- In the early hours of 6 October 2023 their father and maternity nurse, Emily Waters,
brought
a
twin
X, aged 5 weeks, to the Accident and Emergency Department of their local hospital. X was unsettled and in distress. The
twin
was found to have sustained a fractured left femur, and during the enquiries triggered
by
this discovery
both
this child and their
twin
Y, were found to have sustained a number of
injuries.
This judgment concludes a fact-finding hearing held to determine the nature of the
injuries
and the circumstances in which they occurred.
- The local authority, the parents, and the second and third interveners, night nurses privately hired
briefly
to care for the
twins
overnight (hereinafter 'night nurses'), accept the expert evidence in
respect
of the
injuries,
and they assert that all of the
injuries
to
both
twins
were caused
by
Emily Waters. Ms Waters challenges some of the medical evidence as to the nature, timing and causation of the
twins'
injuries.
She accepts
responsibility
for X's fractured femur and a small
bruise
seen on X's forehead,
both
of which Ms Waters describes as accidental, and she denies causing any other
injuries
to the
twins.
- The
twins
have
remained
living with their parents throughout the period since their discharge from hospital, with arrangements in place to ensure that the parents are always supervised when caring for the children. The
twins
are developing well in their parents' care and there are no concerns about that care which is described in very positive terms
by
medical and professional witnesses. The
twins'
older sibling has also
remained
at home throughout; the sibling sustained no
relevant
injuries
and there has never
been
an issue as to the quality of the sibling's care.
Concise chronology
- The mother and father have lived together for years initially abroad and then in London. Married for over ten years, they have three children, their first child who is now 7, and
twins
X and Y.
- The
twins
were noted to
be
MCMA, growing in one sac and sharing one placenta. They were
born,
prematurely, at 33+5 weeks. They
remained
in the Special Care
Baby
Unit at hospital until 16 September 2023 when they were transferred to another hospital. The
twins
were discharged home on 21 September 2023 once they and their mother were sufficiently settled into their feeding
regime.
- In the period
between
the
twins'
return
home on 21 September and their admission to hospital on 6 October 2023 they were cared for
by
their mother who
breastfed
them and expressed milk when she was not available to feed them. The father helped the mother as much as he could while working
both
from home and from his office; he especially assisted with the care of the older child given the need for the mother to focus on the care of the
twins.
The parents were assisted in their care of the children
by
the three interveners. One night nurse cared for the
twins
overnight on 21 September, 22 September and 1 October 2023. Another night nurse cared for the
twins
for the one night of 24 September 2023.
- Maternity nurse Emily Waters
began
working for the family on 25 September and she was still working for the family when X was admitted to hospital on 6 October. Under her contract she worked each week for 20 hours a day from lunchtime on a Monday to lunchtime on a Friday, with the expectation that she would undertake the
twins'
night-time feeds using milk expressed
by
the mother. The words "nurse" and "nanny" have
both
been
used to describe Ms Waters. There is no forensic significance to the title and for consistency, without any other significance, I will use the term "nurse" in this judgment.
- The family also employed a nanny once a week to help with the older child's care.
- To all appearances the
twins
were settling in well at home with no concerns expressed either
by
anyone within the family or
by
the various professionals who saw the
twins
over this period. Indeed, those professionals comment extremely positively on the care given to the
twins
by
the mother in particular. It is now clear that from the start of her employment in the family home, Ms Waters was expressing concerns to friends via WhatsApp about the quality of the parents' care of all three of their children. She did not, however, maintain those criticisms in the course of her evidence in the case, and they stand alone in contrast to the
rest
of the evidence.
- X sustained a small
bruise
on their forehead in Ms Waters' care on 4 October, which Ms Waters explained was caused when X "headbutted" her in an accident during feeding. The parents accepted the explanation and were not unduly concerned.
- The first sign that something was wrong came when Ms Waters woke the mother at around 2am on the morning of 6 October 2023, saying that she thought there was something wrong with X. The mother woke the father who called 111. To avoid delay rather than wait for an ambulance, the father took X and Ms Waters to the local hospital where X was x-rayed, and the fracture to the femur discovered.
- Subsequent investigations of the three children led the clinicians in the treating and initial investigative team to the following conclusions:
a. The older child had sustained only one fracture some years earlier, and that had
been
innocently explained;
b. X had sustained,
i. Left parietal linear skull fracture with overlying soft-tissue swelling;
ii.
Bruise
to the left side of forehead;
iii. Displaced oblique midshaft fracture of the left femur and swelling to the left thigh;
iv. Fractures to the right ribs – 1st (posterior), 5th and 6th (lateral), 8th and 9th (posterior);
v. Fractures to the left ribs – 4th (lateral) and 9th (posterior);
c. Y had sustained,
i. Fractures to the right ribs – 9th, 10th and 12th (posterior);
ii. Fractures to the left ribs – 6th and 7th (lateral), 8th (posterior), 8th (posterolateral), 9th (posterior), 11th and 12th (posterolateral).
- Safeguarding
referrals
were made as soon as the femoral fracture was discovered, and the police and children's services
began
their investigations. The police interviewed the
twins'
parents and, subsequently, the interveners. The police investigation is ongoing and the police, it is understood, await the outcome of these family proceedings
before
deciding how to move forward.
- The local authority issued care proceedings on 19 October 2023. the older child was made subject of an Interim Supervision Order, and the
twins
were made subject of Interim Care Orders.
- The
twins
were discharged home from hospital on 31 October 2023, and they have
remained
at home ever since. The older child's care is supervised
by
the paternal grandmother and nanny. The
twins'
care is supervised at all times
by
agency support workers provided
by
the local authority.
- Emily Waters stopped working for the family on her
return
from hospital on 6 October 2023.
- In the course of these proceedings expert evidence in
respect
of the nature, mechanism and timing of the
twins'
injuries
has
been
gathered from the following consultants:
a. Dr Kieran Hogarth, neuro-radiologist;
b. Dr Adam Oates, radiologist;
c. Dr Russell Keenan, haematologist;
d. Dr Ian Ellis, geneticist; and
e. Professor Peter Fleming, paediatrician.
There is no challenge to the conclusions of Dr Keenan and Dr Ellis who exclude, for the court's purposes,
both
any underlying
blood-clotting
disorder and any genetic predisposition
relevant
to the causation of the
injuries.
- Evidence about the circumstances leading up to 6 October has come from each of the lay parties who have set out in detail their accounts of their actions and the
twins'
lives over the
relevant
period.
The hearing
- This hearing
began
on 3 June
2024
and the evidence concluded on 26 June
2024.
- The hearing was timetabled to judgment over 15 court days ending on 21 June. As the issues crystallised, this appeared to
be
a timetable which allowed for
reading
time, evidence, submissions and judgment. The timetable was interrupted
by
the withdrawal from the case of leading counsel for Ms Waters, on 11 June on the grounds of ill health. In circumstances set out in my judgments of 12 June and 17 June I
refused
both
an indefinite adjournment of the case and then a longer extension of time within the proceedings. In short, I considered that this would
be
a fair hearing with time allowed to Ms Waters' team to
re-group,
and this also allowed the case to conclude albeit with the delay of some six weeks that the loss of time has caused. I
regret
the fact that Ms Waters, already facing a daunting hearing, had to adjust to new leading counsel and, further, that she alone of all the witnesses in the case faced giving evidence in a more daunting courtroom at the Royal Courts of Justice rather than the local family court. I am extremely grateful to Ms Lewis KC for taking over Ms Waters' case, and I am confident that with the time allowed for her to prepare for the
balance
of the case, this was a full and fair hearing in which all of the parties and interveners had the fullest opportunity to participate. No party has suggested otherwise in their helpful closing submissions.
- I am grateful to the legal teams in this case not just for their expertise and commitment in preparing and presenting their own cases
but
for their collaborative approach, for instance in
respect
of the substantial volume of medical evidence and of the analysis of the substantial
body
of phone
record
evidence which arrived
relatively
late in the forensic process. I must also commend Mr Jockelson, the solicitor who acted for the first night nurse pro
bono
and who also, over time, plainly
became
a significant conduit and support for the second night nurse, the unrepresented intervener.
- I have
read
the documents to which my attention has
been
drawn, in the core
bundle,
the supplemental
bundle
and in the phone
record
bundle.
I have
received
and viewed as necessary the parties' police interviews.
- I have taken the oral evidence of,
a. the older child's nanny;
b. Dr M, treating clinician at the hospital;
c. Dr H, treating consultant at the hospital;
d. Dr Hogarth;
e. Dr Oates;
f. Ms M, paediatric safeguarding lead at the hospital;
g. Ms C, ward sister;
h. Professor Fleming;
i. The mother;
j. The father;
k. night nurse, intervener;
l. night nurse, intervener;
m. Emily Waters, maternity nurse, intervener.
The Law
- The principles to
be
applied at a fact-finding hearing are set out in various judgments, perhaps most oft cited is the judgment of
Baker
J (as he then was) in
Re
IB and EB [2014] EWHC 39 (Fam):
a. The
burden
of proving a fact lies on the party asserting it. The
responding
party
bears
no
burden
and has nothing to prove.
b. The standard of proof is the
balance
of probabilities. In deciding this question
regard
must
be
had to whatever extent is appropriate to inherent probabilities. As to inherent improbabilities, as Jackson J (as he then was) observed in
BR
(Proof of Facts) [2015]
EWFC
41, the fact that an event is a very common one does not lower the standard of probability to which it must
be
proved. Nor does the fact that an event is very uncommon raise the standard of proof that must
be
satisfied
before
it can
be
said to have occurred. Similarly the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred.
c. Findings must
be
based
on evidence, not suspicion or speculation.
d. When considering cases of suspected child abuse the court must "survey a wide canvas" and must take into account all the evidence, and must weigh each piece of evidence in the context of all the other evidence. As the President, Dame
Butler
Sloss, observed in
Re
T [2004] EWCA Civ 558 "evidence cannot
be
evaluated and assessed in separate compartments. A Judge in these difficult cases must have
regard
to the
relevance
of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward
by
the local authority has
been
made out to the appropriate standard of proof."
e. The court has
received
evidence from a number of experts in this case. The court must pay appropriate attention to the evidence of those experts, whose opinions must
be
considered in the context of all the other evidence. It is important to
remember
that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge that makes the final decisions. The court must
be
careful to ensure that each expert
remains
within their own area of expertise and defers appropriately to the expertise of others.
f. The evidence of the parents and interveners is of particular importance. The court must
reach
clear conclusions on their credibility and
reliability.
Each must have the fullest opportunity to take part in the proceedings, and the court is likely to place considerable weight on their evidence and the impression it forms of them. For the test of fairness of a fact-finding hearing, a fairness not in fact challenged in this case, I take into account the principles set out
by
Jackson LJ in
Re
(A Child: Fair Hearing) [2023] EWCA Civ 215.
g. It is common for witnesses to tell lies in the course of an investigation and a hearing. The court must
be
careful to
bear
in mind that a person may lie for many
reasons
such as shame, misplaced loyalty, panic, fear and distress and the fact that a witness has lied on some things does not necessarily mean that he or she has lied about everything. Considering R v Lucas [1981] QB 720 in the case of
Re
A,
B,
C [2021] EWCA Civ 451, Macur LJ
referred
to the helpful guidance in the Crown Court Compendium as a helpful summary of the principle: "1. A defendant's lie, whether made
before
the trial or in the course of evidence or
both,
may
be
probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown,
by
other evidence in the case, to
be
a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it
relates
to a significant issue; (3) it was not told for a
reason
advanced
by
or on
behalf
of D, or for some other
reason
arising from the evidence, which does not point to D's guilt. 2. The direction should
be
tailored to the circumstances of the case,
but
the jury must
be
directed that only if they are sure that these criteria are satisfied can D's lie
be
used as some support for the prosecution case,
but
that the lie itself cannot prove guilt". Where this issue arises in a family case, good practice
requires
counsel seeking an adverse finding from a lie to identify the deliberate lie on which they seek to
rely,
the significant issue to which it
relates
and the
basis
on which the court can determine that the only explanation for the lie is guilt.
h. As observed
by
Dame Elizabeth
Butler-Sloss
P in
Re
U,
Re
B
(Serious
Injury:
Standard of Proof) [2004] EWCA Civ 567, "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
would throw a light into corners that are at present dark". It is important for a court in considering aetiology to take into account the possibility, to the extent that it is appropriate in any case, of the unknown cause".
i. The court's approach to identifying a perpetrator was more
recently
considered
by
Jackson LJ in
Re
B
(Children: Uncertain Perpetrator) [2019] EWCA Civ 575. From his judgment come the following principles:
i. The court should first identify a list of people who had the opportunity to cause each
injury;
ii. The court must then determine whether a civil standard finding can
be
made against a single individual or individuals – "so, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the
relevant
allegation can
be
proved to the civil standard against an individual or individuals in the normal way". The court should "seek,
but
not strain, to do so."
iii. Only if it cannot identify the perpetrator(s) to the civil standard of proof should the court go on to ask in
respect
of those on the list: "Is there a likelihood or
real
possibility that A or
B
or C was the perpetrator or a perpetrator of the
inflicted
injuries?"
Only if there is should A or
B
or C
be
placed in the pool. Thus the test must
be
one of inclusion not exclusion.
iv. It is theoretically possible for the court to
be
unable to make a civil standard finding against an individual,
but
for the 'pool' to
be
whittled down to a single individual on the
basis
that he or she alone satisfied the "likelihood or
real
possibility" test. Thus, at paragraph 51 of
Re
B,
Jackson LJ states "so where there is an imbalance of information about some individuals in comparison to others, particular care may need to
be
taken to ensure that the imbalance does not distort the assessment of possibilities. The same may
be
said where the list of individuals has
been
whittled down to a pool of one named individual alongside others who are not similarly identified. This may
be
unlikely,
but
the present case shows that it is not impossible. Here it must
be
shown that there genuinely is a pool of perpetrators and not just a pool of one
by
default."
j. While the legal consequences of a finding that an allegation has not
been
proved are no different from the exoneration of an accused party, I am asked in this case to exonerate a number of the parties. Setting out the
relevant
law on exoneration in AA & Os (Children) [2019]
EWFC
64, Sir Mark Hedley said that "If the court has concluded that someone did not do something alleged, as distinct from its not
being
proved that they so acted, then in common justice the court should say so…what is the test for exoneration? All parties agree that it is more than simply a finding that a specific allegation has not
been
proved against them. I suggested an analysis that whilst the legal
burden
of proof at all times
remains
on the local authority, a party seeking exoneration assumes an evidential
burden
to satisfy a court of their innocence on a
balance
of probabilities. No one sought to suggest that was wrong nor to argue for any particularly different approach. In my judgment where the court accepts that a party has given frank evidence, specifically accepted
by
the court, then the court should say so, and assuming that evidence to
be
consistent with exoneration, the court should say that too. That is conceptually clear, simple, and in accordance with justice."
k. If the court makes an adverse finding against either parent then the threshold criteria will
be
met. If the court makes a sole perpetrator finding against Emily Waters alone then the threshold criteria will not
be
met: see the principles set out in
Re
S-
B
[2009] UKSC 17 per
Baroness
Hale.
The Findings sought
- I start with an analysis of the
injuries
sustained, the mechanism and timing according to the medical evidence. I will then move on to
review
that evidence in context when considering the lay evidence about the circumstances of and around the
injuries
and how they may have
been
sustained, so that my ultimate conclusions are
based
on all of the evidence looked at together, without either the expert or the lay evidence having any inherently greater weight. My ultimate conclusions are set out in
response
to the Schedule
reproduced
at the end of this judgment.
THE
INJURIES
X's skull fracture/ swelling
- The neuroradiology is the most important evidence when the court comes to determine whether or not X sustained a skull fracture. Dr Hogarth's evidence, to which Dr Oates and Professor Fleming deferred, is to
be
found in his
report,
in the experts' meeting and in his oral evidence.
- In his
report
Dr Hogarth identified a "fairly long linear lucency within X's left parietal
bone"
with some overlying minor scalp swelling. Y's CT scan which he also analysed, showed several linear lucencies, all of which were accessory sutures. Dr Hogarth identified the lucency on X's scan to
be
either a fracture or a complex fracture/suture combination i.e. a pre-existing accessory suture had
been
lengthened due to an impact
injury.
Overall "the soft tissue swelling pushes the needle to favour a fracture over an accessory suture". Dr Hogarth took into account the
relative
susceptibility to fracture of the skull from an impact
injury
of a premature 1 month old infant. He noted that if the impact was over an accessory suture the force
required
to cause a fracture would have
been
less than elsewhere as the suture would have acted as a point of weakness in the
bone.
In the experts' meeting Dr Hogarth said "we could
be
talking about a fairly minor knock".
- In the course of the experts' meeting he said that,
"this question
refers
to the linear lucency, or a line, that we can see in the left parietal
bone
joining the sagittal structure and there was a very small or minor amount of soft-tissue swelling over that line. The way I've approached it in my
report
is an analysis solely on the neuroimaging, and I've offered the court what I think are the possible explanations for that line, and I've said that the presence of some soft tissue swelling over that line suggests that there had
been
some kind of impact
injury
to that area of the head and that might push the needle or tip the
balance
towards thinking that at least part of the causation for that line is trauma to the underlying
bone.
What we've said essentially is that this could
be
a linear parietal skull fracture with overlying soft tissue swelling. I think it's a strong possibility that there could have
been
an accessory suture there which has
been
elongated as a
result
of trauma to that part of the
bone,
or the alternative, which..I favour least, is that it's just an accessory suture which just happened to have an
injury
over it which produced some soft tissue swelling. So these are the three main possibilities…from within the neuroradiology domain.
There's always a possibility of skull fractures occurring during delivery. It's thought to
be
very rare..It can't
be
excluded as a possibility. The minor soft tissue swelling of the scalp would not
be
expected to have persisted from
birth..unless..there
was some large amount of soft tissue swelling or fluid collection under the membrane..and I don't
recall
anything like that
being
reported
at the time of delivery."
- Professor Fleming agreed at the experts' meeting that "the two options Dr Hogarth preferred would also
be
the ones that I would prefer. This is either a straightforward
injury
or a
relatively
less severe
injury
at the site of an accessory suture and..my preference would
be
for that latter one". Professor Fleming confirmed that metabolic
bone
disease was very rarely an issue at this age, and none of the
relevant
risk factors apply in this case. He agreed that genetic testing is an ever-evolving science, and so the possibility of genetic susceptibility must always
be
considered.
- In his oral evidence Dr Hogarth was unable to
reach
a conclusion as to whether the lucency was a fracture line novo over an intact
bone
or the elongation of a suture line
by
an impact over the same site. He
rejected,
on
balance,
the proposition that the scalp swelling was the only
injury.
Neuro-radiological factors supporting that
rejection
included,
a. That the overlying swelling is a hard pointer towards there
being
a fracture, whether or not over a suture;
b. The absence of a zigzag line and the widening of the line as it approaches the sagittal suture are
both
soft factors pointing to the presence of a fracture, whether or not over a suture; and
c. Y's skull CT is different to X's, comprising multiple short suture lines none of which
resembled
any case of skull fracture that Dr Hogarth had seen clinically.
- As to timing, Professor Fleming confirmed in
relation
to Dr Hogarth's evidence about X's
birth
that there is no
record
of any complication during
birth
or swelling seen on X's skull after
birth.
While skull fractures are not amenable to ageing swelling is, absent any larger longer lasting pre-existing swelling, Dr Hogarth concluded that the skull fracture was caused at the same time as the swelling, within two weeks of the scan on 6 October.
- In his
report
and at the experts' meeting Dr Hogarth confirmed, as to the degree of force
required
to cause the skull
injuries,
that the
injuries
are consistent with a single impact, and that the
required
forces would
be
caused
by
an impact against a hard unyielding surface. He maintained his view that although there is no quantitative scientific evidence of the force
required
to injure a child for obvious
reasons,
a lesser force would
be
required
to injure a skull over an existing suture line. Professor Fleming's written and oral evidence was that in either case there would still need to
be
an impact, there would still need to
be
significant force generated, and the event would
be
memorable, not least given X's likely
reaction.
Normal handling, whether gentle or robust, would not have generated the necessary forces, and the location of the
injuries
was such that Professor Fleming struggled to envisage what sort of rough handling could have caused it. His thought
based
on his extensive clinical experience of head
injuries
was that if accidental it would
require
something akin to a knock of X's head against a doorpost.
- All parties save Ms Waters invite the court to make the findings sought
by
the local authority, namely that X did suffer a fracture, with or without an accessory suture, with overlying soft tissue swelling, caused
by
a single
blow
to the head or impact against a hard or unyielding surface, with less force if the impact was over an accessory suture and that X was immediately distressed at the point of
injury.
- Ms Waters invites the court to conclude on
balance
that X did not sustain a skull fracture. On this issue and indeed in
respect
of all of the
twins'
bony
injuries,
Ms Waters urges caution, given the unusual circumstances in this case of small, premature MCMA
twins
and given what is unknown as much as what is known in current medical science. She points in particular on the issue of X's skull
injury
to the difficulties in distinguishing
between
a fracture with and a fracture without an underlying suture. She
reminds
the court of Dr Hogarth's comment in the experts' meeting that a fracture could possibly
be
caused over a suture line with only a "minor knock" and she highlights Dr Hogarth's third possible cause of the lucency, namely that there was only a soft tissue
injury
which was coincidentally located above a suture line with no fracture at all. The swelling was, she submits, "very small and minor". She further submits that the possibility of an unknown cause must
be
factored in and that the possibility of an unknown genetic condition affecting
bone
strength
remains
a live one, citing Professor Fleming's caution about the limits of current science to test for genetic conditions. Indeed in her submissions she goes so far as to submit that there is "compelling support for the proposition that these infants are likely to have susceptibility to fracture from lesser force than would otherwise
be
expected".
- The medical evidence alone establishes, in my judgement, that,
a. X probably sustained a skull fracture, which may have
been
either over an intact skull or over an accessory suture, with overlying swelling;
b. It is possible
but
unlikely that X sustained only scalp swelling which happened to
be
directly over a lengthy accessory suture;
c. The force
required
to cause a fracture over an accessory suture would
be
less than the force
required
to fracture an intact skull,
but
in either case there must have
been
either a
blow
to X's head or an impact against a hard unyielding surface;
d. It is unlikely
but
cannot
be
wholly excluded that some unknown medical cause accounts for the fracture, and/or that X had some heightened susceptibility to fracture due to an as yet unknown genetic cause;
e.
Regardless
of which of the three possible causes of the skull/ scalp
injury
is correct, there would need to have
been
an impact on the swelling site which would have
been
obvious to the carer at the time,
both
because
it happened and
because
of X's probable
reaction
of immediate distress;
f. A carer not present would not have known that X sustained an
injury.
- Ms Waters is right to urge caution on the court, and to
remind
the court of the need carefully to consider whether there is an underlying genetic cause for the lucency and/or the swelling seen. The court has, however, the assistance of the evidence of Dr Keenan and Dr Ellis who
reported
on any
relevant
underlying causes or predisposition to
injury.
Their evidence was that there was no such underlying cause or predisposition. The evidence was unchallenged, I accept it and
both
Dr Hogarth and Professor Fleming deferred to it. I found
both
Dr Hogarth and Professor Fleming to
be
impressive witnesses who were thoughtful and fair, and
ready
to acknowledge
both
the specific limits of their own expertise and the limits of medical science. I accept their evidence, and factor it into my conclusions above.
- I accept the submission that the court need not strain to decide
between
a fracture and a fracture/suture as either suffices for the court's forensic purpose. I further
remind
myself that there was no challenge to the presence of the swelling over the lucency. While the presence or absence of a fracture has medical significance, in forensic terms the presence of any
injury
to X's skull
requires
an impact even if only a "
relatively
minor knock". Even if there was no fracture to X's skull, therefore, the swelling alone indicates that there was a knock against a hard surface that would, however minor, have
been
obvious to the carer of this very young
baby.
None has
been
reported.
- On the question of what skull and scalp
injuries
X sustained the medical evidence is extremely important. I will, nonetheless,
return
to my overall conclusions putting my conclusions on the medical evidence into the wider context. I
remind
myself that improbable events happen every day and that unlikely events – even highly unlikely events – do happen.
Bruise to X's forehead
- There is no dispute that X sustained this
injury,
when they did so and that they sustained the
injury
when in the sole care of Ms Waters. There seems to
be
no challenge to the proposition that a
blow
to X's head would have
been
required
to cause the
bruise
– and indeed on Ms Waters' evidence that there was such a
blow.
I so find. As to the circumstances of how the
injury
was sustained, I analyse the wider canvas of the evidence in due course.
Femoral fracture
- All parties accept the medical description of X's
injury
which I also accept and find. All parties accept that the
injury
occurred when X was in the sole care of Ms Waters which I also find.
- All parties save Ms Waters support the finding sought as to causation, specifically that the degree of force
required
to cause the fracture was "far
beyond
that used in normal handling, and
recognisable
to any independent observer as obviously inappropriate".
- Ms Waters again points to the very specific circumstances of the
twins'
conception and the possibility of an unidentified genetic susceptibility to fracture – described in her closing submissions as "the likely presence of susceptibility to fracture" – in inviting the court to accept Ms Waters' account of how the
injury
was caused.
-
Both
Dr Oates and Professor Fleming told the court that femoral fractures are "vanishingly rare" in young children. A significant amount of force is needed to cause this fracture even in a premature
baby;
Professor Fleming used the phrase "exceptional force". The experts were asked about the two different mechanisms arising from Ms Water's descriptions of how she injured X's leg. To Dr M and Dr H, treating doctors on admission, she described lifting X up with a twist caused
by
X's leg getting caught in an item of Ms Waters' clothing. Subsequently, Ms Waters described placing X down onto a trapped leg.
- While the experts considered the plausibility of the earlier "lift and twist" movement as a cause of the
injury,
and were not persuaded that it was a plausible cause of the
injury,
that is now irrelevant since Ms Waters has maintained the description of placing X "down onto a trapped leg" as the cause, and indeed she demonstrated that manoeuvre
both
to the police and during her oral evidence. Dr Oates considered this mechanism to
be
"potentially more plausible", i.e. more plausible than the lift and twist, if Ms Waters'
bodyweight
had
been
involved. This mechanism was, he said, "very unusual..
but
possible". As to the force
required,
however, he said that significant force would need to accompany the mechanism otherwise the fracture would
be
much more common than it actually is since carers put
babies
down in this way multiple times every day. Professor Fleming also said that this mechanism was "plausible
but
extremely unusual". In his clinical experience, this type of fracture
remains
very unusual despite
babies
being
cared for
by
parents who are "inept, clumsy and careless". He said that "I can't imagine that putting a child down in an awkward position gently would do this, it
requires
a rapid and forceful lowering".
- Ms Waters submits that the mechanism she described was considered plausible and should
be
accepted
by
the court. She invites the court, as I take her submissions, to
reject
the proposition that very significant force would have
been
required
to accompany the mechanism described, and to do so on the
basis
that the evidence establishes – and/or that the court should
be
cautious in excluding the possibility of - a susceptibility in the
twins
to fracture with the application of less force than in other children.
- The conclusion of the medical evidence is that this highly unusual fracture would
require
the application of an excessive twisting/rotational force, far
beyond
that used in normal handling, and
recognisable
to any independent observer as obviously inappropriate. The mechanism described
by
Ms Waters is a plausible though very unusual mechanism as a cause of the
injury
but
that mechanism would have to have
been
accompanied
by
a significant degree of force far
beyond
normal handling to cause this
injury.
- This is the agreed conclusion of Dr Oates and Professor Fleming, careful witnesses who are alert to the possibility of unknown cause and the evolution of medical science. It also
reflects
the unchallenged evidence of Dr Ellis as to the presence in these
twins
of any underlying susceptibility to fracture.
- Here too, however, I
remind
myself that improbable events happen every day, and unlikely – even highly unlikely – things also do happen. Here too, therefore, I will place the medical evidence in context when
reaching
my ultimate conclusions.
Rib Fractures
- All parties accept (or do not challenge) the description of the
injuries
sustained
by
the
twins,
that some degree of force was
required
to cause them, that Y's rib fractures were sustained on at least two different occasions and that the children were likely to
react
as described at the time they sustained the
injuries.
No party submits that the timeframe for the fractures extends
back
to
birth.
I make the findings sought accordingly.
- The issue here with the medical evidence, once again, is whether the
twins
were particularly susceptible to fracture and, it follows, as to the degree of force
required
to cause the fractures.
- Dr Oates told the court that rib fractures are vanishingly rare in a domestic context, and that even after significant levels of trauma – for example after a
baby
is injured in a road traffic accident – they are very, very unusual. They cannot have
been
the product of normal or even rough handling. He explained that
babies'
ribs are designed to
be
elastic to allow the
baby
safe passage down the
birth
canal. Dr Oates described how his team x-ray the chests of very many young children for many
reasons
unrelated to trauma and it is exceptionally unusual to see even one incidental rib fracture. Professor Fleming gave similar evidence from his paediatric perspective.
- Ms Waters
repeats
her general submissions as to the importance of
bearing
in mind an unknown cause of all of the
twins'
injuries
and, further, the possibility – if not likelihood - that the unusual circumstances of the
twins'
conception, their development pre-
birth,
and their premature
birth
together
render
both
of them more than usually susceptible to fractures of their
bones.
- Particularly in
relation
to his evidence about the
twins'
rib fractures, she further
relies
on deficiencies in the evidence of Dr Oates of whom she is extremely critical. Her first criticism is that Dr Oates entirely failed to factor into his
report
and conclusions a
report
– "the Glasgow
report"
– which found that in premature
babies
it is rib fractures that are the most commonly detected fractures. Dr Oates further failed to consider and
be
cautious given the lack of
research
into possible increased susceptibility to fracture in premature
twins,
especially MCMA
twins.
He further failed to consider, as evidence that there are unknowns at work in this case, the
relevance
of the fact that one
twin
had 13 rows of ribs and one 14 rather than the usual 12. Her second, linked, criticism is that Dr Oates went outside his
remit,
his area of expertise,
by
factoring in the wider canvas i.e. the sheer number of fractures. He was, submits Ms Waters, dogmatic at times, and he failed to consider, objectively, whether the number of fractures was in fact evidence of an underlying cause for the fractures indicative of an underlying issue that may
be
complex, uncertain or unknown.
- I conclude on the medical evidence,
a. that the fractures were probably caused
by
the application of compression force to the chest far
beyond
that used in normal handling and
recognisable
to an independent observer as obviously inappropriate;
b. that the
relatively
mild prematurity of the
twins
was not a factor
rendering
them susceptible to fractures;
c.
but
that some unknown genetic factor
relevant
to susceptibility cannot
be
excluded given the limits of medical science.
- This is the agreed evidence of Dr Oates and Professor Fleming, unchallenged
by
any other expert evidence.
- I
reject
the criticisms of Dr Oates. He gave a clear radiological explanation for his conclusion that the
twins'
bones
were appropriate for their gestational age, that the
twins
were only mildly premature, and that it was very unlikely that prematurity was
relevant
to the fractures. Whilst
relying
appropriately on the unchallenged evidence of Dr Ellis and Dr Keenan, Dr Oates added from his own experience that whilst there are genetic conditions which can
be
relevant
to the aetiology of
injuries
in some children there was no radiological (or other) evidence of such a factor in this case. In those circumstances Dr Oates cannot
be
criticised for not
referring
to an irrelevant paper. As to the extent to which Dr Oates factored in the wider canvas, that is, I accept, the ultimate task of the court and not the medical expert. That said,
both
Dr Oates and Professor Fleming were within their area of expertise to consider not just the fact of rib fractures
but
their number when assessing the likely cause;
both
did so. I did not find Dr Oates to
be
dogmatic, and conclude that he was a thoughtful, fair and careful witness whose evidence I accept.
PERPETRATION
- All parties save Emily Waters assert that Ms Waters has
been
untruthful about the circumstances of X's facial
bruise
and femoral fracture, and that despite her absolute denials, Ms Waters perpetrated all of the children's
injuries.
Ms Waters maintains her denial of causing any
but
the accidental femoral and facial
injuries.
She does not positively assert that any of the other parties caused the
twins'
injuries,
though as to the children's rib
injuries
she points to the wide time frame and notes that this time frame allows for the possibility of many professionals and others who were in contact with the
twins
having possibly caused these
injuries,
especially if the
twins
were unusually susceptible to fracture with unusually limited force.
Assessment of credibility and
reliability
- I first assess the credibility and
reliability
of the parties.
The mother
- The evidence about the children's mother comes from many sources inside and outside the family. It is all to the same effect. The mother prioritised the
twins
and, from their
birth,
she devoted herself to the rigorous
regime
required
of her
both
to
be
close to the
twins
when they had to
remain
in hospital and to preparing herself for their punishing feeding
regime.
She was seen to
be
devoted to the
twins
from the outset. She
received
only praise from the many professionals constantly present at
both
hospitals, and from the night nurses who subsequently helped with the
twins'
care over some of their early nights at home. She
readily
described, to friends in some messages seen when her phone was interrogated, how exhausting she found the early days, having to go constantly to and from the hospitals, to feed and, when not feeding, to pump so that others had milk with which to feed the
twins.
Her messages were, in my judgement, honest and understandable expressions of exhaustion in the context of excitement and positivity about having the
twins
home. The mother knew how tiring the
regime
about the
twins
would
be
on their arrival home, and so she was keen to make appropriate arrangements for support at night, identifying the two night nurses for suitable assistance until the maternity nurse was able to start her work. While Ms Waters was critical of the mother from the outset in her messages to friends, she did not maintain any criticism of the mother when giving her oral evidence to the court, telling me that she liked and
respected
the mother.
- Ms Waters submits that the parents were
both
unsupportive of Ms Waters,
resenting
her presence in the living area when they were there, when they would have preferred her to
remain
in the lower area of the house where the
twins
had their room. She submits that since the
injuries
were discovered the mother has, whether consciously or subconsciously, embellished her evidence of concern about Ms Waters' handling of the
twins
to support her case that Ms Waters caused all of the
injuries.
She has spoken of Ms Waters
being
heavy handed with the
twins
in a way that made her uncomfortable, when there is no contemporaneous evidence of her saying that to anyone at the time. Had she had a concern about the
twins'
safety, submits Ms Waters, she would undoubtedly have said so, and she didn't. Rather there are
records
of her saying that she found Ms Waters to
be
"annoying" and "not a good fit" which suggests differences of culture rather than safeguarding concerns. Ms Waters cautions against accepting the mother's evidence where it is given with hindsight and therefore is likely to contain exaggeration of criticisms of Ms Waters' care of the
twins.
- I had the opportunity to listen to the mother give evidence over the
better
part of a day. I found her to
be
a straightforward witness, whose evidence was undisturbed
by
appropriately extensive and skilled cross-examination. She was able to accept where she was looking at events with the
benefit
of hindsight, describing herself as trusting and naïve, for instance when told about how the
bruise
to X's forehead was sustained.
- I found the mother to
be
a
reliable
and credible witness. I thought that she struggled with feelings of guilt for not having foreseen a risk to her
twins,
and I accept the need when factoring in her evidence to separate out any element of hindsight about what was actually happening at the time. I am satisfied, however, that the mother was not deliberately embellishing or exaggerating her evidence about Ms Waters' care of the
twins.
The father
- Whilst the father was far less directly involved in the intimate care
regime
for the
twins,
the evidence of all professionals in contact with the family is that he was appropriately supportive of his family. He took leave where he could around the
birth
of the
twins
and their
return
home, he worked from home as much as possible when he had to work, and he was able to and did focus on spending time with the older child. For a few days around the date of the
twins'
arrival home the father had
been
unwell with a cold, and he kept away from the
twins
to ensure that he did not pass anything to them or to the mother.
- I had the opportunity to listen to the father give evidence over the
better
part of a day. I found the father to
be
a straightforward witness, whose evidence was also undisturbed
by
appropriately extensive and skilled cross-examination. In particular the father was consistent that he had had minimal direct contact with Ms Waters; he did not take any opportunity to exaggerate any contemporaneous concerns. Though he did say that on the few occasions he saw Ms Waters with the
twins
he was uncomfortable, for instance when she winded the
twins
robustly, or when she swaddled them, something he was not expecting, he did not try and link those observations with any significant worry for the
twins.
He described his feelings as a difference in fit or style, and
readily
accepted that he had had no safeguarding concerns. He accepted that he was "somewhat miffed at having to move myself in my own home"
because
Ms Waters chose to
be
in the living area with the
twins
rather than
basing
herself in the nursery, "the
biggest
room"; he did not deny his feelings about that.
- I found the father to
be
a
reliable
and credible witness.
The two night nurses
- I can take these parties together for my analysis of their
reliability
and credibility.
- These two nurses came into the household as professionals with suitable experience and expertise. No party challenged their positive evidence about the
regime
around the children in the family home. Ms Waters did not cross examine either nurse.
- No party has challenged the
reliability
and credibility of these two witnesses and I find no
basis
on which to do so. I found them to
be
straightforward witnesses and accept them as
both
reliable
and credible.
Ms Waters
- I am unable to accept Ms Waters as a
reliable
and credible witness. The full
reasons
for this conclusion are intertwined with my analysis of the chronology and the evidence
below,
however at this stage of the judgment I identify the key factors in this conclusion as,
a. The stark difference
between
the messages sent
by
Ms Waters from her very first day working for the parents, critical of them
both,
and the evidence of everyone else about the parents. Ms Waters was unable, in my judgement, to explain these messages satisfactorily in her oral evidence and indeed did not stand
by
her own contemporaneous observations;
b. The significant difference in Ms Waters' accounts of how X sustained the femoral
injury;
c. Ms Waters' inability satisfactorily to explain the
reasons
for her delay in waking the mother on 6 October, and to explain her initial explanation that she did not know how or where X was injured.
- On the issue of credibility, I take into account that from the outset Ms Waters accepted causing the
bruise
to X's forehead and the femoral fracture, however I have given that factor limited weight if any given that there was no escape from the fact that the
injuries
were sustained in Ms Waters' care so that Ms Waters had no choice
but
to accept and explain.
- I had the opportunity to listen to Ms Waters give evidence over a full court day. I was troubled throughout
by
her difficulty in explaining significant inconsistencies including the difference
between
her accounts of her state of mind when starting the job – in evidence she told me she was in a good state of mind when starting the job
but
she had messaged two friends just 4 days
before
starting saying the opposite ("after the last 2 weeks. I haven't
been
in a good place.." "my mental health just isn't good"), and the other inconsistencies listed above. On these key points she was simply unable satisfactorily to explain the contemporaneous evidence. When
required
in evidence to demonstrate how X's leg was injured her demonstration was unclear and unconvincing. I did not find her evidence to
be
at all straightforward, and where uncorroborated, I am unable safely to
rely
on it.
Detailed chronology: analysis
- I heard evidence from the parties and from the nanny about the care of the children from their
return
home on 21 September until 6 October. In my analysis of credibility above I touched on the fact that
both
of the parents and the nanny gave evidence that from the 25 September 2023 when Ms Waters started working for the family they were, to varying degrees, of the view that her care of the
twins
was quite heavy-handed. Their evidence was also that she did not appear to
be
warm towards or emotionally invested in the
twins
and, further, that she employed caring methods that left watchers feeling uncomfortable. In particular they
referred
to the fact that she swaddled the
twins
tightly, that she "stacked" them, carrying them one above the other in one arm, and that she fed
both
at the same time, one in each arm, rather than one after another. Tested in evidence, the parents and the nanny accepted that while they noted these matters at the time, they never saw anything that led them to step in or to say anything to Ms Waters let alone to terminate her employment. I find that this job was a poor fit and that the parents, the mother in particular very gentle in her care of her
babies,
decided early on to end Ms Waters' employment,
but
to do so within the terms of her contract rather than peremptorily or prematurely. I accept the submissions of Ms Waters and the local authority that save perhaps for the evidence of a lack of warmth towards the
twins,
these observations do not assist me in determining how the
twins
sustained their
injuries.
I do not accept Ms Waters' submission that they establish some sort of malign "animus" against her.
- Turning to the first incident of concern, in the afternoon of 4 October 2023, X sustained a
bruise
to the forehead when in the care of Ms Waters.
- The mother
remembers
Ms Waters telling her that she and X had
bumped
heads while Ms Waters was feeding and winding X. The mother's
recollection
is that this was during the 3.30pm feed which she did not do that day as she had a work call. Her
recollection
is that Ms Waters said that her chin had come into contact with X's forehead; this is what the mother told the father and what he told staff at the hospital on 6 October. The mother's account is that she asked if they should seek medical advice
but
that Ms Waters said not to worry, that she would monitor the
bruise
and that there was no need to take advice. It is the parents' evidence that later during the 111 call on 6 October, Ms Waters told the father that there was no need for him to tell the 111 call handler about the
bruise,
although he did so anyway.
- In her first statement, Ms Waters said that the mother fed X that afternoon, and that she, Ms Waters, was winding X over her shoulder when X "jerked their head" and
bumped
it on Ms Waters' eyebrow
bone.
In her interview and in her oral evidence she said that while she was picking up X in order to wind them, "X was crying, so as I picked X up,
because
I knew they had wind, they tipped their head and I tipped my head and I caught X's head on my eyebrow
bone".
Ms Waters demonstrated in evidence how she picked X up, holding X with their head tilted
back
so that it wouldn't tip forward,
but
that as X came up to vertical their head fell forward. Further in oral evidence Ms Waters accepted that her statement
read
as if the mother was present when X was
bruised
but
said that the mother was not present. As to X's
response
to the
bump,
Ms Waters told the police in interview that X did not cry, however in oral evidence she said that X did cry.
- Putting aside the factual issue about whether Ms Waters said that her chin or her forehead contacted X's forehead, an issue on which the evidence is not clear cut, there are other factors leading me to the conclusion that Ms Waters has not told the truth about how this incident occurred. I
remind
myself of Professor Fleming's evidence that it would
be
"very surprising" for a
baby
of this age and size to generate enough force to cause a
bruise.
He would expect the
baby's
head to
be
supported, so that any force would
be
generated
by
the carer's hand. I accept that evidence and as a
result
do not accept that X's head" jerked" or that X "tipped" her head. Further even with Ms Waters' demonstration in evidence, I still have no clear account from her of exactly what happened: she has given different accounts
both
of what she was doing (picking X up to wind and winding X on her shoulder) and, as set out above, of X's
reaction
and even of whether the mother was or was not present. Finally, I accept the parents' evidence that on two separate occasions Ms Waters tried to prevent the parents from telling anyone about the
bruise.
- I take into account Ms Waters' many years of experience in her job and her many glowing
references,
however that
renders
even more stark the lack of care
required
for X to sustain a facial
bruise.
I conclude that all of the force involved in causing the
bruise
came from Ms Waters, not from X, and so at
best
the
injury
was caused
by
momentary extreme carelessness on Ms Waters' part, a carelessness surprising in a professional with Ms Waters' experience doing Ms Waters' job. I find that Ms Walters has minimised X's likely
reaction
to the pain of the
blow,
sufficient as it was to hurt Ms Waters (as she told the police) and to cause the
bruise.
I
return
to these conclusions when putting all of the evidence together to
respond
to the Schedule of Findings sought.
- I turn to 6 October,
but
to do so I need to set the context
by
reference
to contemporaneous evidence now available from the phones of the parents and Ms Waters. The parents' phone
records,
which I accept are complete, confirm that the mother in particular was finding the early days of the
twins'
care physically demanding and exhausting. In those
records
there is, however, no evidence that this ever tipped into frustration, impatience or anger. The picture which emerges from Ms Waters' phone
record
is very different. There are very many pages of her phone
records,
and even the summary helpfully prepared for me is lengthy and I do not intend to
rehearse
it in this judgment, however various themes are clear and
relevant
to the issues in the case.
- First, there is information about the job Ms Waters had
before
this family which ended with her contract
being
cancelled on 9 September. In the run up to the cancellation, Ms Waters had
been
vociferous in her criticism of the father in that job, and following the cancellation there was a difficult period of wrangling
between
the previous family and Ms Waters about her pay, with Ms Waters considering suing her previous employers or calling in the police; this appeared to
resolve
only around 20 September, when Ms Waters was already discussing her job with this family.
- Next, the messages chart a difficult period
between
Ms Waters and her partner, and latterly Ms Waters'
reaction
to the fact that the cancellation of her contract with the family
before
this family meant that she did not have the money for a planned holiday to Thailand at the end of the year.
- Ms Waters' own assessment of the impact on her of her circumstances generally was that she was not in a good place mentally, something she
repeated
to friends over 21 and 22 September, 22 September
being
the date she signed her contract with the family to start work with them on 25 September. There were still contractual issues with Ms Waters' agency
by
the end of September, 1 October.
82. The
records
show that from her first day with the
twins,
both
that Ms Waters was finding the job very tough and that she was critical of the parents ("just done my first double feed abs (sic) fuck irs (sic) hard with them", "dad's just come home and he hasn't even seen this (sic)
babies",
"got to take my
break
10-2 due to [the mother] is struggling to
breastfeed
them on her own", "
babies
having a feed at 9 and then it's
bedtime
bloody
exhausted already"). This sets the scene for the dozens of messages over the following days ("mum won't promote good latch", "I'm struggling as
really
low on calories", "makes you wonder how [the parents] even had time to make the
twins",
"I don't rate her husband either", "I'm exhausted already these
twins
are such hard work", "X is just a pain", "[father] hasn't once hold or kissed his
babies
while I've
been
here", "hard work
both
reflux..plenty
of screaming", "I'm seriously flagging….just three and a half hours
broken
sleep is catching up with me", "I've
been
so shit
but
the last few weeks have
been
totally shit", "Jesus when I'm allowed to do 4 hours and they
barely
last 2!!! I'm exhausted" "going to launch these
twins
out the window in a min". Ms Waters did not share any of her difficulties with the parents at the time; given her apparent views about them that is unsurprising.
- To outward appearances the evening of 5 October was uneventful, though it is now known that Ms Waters messaged a friend at 22.23 that evening saying "fed them at 8.45 and already crying for more milk". There is no
reference
to this in Ms Waters' statement, which presents that evening as
resting
with the
twins
asleep
between
their 9 and 12 feeds, and with her, Ms Waters,
being
able to snatch some sleep as well.
Between
00.19 and 00.27 Ms Waters made a number of google searches:
broken
leg
baby;
broken
leg in children –
Boston
Children's Hospital;
broken
leg
baby;
broken
leg newborn x 3;
broken
bones
x2;
broken
leg newborn x 2. At 01.36 she messaged the mother "Are you awake?X". At 01.48 she googled "
broken
leg in 6 week old", and she visited "
Broken
bones,
BabyCenter".
She made 4 calls to the mother at 01.58.
- Ms Waters then went and woke the mother. Ms Waters says that she woke the mother and said that there was something wrong with X's leg, that the parents examined X, that none of them could see anything wrong, that X had cried "a little
but
not concerningly". The parents
relate
that X was screaming, and was visibly more distressed when their leg was touched. They say that Ms Waters said something to the effect that it seemed the problem was with X's leg. It appears to
be
common ground that Ms Waters did not say that she knew something was wrong with the leg, that she knew – or thought – that the leg was
broken
– and she did not give any explanation of how the
injury
had happened. It is further agreed that when the father called 111 and described X's presentation he did not tell the 111 caller that X had a suspected
broken
leg – indeed he had no
reason
to know that as Ms Waters had not told him – and so when the parents decided to get X to hospital quickly, without waiting for an ambulance, they put X into the car seat.
- To Dr M Ms Waters described how she was feeding
both
twins
at the same time, she had X
resting
against the front of her
bent
knees, she picked X up to
burp
them and as she did so X's leg may have
been
caught and twisted. X cried out, settled
briefly,
then started crying inconsolably. Ms Waters said she had then swaddled X in an attempt to soothe X. The fracture was discovered on x-ray at 04.42, and thereafter to Consultant Dr H Ms Waters gave a similar account, worried that X's leg may have "got caught up in [Ms Waters'] pyjamas".
- To her agency, in a note sent at 12.17 on 6 October, Ms Waters said that "When I came to winding them at about midnight I put Y onto my shoulder and using one hand scooped X up catching their leg in
between
my legs and then sitting X on my leg to wind catching X's leg just under them
before
X gave a massive squeal cry". This is the downward motion that Ms Waters demonstrated to the police in her subsequent interview, and during her evidence in court.
- All parties save Ms Waters submit that Ms Waters' words and actions over this period drive the court to the conclusion that she has lied about what happened, and that she has done so to conceal the true circumstances in which X's leg was
broken.
In particular they point to the contemporaneous evidence from Ms Waters herself about how tired and frustrated she was
by
life in general at the time and, in particular,
by
the demands of caring for the
twins.
They point to the fact that though Ms Waters obviously thought – or feared – that she had
broken
X's leg given her searches, she said nothing to the parents or the doctors at the hospital about a possible
broken
leg which emerged only on x-ray; in her oral evidence Ms Waters accepted that she knew X might have had a
broken
leg right from the start of her google searches. This, they submit, is powerful evidence that she had done something she wished to hide. They point to the delay
between
at the latest 00.19 when the searches
began,
and 01.36 when she first messaged the mother as wholly inappropriate and also as evidence that Ms Waters wanted to delay telling the parents she had done something wrong in case X calmed down and it might not
be
necessary to say anything about what had happened.
- Ms Waters submits that she has given essentially the same account of what happened throughout, accepting full
responsibility
for this accidental
injury.
That account is first seen in Ms Waters' own words in her account to her agency, written on 6 October; this is the account she has maintained since. Any differences in detail can
be
explained
by
the fact that she was tired, shocked and worried for X's welfare. Ms Waters demonstrated in court the same motion as she demonstrated to the police and she described to her agency. She answered questions in an open and straightforward manner when giving evidence, making appropriate concessions and thereby establishing her honesty. The court should place little weight on the delay in notifying the parents of the incident since it was
reasonable
of Ms Waters to wait and see if X settled
before
she concluded that there was a need to involve the parents and seek medical attention. Had Ms Waters needed to fabricate a cause for X's
injury
in order to cover up the truth, then she would have created, planned and
rehearsed
a far
better
scenario. Further, in considering the events of 6 October, the court should not draw adverse conclusions from the WhatsApp messages sent at that time. The court should factor in Ms Waters' extensive
record
of caring for
babies
in these difficult circumstances, she was used to it, and the WhatsApp messages merely indicate that she had friends to whom she could let off steam in a way that helped her feel supported despite her
relative
isolation in the family home.
- I have taken into account all of the submissions made on Ms Waters'
behalf,
and I have
reminded
myself carefully of the Lucas guidance. I am, however, driven to a number of conclusions about this evidence:
a.
By
the night of 5/6 October 2023 Ms Waters was in a fragile state of mind, distracted
by
events in her private life, still angry about the fallout from her previous job, feeling unwelcome and isolated in the family home and finding the care of the
twins
absolutely exhausting;
b. On that particular evening on Ms Waters' own account to a friend the
twins
had not settled after their 9 o'clock feed and were crying for milk
before
10.30. The fact that Ms Waters did not tell anyone about this
but
portrayed the night as calm until the
twins
woke for their midnight feed was a deliberate minimisation on her part of the challenges of the evening;
c. At some point
before
00.19, Ms Waters caused the fracture to X's leg;
d.
By
00.19 Ms Waters either knew or was fairly sure that she had
broken
X's leg. She accepted this in evidence and it is consistent with her computer searches at the time. Every search was to do with either
broken
leg or
broken
bones.
I
reject
her evidence in court that she had googled
broken
bones
as her mind automatically went to the worst case scenario as untrue. It is highly unlikely that she had
broken
X's leg – which she had, that she didn't know she had, and that coincidentally she happened to google
broken
leg;
e. The delay from 00.19 to 1.36 was inexcusable. I conclude that she felt guilty about what she had done and hoped that somehow X would settle and no-one need find out;
f. This conclusion is strengthened
by
the fact that even when she woke the parents, Ms Waters said nothing of her
belief
that she had
broken
X's leg. The 111 call handler was therefore unable to give appropriate advice, and X was not, therefore, handled on the
basis
of a
broken
leg either when examined
by
the parents or, more concerningly, when manoeuvred into the car seat for transport to the hospital. For Ms Waters not to give a truthful account even at that point, despite seeing the
broken
leg manipulated into the car seat causing X
real
pain and distress is strong evidence of her wish to conceal the cause of the
injury.
g. Ms Waters has not given a true account of that cause. She has not given a consistent account,
but
rather she has given an account that evolved from simple scooping up and twisting, to putting down onto a
bent
leg. The likely
reason
for this inconsistency is that neither account is true. I conclude that Ms Waters has concealed the circumstances of the
injury
because
the true account of what happened is more adverse to Ms Waters than the scenarios she has described thus far;
h. Ms Waters' demonstrations to the police and to the court of how X sustained her
injury
may contain a plausible (though unlikely) mechanism however they lack anything like the force that is likely, on the medical evidence, to
be
required
to cause this fracture.
- From these conclusions I turn to put all of the evidence together when setting out my findings on the local authority's Schedule of Findings.
X's Skull fracture/ swelling
- On 06 October 2023 X presented at hospital with a left parietal skull fracture, alternatively a left parietal linear skull fracture at the site of an underlying accessory suture. Soft tissue swelling overlay the fracture site.
- The fracture and associated swelling were caused
by
a single
blow
to the head or impact against a hard unyielding surface,
requiring
a significant force. If the fracture overlay an accessory suture, a lesser force would have
been
required
than that needed to cause a skull fracture on a site without an accessory suture.
- X was immediately distressed, and cried, at the point of
injury.
A carer who was not present at the time of
injury
would not necessarily have
been
aware that X had
been
injured.
- The scalp swelling and fracture were
inflicted
deliberately in an undisclosed incident within 2 weeks of the 06 October 2023 CT scan, thus
between
22 September 023 and 6 October 2023 inclusive. In the alternative they were sustained in an undisclosed accident, within the same timescales, which was the
result
of
reckless
care and handling.
- The scalp swelling and fracture were
inflicted
by
or sustained following an undisclosed accident in the care of Emily Waters.
- I make these findings in full. To the extent that they are not already clear from my analyses above, my
reasons
for these findings are as follows.
- My conclusion on the medical evidence is that on the
balance
of probability X did sustain a fracture, with or without an accessory suture. I accept the evidence of Dr Hogarth and Professor Fleming,
both
of whom
regard
as unlikely the possibility that X had only scalp swelling which happened, coincidentally, to
be
over an unusually long accessory suture.
- The other issue taken with the expert evidence was as to the degree of force
required
for the impact to cause the fracture and swelling to X's skull and scalp.
- I conclude that on the
balance
of probability the degree of force
required
to cause the fracture was significant, though less if the fracture was over an accessory suture.
- Despite the unchallenged evidence of Dr Ellis, and in deference to the very fair evidence of Professor Fleming I have carefully considered the unlikely
but
possible conclusion that there is an unknown genetic cause for some increased susceptibility to fracture with, I infer, a lesser degree of force, however I do not
reach
that conclusion in this case. Even if there were a greater than known susceptibility to fracture, since there is no evidence that a fracture would then occur spontaneously there must still have
been
an impact to X's skull at the fracture site. Even if the only
injury
to X's skull/ scalp were the minor swelling, that in itself
required
an impact and cannot
be
explained
by
any increased
bony
susceptibility.
- I have found that Ms Waters caused
both
the
bruise
to X's forehead, also an
injury
to which
bony
susceptibility is irrelevant, and the femoral fracture in circumstances she has not disclosed honestly. I have concluded that she is
being
dishonest in order to conceal the true circumstances of
both
injuries
and that she has done so knowing that the truth would
be
more harmful to her. It is likely, therefore, that in
relation
both
to the forehead
bruise
and the femoral
injury
Ms Waters acted in a way she knew to
be
inappropriate when caring for X and I import those conclusions into my consideration of these skull and scalp
injuries.
- None of these parties caring for X have disclosed any impact
injury
to X's head at the site of the fracture/ swelling, and even if the impact was minor and accidental it would have
been
known to the carer, not least
because
X would have
reacted
to the
blow.
That means that someone is hiding the truth about how the
injuries
occurred.
- I have analysed the evidence about each of the carers, and concluded that the parents and the two night nurses are credible and
reliable
witnesses whose care of the
twins
was appropriate. I accept their evidence that none of them caused or saw
being
caused an
injury
to X's head.
- I have concluded that Ms Waters caused two
injuries
to X and that she has concealed the truth about the causation of each. I have considered Ms Waters' denial of
injuring
X's skull and scalp,
but
having found her to
be
an unreliable witness who is not credible, I can give her denial little weight. I accept that she taken
responsibility
for the femoral fracture and for X's facial
bruise
and consider whether that adds weight to her denial of this
injury
and others,
but
I conclude that this factor is also of little if any weight in support of her denials since Ms Waters had no alternative
but
to accept that she caused those two
injuries.
Further, it is, I conclude, vanishingly unlikely in circumstances where I have concluded that Ms Waters caused X's forehead
bruise
and femoral fracture and concealed the truth, that at the same time X's
bones
have such a susceptibility to fracture for an unknown cause that X's skull was fractured without any impact at all, and that at the same time X sustained a soft tissue
injury
to the skull also without any impact at all. It is likely, and I find, that there was an impact
injury
which has
been
concealed.
- I
repeat
my conclusions about Ms Waters' state of mind over this period,
based
on the contemporaneous evidence unshaken
by
Ms Waters' attempts to distance herself from that evidence now.
- I conclude that while in Ms Waters' care there was a
blow
to X's head as described in the findings sought. Ms Waters has concealed the circumstances of that
blow
and I conclude that she has done so to hide the truth. Given that I do not know the truth about these
injuries
I cannot go further and determine whether they were caused
by
a deliberate impact or
by
a
reckless
accident and so I make the findings in the alternative as sought.
Bruise to forehead
- X sustained a
bruise
to the left side of the forehead c1cm in diameter.
- Emily Waters failed to seek medical attention for X, despite knowing X had sustained an impact to the head caused
by
a deliberate
blow
inflicted
in an undisclosed incident at c3.30-3.45pm on Wednesday 04 October 2023
by
Emily Waters.
- In the alternative, the
bruise
was caused that day in an accidental collision of heads with Emily Waters, as a
result
of
reckless
care and handling.
- Emily Waters, dissuaded the mother from seeking medical advice for X's
bruise
on 04 October 2023 and sought to dissuade the father from telling the 111 operator about it on 06 October 2023.
- I make these findings for the
reasons
set out fully above. Here too, absent a truthful explanation from Ms Waters I cannot determine whether the
injury
was caused deliberately or
recklessly
and so find, as asked, in the alternative.
Femoral fracture
- On 06 October 2023 X presented to hospital with a displaced oblique midshaft fracture of the left femur, and swelling to the left thigh, which was slightly
bruised
and very tender.
- The fracture was caused
by
the application of an excessive twisting/rotational force, far
beyond
that used in normal handling, and
recognisable
to any independent observer as obviously inappropriate.
- It was deliberately
inflicted
in an undisclosed incident on 06 October 2023
by
Emily Waters.
- In the alternative, the fracture was caused on 06 October 2023 accidentally
by
Emily Waters
but
as a
result
of
reckless
care and handling, using far greater force than Emily Waters has
been
willing to admit.
- X was immediately distressed, and cried, at the point of
injury
and immediately thereafter when their left leg was handled.
- Ms Waters did not immediately notify the parents that X had cried out in pain
but
searched on Google at 00.19am for "
broken
leg
baby",
then undid X's sleep suit to check X over, rubbed X's
back
and
burped
them, carried on feeding
both
twins,
then swaddled them
both,
waiting in total c80 minutes post-
injury
before
messaging the mother at 01.36am. She should have immediately notified the parents and/or sought medical help.
By
withholding from the parents and the 111 operator her account of the incident with X and her suspicion that she had
broken
X's leg, she caused unnecessary delay in X
receiving
appropriate medical attention and pain
relief
and allowed X to
be
handled and transported in a manner which increased their suffering.
- I make these findings, for the
reasons
set out above.
- I am unable to conclude, in this case, that there is
bony
susceptibility due to an unknown genetic cause for the
reasons
set out above in
relation
to my finding about X's skull fracture.
- Here too, absent a truthful account from Ms Waters I am unable to determine whether the
injury
was caused deliberately or
recklessly
and so find, as asked, in the alternative.
Rib fractures
- On 06 October 2023 X presented to hospital with the following rib fractures:
a. Right 1st (posterior), 5th and 6th (lateral) and 8th and 9th (posterior);
b. Left 4th (lateral) and 9th (posterior).
- Oedema was present around the right posterior 8th and 9th rib fractures and left posterior 9th rib fractures. The presence of oedema around the other fractures can
be
neither confirmed nor
refuted
since the 11 October 2023 MRI did not capture the lateral fractures within its field of view. Oedema associated with an acute fracture tends to
resolve
within 2-3 weeks post-
injury.
- The rib fractures were
inflicted
during at least one episode of
injury
and with at least one application of force,
between
20 September and 01 October 2023, such application of force
being
different to that causing the femoral fracture. The rib fractures without visible oedema may have
been
inflicted
before
20 September 2023.
- Each rib fracture was
inflicted
by
the application of excessive compressive force to the chest, far
beyond
that used in normal handling or swaddling, and
recognisable
to an independent observer as obviously inappropriate.
- At the point X sustained each rib fracture, X was immediately distressed and cried for at least a short period of time. Thereafter, any carer who was not present at the time of
injury
might not have identified that any distress on handling was the product of pain or
injury.
- The rib fractures were
inflicted
by
Emily Waters.
- Emily Waters failed, despite X's distress, to seek medical attention.
Y
Rib fractures
- On 06 October 2023 Y presented to hospital with the following rib fractures:
a. Right 9th, 10th and 12th (posterior);
b. Left 6th and 7th (lateral), 8th (posterior), 8th (posterolateral), 9th (posterior), 11th and 12th (posterolateral).
- The rib fractures were
inflicted
during at least two episodes of
injury
and with at least two applications of force
before
29 September 2023, the left 7th rib fracture
being
a more
recent
injury
than the others. The timeframe during which the rib fractures were sustained does not extend
back
to
birth.
- Each rib fracture was
inflicted
by
the application of excessive compressive force to the chest, far
beyond
that used in normal handling or swaddling, and
recognisable
to an independent observer as obviously inappropriate.
- At the point Y sustained each rib fracture, Y was immediately distressed and cried for at least a short period of time. Thereafter any carer who was not present at the time the
injuries
were caused might not have identified that any distress on handling was the product of pain or
injury.
- The rib fractures were
inflicted
by
Emily Waters.
- Emily Waters failed, despite Y's distress, to seek medical attention.
- I make these findings.
- There is no direct evidence at all about when or
by
whom these
injuries
were caused.
- I have already excluded a finding in this case that there was an unknown genetic cause of
bony
susceptibility that can explain these fractures, for the
reasons
I set out above.
- It is highly unlikely that there were different perpetrators of
injuries
to the
twins
in the same household over this limited period of time.
- Given my findings about the parties, positive about all save Ms Waters and adverse in
respect
of Ms Waters, I conclude that the rib fractures were
inflicted
by
Ms Waters.
Conclusion
- I am asked to exonerate the parents and the night nurses. Following the guidance of Sir Mark Hedley and given my findings that all of the
twins'
injuries
were
inflicted
by
Ms Waters, I confirm that I exonerate the parents, and the night nurses from these allegations. I
regret
that the
reward
for their
briefest
of involvements with the
twins
has
been
such an intolerable
burden
for the two night nurses.
- The local authority does not seek any finding against either parent that they failed to protect the
twins.
I suspect that the parents are wrestling with feelings of guilt, along with anger, about the harm done to their much-loved
twins
in their own home. I hope they will put aside any feelings of guilt as they have absolutely nothing to feel guilty about. They must not
be
influenced
by
hindsight. They prepared immaculately for the
twins'
arrival, they organised their household to ensure that their older child and the
twins
all
received
the care they needed and the mother in particular showed absolute commitment to the gruelling, however
rewarding,
task of establishing a feeding
regime
for the
twins
. Whilst the parents did not warm to Ms Waters and they did observe a difference of approach to the care of the
twins
in those few, exhausting early days, they had absolutely no
reason
at all to think that the
twins
were at risk of harm. They knew nothing about the
reasons
why Ms Waters was simply not in the right state of health and mind to care for the
babies
as she concealed this from them.
- These findings end these care proceedings. Threshold is not met. Finally, this family can start to live a normal life and, I hope, to start to put the case, the circumstances that led to the case and all of its distress
behind
them.
- I leave the advocates to draft the final order and to identify any grammatical or factual errors in my judgment which ideally will
be
with me in one combined email in time for the hearing on 9 August.
- At that hearing I will deal with any matters arising from this judgment, and hopefully I will
be able to approve a final order.
HH Judith Rowe KC
31 07 24