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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> M (Care Proceedings: Finding of Fact Hearing: Fractures) [2017] EWFC B50 (14 July 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B50.html Cite as: [2017] EWFC B50 |
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Important Notice
This judgment was delivered in private. The judge has given leave
for it to be reported on the strict understanding that (irrespective of what is
contained in the judgment) in any report no person other than the advocates and
any other persons identified by name in the judgment itself may
be identified
by name and that in particular the anonymity of the children, the adult
members
of their family, and employees of the Hospital Trust and their location
must
be
strictly preserved. All persons, including representatives of the
media,
must
ensure that this condition is strictly complied with. Failure to do so will be
a contempt of court.
IN THE FAMILY COURT
Re M
(
Care
Proceedings:
Finding
of
Fact
Hearing:
Fractures)
14 July 2017
Before His Honour Judge Patrick Perusko
(judgment handed down
on 14 July 2017)
Representation
Kayleigh Long, New Court Chambers - counsel for the local authority
Lianne Murphy,
Senate House
Chambers - counsel for the
mother
Ken Kewley, Cartwright King - solicitor for the father
Philippa Jenkins, New Court Chambers - counsel for the children
Emma-Louise Fenelon, 1 Crown Office Row - counsel for the Hospital Trust
Judgment
Judge Perusko:
Introduction
1. These
proceedings
concern two children T aged 9, and
M,
aged 7
months.
The
mother
of
both children is NM. T’s father has had no contact with her since her parents
separated in 2012.
M’s
father is
MM.
2. On 17
January 2017
M
was found to have suffered
multiple
fractures
in a number of her
bones. The primary issue for
me
to determine at this
hearing
is the cause of
those
fractures.
3. M
was
born by caesarean section (CS) on 2 December 2016 at 37 weeks 3 days gestation
weighing 2310g (ninth centile). Full examination of her two days later showed
no abnormality. Arrangements were
made
for an ultrasound investigation of her
hips because of her breech position in late pregnancy.
4. Mother
and
M
were discharged from hospital on 7 December but
mother
was admitted to
hospital again on 19 December with an infected wound and was not discharged again
until 3 January
2017.
5. On 10
January 2017
M
was seen at the GP surgery because of her parents’ concern that
she was chesty. On examination her chest was clear and there were no
medical
concerns.
6. The hip
ultrasound scan (USS) was undertaken on 12 January 2017
by two sonographers XF
(trainee) and her supervisor YH. The report showed normal
findings.
7. On 16
January 2017
M
was again seen at the GP surgery. The history provided to the
GP was that on 14th January
mother
noticed swelling on both calves.
The left calf was stated to be increasing in size, the right one possibly going
down a little and
M
was reported to be crying a lot. The parents had contacted
the out of hours service on 15 January but there was confusion about the
medical
consultation which had been arranged as a result (the parents had
expected the doctor to visit them at home but in
fact
the appointment was at
the surgery) and so the parents were advised to see the GP the following day, 16
January, which they did. The GP referred
M
to the paediatric service at ABC
Hospital. On examination
M
seemed generally well but there was redness and
swelling of the left leg with increased warmth of that leg and she cried
vigorously when her left leg was touched. The working diagnosis of the doctor
was of cellulitis. X-rays the following day, 17 January, revealed that
M
was
suffering from a number of
fractures,
a
fracture
of the left tibia and some
metaphyseal
fractures.
Later it became evident that there was also a right
tibia shaft
fracture
and
multiple
metaphyseal
fractures.
8. The
issue to be determined at this hearing
is how those
fractures
were caused. The
local authority seeks
findings
that the
fractures
were inflicted by either the
mother,
the father or both of them as a result of the use of excessive force.
The parents deny having caused any injury to
M
and suggest that the
fractures
were caused as a result of a combination of
M’s
birth and
M
being handled
roughly by one or
more
of the sonographers at the hospital during the course of
the USS. As a result of the parent’s position the sonographers XF and YH as
well as ABC Hospital have been joined as parties to the
proceedings
and they
have been represented throughout this
hearing.
9. Following
the discovery of the injuries both children were, and remain, accommodated by
the local authority with the parent’s consent, T on 17 January 2017
(initially
she was placed with a foster
carer
but later placed with a family friend), and
M
on her discharge from hospital on 20 January
2017.
M
was placed with a
different family friend who is also a foster
carer.
10. The Local Authority
made
application on 31 January
2017
for
care
orders and interim
care
orders in
relation to both children. The applications are listed for final
hearing
in
October.
The Law
11. There are a number of
important principles to bear in mind
which can be summarised as follows;
a.
The burden
of proving the facts
relied on by the local authority rests with the local
authority. There is no requirement on a parent to prove anything.
b.
The standard
to which the local authority must
satisfy the court is the simple balance of
probabilities. The inherent probability or improbability of an event
remains a
matter
to be taken into account when weighing the probabilities and
deciding whether, on balance, the event occurred (Re B [2008] UKHL 35 at
[15]). Within this context, there is no room for a
finding
by the
court that something
might
have happened. The court
may
decide that it
did or that it did not (Re B [2008] UKHL 35 at [2]). The legal
concept of proof on the balance of probabilities
must
be applied with
"common sense"
c.
Findings
of
fact
must
be based on evidence not on speculation or suspicion. The
decision on whether the
facts
in issue have been proved to the requisite
standard
must
be based on all of the available evidence
d.
In determining
whether the local authority has discharged the burden upon it the court looks
at what has been described as 'the broad canvas' of the evidence before
it. The court takes account of a wide range of matters
including its
assessment of the credibility of the witnesses and inferences that can be
properly drawn from the evidence. The role of the court is to consider
the evidence in its totality and to
make
findings
on the balance of
probabilities accordingly. Within this context, the court
must
consider
each piece of evidence in the context of all of the other evidence (Re T [2004] 2 FLR 838 at
[33]). As Baroness
Hale in Re: B said, judges
“Are guided by many
things
including the inherent probabilities, any contemporaneous documentation or
records, any circumstantial evidence tending to support one account rather than
the other and their overall impression of the characters and
motivations
of the
witnesses.”
e.
Amongst the
evidence in this case, as is invariably the case in proceedings
involving
allegations of inflicted injury, is expert
medical
evidence from a variety of
specialists. Whilst appropriate attention
must
be paid to the opinion of
medical
experts, those opinions need to be considered in the context of all the
other evidence. The roles of the court and the expert are distinct. It is the
court that is in the position to weigh up expert evidence against the other
evidence (see A County
Council & K, D, & L [2005] EWHC 144 (Fam);
[2005] 1 FLR 851 per Charles J). Thus there
may
be cases, if the
medical
opinion evidence is that there is nothing diagnostic of non-accidental injury,
where a judge, having considered all the evidence, reaches the conclusion that
is at variance from that reached by the
medical
experts. The court
must
be
careful
to ensure that each expert keeps within the bounds of their own
expertise and defers, where appropriate, to the expertise of others.
f.
The evidence
of the parents and any other carers
is of the utmost importance. It is
essential that the court forms a clear assessment of their credibility and
reliability. They have had the fullest opportunity to take part in the
hearing
and the court is likely to place considerable weight on the evidence and the
impression it forms of them (see Re
W and another (Non-accidental injury) [2003] FCR 346).
g.
As to the
issue of lies, the court must
always bear in
mind
that a witness
may
tell lies
in the course of an investigation and the
hearing.
The court
must
be
careful
to bear in
mind
that a witness
may
lie for
many
reasons, such as shame,
misplaced
loyalty, panic, fear and distress. The
fact
that a witness has
lied about some
matters
does not
mean
that he or she has lied above everything
(R v Lucas [1982]
QB 720).
h.
As
observed by Hedley J in Re R (Care
Proceedings
: Causation) [2011] EWHC 1715 Fam “ there has to be
factored
into every case which concerns a disputed
aetiology giving rise to significant harm a consideration as to whether the
cause is unknown. That affects neither the burden nor the standard of proof. It
is simply a
factor
to be taken into account in deciding whether the causation
advanced by the one shouldering the burden of proof is established on the
balance of probabilities”. The court
must
resist the temptation to believe
that it is always possible to identify the cause of injury to the child.
i.
Finally,
when seeking to identify the perpetrators of non-accidental or inflicted
injuries the test of whether a particular person is in the pool of possible
perpetrators is whether, on the balance of probabilities, there is a
likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA
[2003] 2 FLR 849. It is always desirable, where possible, for the perpetrator
of non-accidental injury to be identified both in the public interest and in
the interest of the child, although where it is impossible for a judge to find
on the balance of probabilities, for example that Parent A rather than Parent B
caused the injury, then neither can be excluded from the pool and the judge
should not strain to do so (see Re
D (Children) [2009] 2 FLR 668, Re
SB (Children) [2010] 1 FLR 1161).
The fractures
12.
It is not
disputed that on admittance to hospital on 16 January 2017
M
was suffering from the following injuries;
a.
Oblique
shaft fractures
of the following bones;
i. Left lower distal tibia, and
ii. Right lower distal tibia
b.
Metaphyseal
fractures
of;
i. Right proximal humerus
ii. Left proximal humerus
iii. Right distal femur
iv. Left distal femur
v. Right proximal tibia
vi.
vii. Left proximal tibia
viii. Left distal tibia
ix. Right proximal femur
x. Left proximal femur
xi. Left distal tibia
13. The fractures
are conveniently noted on
a diagram contained in the body of the report of Dr Rylance annotated by
reference to the above numbering. There was some disagreement between the
experts instructed in the case as to the existence of a further
metaphyseal
fracture
of the right distal tibia (b)vi) and in those circumstances the local
authority does not pursue a
finding
in relation to that
fracture.
14. The local authority asserts, and the
parents accept, that the fractures
were sustained as a result of a
non-accidental injury. In other words it is agreed that
M
did not have an accident or accidents which caused the
injuries. The local authority asserts that either the
mother
or the father or
both of them inflicted the injuries on
M
lang=EN style='font-family:"Arial",sans-serif'>. Neither of the parents accept
this to be the case. Their explanation for the injuries is that they were
caused by doctors during the Cesarean section at birth and by one of the
sonographers, YH, during the USS on 12 January
2017.
The Evidence
XF
15.
XF has been
a full-time sonographer performing obstetric and gynaecological ultrasound
scans (USS’s) since October 2014. She started performing paediatric hip
ultrasound scans in June 2016 following completion a course. She has not had
regular sessions because of staff shortages and so she was still under
supervision in January 2017.
The USS on
M
was the fifth session
of USS’s she had performed. She did not remember performing this particular
scan. She described in the witness box performing a USS and had with her a cradle
and a dummy baby so as to demonstrate. She did not remember this particular
USS. She described how very gentle pressure was applied to the back of the hip
to hold the hip steady whilst the scanner was placed around the ball of the hip
bone between her thumb and forefinger. A baby could wriggle and if that
happened then the baby would be calmed. Often a parent would assist with
calming. If she, as a trainee, was
finding
it difficult to perform the scan
then her supervising colleague would come and take over. She had never been
asked by a parent to stop a scan. The pressure applied by her hand to a child’s
leg, bottom, hip area was very gentle pressure simply to keep the leg in position.
There was no need to hold both legs together. There was no need to have
more
than one sonographer hold the baby.
16.
On no
occasion has she ever had to ask another sonographer to position or hold a baby
whilst she undertakes a scan. She did not accept that legs were forced into a
straightening position for images to be undertaken. It was simply not required
to straighten the leg to get an image of the hip. An appointment for each scan
was 15 minutes.
This scan took 6 ½
minutes
from the first to the last image.
She could not recall this particular scan so could not recall either parent
raising any issue with her. She was sure that she would recall if either parent
had been upset or concerned.
17.
XF was a
nervous and at times emotional witness. It is suggested by the mother
that her
emotions are explained by her covering up what had happened during the USS and
that she was not being truthful. I disagree. Her nervousness was
understandable in the context of what was being put to her. In
my
view she was
a clear, consistent and truthful witness who did her best to give clear
evidence in difficult circumstances given that she did not remember this USS.
YH
18.
YH was the
supervising, or superintendent, sonographer on 12 January. She too did not
remember this particular USS. She has been performing general medical,
paediatric, obstetric and gynaecological USS’s since 1998. She has been
performing paediatric hip USS’s since 2003. She has been the lead sonographer
since that time and trained every other sonographer at the hospital since 2003.
She performs something like 14 scans each week.
19.
She could
not remember what assistance she gave to XF in the USS. She, like XF, described
the process of the USS. She explained that if a trainee was finding
the
procedure difficult then the trainee would ask her to take over. She has never
held a baby while another sonographer undertakes the scan. She explained that
the technique was dynamic and only ever involved one person. If she had to
intervene then she would take over completely.
20.
Looking at
the records, the images of the right hip (three images of each hip are taken)
took 3.5 minutes
and the left hip took one
minute.
This infers that the right
hip was
more
difficult and that she took over for the left leg. 3.5
minutes
was
a typical length of scans for a trainee.
21.
She was
asked about the angulation of the knees and legs. She said that the positioning
or angulation of the legs made
no difference at all to the process. There was
no need to straighten legs because it is the hip that is being scanned, hence
the position of the legs was not relevant.
22.
She had
never stopped or been asked to stop a scan by a parent because of a baby being
too distressed. She would never hold the legs together and she would never hold
a baby for a colleague while a colleague scanned a baby. She would not have
been able to exert a twisting force. She has never been involved with any baby
suffering any injury, even a minor
injury, during a USS. She has never known of
any complaints about her work. She had never had to put pressure on any other
part of the baby other than the hip. She had never, and had never seen anybody,
twist or pull the limbs of a baby during a USS.
23.
YH did
accept that she may
have been preparing a report on the computer with her back
to the bed / cradle whilst XF prepared the baby for a scan. She accepted that
it was a busy list that day but not overly so. She denied ever getting frustrated
or irritable during a scan and never handled patients roughly. She denied
holding or pulling any baby by the ankles, there would be no purpose doing so
because it would not have helped with the position required for the scan. The
position of the legs had no impact on the scan. She had never had a complaint
against her
24.
She
described XF as being a very careful
and sometimes nervous sonographer who
always asked parents to be involved for example, in calming the baby and she
always asked for advice. She regarded XF as a competent sonographer.
25. YH came over as a very experienced, calm, rational, clear and impressive witness who is clearly experienced in her role. I accept her evidence as truthful.
Dr ZD
26.
Dr ZD is a
consultant paediatric radiologist at the ABC Trust and the lead consultant at
the hospital in paediatric imaging. She was asked to image M
on 17 January
2017
by her colleague Dr AM. She was told
that
M
had a swollen and red left leg
and the cause was not apparent. Initially she examined
M
on the bed in the ultrasound room and the appearance of the
legs suggested that a
fracture
was present. Dr ZD directed an ultrasound scan to
identify the location of the suspected
fracture.
Having demonstrated the
fracture
on the ultrasound she arranged for
M
to
be taken from the ultrasound room to the
main
department for an x-ray in order
to confirm the presence of a
fracture.
27.
On the way
down to the x-ray room NM asked Dr ZD if she thought it relevant that M
had an ultrasound scan of her hips the previous week. Dr ZD
told NM that she did not think that would explain what had been seen on the
ultrasound scan.
28.
Dr ZD reviewed
the x-ray which confirmed a fracture
was present. Having informed the nurse,
she contacted Dr AM to explain the
findings
and, in accordance with standard
procedure, a skeletal survey and CT scan of
M’s
brain was arranged for the
following day.
29.
Her
interpretation of the X rays revealed a number of fractures
of both legs, both
arms and at least one
fracture
of the shoulder.
30. A repeat skeletal survey was undertaken on 2 /2/ 17
31.
Dr ZD had
worked with the senior radiographer YH since she started at the hospital 7
years ago and has observed her performing USS’s on many
occasions.
Ms
YH had
much
more
experience than she did of performing USS’s. She explained that very
little pressure is required to hold a hip for an USS. She had no doubts about
Ms
YH’s ability to perform an USS. She had never seen, read or
heard
of a
fracture
being caused by an USS. In her view the injuries could not have been
caused by the USS
32.
She was
asked about the force required to cause fractures.
She said that normal
handling of a baby would cause no injuries. She explained how a twisting force
was required to cause a
metaphyseal
fracture.
She said ‘generally if you
shake a limb you will get a twisting force’. She had said in her report “the
fractures
around the joint usually result from shaking type injury and are
classically reported in the literature as being caused by inflicted injury
rather than by accident”.
33.
Dr ZD also
knew XF who was much
less experienced but Dr ZD had no doubts about her
knowledge or experience
34. Dr ZD was a clear, balanced and impressive witness.
Dr Offiah
35.
Dr Offiah is
a reader in paediatric musculoskeletal
imaging and honorary consultant
paediatric radiologist at the University of Sheffield and Sheffield Children’s
Hospital. She was instructed by ABC Hospital to review the images taken on 17
January
2017
of the left tibia and fibula and the 17 skeletal survey images
taken on 18th January as well as follow up images taken on 2
February. She reported as follows;
a.
outside the
context of a reported accident or inflicted injury (i.e. physical abuse)
metaphyseal
and shaft
fractures
may
be seen in conditions associated with
brittle bones or other conditions. There was no evidence of underlying bony
disease that
might
have predisposed
M
to easy
fracturing
b.
the force required
to cause long bone fractures
are difficult to quantify but it is well accepted
that assuming normal bones such forces are greater than those used in the
day-to-day handling of a young child such as
M
lang=EN style='font-family:"Arial",sans-serif'>.
To give an idea of the required forces, cardiopulmonary resuscitation only
results in rib
fractures
in approximately 1% of cases. Toddlers who fall down
stairs generally suffer
minor
injuries only. Children under a year
mostly
sustain
fractures
following a fall from a height and they sustain single rather
than
multiple
fractures.
c.
If an infant
has normal bones it is highly unlikely that fractures
will be sustained during
normal day-to-day activities, including routine
medical
examinations.
d.
The oblique
fractures
of
M’s
tibiae will have required a force with a twisting/torsional
component. Her timeframe for the oblique
fracture
injuries was given as 7
January to 17 January
2017.
e.
Metaphyseal
fractures
are caused by gripping, pulling and twisting forces at the site of
the
fracture
which
may
strip the periosteum off the bone at the same time as
causing the
metaphyseal
fracture.
Metaphyseal
fractures
usually heal within
four weeks of the traumatic incident and always within six weeks. She gave
different timeframes for the
metaphyseal
fractures,
the earliest date being 5
January and the latest date 17 January
2017.
36.
Dr Offiah,
like the other experts in the case, had a discussion on 15 June 2017.
One of
the
matters
discussed was the differing opinions concerning the timing of the
injuries. Dr Offiah explained that the radiological dating of
fractures
is not
an exact science and there are grey areas. Having taken into account what the
other experts, particularly Dr Fairhurst, had said Dr Offiah adjusted her
opinion regarding timings for the
metaphyseal
fractures.
In her view none of
those
fractures
occurred before 29 December 2016.
37.
It was Dr
Offiah’s view that none of the injuries could be birth related (‘these
fractures
did not occur at birth’) and that it was highly unlikely that a
standard hip USS would cause a
fracture
and almost impossible for it to result
in
multiple
fractures.
“
Metaphyseal
fractures
require the application of
force directly over the affected site. There would be no reason for force to be
applied to the lower limbs or shoulders during a routine hip ultrasound scan”.
In oral evidence she said “it would be very very unusual indeed for a
fracture
to be caused as a hip USS which is not an aggressive examination”.
She had never seen or
heard
of a
fracture
being caused in that way but if it
had healing would be seen in the images of the shaft
fracture
and there was no
healing seen here.
38.
Dr Offiah
explained that with a metaphyseal
fracture
force needed to be applied over the
site of the
fracture,
often by a gripping twisting and pulling
motion.
Whilst
some of the
fractures
could have occurred on the same day they could not have
occurred at the same time.
39.
Dr Offiah
was asked about the effect of massaging
following a
fracture,
the
mother
believing that her having
massaged
M
this prevented the healing of
fractures
in
line with normal timescales. Dr Offiah said she had no experience of that
hypothesis and did not think it was a possibility. She did not think
massaging
would cause displacement in order to stop the healing process.
40.
Dr Offiah
was an extremely impressive witness who gave clear and consistent evidence. I am
conscious that she was instructed by ABC Hospital rather than the parties
jointly but that does not in my
view dilute the evidence which she gives to the
court.
Dr Fairhurst
41.
Dr Fairhurst
was instructed jointly by the parties with my
permission. She is a consultant
paediatric radiologist of considerable experience. She regularly reports to the
court for
proceedings
such as these. She stopped counting when she had
completed 1000 reports. She reported on 27 April
2017,
in summary as follows
a.
M
has suffered
multiple
fractures
involving her legs and probably both arms
b.
These
fractures
occurred on at least two separate occasions and required
multiple
separate applications of force
c.
No plausible
explanation has been offered for the fractures
d.
The findings
are highly indicative of inflicted injury
42.
In terms of
dating the fractures
Dr Fairhurst was of the opinion that the oblique shaft
fracture
of the left lower distal tibia occurred between 7th and 17th
January and the right tibia between 8th and 17th January (almost
identical to Dr Offiah’s opinion). In terms of the
metaphyseal
fractures
she
gives a wider date range than did Dr Offiah. I set out below a table showing
the final views of Dr’s Offiah and Fairhurst in terms of the timing of the
injuries.
Injury
|
Dr Offiah’ period |
Dr Fairhurst’ period |
a)i Oblique
shaft Left lower distal tibia
|
7.1.17 – 17.1.17
|
7.1.17 – 17.1.17
|
a)ii
Oblique shaft Right lower distal tibia |
|
8.1.17 – 17.1.17 |
|
|
|
![]() |
|
|
b)i right proximal humerus |
29.12.16 – 5.1.17 |
29.12.16 – 17.1.17 |
|
|
|
b)ii left proximal humerus |
29.12.16 – 5.1.17 |
29.12.16 – 17.1.17 |
|
|
|
b)iii right distal femur |
29.12.16 – 5.1.17 |
29.12.16 – 7.1.17 |
|
|
|
b)iv left distal femur |
29.12.16 – 5.1.17 |
29.12.16 – 7.1.17 |
|
|
|
b)v right proximal tibia |
29.12.16 – 5.1.17 |
29.12.16 – 7.1.17 |
|
|
|
b)vii left proximal tibia |
29.12.16 – 5.1.17 |
29.12.16 – 7.1.17 |
|
|
|
b)viii left distal tibia |
29.12.16 – 5.1.17 |
20.12.16 – 5.1.17 |
|
|
|
b)ix right proximal femur |
05.01.17 – 12.1.17 |
12.1.17 – 17.1.17 |
|
|
|
b)x left proximal femur |
05.01.17 – 12.1.17 |
12.1.17 – 17.1.17 |
|
|
|
b)xi left distal fibula |
29.12.16 – 5.1.17 |
20.12.16 – 5.1.17 |
43.
The dating
bracket given for the timing of the metaphyseal
fractures
b)iii, b)iv, b)v,
b)vi, b)vii and bviii are well before the USS on 12th January.
44.
Dr Fairhurst
also described the mechanisms
of injury for the two types of
fracture.
Oblique
fractures
of the tibia required a twisting force to be applied to the lower
leg, not from a direct blow. The
fractures
require a significant force well in
excess of that used during normal day-to-day handling of a child, even during
rough play.
M
could not have caused this
fracture
herself. She would not have the strength to
move
her body sufficiently
to cause the
fracture
even if her leg got trapped. The
majority
of tibial
fractures
in infants are the result of nonaccidental injury.
45.
In terms of
metaphyseal
fractures,
these result from a pulling and twisting force being
applied to the limb well in excess of that used in normal day-to-day handling
of an infant with normal bones. They have also been reported to occur during
violent shaking episodes, when the infant is shaken so hard that the limbs
flail about to such an extent that a torsional force is inflicted on the limbs.
Metaphyseal
fractures
have been reported as the result of obstetric injury,
mostly
those have been a breech extraction and difficult vaginal delivery.
Three reported patients had distal femoral
metaphyseal
fractures
following
uncomplicated cesarean sections however in all of those cases there was clear
clinical indication of injury shortly after birth. In
M’s
case birth injury is
excluded because of the dating of the
metaphyseal
fractures.
Save in the
exceptional cases noted, this type of
fracture
has not been reported to occur
accidentally and thus is highly indicative of nonaccidental causation.
46.
Dr Fairhurst
would have expected M
to have shown immediate distress
in response to the left tibial shaft
fracture,
lasting perhaps 10 to 15
minutes
and to subsequently show distress when her leg was
moved
and to be reluctant to
use the leg. She would expect any reasonable
carer
present when the
fracture
occurred to be immediately aware that
M
had suffered a significant injury and
any
carer
responsible to be aware that they had caused a significant injury.
She would expect any
carer
who was not present when the
fracture
was sustained
to notice that
M
was in discomfort when her leg
was
moved
for several days thereafter.
47.
In relation
to the metaphyseal
fractures
Dr Fairhurst would expect a regular
carer
to
notice a change in the baby’s behaviour although they
may
not attribute that
change to an injury. It is possible for such
fractures
to cause relatively
little discomfort beyond the initial pain at the time of occurrence and the
non-perpetrator
may
be unaware of the injury.
48.
In terms of
the USS possibly causing the fracture,
she said the force required to restrain
an infant for a hip USS was significantly less than would be required to cause
any
fracture.
Had a
fracture
occurred she would expect the performing
sonographer to immediately realise that the child had been injured and to take appropriate
action. Dr Fairhurst could not exclude the possibility of inappropriate force
being used in the USS but she could not envisage how
multiple
bilateral
fractures
could have been caused during the procedure, particularly as only one
leg would have been
manipulated
at a time and had a
fracture
being caused to
one side the examination would not have progressed to the other side. In any
event the radiological dating of
M’s
injuries indicated that the
majority
of
her
fractures
occurred before the USS which further supports her view that the
injuries were not sustained at the time of the hip USS.
49.
In oral
evidence Dr Fairhurst maintained
the opinion she had written in her initial and
subsequent reports. In particular she was clear that none of the
fractures
could have been caused at birth because of the dating of the
fractures
quite
apart from the
fact
that there had never been a report of
multiplicity
of
fractures
of this nature at birth. In only two cases which she had been
involved in had there been isolated
metaphyseal
fractures
at birth. She was
aware of a single limb being
fractured
at birth but it was difficult to work
out how there would be
multiple
fractures.
It was put to her that this
might
be
caused by two doctors pulling on each leg in opposite directions but she said
that the force required to cause a
fracture
for example at the ankle would be
dissipated by the
fracture
occurring so that would not cause the knee
fracture
which would require a similar force by gripping the knee higher up, then again
the hip even higher up. In other words this was an extremely rare event
happening to both legs at different sites which in her view sounded
implausible.
50.
Dr Fairhurst
was asked about the effect of massage
on
fractures.
She said that although
manipulating
the
fractured
limb could cause further separation it would not
delay the development of periosteal new bone formation and so did not affect
her opinion of the dating of the
fractures.
51.
In terms of
the ultrasound scan she maintained
there were a number of reasons why she would
not accept that as a cause of the
fractures.
First the force used to restrain a
wriggly infant would be considerably less than would cause these injuries. Further
inappropriate force could have been applied at one site but it would have been
visible to the supervisor and examination would have been suspended or the
sonographer would have been asked to stop. Here there are bilateral
fractures
so the child would need to be turned in an inappropriate force applied twice.
Further there was no reason in a USS to
manipulate
the child’s arms in a way to
cause these
fractures.
In her professional experience there were no reports at
all of injuries like this caused by a hip ultrasound scan. The degree of
restraint to get adequate images was well below the force required to cause
fractures
like this.
52. Dr Fairhurst was an extremely impressive, clear, consistent and fair witness. I accept her evidence in its entirety.
Dr Rylance
53.
Dr Rylance
is a consultant paediatrician. He has practiced in paediatrics for more
than
41 years and for
more
than 33 years as a consultant. He is frequently
instructed to give expert opinion in court
proceedings
concerning children. He
produced a report on the joint instructions of the parties dated 31
March
2017
and gives a paediatric overview.
54.
Dr Rylance
explores and excludes any organic cause for the fractures.
55.
In terms of
the tibiae shaft fractures
he states that rough handling within the context of
reasonable caring does not cause these bones to
fracture
unless there is an
underlying disorder predisposing to easy
fracture,
for which there is no
evidence in
M
lang=EN style='font-family:"Arial",sans-serif'>. He would have expected that
M
would have cried loudly at the time of the
fractures
and it
would be very unusual to have such
fractures
without a
carer
being aware of
times of causation and attendant pain. A perpetrator would know that excessive
force and a particular action had been used and therefore a significant
resultant injury
might
have occurred. A non-perpetrator would recognise that
M
had a significant problem with her legs and would be
expected to seek
medical
attention forthwith. Dr Rylance concluded that the
tibiae shaft
fractures
were either of non-accidental or of unknown
medical
cause, and that the latter possibility is remote. He did not think that the
hip USS was a plausible cause of the tibia shaft
fractures
56.
So far as
the metaphyseal
fractures
were concerned, Dr Rylance wrote “these are common
non-accidentally caused
fractures
and uncommon accidentally caused
fractures.
They are almost always caused by a pulling and twisting
movement
with pressure
applied from a distal position in the form of a sharp pull (jerk or yank) or
twist, and frequently with those in combination. They occasionally occur in a
shaking injury when it is thought that the
fractures
relate to the flailing of
the limbs”. Further he stated that “the force required to cause these
fractures
is considerably in excess of normal handling. It is commonplace for
professionals to handle babies ‘confidently’ which
may
be interpreted as
‘roughly’ and is sometimes commented upon by parents in the context of ‘rough
handling’ that that which themselves employ. No
fractures
seem to occur as a
result of such actions”.
57.
According to
Dr Rylance a perpetrator would recognise that an action involving such force to
cause metaphyseal
fractures
was inappropriate.
Many
children of
M’s
age who suffer
these
fractures
“
may
not have a significant change in behaviour and usual
necessary actions
may
not elicit apparent pain reactions”. A
non-perpetrator would frequently not know that any injury had been caused.
58.
Dr Rylance
did not consider the hip USS as a plausible cause of the fractures.
The likely
actions did not involve the necessary
mechanism
of pulling and twisting.
Metaphyseal
fractures
are characteristic of nonaccidental injury and rarely
occur in other circumstances. In oral evidence he said he could not believe
that the hip USS could in any way cause the
fractures.
He could never ever
exclude the possibility of
fractures
being caused by a hip USS but he had never
himself seen a
fracture
as a result of this procedure and he did not believe these
injuries had been caused by this USS. “I have never knowingly come across a
case where a baby has suffered a
fracture
as a result of a hip USS. I don’t
think it would happen. If one of two sonographers present was applying
inappropriate force it would be obvious and the other would step in”
59.
In
conclusion he felt it was more
likely than not that the
fractures
of the shafts
of the tibiae, and the
metaphyseal
fractures
of the humerus, femur, tibiae and
fibula bones were nonaccidental in causation.
60. The ‘frogs legs’position referred to by the parents whereby the hips are flexed and externally rotated and knees flexed is commonplace in babies born in the breech position, according to Dr Rylance, has no particular significance.
61.
In oral
evidence Dr Rylance was clear that the fractures
could not be caused at birth
for two reasons. First the age of the
fractures
post date by a considerable
margin
the date of birth. Secondly the extent of these
fractures
has never been
reported from the
manipulations
performed as part of the delivery of a baby. “These
fractures
would not have occurred at birth. To have this number of
fractures
would be as near impossible as it can get”
62.
In terms of
massage
he said that
manipulation
can delay healing of a shaft
fracture
but not
metaphyseal
fractures.
63.
Dr Rylance was
an extremely impressive witness. Despite his extensive experience and
knowledge, when he was asked questions which strayed outside his expertise he
would not offer an opinion. He was very measured
and balanced in offering his
opinion on issues which were clearly within his expertise. I accept his
evidence in its entirety.
Dr VS
64.
Dr VS is a
consultant orthopaedic surgeon who treated M
following
the discovery of the
fractures.
He set out his involvement in a report dated 17
February
2017.
He examined
M
on the ward on 18
January
2017
when her legs were in plaster slabs below the knee. He later
reviewed the x-ray images from 17th January and the skeletal survey
from 18th January. His interpretation of the images did not reveal
a number of the
metaphyseal
fractures.
He saw
M
again
on 10 February
2017
in the orthopaedic clinic with both parents and foster
carer
as well as a social worker. He reviewed the skeletal x-rays carried out
on 2 February and explained the x-ray
findings
to the parents. The parents told
him about the hip USS on second January, with
mother
reporting “some
difficulties in positioning the baby with the baby crying during this
investigation”. He wrote “It was
my
personal view, that some degree of
rotatory
movements
could have occurred in the lower legs, which could be
contributory to the injuries sustained by the baby”. He acknowledges in
his report that his observations and interpretation of the skeletal images are
different to those of Dr Offiah.
65.
In a letter
dated 13th every 2017
to
M’s
GP he said “the parents reported the
onset of symptoms following attendance to the hospital to have the ultrasound
scan of the hips on 12 January
2017.
She also reported some difficulty in
positioning the child to carry out the test. She also reported potential use of
increased force to hold the baby’s leg down. It is quite possible there
may
have been some degree of bending or twisting force on these occasions to cause
this lower leg injury……. On the balance of probabilities, I feel that both
lower leg injuries could have happened at the time of the above-
mentioned
ultrasound assessment. Due to the lack of any other systemic skeletal or soft
tissue injuries and observation of the activities of the parents throughout the
consultation, it is
my
personal view that the injury
may
not be nonaccidental.”
66.
Dr VS
attended the professionals meeting
on 15 June
2017.
A significant part of that
meeting
was taken up with discussion about the existence of a large number of
the
metaphyseal
fractures
with Dr VS
maintaining
that some of the
fractures
seen by Dr Offiah and Dr Fairhurst were not present. Doctor VS did accept at
the professionals
meeting
that all the
fractures
could not have been caused at
the hip USS.
67.
In oral evidence
Dr VS explained that since 2002 he had been managing
injuries to children in
accident and emergency. 15 to 20% of the patients he treated were children
although not very
many
were less than one year old. Not that
many
was seen in a
clinical capacity with
fractures.
68.
He said he
could not be certain that the hip USS was responsible for causing injury. “The
injury is inflicted. From my
interaction with the family and the baby based on
the history I was given I said a role
may
have been played by the ultrasound
scan. That doesn’t
mean
it cause the injury. Now I have seen the evidence the
injuries are probably not caused by the ultrasound scan”.
69.
Dr VS was
asked whether he would defer to the opinions of the paediatric radiologists in
terms of the dating of fractures
and indeed the existence of
fractures.
He
would not do so, saying he was ‘fairly comfortable dating long bone shaft
injuries”, and “I have a different view of some of the x-ray images”.
When asked whether Dr Offiah and Dr Fairhurst were better experienced than him
to offer views about the existence of and dating of
fractures
he said “they
probably have
more
experience than
me
in reporting nonaccidental injuries. They
have their opinion, I have
mine”.
70.
He
emphasised that he did not agree with the other experts regarding the existence
of the upper arm and femur metaphyseal
injuries and this was a difference of
opinion. He accepted that Drs Offiah and Fairhurst would be expected to defer
to him in relation to his surgical opinion given his experience but “I don’t
find
it difficult to defer. I have a different opinion. I don’t have to defer.
I send patients to have a scan and radiological reports are produced. The
opinion of the radiologist is accurate in
most
scenarios but sometimes
inaccurate, then we discuss things.” It was put to Dr VS that it was
unreasonable for him not to defer to the radiologists. He said “I have to
state what I believe in. I did not conclude that the shoulders/hips were
injuries”.
71.
Dr VS said
that he did not often examine images of children less than a year old, perhaps
once a week within his group but less than that for his own patients. He did
not accept that he had strayed outside his expertise in offering an opinion
about the cause of injuries. He said he was just mentioning
clinical
findings.
72. Dr VS denied being put under pressure by the hospital or by colleagues to change his view.
73.
I have to
say I really struggled with Dr VS’s evidence. I do appreciate that he has never
been involved in court proceedings
and thus does not have the court experience
of the other experts in this case but even accounting for that it is very
obvious that Dr VS strayed outside his area of expertise both in terms of the
existence of and dating of these
fractures.
Having
heard
him give evidence, and
noting the position adopted in the professionals
meeting,
I am driven to the
conclusion that pride and over self-confidence is a real professional obstacle
for him. I do not understand the repeated refusal to defer to obvious superior
expertise. That is unusual and I regard it as unreasonable. It has contributed
significantly to the
muddying
of waters in terms of identifying and dating the
injuries. It has also contributed towards other professionals being implicated
in causing injury to this child.
74.
It is very
obvious to me
that no weight at all can be attached to the evidence of Dr VS.
NM (Mother)
75.
NM filed two
statements, the first on 24 February 2017
and the second on 4 July
2017.
She
was also interviewed by the police on 23 January
2017.
In her first statement
she explained that following her admission to hospital on 19 December 2016 both
children were with JS until 23 December 2016, then from 23 December 2016 until
27 December 2016 both children were with
Mr
MM.
From 27th to 28th
December
Mr
MM
and the children stayed at aunt VM’s house (where she lives with
her husband and daughter) and then returned home until 2 January
2017.
From 3
until 4 January both children were with
MA.
Although NM was discharged back
home on 3 January the children did not return until fourth January. From 4th
to 16th January the parents had joint
care
of the children.
76.
In her
statement she says, of the hip USS on 12 January 2017,
“during the scan the
nurse who I believe was a trainee or student nurse, was not able to get a clear
picture of her hips, as the baby was
moving
around crying and screaming so the
doctor who was a white female came over and held
M’s
legs together to stop her
from doing so and by doing so this is where I believe she
may
have sustained
her injuries. At one point
MM
told them to stop as
M
was in distress but they
responded something along the lines of “they knew what they were doing””.
77.
“On 14
January 2017
I noticed swelling on the baby. I called the out of office hours
surgery on 15 January
2017.
There was a
misunderstanding,
I assumed they were
coming at 9:30 PM that evening however it was
me
who was supposed to go to the
surgery. They then called
me
to inform
me
that I’d
missed
my
appointment and
that they did not have any appointments left. I then called
my
surgery on 16
January
2017
and they gave
me
an appointment at 3 PM, after which I went to
hospital.” “We were told at
M’s
follow-up appointment on 10 February
2017
by
Dr VS that the scan could have been the reason for the injuries. He told us
that there were no other injuries but the
fractures
on her legs.”
78.
In her
statement of 4 July 2017
Ms
NM described being hospitalised in November 2016
after collapsing in the town centre due to the stress of being evicted as her
sugar levels went down (she is diabetic). Scans showed fibroids and that the
baby was growing slowly. Further scans in December again showed the baby not
growing satisfactorily which resulted in the Cesarean section the following day
and the removal of fibroids. No
mention
is
made
in that statement of the birth
itself. NM does, though, go into detail about her admission to hospital on 19th
December with an infected wound and bleeding from the wound. She received two
blood transfusions, was
moved
to the high dependency unit and was extremely
unwell. Understandably she was very distraught at not being with her newborn
baby. She described
MM
as being of great assistance when she was unwell and
that
M
was very unsettled, especially
when changing her clothes or nappy.
79.
NM said that
on the advice of the hospital medical
staff
M
was
massaged
to assist with her “frogs legs”. NM is a trained
masseur.
In oral
evidence she said that the
massaging
she applied
might
have delayed the
healing. When it was put to her that the doctors agreed that the
metaphyseal
fractures
would not be disrupted in terms of their healing by
massage
she said
“I can only go on what I know. If a bone is not fully connected and there is
massage
it won’t heal”. She also showed on the baby doll in the witness
box how she had
massaged
which was
more
a stroking
motion.
80.
NM confirms
in her statement that the swelling on M’s
legs was “discovered just two days
after the hip scan and we sought
medical
advice soon after”.
81.
“I feel
the injuries were caused at the hip scan but the child’s health during
pregnancy and after birth also had an impact on the injuries including how she
was manhandled
once born and how fragile she was including the slow way in
which she grew. She was pulled out by the legs and was again held during the
heel prick etc. she was a premature child who went through a lot at the hands
of the health professionals….. Both
myself
and
MM
have previous experience with
children as we both have children from previous relationships. Furthermore I
belong to a very close extended family with
many
children and have never had
such an issue arising before and have always taken
care
of children left in
my
care.
I am aware of the professionals views but I cannot see anyone in the
family harming
my
newborn baby.”
82.
NM
maintained
her position in her oral evidence, having sat through the evidence
of all the other witnesses. She described how
M’s
legs were splayed out after
the birth, that nurses had told the parents that they should exercise the legs
and stretch them to encourage the legs to drop and that
M
was uncomfortable with her limbs being
moved
“it was like a
scream”. Nappy changing was very hard and holding her legs together caused her
to cry. During the period when she was in hospital after 19th
December
MM
would bring
M
to the hospital after dropping T at school some days
and she would speak to
MM
every day on the telephone. When she returned home on
third January she was very upset to learn that her uncle had died of a
heart
attack unexpectedly. Thereafter she and
MM
would take turns to
care
for
M
lang=EN style='font-family:
"Arial",sans-serif'>.
83.
When asked
about the hip USS on 12th January she said “the junior
sonographer was very reasonable and gentle….. When the senior took over M
had
already been turned to the other side. To get a clear picture of the senior
sonographer held the legs and
M
was crying. With the junior sonographer
M
was
crying but not so
much.
With the senior she was crying an octave up. It was
uncontrollable. Father looked at
me
and said to the senior “do you think we
could give a
minute
to calm down”. She said “I know
my
job, I know what I am
doing”. After the hip scan, on 13th January I noticed the legs
swollen and on 14th January there was swelling from the ankle right
up the left leg and at the ankle on the right leg. On 15th January I
contacted the out of hours Dr thinking there
may
be an infection”. She
demonstrated with the baby doll and cradle how she said the senior sonographer
pulled
M’s
knees together to get a clear scan of the hip. She said she was 100%
sure that she first noticed the swelling on 13th January, despite
her written evidence saying 14th January.
84.
In terms of
the birth, she felt a rough and uncomfortable tugging whilst two doctors pulled
at the baby, one from each side of the bed. She maintained
that
most
of the
fractures
other than the leg shaft
fractures
were sustained at birth. “You
cannot pull and yank a baby without causing injury”. The legs were
fractured
at the hip USS.
85.
NM
understood what the experts were saying in terms of the timing of the injuries.
She does not accept their evidence. “I’m
a human being and
mum.
You can’t
take a child’s leg, twist and hold it without causing damage”. She said
that the sonographer’s being emotional before and during their evidence
supported her suggestion that they had caused injury. She said that they were
lying and the professionals do get it wrong. She was very clear that she did
not cause the injuries and wanted answers. “I am 100% sure that the cause of
the
fractures
is what happened at birth and at the hip USS”.
86.
I am seriously
troubled by NM’s evidence. She is clearly an intelligent woman who understands
what all the medical
professionals are saying. I can completely understand how
traumatic
M’s
birth
must
have been and of course NM’s admission to hospital
when
M
was only two weeks old. The
subsequent discovery only two weeks after NM returned home that
M
had suffered injuries
must
have been shocking if she knew
nothing about how the injuries had been caused. Any
mother
with those
experiences would struggle, both physically and emotionally. Add to the
mix
that Dr VS expressed his opinion that the injuries could have been caused by
the USS one can understand why that was something which would cause any person
not responsible for the injuries to question whether the
medical
professionals
had caused these injuries. The difficulty with NM’s position is that there is
not a shred of credible evidence that supports the suggestion that any injury
occurred at birth.
87.
Miss
Murphy
says on NM’s behalf that just because
mother
does not accept the
medical
evidence does not
mean
she is not being truthful. I agree with that but there
are significant aspects of NM’s evidence which cause
me
concern about her
credibility, in particular her evidence regarding swelling to
M’s
legs. In her
written evidence and her interview to the police (and to the hospital) she had
always said she first noticed the swelling on 14th February, 2 days
after the hip USS. She changed this only in her oral evidence to 13th
February. Dr Rylance had
made
clear in his evidence that noticeable swelling
would be apparent within 24 hours. I think that is telling and supports the
view which I have formed that she was not at times being truthful. I do not
accept her explanation for the inconsistencies about this evidence.
MM
(Father)
88.
MM
has filed
three statements, on 2
March
, 25
March
and 17 June
2017.
His evidence
concurred with NM’s in terms of the
care
of the children from
M’s
birth until
mid-January.
When
M
and NM were discharged from
hospital together he would continue to take T to and from school so he would be
out of the house for 20 to 30
minutes
in the
morning
and a little longer in the
afternoon. He would also do the shopping and take the dog for a walk. After 19th
December the children remained with JS until 23rd December so that
he could visit the hospital and he did not visit the children. When the
children were staying with their aunt VM from 24th to 25th
December he visited them and from 26 December the children remained in his sole
carer
at home until third January. On one or two occasions
M
was with NM in the hospital whilst he walked the dog.
89.
After 4
January, following NM’s discharge from hospital on 3 January, the children were
in the parents joint care
although the children were left with NM when he did
the shopping, went to school with Talitha or walked the dog.
90.
MM
describes
in his statement of 17th June the cesarean section and two doctors
pulling to get
M
out of NM’s “belly”. After the
birth
M
was very unsettled especially
when her nappy was changed and she would resist touching from the waist down.
Like NM he describes how a doctor suggested
massaging
to
M’s
legs. In oral
evidence he said that the doctors pulling the baby out of NM “was too
aggressive. I could feel the
motion.
They were pulling one on each side of the
bed. I could see everything. They were holding the baby at the shins, then the
knees, then the hips.”
91.
So far as
the hip USS was concerned he described how the junior sonographer was not
coping with M
crying and resisting. “The
more
senior sonographer then assisted her colleague by holding down
M
with two
hands one placed on her thigh on her leg around the ankle area.
M
was crying
very loudly without stopping and was resisting the procedure. Her legs were not
straight but were pointed outwards in the senior sonographer was forcing her
feet straight so that the scan could be carried out. This involved a twisting
force in trying to position
M
for the scan. The procedure was carried out to
M
on both sides and
M
throughout was crying….”. In oral evidence he
maintained
that the first sonographer was completely appropriate and gentle but
the other sonographer held
M’s
legs near her knee and her ankle whilst the
first sonographer undertook the scan.
92.
MM
said in
oral evidence that he had challenged the sonographer’s to give
M
time to calm
during the procedure before
proceeding
and he said that the second senior
sonographer responded by saying “no, this is
my
job. It’s what I do”.
93.
According to
his statement, on 14th January NM told him that she noticed a
swelling to M’s
leg which he too noticed. On 15th January he could
see swelling to both legs which caused him concern and it was then that NM
called 111. In oral evidence
MM
said that it was 13th January when NM
asked him about like a swollen leg and it was on 14th January after
he gave
M
a bath that he noticed the left
leg a bit swollen and the right leg not that swollen, just a bit. It was put to
him that in the written evidence he had always
maintained
that it was 14th
January when NM had first raised the question of swelling. He could not now
recall whether it was 13th or 14th January.
94.
Like NM, MM
explained that Dr VS said at the appointment on 10th February that
the injuries could have been caused by the hip USS.
95.
In oral
evidence MM
explained that he had two other children. He had looked after them
as babies. When his son was newborn he had helped look after him and his three
half-brothers aged 12, seven and eight with his partner who was sick at home.
He denied ever having handled
M
roughly or lost his
temper. He
maintained
that the injuries occurred at birth, were undetected and
aggravated at the hip scan.
96.
I am sorry
to say that I did not find
MM
a reliable and credible witness. I am unimpressed
by him, for the first time, giving detail regarding events when he has had
many
opportunities to explain in full all the significant
facts
which he says point
towards these injuries being caused at birth and/or at the hip USS. For example
he did not
mention
at all before giving oral evidence that YH had been angry
and frustrated during the hip USS. Further, he was at times evasive when
questions were asked of him. Like NM he changed his evidence in relation to the
timing of the swelling on
M’s
legs from 14th to 13th
January. I am also concerned that there was no
mention
to the police when he
was interviewed on 23 January
2017
that the hip scan
may
have caused the
injury. His explanation for that omission was that the police did not ask him
about the hip USS but it is obvious from the transcript of the police interview
that he was not just being questioned about
M’s
carers
during December/ January
but also about the cause of the injuries.
Other evidence
97.
I hope it
goes without saying that I have considered the other evidence contained in the
bundle to the extent that it is relevant. I have read the police interviews and
looked at the relevant parts of the medical
notes. I should also
mention
that
despite there having been a number of opportunities at case
management
hearings
for the parents to seek permission to file statements from other family
members
who had
cared
for
M
from birth no such statements
had been adduced. The local authority did not seek to file statements from
other
carers
following the dating of the injuries by Dr Offiah and subsequently
Dr Fairhurst. On the second day of this
hearing
Miss
Murphy
for the
mother
sought permission to file statements from those
carers
who had helped look
after
M
after 19th December.
I said I would consider that application once statements had been obtained but in
the event none were obtained and the application was abandoned
The timing of the fractures
98.
I
acknowledge of course that Dr Offiah and Dr Fairhurst do not fully agree with
the time brackets for some of the injuries but that is to be expected when their
opinion evidence is based upon an interpretation of images. There are always
margins
within which radiologists have to work. In this particular case there
is no need to prefer either Dr Offiah or Dr Fairhurst where they differ and so
I adopt the local authority approach to the timing of the
fractures
taking the
earliest and latest dates respectively. For convenience I have highlighted
those dates in the table set out earlier.
99.
I make
clear
that
massaging
would have had no effect on the dating of any of the injuries,
something which is accepted by all the relevant experts but not by the parents.
100.
Although
there has been discussion between the experts as to whether the injuries
occurred on one or more
occasions it is not necessary for the purpose of this
judgment for
me
to determine that issue.
The cause of the fractures
101. Both parents now accept that;
a.
all of the
injuries sustained by M
were as a result of
non-accidental, or inflicted, injury and that excessive force would have been
used to cause the injuries, and
b.
there is no
pathological underlying organic, medical
or iatrogenic explanation for the
injuries
M
sustained, and
c.
the distress
caused to M
at the time of sustaining the
injuries would have been noticeable to any
caregiver
102.
None of
these fractures
occurred at birth. That is abundantly clear. There is no doubt
about it given the timing of the injuries. I cannot begin to understand why the
parents have continued to suggest that the procedure at birth can have in any
way caused any of these injuries.
103.
Neither did
any of these fractures
occur at the hip ultrasound scan on 12 January
2017.
There are a number of reasons why that is the case. First a number of the
fractures
cannot have happened, because of the timings of them, at the USS. It
is improbable and unlikely that some injuries were inflicted at the USS and
others elsewhere on another occasion.
More
importantly I have
heard
detailed
evidence from the two sonographers. They were honest and credible witnesses who
simply did not remember this particular USS because it was unremarkable. I
accept entirely their evidence. The
fact
that
M
may
have presented with
splayed legs and bent knees (“frogs legs”) is irrelevant because I accept the
sonographer’s evidence that it was not necessary to force the legs together in
the way the parents suggest in order to obtain an image.
104.
I do not
accept the parents evidence about what happened on 12th January at the
USS. I can accept that M
was distressed and crying to the
point that YH had to take over but I do not accept that the scan was performed
by both sonographers together, that either of them used excessive force in a
way which caused injury or that there was anything unusual about the way the
scan was performed. This was a routine procedure and the
fact
that the
sonographers did not remember it is consistent with it being routine and
unremarkable. It is simply not credible that either of these sonographers caused
any
fracture.
I feel particularly sorry for XF having to give evidence which
has obviously caused her distress and has caused her to shy away from
performing paediatric hip ultrasound scans. I would encourage her to think
again about that decision. She seemed to
me
to be very professional and she
should be reassured that the parents during their evidence said that she had
been gentle with
M
lang=EN style='font-family:"Arial",sans-serif'>. Add to the picture the clear
evidence of the level of force required to inflict a single
fracture,
and the
fact
that we have
multiple
fractures
it is just not possible in
my
view for any of
these
fractures
to have been caused at the USS.
The pool of perpetrators
105.
In terms of
individuals who had the care
of
M
during the periods
when she suffered the injuries, both parents
cared
for
M
during the periods for
each of the injuries. Nobody else
cared
for
M
during
the periods encompassing all the timescales for all the injuries. No party has
suggested that any of the other family
members
who were assisting in the
care
of
M
fall within the pool because of the inherent improbability of injuries
being inflicted by two different
carers
on two separate occasions. I agree
with that approach
106.
Reminding
myself
of the test, is there a likelihood or real possibility that a person was
the perpetrator I am driven to the conclusion that both
mother
and father are
in the pool of perpetrators. Certainly there is likelihood or real possibility
that
MM
was the perpetrator. He was the primary
carer
of
M
throughout the period when these injuries were caused and I
have rejected the explanations that he has given for the cause of the injuries.
107.
I have given
considerable thought as to whether there is a likelihood or real possibility
that NM was the perpetrator. I am very conscious of her difficult recovery from
a traumatic birth and then her readmission to hospital with an infected wound.
That would have inhibited her significantly after she left hospital on 3
January. She would have had difficulty lifting M
and
it is clear that
most
of the routine caring of the baby, for example bathing
and nappy changing, was undertaken by
MM.
Further, the window of opportunity
in respect of some of the
fractures
is quite limited bearing in
mind
that she
was in hospital until 3 January . It is also true that she showed
understandable emotion when speaking about what had happened. She desperately wanted
to know what had happened to her baby.
108.
I am also
conscious that T has been cared
for perfectly well by her
mother
throughout her
life and that NM acted in a completely protective way on the one occasion that T
has come to the attention of the authorities a number of years ago when she was
hit by T’s father.
109.
I am also
conscious that it is for the local authority to prove the facts
asserted on the
balance of probabilities. It is not for NM to prove anything. I do not think
on the evidence that I have that she can be excluded from the pool of
perpetrators. I am particularly troubled by her evidence around the dating of the
swelling she noticed to
M’s
legs which, until this
hearing,
she had always said
she noticed on 14th January. I think she changed her evidence
because of Dr Rylance’s evidence that swelling would be apparent within 24
hours. That does not of course
mean
that she inflicted that or other injuries
but it does lead
me
to a
finding
of a likelihood or real possibility that she
was the perpetrator. To exclude her from the pool would, in
my
view be
straining too far in a way which I should not do.
110.
It follows
in my
view that the injuries sustained by
M
were inflicted by
either or both of the parents.
Failure to protect
111.
It also
follows that whichever of the parents caused the injuries they failed to
protect M
by not seeking timely
medical
assistance. I do accept that if only one of the parents inflicted the
metaphyseal
injuries, the other parent
may
not have known about the injuries.
As Dr Rylance said, those injuries
may
not have been apparent. Of course
medical
attention was sought in relation to the shaft
fractures
but not for two or
three days after swelling became apparent and this too was a failure to protect
M
from harm.
Conclusion
112.
I need both
parents to reflect carefully
on their positions. There will of course now be
further risk and welfare assessments but it is very difficult to assess risk
moving
forward without understanding exactly how these injuries were caused to
M
lang=EN style='font-family:
"Arial",sans-serif'>. If the parents are to give themselves, and the children,
the best chance of remaining with one or both of them then they
must
explain
how
M
came to suffer these injuries. I
hesitate to say that it is fortunate that
M
did not suffer even
worse, longer lasting, injuries but that is indeed the case. Both children
deserve to be protected in a way which
M
has not been.
Social workers and
medical
professionals are there to protect children from
harm. That is exactly what has happened in this case. The parents need to
understand that no professional has caused harm to their child. It is one, or
both, of them who has inflicted these injuries on
M
His Honour Judge Perusko
14 July 2017