents would have noticed it.

(c) Dr Cartlidge considered it highly unlikely that L would have slept soundly throughout the day on 2^nd March if he had had a fractured arm. The mother's evidence, beginning with her police interview on 3^rd March, is that L was absolutely fine all day on 2^nd March and that he had slept for most of the day.

171. I am satisfied that the father's swaddling of L during the early hours of 2^nd March did not cause the humeral fracture. That finding does then leave questions around the father's description of the swaddling in which he repeatedly said that he had used 'force' and at one point 'exceptional force', that he had 'grabbed' L's arm, that he had 'pulled' his arm. The father excuses his poor choice of language on the basis that he was exhausted when interviewed on 3^rd March. I accept that he was exhausted. He says that he did not get any sleep in the police cell during the night of 3^rd March. The custody records suggest that he slept soundly for several hours. I am not convinced that the father's descriptive shortcomings can be put down to exhaustion.
172. The father said that he wanted to be as helpful as he could to the police. He decided he did not need the services of a solicitor. He was clearly concerned about the implications of the investigation so far as his older three children are concerned, and particularly C who lives with him. The pattern of his speech (for example, words and phrases repeated several times), reflected in the parts of his police interviews set out earlier in this judgment and repeated during his evidence at court, suggests that he found both that interview and the courtroom experience very daunting. In her evidence the mother said that the father can sometimes use words and phrases inappropriately and that when he is tired he can muddle up words.
173. Though I am concerned about some of the language used by the father during his police interviews, I have come to the conclusion that the incident he described, and the language he used to describe it, is of no particular significance in the context of the decision I have to make about who caused L's injuries.
174. It is clear from the findings I have made so far that the humeral fracture could not have been sustained before, at the earliest, the late evening of 2^nd March when L was again unsettled. Indeed, I am satisfied that it had not occurred by the time the father returned to the house at 00.40 a.m. on 3^rd March. The window can be narrowed even further. The mother had a shower some time just before 2.00 a.m. L was crying when she went into the bathroom. He was asleep in his father's arms when she came out of the bathroom. She was so moved by what she saw that she took a photograph. The photograph was timed at 2.07 a.m.. It shows L being held by father, facing away from father, his upper arms by his side, his lower arms upwards with his hands resting on his father's arm. It is a picture of great tranquillity. The position of L's arms and the fact that he was so tranquil are in my judgment inconsistent with what would be expected of a child who had suffered a humeral fracture within the last hour. I am satisfied that the window can be narrowed to some point between 2.07 a.m. and 3.59 a.m. when the mother telephoned NHS Direct.
175. After the mother's shower she and the father both went upstairs to put L down in his Moses basket. As he was put down, L stirred and again became unsettled. The mother picked him up. She told the father to go and get ready for bed. The father went downstairs to the bathroom. He says that he was around 20 minutes. He went back upstairs and got straight into bed. The evidence for this is not in dispute. L' was still crying. The father put his head under the duvet and put a pillow over his head in order to keep out the sound of L's cries. Again, this is not disputed.
176. The mother took L off into the nursery to try to settle him. She failed. Eventually she went back into her bedroom, woke the father up and asked him to take L from her. The father says that he did not get out of bed at all. I accept his evidence on that point. He sat up, put Lon his left shoulder and tried gently to settle him. The mother lay next to him, trying herself to get some sleep. The father says that it was a matter of only a couple of minutes before he took L down from his shoulder and laid him on his legs. It was at that point that he noticed that L's left arm was floppy. In his police interview he said that at this point L 'was still screaming at the top of his lungs'. He has since backtracked on that expression and, as with his use of words such as 'force', 'grabbed', 'pulled', says that it was not what he intended to say and overstates the position. The mother denies that L was 'screaming at the top of his lungs'. She heard him do that in hospital in January 2010, when he was unwell with hypoglycaemia. She has never heard it since.
177. It is my responsibility to try to identify the perpetrator of this injury if I can. I am not required to strain to do so. In this case I am satisfied that I can identify the perpetrator and do so without straining. The following facts are, in my judgment, significant:

(a) The medical evidence is that L's arm would have become floppy immediately the fracture occurred.

(b) I have already narrowed the window for this fracture to some point between 2.07 a.m. and 3.59 a.m. I am satisfied it can be narrowed even further. In light of the totality of the evidence I am satisfied that it occurred within no more than thirty minutes of the father noticing the floppy arm.

(c) The medical evidence is that the pain at the time of fracture would have been intense and that that would have been reflected in the pitch of L's crying.

(d) The father's first description of L's crying at that point, given to the police on 3^rd March during an interview that began little more than twelve hours after the injury, was that L was screaming at the point when he noticed the floppy arm.

(e) During the relevant window the parent who spent time with L on her own was the mother. She had the opportunity to cause this injury. The father did not.

178. I am satisfied on the balance of probability that this injury was caused by the mother. Notwithstanding her previous good character, there are three other factors that, whilst not leading to that conclusion do, in my judgment, tend to support it:

(a) From the very outset the mother has almost frantically pursued medical explanations for L's injuries. She has been dogged and insistent, even convincing Dr McLachlan to spend valuable time undertaking research.

(b) It is clear from the evidence I heard from the mother in August and September 2010, referred to in my earlier judgments of 16^th August and 27^th September, that it was the mother who led the way in making the decision that L should be taken to Ireland. Though said by her to have been a joint decision, it is clear that it was she who persuaded both the father and the grandmother.

(c) It was the mother who actively courted public sympathy by telling a journalist that L had been removed from her care merely because of 'faint bruising'.

It seems to me, on the balance of probabilities, that these were all diversionary tactics designed to turn the spotlight away from her.

179. As for the two bruises, that on L's right forehead and that on his left cheek, both occurred within 48 hours of his admission to hospital. The mother says that she noticed the mark to his forehead before the father came home from work at 00.40 a.m. Neither parent suggests that this mark was present when the father left for work at 1.00 p.m. on 2^nd March. I am satisfied that this bruise was sustained whilst L was in his mother's care. I am satisfied that she caused it. It seems to me to be fanciful to find, on the one hand, that the mother caused that bruise but that, on the other, there is a real possibility that the father caused the other bruise. I am satisfied on the balance of probability that the mother caused both bruises.
180. Though I have found the mother responsible for the humeral fracture, the position concerning the metaphyseal fractures is more difficult. The radiological evidence is highly suggestive of these fractures having occurred on at least two occasions. That was the view of Dr Offiah. During L's first six weeks he was cared for by both parents. The fractures cannot be dated with precision. Whereas L was never in his father's sole care he was frequently in his mother's sole care. I have considered whether that alone is sufficient to justify a finding that the mother was responsible for those fractures too. I have come to the conclusion that it isn't. The immediate signs of metaphyseal fractures having occurred would have been far less dramatic than with the humeral fracture. Even with both parents in the house together, the medical evidence suggests that it is possible for one to cause a metaphyseal fracture without the other being aware that that parent had done anything wrong. On that basis I conclude that the metaphyseal fractures could have been inflicted by either or both of the parents.
181. There remains one further question with respect to the humeral fracture and the bruising and that is whether the father failed to protect L. The father could have had no possible basis for believing that L was at risk of harm whilst in his mother's care. His own experience of the mother was that she was competent, caring, capable and devoted to her son. There is no case for finding that he failed to protect L.

The parents' arrest

182. There are two final issues I wish to address. The first relates to the decision of the arresting officers to handcuff the parents in the hospital. I have already noted the evidence of Dr McLachlan that despite the distressing circumstances which had led to L's admission to hospital, both parents had behaved perfectly properly. Neither of them had been aggressive or abusive, either physically or verbally. Their behaviour on the ward was beyond reproach. Although I have heard no evidence from the officers involved in the arrest, I have seen the custody records for both parents. With respect to the father, under the heading 'Authorisation of Detention – Prisoner Condition' the record states 'PIC calm and compliant. Force not used on arrest. Handcuffed for transport.' Under the same heading, the custody record for the mother states 'PIC calm and compliant. Force not used on arrest'. On behalf of the mother Mr Lopez submits that handcuffing the mother wasn't necessary, wasn't justified and wasn't reasonable. A similar submission is made on behalf of the father.
183. In May 2009 the Association of Chief Police Officers of England, Wales & Northern Ireland published 'Guidelines on the Use of Handcuffs'. The guidance states that the information contained in it 'is designed to provide police officers and other police staff with an overarching, generic approach to the use of handcuffs.' The following passages of the guidance are relevant to the parents' concerns in this case:

2.1.2 Any intentional application of force to the person of another is an assault. The use of handcuffs amounts to such an assault and is unlawful unless it can be justified. Justification is achieved through establishing not only a legal right to use handcuffs, but also good objective grounds for doing so in order to show that what the officer or member of police staff did was a reasonable, necessary and proportionate use of force.

2.1.5 In considering what action is reasonable, an officer or member of police staff should apply the principles of the Conflict Management Model, especially the Impact Factors. Factors such as age and gender, respective size and apparent strength and fitness may or may not support the justification of using handcuffs, taking into account all the accompanying circumstances at the time. There must always be an objective basis for the decision to apply handcuffs.

184. In the light of that guidance and the evidence available concerning the parents' demeanour at the time of the rest, I find it difficult to understand why it was considered reasonable, necessary and proportionate for these parents to be handcuffed in the hospital and escorted through the hospital to the two waiting police cars.

Transparency

185. This case has already been the subject media interest both in this country and in Ireland. On 6^th August 2010 an article appeared in The Irish Times. That article focussed largely on problems relating to the reporting of family cases in Ireland. Of more immediate concern are two newspaper articles that have appeared in this country, both written by Mr Christopher Booker. The first appeared in the Daily Telegraph on 16^th July 2010. The second appeared in the Daily Telegraph on 9^th October 2010. In the first, Mr Booker said

'Also this week the fate of another family hangs on another court hearing. This is the story of a couple who last January were rejoicing at the birth of their first child. Some weeks later, concerned by faint bruising, they took the baby back to the hospital to seek medical advice. This proved to be the start of a nightmare, which led to them being arrested, handcuffed and driven off separately to a police station, where the mother was held for nine hours without food. The father was imprisoned overnight. It emerged that the doctor they saw had reported her suspicion about the child's bruising to Coventry social workers.'

In the second article, after referring to my decisions in Re X, Y and Z (Children) [2011] 1 FLR 1045 and BBC v Coventry City Council [2011] 1 FLR 977 Mr Booker wrote:

'It is this same judge who is in charge of a most alarming case that I have been reporting here in recent months, involving Coventry's forcible seizure of a baby from its family, after a legal battle that has also cost taxpayers hundreds of thousands of pounds. And the council has depended, in its campaign to seize this baby, on the same controversial paediatrician about whom the judge was so excoriatory in the earlier case. Despite the anguish being caused, the next hearing in this case – which I hope one day to be able to report properly, because it says so much about the workings of our "child protection" system – will not be until April, another six months away.'

186. When giving evidence at a contested interim care hearing in September 2010 the mother told me that she had been the one who had provided Mr Booker with the factual information contained in the July article. Notwithstanding the fact that since 27^th April 2009 accredited representatives of news gathering and reporting organisations have had the right to attend family hearings (see FPR 1991 rule 10.28 replaced on 6^th April 2011 by FPR 2010 rule 27.11) Mr Booker has not attended any of the hearings in this case and in particular, though being aware of the dates, has not attended on any day of this fact finding hearing, not even for the handing down of this judgment.
187. Mr Booker's articles contain significant factual errors and omissions. In the first article Mr Booker gives the impression that it was 'faint bruising' which prompted the parents to take L to hospital and which gave rise to what he clearly regards as the over-zealous and unjustified actions of social workers working for the same local authority so recently criticised by me in Re X, Y and Z (Children). As he will come to understand when he reads this judgment, it was in fact L's floppy arm which prompted his parents to take him to hospital. That floppy arm was the result of a spiral fracture of his left humerus. X-rays showed that he also had six metaphyseal fractures. In his first article Mr Booker makes no mention of any of those fractures. It was those fractures which led to the safeguarding measures taken – and in my judgment appropriately taken – by this hospital and by this local authority.
188. In his second article Mr Booker asserts as fact that in this case 'the council has depended, in its campaign to seize this baby, on the same controversial paediatrician about whom the judge was so excoriatory'. I am aware that there is currently an application pending before the President of the Family Division in which the President is being asked to decide whether the paediatrician in that case should be named. Judgment has been reserved. I shall refer to that doctor, as I did in Re X, Y and Z (Children), as Dr M. At no time has Dr M had any involvement at all in the case I am now concerned with. Indeed, to the best of my recollection his name has never even been suggested as a possible expert to be used in this case.
189. All of this underlines the dangers inherent in journalists relying on partisan and invariably tendentious reporting by family members and their supporters rather than being present in court to hear the evidence which the court itself hears. As Camilla Cavendish so rightly said in an article in The Times on 29^th April 2009, two days after accredited media representatives became entitled to come into family courts,

'Being able to sit in court, hear the arguments and watch the reaction of the parties is an entirely different experience to talking to aggrieved people on the phone. Without access to the court you are always conscious that you are only getting one side of the story. In court there are more shades of grey. You learn things the parties did not want to tell you…'

190. In his evidence to the House of Commons Justice Committee on 1^st March 2011, when dealing with the issue of media reporting of family cases, the President of the Family Division, Sir Nicholas Wall, made the point that

'What tends to happen, and this is a matter which we do have to address…is that one side will give a tendentious view of a case to the press. The press will then publish that case as though it was the gospel truth, and the judgment which may be given will not be corrected in the press because by then the story will be old…'

What has happened in this case is a classic example of that very point.

191. No-one doubts the importance of a free press. More than two hundred years ago Blackstone said that 'The liberty of the press is indeed essential to the nature of a free state…' And no one today doubts the right of a free press to criticise and highlight shortcomings in the family justice system. The senior judiciary have repeatedly made that point. In In the Matter of B (A Child) [2004] EWHC 411 Munby J (as he then was) said that family judges

'must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice'.

192. The freedom of the press to highlight shortcomings in the family justice system encompasses not only the right to publish but the right to editorial freedom in the way in which stories are written. In Re Roddy (A Child) (Identification: Restriction on Publicity) [2004] 2 FLR 949 Munby J stated that

'[84] Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. As Neil LJ recognised, a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public.'

And more recently, in Norfolk County Council v Webster [2007] 2 FLR 415, he said that

'[33]…the court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation.'

193. However, we should not lose sight of the fact that journalistic freedom brings with it responsibility, not least the responsibility to ensure fair, balanced and accurate reporting. So far as concerns the reporting of issues relating to family justice, the public needs to have the confidence that what it reads in the press is indeed fair, balanced and accurate. As Lord Hobhouse put it in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at p. 238 'No public interest is served by publishing or communicating misinformation.' In my experience, parents involved in court proceedings cannot always be relied upon to be unbiased and dispassionate. More often, as Sir Nicholas Wall has said, they are partisan and tendentious. It is not only judges that need to recognise that but journalists too. As this case has shown, to rely uncritically upon what a parent says can lead to reporting that is unbalanced, inaccurate and just plain wrong.

Supplementary Judgment

194. I handed down judgment in this case yesterday morning. Late in the afternoon I was invited by both Mr Lopez, for the mother, and Mr Messling, for the father, to clarify some of points raised in paragraphs 178, 179 and 180 of my judgment. This I now do. It is convenient to begin with the points raised by Mr Messling on behalf of the father.
195. Mr Messling's concerns relate solely to paragraph 180. Mr Messling enquires if the court has considered whether it is possible to exculpate the father from responsibility for the metaphyseal fractures having regard to (i) my findings that the mother was responsible for causing the humeral fracture and the bruising; (ii) the fact that I made no adverse findings in respect of the father's parenting generally; and (iii) the decision of the Court of Appeal in Re M [2010] EWCA Civ 1467. In the light of those factors Mr Messling asks what the evidential basis is for a finding that there is a likelihood or real possibility that the father may have caused any of the metaphyseal fractures.
196. As for the first of those points, in paragraph 180 I make it plain that I have taken fully into account the findings I have made against the mother. As for the second of those points, at paragraphs 164 to 166 I make it plain that in determining responsibility for L's injuries I have fully in mind the parents' previous good characters.
197. Before I consider the third point, the Court of Appeal's decision in Re M, it may be helpful if I first expand upon some of the points which led me to my conclusion about the metaphyseal fractures:

(a) Although I acknowledged that L had never been in the father's sole care (i.e. that the mother had never left L with the father whilst, say, she went out shopping) it seems reasonable to suppose that there will have been times when, though in the house together, they were not in the same room and that L was with his father. That is what happened, for example, when the mother went for a shower during the early morning of 3^rd March 2010.

(b) The medical evidence is to the effect that L suffered six metaphyseal fractures. The two independent paediatric radiologists are agreed that two of those fractures occurred in the two weeks prior to L's admission to hospital. There is a disagreement between them about the dating of the other four fractures. Dr Chapman's view is that they are likely to have occurred within five to six weeks of L's admission to hospital. Dr Offiah's view is that they are likely to have occurred between two and four weeks before L's admission to hospital.

(c) Dr Chapman said that it is not possible to say whether all of the metaphyseal fractures were sustained on the same occasion or different occasions.

(d) On the basis of Dr Offiah's opinion as to timing it is more likely that they were sustained on at least two separate occasions.

(e) It only takes a moment to inflict a metaphyseal fracture. Dr Cartlidge's evidence is that at the time they were sustained the metaphyseal fractures would have been less painful than the humeral fracture. It is possible that someone not in the room when the injury was inflicted may have heard the baby cry but not have appreciated that something seriously untoward had occurred

(f) Over the next few days after the injury had been sustained there may have been pain on movement though it may not have been obvious to a carer what was causing the pain (see paragraph 62).

198. In Re M a two month old child, E, suffered an acute life-threatening event ('ALTE'). Two months later he sustained four bruises. It was common ground that if the ALTE had a non-accidental cause then the father alone must have been the perpetrator since he alone had care of the child at the material time. At the time the bruises were sustained the child's care had been 'in the hands primarily of the mother but also (and to a greater extent than at any earlier stage of E's life) of the father'. Furthermore, there was also said to be evidence which clearly exculpated the mother, not least evidence from both father and the health visitor that the mother's care of the child 'appeared always to be excellent'.
199. The first instance judge found that both parents should be included in the pool of possible perpetrators. The mother appealed. Their Lordships reserved judgment. The leading judgment was given by Wilson LJ. It is clear from his judgment that His Lordship changed his mind about the outcome of the appeal in the light of post-hearing reflection. In allowing the mother's cross-appeal, he said:

'37. …Is it likely, asks Miss Hodgson on behalf of the mother, that, within the space of less than seven weeks, the partial suffocation of a baby is caused by one parent and yet injuries to his body are, or even just may be, perpetrated by the other? It is certainly not unknown for judges to give a negative answer to that type of question and, by reference to it, to proceed to identify the perpetrator of a second non-accidental injury. When they do so, their reasoning is – in my view – in principle valid…'

His ultimate conclusion is expressed thus:

'41. …Before consigning the mother to a pool of possible perpetrators of the December injuries, with all the possibly devastating consequences thereof for her future life, did the judge, in the context of this case, not need to find one iota of evidence, beyond the mere fact of her joint care of E during the days when they must have been perpetrates, which would case doubt on the continual excellence of her care of E? There was no iota of such evidence; and, in reaching her fallback conclusion, in favour of consignment of the mother into the pool, the judge did not, so far as I can see, recognise that such evidence did not exist. By contrast – and such is the context of this case – the evidence in relation to the father was quite otherwise.'

200. That case can be distinguished from the case before me on a number of grounds. Firstly, in this case I set out my reasons for arriving at the conclusion that the father could not be excluded from the pool of possible perpetrators before and not after arriving at my conclusion that he could not be excluded. Although I have amplified those reasons in this supplemental judgment, I remain of the view that the reasons put forward in paragraph 180 of my main judgment were sufficient to justify the conclusion I arrived at. Secondly, whereas in Re M there was independent evidence of the mother's excellent care of the child, in this case there is no independent evidence of the quality of the father's care of L, merely the favourable comments made by the mother. Prior to L's admission to hospital on 3^rd March there is no evidence that any professional had ever observed the father's care of L. Thirdly, although the reasoning adopted by the mother's counsel in Re M was described as being 'in principle valid', that expression falls a long way short of establishing a principle to be applied in determining similar issues in other cases. It is trite law that every case must be decided upon its own facts.
201. So far as concerns the metaphyseal fractures, I stand by the conclusion set out in paragraph 180 of my earlier judgment.
202. I turn next to the issues raised by Mr Lopez on behalf of the mother. I begin with my conclusions in respect of the bruising set out at paragraph 179 of my main judgment. The point taken by Mr Lopez relates to the conclusion I have arrived at in respect of the metaphyseal fractures. He submits that if my reasoning for including the father in the pool of possible perpetrators of the metaphyseal fractures is valid then as a matter of logic that reasoning must also apply to the bruising. In other words, if I consider, as I do, that there is a real possibility or likelihood that the father caused the metaphyseal fractures then it must follow, for the same reasons, that there is a real possibility or likelihood that he caused the bruising.
203. In support of that contention Mr Lopez makes the point that the medical evidence is to the effect that the bruising was less than 48 hours old at the time of L's admission to hospital on 3^rd March (see paragraph 71 of my main judgment). At the time of his admission to hospital the bruising was still developing. Although the mother says that she noted the mark on L's forehead before the father returned home from work at 00.40 a.m. on 3^rd March, it does not inevitably follow that the bruise was caused whilst the father was at work. It could have been caused at any time between 4.50 a.m. on 1^st March and 4.50 a.m. on 3^rd March (when L was first seen by a doctor). In my main judgment I noted the mother's acceptance that the father had been at her home from 2.40 a.m. until 1.00 p.m. on 2^nd March and from 00.40 a.m. onwards on 3^rd March. In his statement dated 11^th January 2011 the father says that he was at the mother's home from 00.50 a.m. to 1.30 p.m. on 1^st March. The father was therefore present for around 22 hours out of the relevant 48 hour period – by the logic applied to the metaphyseal fractures, says Mr Lopez, ample time for the father to have been responsible.
204. I see the force of Mr Lopez's argument. However, that argument is based exclusively upon opportunity and pays no heed to some of the relevant facts outlined in my judgment, in particular:

(a) That the mother had found it very difficult to cope with L during the evenings of 1^st/2^nd and 2^nd/3^rd March.

(b) That she was concerned enough to telephone both the heath visitor and the midwife on the 2^nd March (paragraph 106).

(c) Though advised to give L colic drops she did not leave the house to go and get them herself but telephoned the father at work to ask him to go and get some even though that he would not be home until the early hours of the following morning.

(d) When the health visitor spoke to the mother on 2^nd March she noted that the mother sounded tired and anxious (see paragraph 14).

(e) The mother noted the bruising to L's forehead before the father returned from work. She did not point it out to the father when he arrived home. That appears to have been out of character given the health visitor's observation that the mother 'appeared to lack some confidence' and had needed support 'to overcome her concerns' (see paragraph 13)

(f) Rather than showing the mark to the father and seeking his opinion, the mother decided that she would monitor the mark (see paragraph 108).

205. In my judgment, each of these factors, when taken alongside my finding that the mother was the perpetrator of the humeral fracture, supports my conclusion, on the simple balance of probability, that the mother was also responsible for causing the bruise to the forehead and, if that, then also the bruise to the left cheek.
206. The one remaining issue relates to paragraph 178 of my judgment. I began that paragraph by stating that 'I am satisfied on the balance of probability that this injury was caused by the mother'. I then went on to say that 'Notwithstanding her previous good character, there are three other factors that, whilst not leading to that conclusion do, in my judgment, tend to support it'.
207. Mr Lopez asks me to provide clarification of the extent to which these three matters 'tend to support' my conclusion that the mother was the perpetrator of the humeral fracture. During the course of Mr Lopez's articulation of this request it became clear that there is an issue as to the accuracy of my quotation, in paragraph 185, of an article by Mr Booker in which I assert that he said that L's parents had presented him to hospital because they were 'concerned by faint bruising'. It is necessary for me to say more about that matter in a moment. Before doing so, I respond to Mr Lopez's request for clarification.
208. In paragraph 177 I set out a list of five facts which I considered to be 'significant' in identifying the perpetrator. I did not say that they were the only facts and matters which led to my conclusion. I hope it was plain that in arriving at my conclusion I had taken into account the totality of the evidence before me. It was not until after I had arrived at my conclusion that I added, by way of postscript, the three 'other factors' set out in paragraph 178. Those three factors played no part in my conclusion that the mother was the perpetrator. The statement that they 'tend to support' my conclusion is no more than an observation that they are, in my experience, unusual features which, when taken together, can properly be construed as an attempt by the mother to divert the spotlight away from her. In the light of my finding that she is the perpetrator the motive for wanting to divert the spotlight away from her is self-evident.
209. I turn finally to the first of the two newspaper articles referred to in paragraph 185. . An on-line search of the Daily Telegraph archives shows that the first of these articles appeared on 17^th July and not 16^th July as stated at paragraph 185. According to the archived version, the text of this extract actually reads:

'Also this week, the fate of another family hands on another court hearing. This is the story of a couple who last January were rejoicing at the birth of their first child. Some weeks later, concerned that the baby's arm seemed floppy, they took it back to the hospital to seek medical advice. An X-ray confirmed a minor fracture. This proved to be the start of a nightmare which led to them being arrested, handcuffed and driven off separately to a police station, where the mother was held for nine hours without food. The father was imprisoned overnight.'

210. Though Mr Booker's reference to a 'minor fracture' is marginally closer to the truth than a reference to 'faint bruising', his article is still inaccurate. L had not suffered merely 'a minor fracture' but a non-displaced spiral fracture of his left humerus, six metaphyseal fractures and five marks which the treating clinicians believed to be bruises. The points made at paragraphs 185 to 193 remain valid. I stand by them.
211. However, the question does arise as to how it is that I came to misquote that passage from Mr Booker's article. The passage quoted was taken from what was at the time believed to be an accurate reproduction found on the website www.forced-adoptions.com, a website run by Mr Ian Josephs to whom Mr Booker refers approvingly in his article of 17^th July. I dealt fully with my concerns about Mr Josephs in my judgment of 27^th September 2010. The relevant passages bear repetition:

'Mr Ian Josephs

27. Mr Josephs is the prime mover in the website www.forced-adoptions.com. He is also the author of a book published in 2008 under the title Forced Adoptions. The purpose of the website is set out on its home page. Under the heading 'Abolish Forced Adoption', Mr Josephs says:

'My name is IAN JOSEPHS. UK Social services have never hurt me, my family, or my friends, but their wicked abuse of power has simply shocked me into action! "Forced adoption" too often legally deprives healthy, happy, children from all contact with loving parents, brothers, sisters, grandparents, and other relatives for the rest of their lives! Adoption is a wonderful thing for abandoned and neglected children if it is TRULY VOLUNTARY but is a wicked deed that should be severely punished if forced through the courts against the will and frantic opposition of loving parents. Worse still these parent VICTIMS are ruthlessly gagged!! Yes, here in the UK secret courts jail parents who dare to protest publicly when social workers take their babies at birth and arrange for them to be adopted by strangers. Some "lucky" mothers who discovered where their adopted children were living have been jailed for ringing the doorbell, waving at the children in the street, or sending them a Xmas card on the grounds that they were undermining the forced adoption and committing a breach of the peace!'

28. One of the purposes of the website is to offer advice and to advertise the fact that Mr Josephs is available to give advice. He says

'I am NOT repeat NOT another "Mother Teresa" and I rarely give to charity…but fighting the often brutal actions of Social Services is a cause very close to my heart. Social Services have never hurt me, my family or anyone close to me so I have no personal axe to grind but I HATE THE ABUSE OF POWER and particularly the way the bullies in social services ruthlessly destroy the very families they are supposed to protect. As a matter of principle I never charge a fee and never accept any money whatever for any expenses. Anything a parent tells me is strictly confidential but if parents do want me to involve the press by way of protest I also solemnly undertake that if ever I get offered a fee by a newspaper for introducing a family or writing about parents whose children have been taken then I promise to give 100% of any money received to the family concerned and keep nothing myself. I have no wish to imitate those disgusting people who make money out of the misery of parents who have had their children snatched by Social Services!!

29. The advice offered on this website includes, for example, a section headed 'Golden rules summary' in which the following advice is offered:

'1:- Social Workers:- Never ask them for help, rarely report a violent partner or even a sexual molester to social workers or police as you risk losing your children for "failing to protect them" if you do, never let social workers in your house without an appointment, never go alone to any meetings they hold, never agree to voluntary care for your child, never admit to any fault (they don't!), never be rude or unfriendly to them, but never obey them either! NEVER, NEVER sign anything even when they pressure you! Remember social workers are not police, and have no legal authority to give you orders as only a court can do that . They cannot stop you seeing your children as they come out of school or receiving emails from any public library, or receiving reverse charge calls from any call box if they dial 100 unless you have been served with a specific court injunction forbidding all contact.

'2:-Family Courts:- 99.7% of parents lose against the "ss" in court and those who win are usually those who represent themselves as most legal aid lawyers in family courts are "professional losers" not on your side at all! If you are a couple let one have a lawyer and the other act in person. State facts not opinions, never interrupt and you will at least have been allowed to speak unlike many parents who lose their children to adoption for life without saying a single word! Answer all questions from police or barristers whenever possible by "yes", "no" or "I don't know" and never complain about any social worker or police officer in court.

'3:- Only agree to using the parents assessors, psychologists, and other professionals who are listed on this site as contacts (find them just after the golden rules). Avoid the so called "professionals" selected by the "ss" who are regularly paid outrageous fees to discredit you!

'4:-Remember there is no forced adoption in Ireland (no passports needed on the ferry), Spain, France, or Italy and no extradition from N.Cyprus! Escape legally (nobody can stop you!) whilst pregnant or well before court proceedings have started and you will be safe!'

30. I mention all of this at some length because, as will become clear when I review the evidence given by the mother and [the grandmother], not only do they accept that they have been in contact with Mr Josephs since March, it is also clear from the way they behaved in March and the way the mother, in particular, has conducted this litigation, that they have not just heard and read but have acted upon some of the advice provided by Mr Josephs – and, as they may well now have come to realise, acted to the detriment of themselves and, more importantly, L.'

212. If I may be permitted to use an expression now in common currency, when one compares the apparent reproduction of Mr Booker's article as set out on Mr Josephs' website and the actual article it is clear that the version on Mr Josephs' website is in fact a 'sexed up' version of Mr Booker's article. Not only does it wrongly present the facts of this case it also distorts other parts of the text of Mr Booker's article.
213. All of this underlines the concerns I expressed in my judgment of 27^th September. I said that I was in

'36. …no doubt that the true motives for the sudden decision to remove L to Ireland were a combination of fear about the possible outcome of the proceedings, fear that she would not get a fair trial, fear that social workers and paediatricians alike appeared to her to have closed minds on the question of whether L's injuries were non-accidental injuries and, as a result of all of this, a deep and profound fear that she will lose her child. For a parent who has no experience of the working of the family courts, these are understandable fears. Regrettably, there are some, of whom Mr Josephs appears to be one, who are only too keen to fan the flames of such fears by giving misleading information and misguided advice.'