England and Wales High Court (Family Division) Decisions

IMPORTANT NOTICE

 

The judge gas given leave for this judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

 

 

 

CASE NO: DO13c00328

 

IN THE High Court OF JUSTICE

FAMILY DIVISION

BOURNEMOUTH AND POOLE DISTRICT REGISTRY

 

 

11^th day of November 2013

 

 

 

 

RE O (Minors)

 

 

 

 

 

 

 

Before His honour Judge Bond

 

SITTING AS A JUDGE OF THE HIGH COURT

 

 

 

JUDGEMENT

 

 

 

1.         The court is concerned with two children F, who was born on [a date in] 2011, and L, who was born on [a date in]  2013. Their mother is A. Their father is B.  The parents are Brazilian nationals who married in 2005.  They moved to live in the United Kingdom in 2008. 

2.         Almost at the end of this fact finding hearing, the course of the case took a dramatic change of direction. I was asked to give a view as to whether I agreed that L should return home. I gave a short ex tempore ruling to that effect pending the arrival of this reserved judgment. The elder child, F, had already been returned to the care of his parents. The younger child, L, has now also returned home under the existing Interim care order together, with a direction under section 38(6) of the Children Act. As a result of this judgment, the application for public law orders is dismissed.    

3.         The positions of the parties by the end of the case were as follows:

(i)        The local authority: The public law proceedings should be dismissed and L returned home.  This was upon the basis that the mother may have unconsciously injured L while having an epileptic fit.  There should be a finding that L has normal bone strength.

(ii)       The parents: Agreed with the local authority save they sought a finding that the court could not be satisfied that L had normal bone strength.

(iii)      The Guardian: that L had normal bone strength and that he had suffered inflicted non-accidental injury by one or other of the parents.  L should nevertheless be returned home to the care of his parents.    

4.         I am very grateful to the advocates and their supporting teams for the exemplary manner in which this difficult case has been prepared and presented.

5.         The parents are in their mid 30s. There is no history of any childcare concerns in respect of either of the boys until, on 8^th April 2013, L was found to have a fracture of his right clavicle. Subsequently on 10^th May 2013 he was found to have a fracture of his left seventh rib posterolaterally. 

6.         The evidence as to timing suggests that both fractures could have occurred on the same occasion. On 10^th May 2013 small bruises were also found on L. They were on the centre of his anterior chest wall, under his left jaw and over his lower spine. 

7.         Both parents sought medical care for L as soon as they realised something was amiss. The mother telephoned 111 when told that the wait at Bournemouth Hospital on 7^th April 2013 was likely to be a lengthy one.

8.         What has been described as the “broad canvas” evidence in respect of both parents is favourable to the parents. This is reflected in the decision to return F to the care of his parents and in the extensive level of contact afforded with L to both parents pending the outcome of this fact-find.

9.         L has been suffering from a significant Vitamin D deficiency. His level was described as “very low”. He also had a raised parathyroid hormone. Further, recently it has been confirmed that F also suffers from a Vitamin D deficiency. There is also evidence that the paternal aunt also has such a deficiency. 

10.      The mother was unable to explain how it is that L sustained the fractures.  L was seen by the GP for his six week check on 3^rd April 2013 and by the CNN on 4^th April 2013 for a baby massage session. The question has been raised as to whether anything might have occurred during either of those sessions which could have caused L to sustain one of his fractures. Those possibilities were discounted.

11.      L underwent X-rays on 8^th April 2013, 22^nd April 2013 and 10^th May 2013. A further question arose as to whether anything might have occurred during the X-ray procedure that might have led to the fractures or bruising.  Initially the Hospital Trust was joined as interveners. Once evidence had been gathered from the hospital it was found that nothing which had occurred at the hospital could have caused or contributed to L’s injuries.  The Trust withdrew from the case.

12.      The mother had previously raised concern about her epilepsy having read that she might unknowingly have had a seizure whilst caring for L. There is also a question of whether or not the mother’s epileptic medication might have had an effect upon her own levels of Vitamin D.  As far as the bruising is concerned the mother points to the evidence that F was jealous of L and prone to pinching him. 

13.      In its revised threshold statement dated 13^th September 2013 the Local Authority recited that on the evening of 7^th April 2013 the mother said that she noticed for the first time a lump to L’s right shoulder.  He was taken by the parents to Poole Hospital A&E at around 21.30 hours.  The triage nurse recorded that L appeared to be in no pain at that time.  Examination at 00.15 on 8^th April 2013 recorded “bone sticking at the base right side of neck”. Aetiology disclosed that L had sustained a displaced fracture of his right clavicle. 

14.      In a follow up chest X-ray taken on 10^th May 2013 it was noted that L also had a healing fracture of the left seventh rib posterolaterally with abundant callus formation at that time.  In her report dated 15^th July 2013 Dr Halliday reported that there may also have been fractures of the right eleventh and twelfth ribs. 

15.      Also on 10^th May 2013 when L was examined by Dr Kelsall it was noted that L had the following bruising:

(i)        5mm yellow bruise to the centre of the interior chest wall.

(ii)       15mm x 10mm green-yellow bruise under the left jaw at the angle of the mandible.

(iii)      15mm x 10mm yellow-green bruise with slight swelling over the lower spine.

16.      In these circumstances the Local Authority originally requested the following findings:

(a)       no adequate explanation has been given by the parents as to how the above injuries (fracture and bruising) might have been caused;

(b)       on a balance of probabilities the above injuries were non-accidental in origin, such injuries being perpetrated by the acts or omissions of the mother and/or the father;

(c)       following each of the above injuries the child would have been in obvious pain and discomfort which would have been apparent to the parent who caused injuries, and which may have been apparent to the non-abusing parent. For the avoidance of doubt, the Local Authority will say that the symptoms of the fractured clavicle and the presence of the bruising should have been apparent to either parent when caring for the child regardless of whether or not they knew that abuse had taken place;

(d)       there was a failure to seek prompt medical attention with injury;

(e)       the Local Authority also wanted to explore whether the non-abusing parent had also failed to protect the child from the risk of harm.

17.     In his Opening Mr Hand on behalf of the Local Authority outlined the chronology:

(a)       On 6^th April 2013 2012 L was taken to hospital with a lump in the area of his right chest and shoulder. In her 111 call the mother said the lump had appeared some two hours before the telephone call. The operator asked if anything had happened to the child.  The mother was unable to understand the question. The mother, during the telephone call, did say that the child had been crying in the shower/bath. In Portuguese the same word is used for both shower and bath.

(b)       At the hospital the father commented that L had not been moving his right arm in the days before admission and wondered whether this was because L might be left handed.

(c)       On 3^rd April 2013 L had his eight week check and nothing of significance was noticed. On 4^th April 2013 L was seen by the nurse.  The mother was shown a “Baby Massage” session to help L with his colic. I have seen a film of the baby massage.  During the session L appeared relaxed and nothing untoward was observed.

(d)       When L was examined at hospital in the early hours of 8^th April 2013 the fractured clavicle was discovered. The X-ray was reviewed by Doctors Brailsford and Ismail and appeared to show early signs of healing.

(e)       On 9^th and 10^th April 2013 the agencies held two Strategy Meetings. The question of non-accidental injury was considered.  On 10^th May 2013 however F was returned home. L has remained with foster carers although he visits the parents’ home every day for five days a week during which he is cared for by the parents.   

18.     According to Dr Halliday the fracture to the right clavicle occurred between 29^th March 2013 and 8^th April 2013. The fracture to the left seventh rib occurred between 29^th March 2013 and 26^th April 2013.  According to the doctor both fractures might have occurred on the same or different occasions. If they occurred at the same time the injuries would have been the result of very hard squeezing. 

19.     Dr Cartlidge was of the opinion that both fractures were the result of non-accidental injury and could have occurred on the same or different occasions.  He agreed that would have been a slight increase in Lucas’ bone fragility but this was a marginal contributory factor.  As to whether the bruising could have been caused to L by F, the doctor accepted that this might be possible but commented that there appeared to be no memorable event linked to this. He thought that the bruising was more likely to be the result of non-accidental injury.

20.     On 10^th May 2013 at the Poole Hospital Dr. Kelsall described yellow bruising which, in her opinion, was 24 hours old at the date of examination.

21.     In these circumstances Mr Hand posed the following questions for the court to consider :-

(i)        Are the fractures and bruising the result of innocent or organic factors or are they the result of non-accidental/inflicted injury? 

(ii)       How many rib fractures are there? Is it one or three?

(iii)      What is the timing of the fractures and bruising?

(iv)      What is the mechanism for the injuries?

(v)       Who was the perpetrator?

(vi)      Was there a failure by either parent to protect L?

        (vii)   Did the parents seek prompt medical attention?

Law

22.      The Local Authority was making serious allegations against these parents. Although the Local Authority no longer pursues its original case, the Guardian has in effect taken it over. In these unusual circumstances I have decided to proceed with a judgment as if the case remained fully contested.

23.      The burden of proving any of the allegations remains upon the Local Authority throughout the hearing. The standard of proof is the civil standard, that is to say is it more probable than not that the injuries were non-accidental and similarly to satisfy the court, if possible, as to the identity of the perpetrator. 

24.      Although it is desirable that the court should, if possible, identify the perpetrator(s) it should not strain to do so. It may be that at the conclusion of the evidence the court is left in a position that, if it finds that the injuries to L were non-accidental, that it is not possible to identify a single perpetrator and that the mother and the father remain in the possible pool of perpetrators. 

25.      In the case of Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 the House of Lords explained that 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.  There is no “heightened standard” and no legal rule that “the more serious the allegation, the more cogent the evidence needed to prove it”.

26.      In Re B (above) Lord Hoffman said:

“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, the value of 0 is returned and the factors treated as not having happened.  If he does discharge it, the value of 1 is returned and the fact is treated as having happened”. 

27.      In the case of Al-Alas [2012] 2 FLR 1239 Theis J said:

“8.     The burden of proof is on the Local Authority and they have to satisfy the court on the balance of probabilities in accordance with the principles laid down in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 in particular Baroness Hale at paragraph 70 and later.”

“10.   It is always open to a judge to rule that the cause of an injury remains unknown.  In Re R (Care Proceedings: Causation) [2011] EWHC 1715 Hedley J said:

‘In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure.  It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made’.

11.    The importance of other evidence, particularly where medical opinion is not unanimous, should not be overlooked or undervalued.  As Butler-Sloss P said in Re U: Re B (Serious Injury: Standard of Proof) [2004] 2 FLR 263 at paragraph 26, the court’s responsibility is to survey a wide canvas of the evidence (see Lord Nicholls of Birkenhead in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80) at page 23; Ryder J in A County Council v AN and Others [2005] EWHC 31 (Fam) paragraph 44; in Re L (Children) [2011] EWCA Civ 1705, Thorpe LJ said in dismissing the appeal:

‘Clearly from the forensic standpoint, given any degree of uncertainty in the medical and scientific field, the judge’s appraisal and confidence in the parent is absolutely crucial to outcome.’ 

12.    The frontiers of medical science are always expanding.  As Professor Luthert was quoted in Re Harris [2005] EWCA (Crim 198) paragraph 135:

‘There are areas of ignorance.  It is very easy to try and fill those areas of ignorance with what we know but I think it very important to accept that we do not necessarily have a sufficient understanding to explain every case’. 

13.    Where there is disputed medical evidence guidance was laid down by Butler-Sloss P in Re U: Re: B (above) at paragraph 23:

‘In the brief summary of the submissions set out above 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 he adopts the following:

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

(ii)     recurrence is not 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’.

14.    It is important to remember that the task of the court is to decide on the evidence before it and it can depart from the view of expert evidence provided that sound reasons are given for doing so (Re B (Care: Expert Witnesses) [1996] 1 FLR 667 at 670.”

28.      In this case the question of L’s bone fragility and Vitamin D deficiency is critical in the court’s decision making process.  Mr Samuels QC has produced a helpful summary of the relevant parts of the decision in the case of Al-Alas (above).

29.      Mr Samuels QC summarises the effect of the expert evidence in that case as follows:

(i)        a child, particularly under 6 months of age, may have severe Rickets without there being any identifiable radiological evidence.  It is not possible to predict from X-rays the strength of the bone.  “Radiology is a gross tool; you see shadows, not the reality.” 

(ii)       congenital Rickets may be more severe as it starts pre-birth;

(iii)      the calcium level in the blood is independent of bone fragility or strength.  What matters for bone strength is what is in the bone;

(iv)      the only difference in relation to the strength of the bone with or without Rickets is the amount of calcium present within that bone;

(v)       calcium within the body is very tightly controlled by the endocrine system (e.g. the parathyroid hormone).  It is “borrowed from the bones” to support the rest of the body;

(vi)      experimental evidence going back over many years illustrates the extreme fragility of Vitamin D deficient bones.  Infants can incur fractures with minimal trauma;

(vii)    there is no objective way of evaluating the strength of the bone.  You do not know how much force is required to inflict any damage, it can only be inferred.  No-one has conducted any research into this with either normal or abnormal bones;

(viii)   there is no reliable way of determining why some bones fracture due to Rickets and others do not;

(ix)      Rickets affects not only the growth centre but also the shafts of the bones e.g. the shaft of a rib. 

(x)       The Chapman study must be viewed with caution as it is not clear what their methodology was, they did not X-ray all of the bones (only those fractured), the majority of children were over a year old, and not many of the children had congenital (as opposed to acquired) Rickets.  The four children under 6 months did not have congenital Rickets and (per Theis J) “the court should be cautious in placing too much reliance on this one study.”

 

Medical Evidence

30.      The first witness was Dr Kelsall. She is a Consultant Community Paediatrician at Poole Hospital.  She wrote a letter dated 10^th May 2013 which is at C2004.  The doctor writes as follows:

“... I was on call on 10^th May 2013.  I was asked to review L who had attended X-ray with his mother.  He had previously had full investigations for possible non-accidental injury having been found with a fractured clavicle at the age of just under 7 weeks.  No other fracture has been identified on skeletal survey and his Vitamin D was found to be at a deficient level with a raised parathyroid hormone level. However no explanation has been found for the clavicular fracture which was complete with displacement. 

L’s repeat rib X-rays today had shown a healing fracture of the left seventh rib with some irregularities of the anterior left sixth, seventh and eighth ribs though the significance of this is uncertain.  However the presence of a posterolateral rib fracture in the presence of an unexplained clavicular fracture is of serious concern.  I examined L who has not thrived particularly well.  His weight was 12.9 and although he has gained weight he has crossed a centile in a downwards direction.  Although L looked well and handled normally, he had three bruises present, a small 0.5cm yellow bruise in the centre of his anterior chest wall, a diffuse 1.5 x 1cm green/yellow bruise just under his left jaw line at the angle of the mandible and a 1.5 x 1cm yellow/green bruise with slight swelling underneath over his lower spine.  In view of the presence of bruising and unexplained fractures including a rib fracture the most likely diagnosis is non-accidental injury particularly as the bruising is in a non-mobile baby and in places even in a mobile baby which would be unusual.”

31.      At L11112 is a body map and at L11113/4 are the notes of the nursing evaluation and medical review which took place on 10^th May 2013. 

32.      At L11108 dated 17^th May 2013 is a letter from Dr Kelsall to Dr Allgrove at the Department of Paediatric Endocrinology at the Royal London Hospital, London.  Dr Kelsall was concerned because L was the second baby that she had recently seen who had low levels of Vitamin D and a fracture.  In fact the other baby had suffered a fracture from a witnessed fall.  In these circumstances Dr Kelsall was anxious to have the benefit of Dr Allgrove’s expertise on metabolic bone disease.  In such matters she deferred to the expertise of Dr Allgrove and Professor Mughal.  Dr Kelsall also contacted the Birmingham Children’s Hospital.  Dr Kelsall was concerned to discover whether in an area such as Birmingham with a broad ethnic mix there had been an increase in fractures due to a Vitamin D deficiency about which information had not yet been recorded in the Literature.  Dr Kelsall was clearly well-aware of the current debate about the level of Vitamin D deficiency, the presence of Rickets and the possible causes of bone fragility. Dr Kelsall understood from the Birmingham Children’s Hospital that there had not been an observed increase in fractures.

33.      When L had returned to hospital on 22^nd April 2013 for a review of his clavicle fracture, he should also have had a rib X-ray on that day but did not.  On 24^th April 2013 L was seen by the health visitor.  This visit triggered an appointment with another paediatrician, Dr Guppy on 25^th April 2013.  The mother was subsequently invited by the hospital to attend on 10^th May 2013 for an X-ray and did so voluntarily.  On 10^th May 2013 when Dr Kelsall saw L the doctor was aware of the discussion about L’s Vitamin D level, raised parathyroid hormone and a discussion about the mother’s epileptic medication and the possible effect of that upon L’s calcium levels. 

At J9006 is the radiology report of Poole Hospital dated 14^th May 2013:

“Report:

... 14/05/2013XR Skeletal survey: first report:

Overview: bone density is normal. 

Scowl AP and lateral: no fracture is demonstrated.  Wormian bone formation is not considered excessive. 

Oblique rib views: there is ongoing fracture.

Consolidation/remodelling of the right clavicular fracture. 

Callus surrounds a healing left seventh posterolateral rib fracture.  A slightly bulbous appearance of the anterior ends of the left sixth and seventh ribs is again noted (the eighth anterior rib is not well seen), although this may represent normal variation. "

34.      As is the normal practice at Poole Hospital the results of the X-rays were sent to Dr Fairhurst at Southampton for a second opinion. At J91116/7 is Dr Fairhurst’s response dated 22^nd May 2013.  The report in part reads as follows:

“The view of the right shoulder dated 22^nd April 2013 there is callus formation around the margins of the right clavicular fracture, confirming that this is indeed a fracture rather than a pseudarthrosis.  The presence of callus at this stage would be consistent with the clavicular fracture having occurred between 29^th March 2013 and 8^th April 2013. 

There is a healing fracture of the posterior arch of the left seventh rib. The focal callus formation is evident around the fracture margin.  I would estimate that this fracture is between three and six weeks old on 10^th May 2013. This fracture is therefore most likely to have occurred between 29^th March 2013 and 19^th April 2013. 

There is thickening of the necks of the right eleventh and twelfth ribs. This was not present on the skeletal survey dated 8^th April 2013 and the appearances here indicate further healing fractures. These fractures are also likely to be between three and six weeks old on 10^th May 2013 and are therefore again most likely to have occurred between 29^th March 2013 and 19^th April 2013. 

I note that L had a low Vitamin D level at 9. However there is no radiological evidence of Rickets or other metabolic bone disease. Likewise there is no radiological evidence of osteogenesis imperfecta.

Dr Fairhurst went on to say that the right clavicular fracture is most likely to have occurred between 29^th March 2013 and 8^th April 2013. The rib fractures probably occurred between 29^th March 2013 and 19^th April 2013.”

35.      It was later determined that there had not been fractures of the right eleventh and twelfth ribs. 

36.      Dr Kelsall confirmed in her evidence that the question of bone deficiency remained a factor in her thinking.  She wanted to understand how one could have bone fragility in the absence of radiological evidence of Rickets. 

37.      As to the bruising Dr Kelsall had not seen F pinching or being rough with L.  The doctor said that the jaw line is an accessible part of a baby’s anatomy if another child wished to pinch.  The doctor thought the back is less commonly available for pinching and therefore the bruise on Lucas’ back was more worrying.  If F had pinched L’s back when he was being held by the mother the doctor would have expected that to be a witnessed event. 

38.      Dr Guppy is also a Consultant Community Paediatrician at Poole Hospital and wrote a letter dated 3^rd May 2013 at C2000.  At C2001 Dr Guppy reports as follows:

“Throughout L’s hospitalisation and the series of investigations required Lucas’ mother remained entirely appropriate, co-operative and appropriately concerned regarding L’s needs.  No concerns were raised by the ward staff or health professionals within the hospital regarding L’s care whilst he was on the ward”. 

At C2002 Dr Guppy referred to the presence of Vitamin D deficiency and elevated parathyroid hormone levels. The doctor pointed out that careful consideration should be given to the possibility that L’s bone strength could have been less robust than another infant of his age. 

39.      The doctor confirmed that the referral to Dr Allgrove was because of L’s very low Vitamin D levels which were lower than Dr Guppy had ever seen in a Child Protection case. This finding provoked considerable discussion within Poole Hospital. Dr Guppy deferred in her opinion on metabolic bone disease to Dr Mughal and to Dr Allgrove.

40.      As to the possibility that L might suffer from Van Willebrand disease the doctor said that this cannot be positively excluded because three out of the ten prescribed tests could not be done. The tests that were completed however did not indicate the presence of VWD and therefore it was not thought necessary to undertake the remaining tests. 

41.      Dr Guppy agreed that the mother’s epileptic medicine can affect the capacity to absorb calcium.  

42.      The next witness was Professor Mughal. He is one of two Specialists in the United Kingdom in paediatric bone density. He is based at the Royal Manchester Children’s Hospital. The intention was that his evidence would be given via a video link on Monday 30^th September 2013.  Unfortunately the link failed on five occasions during the course of his oral evidence and on each occasion this caused a break of ten to fifteen minutes. The result was that Dr Mughal had to return to give his evidence but this was not possible until Monday 7^th October 2013. This was after the parents had completed their oral evidence.

43.      Professor Mughal’s main report is at C2094 and is dated 23^rd September 2013.  At C2188 is his second report dated 24^th September 2013.  In addition to his reports Professor Mughal has produced a number of Papers which discuss the question of Vitamin D deficiency and Rickets. 

44.      At C2114, paragraph 35 are the professor’s main conclusions:

“L had low body stores of Vitamin D and mildly raised serum parathyroid hormone when he was admitted to hospital on 7^th April 2013.  However, it is my opinion that L did not have biochemical or radiological features of Vitamin D deficiency Rickets.  Copper deficiency, an extremely rare cause of skeletal fragility in infants, is very unlikely as L was fed on breast milk, which is an excellent source of copper.  There are no radiological findings of copper deficiency ... on his skeletal radiographs.  There are no radiological features of Vitamin C deficiency ... an extremely rare cause of fragility fractures in infants.”

45.      The professor pointed out that his normal practice is to examine a child himself and to interview the parents in circumstances such as this.  In this case that was not possible and he therefore relied upon the observations of others and the radiological reports.  There are no biochemical or radiological features which suggest that L suffered from an inherited bone disorder.  With reference to C2116 the professor reported that there is evidence that Vitamin D deficiency can delay the rate of skeletal mineralisation/maturation in the womb although in the professor’s opinion there is no evidence to suggest that the rate of fracture healing in infants is slowed down by Vitamin D deficiency and/or secondary hyperparathyroidism. 

46.      As to the effect of Phenobarbitone which the mother was prescribed for her epilepsy this may have increased the rate of degradation of the mother’s Vitamin D. The professor added that there is no evidence that Phenobarbitone weakens the bones of a baby in the womb. 

47.      At C2192 is the transcript of the Experts’ Meeting.  At C2194 the following exchange takes place:

Dr Patrick Cartlidge: so there are three questions for Dr Mughal.  The first question:

“Would the reduced level of Vitamin D shown on the testing for L, reduce the degree of force necessary to cause the fracture?”  Dr Mughal. 

Dr Zulf Mughal:

 “Yes, I think I have, in a way, dealt with this in paragraph 38 of my report.  There is likely to be some diminution of bone strength as a result of mild secondary hyperparathyroidism but this is not likely to diminish Lucas’ bone strength to such an extent that his fractures would occur during normal handling.”

48.      In his oral evidence the professor said that in the United Kingdom low Vitamin D deficiency is common particularly in the winter months. 

49.      C2103 is a table relating to L.  Dr Mughal commented that in clinical practice L’s Vitamin D reading is not uncommon.  The table illustrates the widespread Vitamin D deficiency in people of all ages in the United Kingdom.

50.      While confirming that in his opinion L did not suffer from Vitamin C deficiency, copper deficiency, osteogenesis imperfecta or Rickets on the basis of the radiological findings and biochemical readings, L’s Vitamin D was sufficiently low to have initiated the process of a mild parahyperthyroidism.  Consequently there would have been some leaching of calcium from L’s bones and therefore some diminution of bone strength. Dr Mughal had never come across fractures caused by normal handling when the parahyperthyroidism was at such a low level.    

51.      The doctor accepted that a reading of 9 is low and would indeed be worrying if that level had persisted for months.  In such a situation radiological signs of Rickets might develop but this was not the case here. 

52.      Dr Mughal also agreed that the mother had not been given Vitamin D supplements as NHS guidelines suggest although she did take some multivitamin tablets at a level which would be insufficient to normalise the mother’s Vitamin D levels.  These were low at the time of L’s birth.  The doctor went on to express the opinion that there is no convincing evidence that if a mother’s Vitamin D level is low during pregnancy such a condition affects the bone strength of a baby at birth. 

53.      If the mother’s use of Phenobarbitone had reduced her Vitamin D to a very low level this would also reduce her calcium level.  This, however, would be countered by the mechanism which would have come into action and would not have affected the transfer of Vitamin D to the baby in the womb.  Dr Mughal pointed out that the mother’s Vitamin D level might be low for a number of reasons of which the taking of Phenobarbitone might be one.  Generally speaking the level of Vitamin D of a baby in the womb is between 75% and 100% of the maternal level.  If therefore the mother’s Vitamin D level is low, the baby’s will be also. If there had been significant leaching from L’s bones one would see low levels of phosphate and Rickets.  This was not the case here. 

54.      It was put to the professor that Dr Allgrove had said that L’s phosphate readings were “arguably marginally low” or “a little bit low”.  Dr Mughal pointed out that the reading fell within the reference range (0.8 – 1.60) of the relevant laboratory. 

55.      Dr Mughal was asked about the Paper at C2146 by Keller and Barnes.  Dr Mughal, while not being very impressed by the science behind that Paper, accepted that there is a debate as to whether radiology will show Rickets in children of L’s age.  He was referred to the Al-Alas case which involved a 4 month old infant who suffered fractures and a brain injury.  Dr Mughal had seen the X-rays of the child concerned.  Those X-rays showed radiological evidence of the existence of Rickets.  The professor pointed out that the suggestion that radiological evidence of Rickets cannot be seen in X-rays of a child who is less than 6 months old is the opinion of an adult radiologist.  Further the suggestion that reduced bone strength was not seen on X-rays until it was reduced by 40% or more was derived from the results of post-mortem tests on adult bones of people aged approximately 70 or more at death.  [q1] 

56.      Professor Mughal pointed out that Rickets is diagnosed both from radiology and the biochemical results.  He emphasised that in many parts of the United Kingdom babies are found to have low Vitamin D readings.  This is, therefore, not uncommon, particularly so in infants during winter.  If low Vitamin D caused significant skeletal fragility Dr Mughal pointed out that paediatric departments would see hundreds of fracture cases but this is not the position.  The professor repeated that while agreeing that L’s bone strength was likely to have been reduced it was not so much as to result in his fractures resulting from normal handling. 

57.      When cross-examined by counsel on behalf of the father, it was put to Professor Mughal that both the father and his brother had suffered as children from talipes (club foot).  Dr Mughal’s opinion was that such a condition is quite separate from the issue of bone fragility.  There is no clear link from talipes to genetic bone fragility.  The doctor gave the same opinion as to the father’s brother’s twisted neck. 

58.      Professor Mughal also referred to L’s alkaline phosphatase reading which fell within the relevant reference range.  The doctor considered this to be a more useful marker as to bone strength particularly in the context of whether or not Rickets is likely to be present.  This reading also led the doctor to conclude that L’s Vitamin D deficiency was not severe. 

59.      The next witness was Dr Cartlidge.  He is an Honorary Consultant Paediatrician at the University of Wales.  His report is dated 9^th August 2013 and starts at C2034.  At C2036 he says in the summary of his conclusions:

“This report will show that, in my professional opinion, all the fractures were caused non-accidentally.  I think the fractures could have been caused at the same time, or at different times.  If caused at the same time they (sic) the mechanism was probably one of the chest being squeezed with the thumb, or fingers, squeezing the clavicle.  I think that Vitamin D deficiency could have slightly increased bone fragility, but this was at most a marginal contributory factor.  I think the bruises were also caused non-accidentally and more recently than the fractures.”

60.      At C2051 Dr Cartlidge gives the opinion that the clavicle fracture would have been painful for about ten to fifteen minutes after it was sustained.  He thought that someone holding L near the right clavicle probably would have felt the bone break.  He thought that a lump would have been immediately evident assuming that the displacement found on the X-ray occurred at the same time as the fracture.  Following the event the pain would have been exacerbated by the movement of the right upper arm.  There is likely to have been reduced use of the right arm which is likely to have appeared floppy. 

61.      In his oral evidence, Dr Cartlidge agreed that it is difficult to see that anybody undertaking the baby massage would miss the lump associated with the fractured clavicle.  Consequently, this fracture is likely to have occurred after 4^th April 2013 but before admission to hospital on 7^th April 2013.  I agree.

62.      As to the left rib, Dr Cartlidge thought that this fracture would have been painful for about ten to fifteen minutes after it was sustained.  Thereafter the pain would have eased but the need to breathe would have caused continued discomfort because the fracture site would have been constantly moving. 

63.      In his oral evidence, Dr Cartlidge agreed that if L was already crying at the point of injury it might be more difficult to pinpoint a memorable event although the doctor would expect a change in the nature of the cry.  As to the non-use of an arm this would probably not be immediately noticeable in a small baby but likely to be observed after some hours. 

64.      As to the mechanism for the fractures Dr Cartlidge said that clavicle fractures are caused either by a direct blow or by medially directed force on the tip of the shoulder which is equivalent of a fall onto the side of the shoulder in an older child.  As to the rib fractures, Dr Cartlidge thought that posterior rib fractures are caused by the chest being tightly squeezed.  Such fractures are highly predictive, in his opinion, of a non-accidental cause. 

65.      Fractures to the clavicle are those most frequently seen at birth. It is not a fracture one would expect from normal handling or by rough play.  In Dr Cartlidge’s opinion the force needed to cause the clavicle fracture would have been perceived as obviously excessive by a responsible observer. 

66.      The force required to cause a fracture to the posterier aspect of the rib, cannot be precisely ascertained.  In the doctor’s opinion such fractures do not happen with normal care or during rough play. The force needed to cause such a fracture would have been perceived as obviously excessive by a responsible observer. 

67.      Starting at C2054 Dr Cartlidge considers the potential explanations for the fractures.  He excludes the possibility that either were birth related.  The Vitamin D deficiency would not, in the doctor’s opinion, delay calcification of the healing bone in the case of either of the fractures.  Given L’s age, the doctor ruled out the suggestion that the injuries might have been self-sustained.  Further to this, there is no evidence of any witnessed accident which might explain the fractures. At C2055 the doctor discusses the question of medical conditions which might have caused the fractures but rules these out. 

68.      At paragraph 4.3.6 on C2058, the doctor’s opinion in relation to the right clavicle is that any person not witnessing the causal event, and caring for L afterwards, would have noticed the reduced movement of the right arm and had developed a lump over the right clavicle.  On the other hand a person seeing L more casually or briefly would probably not recognise these abnormalities.  As to L’s ribs, in the doctor’s opinion any person not witnessing the causal event but seeing L afterwards would not have realised that he had sustained an injury to his chest. 

69.      As to the bruising the Dr Cartlidge accepts that F had the potential to cause some of the bruises. At C2061/2, he concludes that F pinching L is unlikely to be the correct explanation.  In the doctor’s opinion there is no pattern to the bruising that suggests a probable mechanism for the injury.  The doctor goes on to say:

“Rather, it is the absence and plausible alternative explanations (and .co-existent fractures) that increases the probability that the bruises were caused non-accidentally.  Rough fingertip pressure and excessively forceful gripping are frequent causes of smallish bruises to an infant”.  In the doctor’s opinion the bruising was most likely caused non-accidentally and was probably sustained at a different time to the fractures.

70.      Dr Cartlidge agreed that before 7^th April 2013 there was nothing to alert anyone to concerns about the care of either F or L.  He agreed that the mother presented L for the follow up X-ray on 22^nd April 2013 and further attended as suggested on 25^th April 2013 and 10^th May 2013. 

71.      Dr Cartlidge has seen the baby massage film and observed that L did not appear to be troubled by the procedure.

72.      Dr Cartlidge was asked whether the clavicle fracture might have been displaced after the original event.  He thought this unusual, is not unheard of. He stated that it can be caused by the muscle pulling on the fracture. Also, putting an arm into clothing is a possible cause of a later displacement.  .He thought that swaddling is likely to reduce the risk of displacement. 

73.      As to the question of Vitamin D deficiency Dr Cartlidge was content to defer to Dr Mughal. 

74.      As to the bruising on Lucas’ neck and back, Dr Cartlidge queried whether F would have had an opportunity to cause such injury. He thought it likely that there would have been a sudden cry in reaction to such an assault.  As to the bruising on the chin and chest, Dr Cartlidge thought this less worrying as it is an area that is more accessible to Filipe.  The doctor found it difficult to accept that the mother would not have noticed if F had pinched L.

75.      When asked questions by counsel on behalf of the father, it was suggested to Dr Cartlidge that during the baby massage the mother was shown how to push L’s legs into his abdomen.  Dr Cartlidge did not think that the knees had been sufficiently pushed onto the chest which would cause a pain reaction as a result of an existing rib fracture. 

76.      The next witness was Dr Allgrove who also gave his evidence via a video link.  He is a Consultant Paediatric Endocrinologist at the Royal London Hospital, Whitechapel.  At CO29 dated 30^th July 2013 is a letter that he wrote to Dr Kelsall.  He had read the reports of doctors Halliday, Cartlidge and Mughal as well as a transcript of the Expert’s Meeting. 

77.      At C2030 Dr Allgrove reports as follows:

“On the balance of probability I think it is extremely unlikely that he has any underlying inherited bone disease such as osteogenesis imperfecta.  Vitamin D level of 9 nmol/L is certainly very low but of itself is not a factor that is likely to have contributed to fractures.  The only significant abnormality is the raised PTH but again in the absence of any evidence of Rickets which she (sic) clearly does not have I think this is unlikely to contribute to an increased bone fragility.  Therefore it remains difficult to know precisely what the cause of his unexplained fractures is.  I hope this is of some help.” 

Dr Allgrove met the parents and saw L.  In his oral evidence he confirmed his opinion in his letter of 30^th July 2013.

78.      Dr Allgrove thought that L’s calcium level was normal.  As to the phosphate level at 1.57 he thought was a bit low but not worryingly so for a child of L’s age.  He agreed that low phosphate level is a common factor in Rickets and that there cannot be Rickets without low levels of phosphate. 

79.      The doctor accepted that one cause of low blood calcium is low Vitamin D levels.  The process of parathyroidism will stimulate the creation of Vitamin D which in turn stimulates the absorption of calcium into the gut having withdrawn it from the bones.  Ninety-nine percent of the body’s calcium is in the bones and it will, therefore, not be necessary to withdraw much calcium to restore normality. Dr Allgrove agreed that mother’s Vitamin D levels during pregnancy are a relevant factor and that the use of Phenobarbitone reduces Vitamin D levels. 

80.      Dr Allgrove was referred to the transcript of the Expert’s Meeting at C2194.  He agreed that there may have been a slight reduction of bone mineralisation, but did not think it would necessarily translate into bone fragility unless there was what he described as “full-blown Rickets”.  Dr Allgrove thought that L’s bone fragility was no worse than “hundreds of thousands of other children”. 

81.      Dr Allgrove also expressed the view that the early difficulties of both the father and the father’s brother had nothing to do with the question of bone fragility. 

82.      Dr Halliday is a Consultant Paediatric Radiologist practising at the University Hospital in Nottingham.  Her report is dated 15^th July 2013 and is at C2007. 

83.      At C2013 Dr Halliday reported that:-

“L has sustained fractures of the right clavicle and the posterolateral aspect of the left seventh rib, there may also be fractures of the right eleventh and twelfth ribs.  The bones otherwise appear normal.”

84.      In the transcript of the Experts’ Meeting at C2196 the following exchange took place:

“Dr Patrick Cartlidge ... the questions for Dr Halliday: there are two questions,  

1: ‘On the balance of probabilities were there fractures of the right eleventh and twelfth ribs?’

Dr Katherine  Halliday: on the balance of probabilities, no.

Dr Patrick Cartlidge: did you say, no?

Dr Katherine Halliday: yes.”

85.      At page C2014 at paragraph 5.2, Dr Halliday said that the right clavicle fracture is most likely to be non-accidental. As to rib fractures in general Dr Halliday’s opinion is that they are strongly associated with non-accidental injury in a child of L’s age.  Such fractures are caused by compression of the chest, for instance when the child is gripped round the chest and squeezed firmly between adult hands.  In Dr Halliday’s opinion a fracture to the seventh rib is most likely to be non-accidental. 

86.      In paragraph 5.4 Dr Halliday recited that L was found to have “a very low level of Vitamin D and a raised parathermone”.  Although this raises a possibility that L’s bones were more fragile than another baby of his age, there is no evidence of Rickets on the radiographs.  Dr Halliday accepts that there is little published research regarding low Vitamin D and susceptibility to fracture. Such evidence that does exist suggests that, even in the presence of severe Rickets, fractures are unusual particularly in a non-mobile infant. 

87.      As to timing at C2015 Dr Halliday suggests that the clavicular fracture could not have occurred before 29^th March 2013 at the earliest.  The rib fracture (which was discovered on 10^th May 2013) is likely to have occurred between 29^th March 2013 and 26^th April 2013.  Dr Halliday is also of the opinion that, even if fractures occur through abnormal bone, they are still painful and Vitamin D deficiency would not affect this. 

88.      In Dr Halliday’s opinion if a child’s bones are extremely fragile one would expect to see multiple fractures.  She did not think that the abnormalities seen in the Poole Hospital’s radiography were evidence of Rickets.  Fractures which occur during the course of normal handling result from cases where the bones are seen as fragile on the X-rays.  Dr Halliday accepted that one may see fractures in premature babies from normal handling. The radiology of 10^th May 2013 (and J9008) suggests a possible expansion of the anterior ends of the left sixth, seventh and eighth ribs. In Dr Halliday’s opinion, these are sites where one might see signs of Rickets, if it existed. She said that if Rickets had existed, it would affect all the ribs and not just the three expanded ones. Dr Halliday therefore concluded that there is no evidence of Rickets in L. Dr Fairhurst at J9117 referred to the thickening of the neck of the eleventh and twelfth ribs.  This is next to the spine and not a site where one would expect to find Rickets.  Dr Fairhurst was also of the opinion that there is no sign of Rickets in the sixth, seventh and eighth ribs. 

Summary of the Medical Evidence

89.      The effect, therefore, of the medical evidence is that L suffered a displaced fracture of his right clavicle and a fracture of the anterior aspect of his left seventh rib.  He suffered bruising as described.  There was not a fracture of either the eleventh or twelfth ribs. 

90.      Although L suffered from Vitamin D deficiency, the view of the relevant experts is that this deficiency was not sufficient to cause bone fragility in L such as is likely to have caused fractures in the course of normal handling or rough play. 

91.      A combination of the radiology and the biochemical analysis discounts the presence of Rickets. 

92.      There is no explanation as to how the injuries were caused and no memorable or witnessed event which suggests an accidental explanation.  The medical experts, therefore, conclude that the fractures and bruising were the result of inflicted non-accidental injury, although Dr Cartlidge thinks that the bruising to the chest and chin is less worrying and might have been caused by F.

93.      As to this point, the court must guard against the danger of reversing the burden of proof.  The burden still remains upon the Local Authority to prove to the requisite standard, that the injuries were non-accidental.  Re M (Fact-finding: Burden of Proof) [2013] 2 FLR 874 at 881 where Ward LJ:

“That, too, was the effect of the judge’s view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation.  And it is that leap which troubles me.  It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents were required to satisfy the court that this is not a non-accidental injury.”

The Social Worker

94.      Miss Cabal became the children’s social worker shortly after these proceedings were issued.  She has not filed a statement.  She told me, and I accept, that the parents have always been polite and co-operative.  With reference to the statement of Bogdana Tomova (the former social worker), at B1005 paragraph 3.9, the parents have always been keen to attend appointments with L and have been fully engaged in the process.  There is good interaction between the parents and the children and between the parents themselves who support each other.  F was returned quickly to the care of his parents following his initial removal from home.  The foster carer brings L to the family home where he stays all day for five days per week.  His visits are supervised by the father’s sister. 

95.      This evidence is important as part of the broad picture of this case. 

96.      Miss Cabal had not seen F pinching L although he is tactile with him.  She had seen him pinch his parents. 

97.      The parents were described by Miss Cabal as child-centred, respectful of the professionals and understanding of the necessary process. 

The Parents

98.      The mother gave her evidence first.  Her statement is at B1038 and is dated 12^th June 2013.  Both parents gave evidence through an interpreter.  Their statements were interpreted to them before they were signed.  Both confirmed the truth of the statements.  The parents both gave their evidence calmly.  My general impression of them accorded with the observations made by the medical and other professional workers.  They came across as a loving couple.  They sat quietly and affectionately together in court when not giving evidence.  In their oral evidence each parent expressed love and affection for their children. 

99.      The mother told me that she and the father had first met when they were about 18 or 19 years old. They married in 2005 and came to England in 2008.  The mother had previously taught children in Brazil between the ages 8 and 10 years.  The father worked as a jewellery maker in Brazil for some seventeen years. 

100.   The mother’s parents came to the United Kingdom in 2009 but had to leave at the end of April 2013. 

101.   The mother described F as a happy and active child.  He sings and runs about. He enjoys music.  He was their first child and his birth was planned.  The mother told me that she loves him very much.  F has shown himself to be jealous of L particularly when L first came home after his birth.  F used to touch L when the mother was holding him or feeding him.  It was difficult to keep F away from L.  The mother never saw F pinch L, but she did see him touching the baby.  The mother herself did not pinch L and had never seen anybody else do so. 

102.   The mother described L as calmer than F.  He is a smiley baby.  L either spent his time with the mother in the sitting room or in the bedroom.  He had a cot in the bedroom and also a Moses basket.  He was always changed by the mother in the bathroom or in her bedroom. 

103.   As to L’s colic: the mother told me that some time before 20^th March  2013 she had asked the health visitor for help about this.  On 20^th March 2013 there was a discussion between the mother and the health visitor about the question of baby massage (J9764).  On 3^rd April 2013 L underwent his six week check at the Surgery.  On 4^th April 2013 he had a session of baby massage.  Nothing then seemed to be amiss. 

104.   The mother told me that she mainly cared for L with help from the father, from time-to-time, when he was at home.  The father had a very demanding work pattern.  This is set out in paragraph 4 of his statement at B1051.  He has, since the end of April 2013 somewhat reduced his working hours.  The father told me, and I am sure it is the case, that both he and the mother were very tired in the period leading up to 7^th April 2013. 

105.   Much of the parents’ evidence concentrated on the events of 7^th April 2013.  The mother told me that she did not recall anything being different on that Sunday.  She could not think of anything which would explain what had happened.  The father’s evidence was to the same effect.  When giving their evidence about the events of 7^th April 2013, it was difficult to discern whether they were talking about events which had actually occurred on that day or whether they were describing events that usually occurred on a Sunday, but which they could not specifically remember had happened on 7^th April 2013.

106.   The mother told me that on the morning of 7^th April 2013, the father was off work. The father thought that he had finished work at about 06.00 and returned home at 06.15.  In any event both parents agreed that they went out for an early lunch although neither could remember the restaurant that they attended.  After the family had returned home from lunch L was bathed by the mother between 12.30 and 1.00 after which he was changed.  The mother noticed nothing unusual during the bath.  L frequently cried during his bath time.  After L had been washed the mother lifted him out of the bath and handed him to the father who wrapped L in a towel.  The mother fed him and put him to sleep. 

107.   The mother told me that she fed L every two hours. The last one would have been at about 18.00 hours. She said that, at about 19.00/19.30, she was sitting next to the father at the computer holding L who was facing towards her.  She noticed a lump near his right shoulder beneath his baby grow. Having seen the lump she carried L into the bedroom and laid him on the bed to make a closer examination.  She called the father, showed him the lump and asked him what he thought it was.  He did not know.  The mother said that they must take L straight to the hospital.  L did not appear particularly upset.  The mother was unable to say how he suffered his clavicle and rib fractures.  The mother denied being the cause of either of the fractures or any of the bruising. 

108.   As to her epilepsy the mother said that she had five such fits during her pregnancy with F and two during her pregnancy with L.  She could recall no fits between F’s birth and her pregnancy with L.  Although she does not remember having such fits she usually begins to feel unwell shortly beforehand. Following a fit she feels drowsy, unwell and everything seems muddled.  She did not recall any such symptoms occurring on 7^th April 2013. 

109.   As to the bruising which was seen at the hospital on 10^th May 2013 the mother told me that she had previously noticed the marks on L’s jaw line.  They had been there for some eight days before 10^th May 2013.  She told me that the parents checked the bruise each day but decided not to go to the doctor as they knew about the appointment at hospital on 10^th May 2013.  The mother speculated that the Vitamin D deficiency might have affected L’s skin and may have had a part in causing the bruise.  Neither parent had noticed the bruising to the chest and back.  This was partly because of the way in which she held L towards her and partly because she was not looking for such a thing.  She could recall no particular episode of pain shown by L in the week before 10^th May 2013 and had no idea as to how the bruises might have occurred. 

110.   The mother remembered the father saying to the doctor at the Poole Hospital on 7^th April 2013 that L had been using his left arm better than his right arm since about a week before.  She did not think that L was in pain at the time that the mother noticed the lump.  She told me that she had touched the lump and L showed pain no reaction. 

111.   In paragraph 15 of her statement, at B1044, the mother describes the telephone call that she made when she was told that there would be a very long wait at Bournemouth Hospital before L could be seen.   

112.   Following L’s feed at about 14.00 hours the mother thought that she might have had a sleep. If so L would have been put in his cot.  It was put to the mother on behalf of the Local Authority that the two fractures occurred at some time on 7^th April 2013 after L’s bath.  The mother said that at no time on 7^th April 2013 was L particularly upset.  She denied that she had not accidentally dropped him and in making an attempt to save him had grabbed his arm.  On 7^th April 2013 F was not alone with L.  She agreed that L was mainly in her care during the course of that day.  The mother said she could not offer an explanation help as to any of the injuries, because nothing had happened.   

113.   The mother told me, and I accept that, in respect of the visits to the hospital on 22^nd April 2013 and 10^th May 2013, she knew beforehand that X-rays would be taken.

114.   On behalf of the guardian, Mr Tolson QC asked the mother about the events of 7^th April 2013.  Although she was clear that the family went out to lunch she could not conjure a picture of that lunch in her mind.  She told me that L generally awoke at 05.00, when he was fed. He and the mother then went back to sleep.  Generally, the father would awake at about 08.00.  The mother thought that lunch had taken place at about 11.30.  She denied that she was deliberately choosing to forget everything that had happened before she saw the lump.  She again denied that there were any particular difficulties on that day.  She denied that a combination of the father’s three cleaning jobs, F’s energetic behaviour and L’s colic resulted in a particularly stressful situation.  She could recall no bad moments during L’s first six weeks of life. 

115.   The father’s statement is at B1049 and is dated 26^th June 2013.  He also gave evidence via an interpreter.  His English is not as good as the mother’s. 

116.   The father described the mother’s epileptic seizures.  They last from five to ten minutes and the father clearly found these episodes very distressing.  The mother did not remember anything about them. They had been advised by a doctor in Brazil not to attempt to make the mother remember as that might precipitate another fit.  The father sits with the mother and comforts her until she has recovered. 

117.   Since L had been born the father could not recall the mother having a seizure while he had been at home. 

118.   When the father returned from work on Sunday 7^th April 2013 the mother, L and F were all asleep.  L was in his cot in his parents’ bedroom.  The father had something to eat and then went to bed at about 06.40, in the bed that he shared with the mother.  He slept until about 10.00.  He described this as his normal routine. It was not clear whether this programme was what had happened on 7^th April 2013.  He described himself as feeling very tired, having worked for so many hours during the week.  The father recalled that the family went out for lunch and had a walk both before the meal and after it.  He did not recall the restaurant but it was somewhere in the centre of Bournemouth. 

119.   He could not recall very much of what had occurred before the mother drew his attention to the lump on Ls’ shoulder.  He thought it probable that the mother was right when she described how the father held L after his bath.  He remembered being in front of the computer when the mother drew the lump to his attention.  The mother then said they must go straight to the hospital and the father agreed.  L was calm whilst at home but became upset at the hospital.

120.   He had no recollection of any sign of injury before the mother showed him the lump.  From about 14.00 to 18.00 on 7^th April 2013 the family remained at home.  The father thought that he probably slept a lot of that time with F. He did not see F doing anything to L which might have caused the bruises.  The father said that he caused neither the fractures nor the bruises.  The father had not asked mother if she had hurt L and she had not asked him the same question.  The father told me that they both love L and neither had done anything to cause the injuries. 

Dr Hillier

121.   Attempts had been made before and during the hearing to secure the attendance of Dr. Hillier. He is a Consultant in Neurology. Unfortunately he did not give evidence until after the parents. He was the last witness to give evidence.  

122.   The mother’s G.P. had first referred her to Dr. Hillier in 2009. He has written a short report dated 30^th September 2013 (C2199) about the mother’s possible epilepsy. He last saw the mother in November 2012. Dr Hillier found it difficult to make a clear diagnosis but thought that the mother suffered from faints which look like seizures, but perhaps has a tendency to fainting and to suffering seizures.  

123.   In his oral evidence Dr. Hillier went further and took everybody by surprise. He distinguished between what he described as partial epileptic fits and full epileptic fits.  In his opinion it was possible that the mother could have had a partial fit, during which she injured L, but remembered nothing of it.  Further he thought it possible that the mother would experience no symptoms, before or after a partial fit, that would lead her to remember that she had suffered such a fit.

124.   The doctor described situations where a patient had attended his clinic and reported that he had suffered no fits since the last appointment.  Not infrequently, the patient’s partner reported that he/she had observed occasions when the patient was “spaced out”, having had some form of partial fit, but which the patient could not remember.

125.   It was because of this evidence that the local authority reconsidered its position and no longer sought any public law orders.

Submissions

126.   Notwithstanding the effect of Dr Hillier’s evidence, Mr Hand on behalf of the Local Authority invites the court to make the following findings:

(i)        Although L’s bones may have been weaker, they were “normal” and would not have fractured as a result of normal or rough handling.  I cannot be satisfied about this.  There are too many uncertainties about L’s condition. 

(ii)       L did not suffer from Rickets.  I agree.

(iii)      The biochemical analysis does not support a finding that L’s bones were abnormally fragile.  I think that the true condition of L’s bones remains a mystery.

(iv)      Although L suffered from Vitamin D deficiency, this is not sufficient to produce abnormally fragile bones.  I am not satisfied as to this.    

127.   Mr Hand, in his written submissions, relies upon the report from Dr Halliday who says that L’s bones appear normal on X-ray (C2014).  Although L’s very low levels of Vitamin D and a raised parathermone level suggests the possibility that L’s bones were more fragile than other babies of his age, there was no evidence of Rickets (C2014). 

128.   Dr Halliday also pointed out that the available Literature suggests that even in the case of severe Rickets, fractures are unusual in non-mobile infants. In her oral evidence, it was pointed out that Dr Halliday expressed the opinion that rib fractures associated with Rickets are usually anterior fractures, not posterior.  It was further submitted that in L, the healing rate of the fractures was not unusual (C2016).  The timing of the fractures therefore remains reasonably accurate and clearly these were not birth related injuries. 

129.   It is pointed out that Dr Allgrove was of the view that it is extremely unlikely that L has underlying inherited bone disease such as osteogenesis imperfecta.  The doctor accepted that the Vitamin D level of 9 nmol/L is certainly very low but, of itself, is not a factor that is likely to have contributed to the fractures.  He concluded that it remains difficult to know what the cause of these unexplained fractures is (C2030).

130.   Dr Cartlidge, while accepting that L was Vitamin D deficient, was of the opinion that this would not have delayed calcification in a healing bone until he was more than 7 weeks old.  Osteogenesis imperfecta did not cause or contribute to L’s fractures. L had normal alkaline phosphatase levels and, in the absence of radiological features, this indicated that L was still maintaining adequate bone strength (C2056). Dr Cartlidge did not think that the Vitamin D deficiency was a significant factor in causing the fractures.  He could not exclude it as causing a marginal reduction in bone strength and thereby being a minor contributory factor (C2056).

131.   Professor Mughal agreed with these opinions.  Mr Hand submitted that the professor made it clear that a diagnosis of Rickets required biochemical markers and radiological markers.  Neither was present in L’s case.  It was pointed out that the professor accepted that there could have been what he described as a “marginal reduction in bone strength”. He speculated that this might be in the order of five to ten percent.  It is pointed out that the professor was clear that L’s bones would not have fractured on normal handling.  The professor further said that, if children with L’s level of Vitamin D deficiency suffered fractures due to normal handling, then the professor would expect, particularly in winter, to see hundreds more cases of rib fractures in his hospital.  This does not occur. 

132.   As to the timing, Mr Hand submits, and I agree, that L sustained both fractures on the afternoon of 7^th April 2013. According to Dr Halliday the radiological window for both injuries overlaps and Sunday 7^th April 2013 falls within that overlap period. L was clearly well during the massage session on 4^th April 2013. I agree that the evidence as to L favouring his left arm in the days prior to his admission to hospital on 7^th April 2013 is not of a clarity or quality to be decisive. I agree that at around L’s bath at 13.00 hours on 7^th April 2013 he appeared normal. By 18.00 L had a lump on his chest that was clearly noticeable. The parents properly sought medical help. 

133.   If, as I find, the fractures occurred during the afternoon of 7^th April 2013 then L would have been in the sole care of the mother.  I agree that the evidence suggests that the father and F were having their usual siesta between about 13.00 and 17.00 hours. 

134.   If, therefore, the court is to find that this was a case of inflicted non-accidental injury, the court would also find that the mother was the sole perpetrator. 

135.   Mr Tolson QC adopted Mr Hand’s earlier submissions to the effect that the expert evidence clearly suggests that L would have shown a pain reaction when he suffered the fractures. He would have screamed and cried.  I think it possible that the father may have slept through such a disturbance but, it is submitted, the same cannot be said of the mother.  L was with her throughout the afternoon. It is therefore very puzzling that the mother can recall nothing of what occurred before she saw the lump on L’s chest/shoulder.

136.   Mr Tolson QC submitted that the medical evidence points to a finding that these fractures amounted to a case of inflicted non-accidental injury perpetrated by one or other of the parents. 

137.   This, however, is not the end of the matter. The medical evidence, as is clear from the relevant authorities, has to be seen in the context of the entire evidential jigsaw. These parents were seen by all observers to be loving and competent parents. There had never been any concerns about F’s care and no concerns regarding L’s care until his admission to hospital on 7^th April 2013.  There is no history of misuse by either parent of alcohol or drugs. There had been no domestic violence, explosions of temper or aggression. There were no overt mental health difficulties.  Further, following the injuries to L, F was returned home following a very brief spell in foster care. There had been no concerns regarding him following his return. L has had extensive supervised contact with his parents, the quality of which is reported to be very good. 

138.   One of the matters which troubled the medical experts was the absence of an explanation from the parents as to the possible cause of the fractures or, for example, a memorable event. 

139.   I have some difficulty with that proposition. Although, from the point of view of the medical Experts, one can see why they take that approach. From the standpoint of a court, it is dangerous, because it may cause the court to unconsciously reverse the burden of proof – Re M (above). 

140.   Mr Tolson QC invites the court to find that either the mother or the father had inflicted the injuries in a momentary and uncharacteristic loss of self control. 

141.   As Mr Hand said, the oral evidence of Dr Hillier struck the case as a “bolt from the blue”.  Starting at paragraph 6 of his written submissions Mr Hand reviews the effect of Dr Hillier’s evidence. Particular attention is drawn to the doctor’s opinion that it was possible that the mother could have had a partial fit and, during such a fit, injured L and remembered nothing of it.   

142.   Mr Hand pointed out that Dr Hillier distinguished between what he described as “partial epileptic fits” and “full epileptic fits”. Mr Hand referred to a further example given by Dr. Hillier during his evidence. It was that of a patient peeling fruit, had stopped the activity due to a partial fit, and then resumed peeling the fruit unaware of what had just happened. Such people do not experience a loss of time and do not know that they have had such a fit when, to an outside observer, it is obvious what had taken place. As Mr Hand pointed out when he cross-examined Dr Hillier, the doctor confirmed that this mother could have been in such a situation.   

143.   Having had time fully to consider the effect of Dr Hillier’s oral evidence and placed that into the context of all the other evidence in the case the Local Authority came to the conclusion that the most likely cause of the clavicle and rib fractures was the occurrence in the mother of a partial fit on the afternoon of 7^th April 2013 whilst the father was asleep. In a manner or as the result of a mechanism that cannot be fully explained, said Mr Hand, L was injured in the process of that partial fit. 

144.   In paragraph 8 of his written submissions, Mr Hand deals with the question of whether the threshold criteria are satisfied.  He referred to the case of Re D (Care Order: Evidence) [2011] 1 FLR 447 per Hughes LJ that the test under Section 31(2) of the Children Act is an objective one.  As the Lord Justice said in that case:

“It is abundantly clear that a parent may unhappily fail to provide reasonable care even though he is doing his incompetent best.”

145.   Mr Hand submits, and I agree, that on the facts of this case, if the court finds L’s injuries were caused by the mother during a partial fit, the threshold criteria are not met by reason of the fractures that L suffered.  Mr Hand said that, had the Local Authority been aware, at the outset, of Dr Hillier’s evidence, they would not have instituted proceedings under Section 31.

146.   There remains the matter of the three bruises.  They cannot be overlooked.  I agree that they are of substantially less concern than the fractures.  There are a number of possibilities: F may have pinched L.  They may have been caused during another partial fit when the mother gripped the child.  I think their cause remains a mystery.  I cannot make any finding against the mother in respect of the bruises.

147.   Mr Samuels QC, on behalf of the mother, put in carefully written submissions before the change in the local authority’s position could be communicated to the other parties. Further, the Guardian’s view of the new situation was also not known

148.   Mr Samuels QC points to the high quality of care given by these parents, and to their conduct since the start of the proceedings. He submits it is inherently unlikely that either of these parents would knowingly cause injury to L.  In these circumstances he submits, and I agree, that the court is driven to consider alternative explanations. 

149.   As I have already said and Mr Samuels QC accepts, the paediatric evidence points towards non-accidental injuries not least insofar as the fractures are concerned.  Mr Samuels QC properly reminds me that the court’s task is to decide on the basis of all the evidence as to whether the Local Authority has proved its case on the balance of probabilities.  Mr Samuels QC points out that a potential explanation cannot be excluded merely because it is unlikely. The court must, in all cases, consider the possibility of “unknown cause”. 

150.   There are cases where the court has rejected expert evidence in favour of an unknown or unlikely cause – Lancashire County Council v D & E per Charles J and Re R per Hedley J. 

151.   In these circumstances, therefore, Mr Samuels QC draws to the court’s attention the following matters:

(i)        the broad canvas evidence relating to the mother and the father;

(ii)       the mother’s voluntary attendance at hospital on 7^th April 2013, 25^th April 2013 and 10^th May 2013 and her full engagement with the medical professionals;

(iii)      the potential for F to have pinched L thereby, causing the three small areas of bruising noted at hospital on 10^th May 2013;

(iv)      the evidence as to L’s Vitamin D deficiency;

(v)       the evidence of Dr Hillier.

152.   Starting in paragraph 9 of his written submissions Mr Samuels QC referred to the decision of Baker J in Re JS (A Child) [2012] EWHC 1370 (Fam):

“It is essential that the court forms a clear assessment of their (the parents) credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.” [Paragraph 42].

153.   Mr Samuels QC also reminded the court that the expert evidence is only a part of the evidential jigsaw see Charles J in A County Council v K, D & L [2005] 1 FLR (Fam) and Baker J in Re JS (A Child) (above):

“Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence.  The roles of the court and the expert are distinct.  It is the court that is in the position to weigh up expert evidence against the other evidence.” [Paragraph 40].

154.   In paragraph 12 of his written submissions Mr Samuels QC lists five points which he submits, and I agree, paint a positive picture of both parents.  Mr Samuels QC also points to the long-standing relationship between these parents. This has remained strong in spite of the pressure of these proceedings. 

155.   As to the bruising, which was seen when L was returned to Poole Hospital on 10^th May 2013 and which is apparent on the photographs, I agree that while worrying, they would not by themselves have warranted L’s removal from his parents. 

156.   Starting in paragraph 23 of his submissions Mr Samuels QC considers the question of the Vitamin D deficiency.  The reading was very low (9). The reference range describes 25 – 50 as insufficient and under 25 as deficient.  L also had raised parathyroid hormone reading of 17.6 where the reference range is 1.9 to 6.4.  While Professor Mughal is of the view that the blood phosphate level was not low, Dr Allgrove thought that it was “arguably low” or “a little bit low”.  Thus, submits Mr Samuels QC, there were three potential markers of bone fragility within L.  Further submits Mr Samuels QC there is some evidence that the process of hyperthyroidism could have started in utero. Professor Mughal was of the opinion that there is evidence to the effect that Vitamin D deficiency can delay the rate of skeletal mineralisation/maturation in the womb. 

157.   It is also clear from the evidence of the treating doctors (Kelsall and Guppy) that they were concerned as to the Vitamin D deficiency.  Thus, it is submitted, it is clear from the biochemical test results and the evidence of Professor Mughal and Dr Halliday, that a process taking place within L is likely to have diminished his bone strength.   

158.   At paragraph 30 of his submissions, Mr Samuels QC makes reference to the Al-Alas case.  He submits that the current academic debate points to the need for further research and there is little reliable evidence on which to base conclusions about bone fragility in very young children. 

159.   In this connection, Mr Samuels QC refers to the observations of Hedley J in Re R (above) that future generations may have a better understanding of these issues.  Further, in the case of Re LU and LB [2004] 2 FLR 263 Butler-Sloss P said:-

“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.”

160.   Starting in paragraph 31 of his submissions, Mr Samuels QC reviews the evidence of the parents. He cited a number of factors which pointed to a natural or accidental cause for the fractures. These matters are:  the information about the parents themselves; the fact the parents had the help of the maternal grandparents who lived in the same block of flats;  the question of Vitamin D deficiency and the evidence about the mother’s epilepsy (even before the evidence of Dr Hillier). 

161.   Mr Samuels QC therefore argues that the findings sought by the Local Authority (notwithstanding evidence of Dr Hillier), that Ls had normal bones, are unsustainable. At paragraph 36 of his written submissions Mr Samuels QC deals in some detail with the evidence of Dr Hillier. 

162.   On behalf of the father, Mr Bond also put in written submissions.  He adopts those of Mr Samuels QC insofar as relevant to the father’s case. 

163.   As to the inability of the parents to recall the detail of the events of Sunday 7^th April 2013 Mr Bond asks the court to bear in mind the following matters:

(i)        until the discovery of the lump, at about 18.00 on 7^th April 2013, it had been an entirely routine Sunday;

(ii)       the parents were not prompted to think about the day in the immediate aftermath;

(iii)      they were not interviewed by the police until over a month later – on 10^th May 2013 for the mother and 11^th May 2013 for the father;

(iv)      the questioning was not particularly skilled and the need for an interpreter impeded the natural flow of question and answer;

(v)       in evidence at this hearing, they were being asked about the detail of 4^th April 2013 some six months later.

164.   On 7^th April 2013 the father had limited opportunity of contact with L or to notice the lump on L’s right clavicle.

165.   In his written submissions on behalf of the guardian, Mr Tolson QC submits that this remains an unexceptional case of non-accidental injury by one or other of both of two parents, who are in other respects child-centred.  It is submitted, on behalf of the guardian, that the threshold criteria under Section 31 Children Act are met whether the fractures stand alone or whether the bruises mark a second incident. 

166.   The guardian, however, remains of the view, which she stated at the beginning of the case, that the children should both be placed at home.  In paragraph 2 of his written submissions Mr Tolson QC highlights a number of uncertainties and, in particular, the parents’ inability to offer any explanation and the possibility of collusion between the parents.  The question of possible collusion was also considered by Mr Hand when making his oral submissions.

167.   In these circumstances the guardian submits that a care order is required in order to ensure the safety of these children at home. 

168.   Mr Tolson QC submits, and I agree, that the medical evidence did not alter during the course of the hearing. The three jointly instructed experts agreed substantially, as did Dr Allgrove.  The thrust of the evidence was that non-accidental injury is the only explanation, save in wholly exceptional medical circumstances which it is submitted do not exist in this case.  It is submitted that the parents’ evidence was not credible and in this case the matter goes further than simply being unable to offer an explanation.  It is submitted on behalf of the guardian that the omission of any recall prior to the observation of the lump is particularly striking given the obvious thoroughness with which the parent’s statements have been prepared in other respects.  Further submits Mr Tolson QC it is clear that the parents were tired and under some stress on Sunday 7^th April 2013.

169.   In his oral submissions Mr Tolson QC accepted that he was now the only advocate who contended for a finding of non-accidental injury.  Following Dr Hillier’s evidence, Mr Tolson QC had been able to take brief instructions about the Local Authority’s change of position.  The guardian maintained her position, as I have just described. 

170.   Mr Tolson QC dealt with the point raised by Charles J in Lancashire CC v D & E, in respect of the guardian’s position in a case such as this.  In the particular circumstances of this case, and particularly since the Local Authority’s change of position, the guardian felt it important that the court should have before it, on behalf of the children, arguments which supported a finding of inflicted non-accidental injury. 

171.   It is the case that the role of the guardian’s advocate in a fact-finding exercise is to be fully involved in testing, in particular the expert evidence.  Generally I would expect the guardian to help the court by making submissions which alert the court to the important matters, but to remain neutral as to the court’s findings.  In the unusual circumstances of this case, it was helpful for the guardian to maintain the position that she did, although I regard it as an exceptional course. 

172.   As to the question of the burden of proof, and given that the Local Authority no longer pursued a finding of inflicted non-accidental injury, Mr Tolson QC pointed out that the court must still, in the circumstances of this case, consider whether such a case has been proved on the balance of probabilities. 

173.   As to the question of the mother’s epilepsy, Mr Tolson QC pointed out that there was no evidence that the mother had had a fit on the day in question.  Further, there was no evidence that the mother had ever had a partial fit of a kind which Dr Hillier thought might have been possible.  Mr Tolson QC did not accept that Dr Hillier’s evidence necessarily meant that during a partial fit the mother would drop L and not remember such an event.  He submitted that a partial fit would not fill the gap to explain the vagaries of the mother’s evidence, in respect of what happened between about 13.00 and 18.00 on 7^th April 2013.  It is accepted, on behalf of the guardian, that if the mother had had a full epileptic seizure she might not recall dropping L. 

174.   Mr Tolson QC submitted that an epileptic fit does not explain L’s rib injuries.  For example if L had been dropped that would not involve a squeezing mechanism, which is generally thought to be the cause of a type of rib fracture that L had suffered.  Further, said Mr Tolson QC, one such fit would not explain the presence of the bruises. 

Conclusion

175.   Before I had heard Dr Hillier’s oral evidence I had come to the following conclusions:      

(i)        that L suffered a fracture to his right clavicle and a fracture to his left seventh rib some time between 13.00 and 18.00 hours on 7^th April 2013;

(ii)       that he had a low Vitamin D level;

(iii)      that he had a raised parathyroid hormone reading;

(iv)      that his phosphate level was a little bit low;

(v)       that he did not suffer from Rickets;

(vi)      that his bones were fragile but it is impossible to say to what degree;

(vii)    the mother’s Vitamin D levels were low and that may have affected L’s skeletal mineralisation in the womb;

(viii)   the mother’s Phenobarbitone medication for her epilepsy may have increased the degradation of her Vitamin D stores. 

(ix)      L suffered both fractures while in the care of the mother.

176.   I find that the parents were loving, attentive and co-operative.

177.   I am unable to make a finding as to the cause of the bruises. 

178.   When applying the law and principles which I have set out earlier to this case I should not (absent the evidence of Dr Hillier, but being aware that the mother suffered from epilepsy) have made a finding against either of these parents that one or other had caused either of Lucas’ fractures by inflicted non-accidental injury.

179.   For the reasons set out by Mr Samuels QC there are too many uncertainties. In my judgment the Local Authority had not discharged the burden of proof upon it to prove, on the balance of probabilities, the facts initially prayed in aid in support of the findings in respect of the threshold and still pursued by the Guardian.  

180.   As to the revised findings which the local authority invites the court to make, I have already indicated my conclusions in paragraph 126 above. 

181.   It is tempting for a parent to say, in circumstances such as this, that he/she had suffered a fit and could remember nothing.  There was, indeed, no evidence of a fit on the day in question. The parents did not claim that the mother had had a fit which, Mr Samuels QC submits, is another matter which supports their overall credibility.  I agree.

182.   I have not overlooked the fact that the guardian was troubled by the possibility of collusion between the parents.  I was also concerned that this may have occurred. Having seen and heard the parents, I have come to the conclusion that they did not act in such a fashion.  In particular, I note that they attended at the hospital in the knowledge that examinations and X-rays would be taking place. 

183.   The evidence of Dr. Hillier imported a further area of doubt and difficulty into the case. 

184.   The question of epilepsy and its possible implications in cases such as this has been explored. There is clearly much to learn.

185.   Following the closure of submissions, L returned home under the auspices of an Interim Care Order, together with a direction under Section 38(6) of the Children Act.  That position has been maintained during the period while I have been writing this judgment.  As a result of my conclusion, it is right that there should now be an order the effect of which is to dismiss the applications under Section 31 of the Children Act.

186.    The County Court proceedings are therefore at an end, although I understand that the Local Authority will continue to provide assistance to the family.  The family is now aware of the possible consequences of the mother’s epilepsy.  The father needs to readjust his working hours so he can spend more time with the family.  The mother should consider whether to obtain further detailed medical opinion as to her condition and its possible effect upon her capacity to care for a young baby.

 

 

 

HHJ Bond                                          Dated this 11^h day of November 2013

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HIS HONOUR JUDGE BOND