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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A County Council v A Mother & Ors  EWHC 3283 (Fam) (30 November 2018)
Cite as:  EWHC 3283 (Fam)
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Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| A County Council
|- and -
||3rd & 4th Respondents
|A & B by their Guardian
||5th and 6th Respondents
Anna McKenna QC and Sally Bradley (instructed by Miles and Partners) for the 1st Respondent
Tina Cook QC and Katie Phillips (instructed by Wilson Solicitors LLP) for the 2nd Respondent
Sylvester McIlwain (instructed by GT Stewart Solicitors & Advocates) for the 3rd and 4th Respondents
John Tughan QC and Julia Wright (instructed by David Barney & Co) for the 5th and 6th Respondents
Hearing dates: 15-26 October 2018
Crown Copyright ©
Mr Justice Newton:
i) A fracture of the right femur less than 14 days of age at the time of the x-ray dated 17th July 2017.
ii) A fracture of the posterior aspect of the left sixth rib between 2 and 4 weeks of age at the time of the skeletal survey dated 19th July 2017.
iii) A fracture of the posterior aspect of the left ninth rib between 3 and 6 weeks of age at the time of the skeletal survey dated 19th July 2017.
iv) A fracture of the tip of the left acromion process between 2 and 4 weeks of age at the time of the skeletal survey date 19th July 2017.
v) A fracture of the right acromion process between 2 and 4 weeks of age at the time of the skeletal survey dated 19th July 2017.
vi) A fracture of the proximal metaphysis of the right tibia less than 2 weeks of age at the time of the skeletal survey dated 19th July 2017.
vii) A fracture of the distal metaphysis of the right tibia less than 2 weeks of age at the time of the skeletal survey dated 19th July 2017.
viii) A skull fracture which she could not date.
ix) The presence of a high attenuation haemorrhage on the CT scan in keeping with an event occurring within 2 weeks of the scan dated 20th July 2017.
i) that the fractures had occurred as a result of at least 2 separate events, and
ii) In a non-mobile infant of this age these fractures could not have occurred as a result of an unwitnessed event. In the absence of a clear and satisfactory account of the mechanism of a trauma or of a medical explanation for the fractures, the most likely explanation for the numerous fractures of different ages, including metaphyseal fractures and rib fractures, was inflicted injury.
i) The burden of proof lies with the Local Authority. It is the Local Authority which brings the proceedings and identifies the findings that they invite the Court to make. The burden of proving the assertions rests with them. I bear in mind at all times that the burden is fairly and squarely placed on the Local Authority, and not on either parent. Recent case law (such as Re B 2013 UKSC and Re BS 2013 EWCA 1146) reinforces the importance of proper findings based on proper facts; the principles are the same for whatever the proposed outcome. Here there is, as in many cases, a risk of a shift in the burden to the parents to explain occasions when injuries might have occurred. Whilst that can be an important component for the medical experts, it is not for the parents to explain but for the local authority to establish. There is no pseudo burden as Mostyn J put in Lancashire VR 2013 EWHC 3064 (fam). As HJ Bellamy said in Re FM (A Clinical Fractures: Bone Density):  EWFC B26."Where… there is a degree of medical uncertainty and credible evidence of a possible, alternative explanation to that contended for by the local authority, the question for the Court is not "has that alternative explanation been proved" but rather… "in the light of that possible alternative explanation can the Court be satisfied that the local authority has proved its case on the simple balance of probability."
ii) The standard of proof of course is the balance of probabilities (Re B  UKHL 35). If the Local Authority proves on the balance of probabilities that baby A was killed by the mother or sustained inflicted injuries at her hands the Court treats that facts as established and all future decision concerning the future welfare of B, based on that finding. Equally if the Local Authority fails to prove those facts the Courts disregards the allegations completely."the "likelihood of harm" in s31(2) of the Children Act 1989 is a prediction from existing facts or from a multitude of facts about what happened… about the characters and personalities of the people involved and things which they have said and done [Baroness Hale]"
iii) Findings of fact must be based on evidence as Munby LJ (as he was then) observed in Re A (A child) Fact Finding Hearing: (Speculation)  EWCA Civ 12:"It's elementary proposition that findings of fact must be based on evidence including interferences that can properly be drawn from the evidence, not on suspicion or speculation."That principle was further emphasised in Darlington Borough Council v MF, GM, GF and A  EWFC 11.
iv) When considering cases of suspected child abuse the Court must inevitably survey a wide canvass and take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T  EWCA Civ 558  2 FLR838."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 to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the Local Authority has been made out to the appropriate standard of proof."
v) The evidence received in this case includes medical evidence from a variety of specialists. I pay appropriate attention to the opinion of the medical experts, which need to be considered in the context of all other evidence. The roles of the Court and the experts are of course entirely distinct. Only the Court is in a position to weigh up the evidence against all the other evidence (see A County Council v K, D and L  EWHC 1444,  1 FLR 851 and A County Council v M, F and XYZ  EWHC 31,  2 FLR 129). There may well be instances if the medical opinion is that there is nothing diagnostic of a non-accidental injury but where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts, that is on the balance of probability, there has been non-accidental injury or human agency established.
vi) In assessing the expert evidence, and of relevance here, I have been careful to ensure that the experts keep within the bounds of their own expertise and defer where appropriate to the expertise of others (Re S  EWHC 2115 FAV),  1 FLR 1560). I also ensure that the focus of the Court is in fact to concentrate on the facts that are necessary for the determination of the issues. In particular, again of relevance here, not to be side tracked by collateral issues, even if they have some relevance and bearing on the consideration which I have to weigh.
vii) I have particularly in mind the words of Dame Butler-Sloss P in Re U: Re B  EWCA Civ 567,  Fam 134, derived from R v Cannings  EWCA 1 Crim,  1 WLR 2607:a) The cause of an injury or episode that cannot be explained scientifically remains equivocal.b) Particular caution is necessary where medical experts disagree.c) The Court must always guard against the over-dogmatic expert, (or) the expert whose reputation is at stake.
viii) The evidence of the parents as with any other person connected to the child or children is of the utmost importance. It is essential that the Court form a clear assessment of their reliability and credibility (Re B  EWHC 20). In addition, the parents in particular must have the fullest opportunity to take part in the hearing and the Court is likely to place considerable weight of the evidence and impression it forms of them (Re W and another  FCR 346).
ix) It is not uncommon for witnesses in such enquiries, particularly concerning child abuse, to tell untruths and lies in the course of the investigations and indeed in the hearing. The Court bears in mind that individuals may lie for many reasons such as shame, panic, fear and distress, potential criminal proceedings, or some other less than creditable conduct (all of which may arise in a particular highly charged case such as this) and the fact that a witness has lied about anything does not mean that he has lied about everything. Nor, as R v Lucas  3 WLR 120 makes clear does it mean that the other evidence is unreliable, nor does it mean that the lies are to be equated necessarily with "guilt". If lies are established I do not apply Lucas in a mechanical way but stand back and weigh their actions and evidence in the round. I bear in mind too the passage from the judgment of Jackson J (as he then was) in Lancashire County Council v C, M and F (2014) EWFC3 referring to "story creep".
x) Very importantly, in this case in particular, and observed by Dame Butler-Sloss P in Re U, Re B (supra)"The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generations of experts, or that scientific research will throw a light into corners that are at present dark"
That principle was brought into sharp relief in the case of R v Cannings (supra). As Judge LJ (as he was then) observed"What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
As Moses LJ said in R v Henderson Butler and Oyediran  EWCA Crim 126  1 FLR 547:"Where the prosecution is able by advancing an array of experts to identify non-accidental injury and the defence can identify no alternative course, it is tempting to conclude that the prosecution have proved its case. Such temptation must be resisted. In this as in many fields of medicine the evidence may be in sufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
"A temptation described is ever present in Family Proceedings and in my judgment, should be as firmly resisted as the Courts are required to resist it in the Criminal Law. In other words, there has to be factored into every case which concerns a discrete 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… a conclusion of unknown aetiology in respect of an infant represents neither a professional or forensic failure.it simply recognises that we still have much to learn and…it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism"
The Expert Evidence
The right femur
i) A displaced oblique fracture of the femoral shaft of the right femur with associated soft tissue swelling with no evidence of a healing reaction apparent on x-ray on 17.7.17.
ii) By 25.7.17 the soft tissue swelling had resolved and the fracture was surrounded by a significant amount of callous.
iii) By 2.8.17 there was a marked callous (due to the displaced nature of the fracture) and the fracture line remains visible.
iv) Oblique shaft fractures imply a twisting force.
v) The fracture could have been caused on the 17.7.17, or in the preceding 10 days (i.e. since 7.7.17)
There were healing posterior arc fractures to the left 6th to 9th ribs. By 2.8.17 there was progressive healing of the rib fractures, and an additional healing fracture of the left 10th rib, which had not been apparent earlier.
vi) These were caused by compressive forces in the front to back, or side- to-side, directions
vii) These are not consistent with the location usual in CPR, she notes that even with the force applied during CPR, only 1% of cases result in rib fractures.
viii) The left 6th rib was fractured between 2 and 4 weeks prior to 19.7.17 between 21.6.2017 and 5.7.17
ix) The left 9th rib fracture occurred between 4 and 6 weeks before 19.7.17 i.e. between 5.6.17 and 21.6.17.
x) The left 10th rib fracture occurred between 2 and 4 weeks before 2.8.17, i.e. between 5.7.17 and 17.7.17.
xi) On 19.7.17, there was an apparent right parietal skull fracture associated with (subtle) mild scalp swelling, with the fracture line extending to the sagittal suture.
xii) The skull fracture was no more than 14 days old on that survey so that it occurred between 5th and 17th July. It did not date back to birth, and was caused by an impact by an external force.
xiii) These were apparent on 19.7.17, the metaphyseal fractures were identified to:a) The right proximal humerus;b) The right proximal tibia (right knee); andc) The right distal tibia (right ankle)
xiv) There was progressive healing apparent on all of these fractures by 2.8.17
xv) Metaphyseal fractures are caused by gripping, pulling and twisting forces
xvi) The metaphyseal fractures are all up 2 to 4 weeks old as at 19.7.17 occurring between 21.6.17 and 5.7.17.
Bilateral Acromial fracture
xvii) Right shoulder blade fractures involve the body of the acromion and the left fracture the tip of the acromion.
xviii) The left fracture was less advanced in healing by 2.8.17
xix) Acromial fractures are due to indirect forces generated by shaking or abnormal or traction forces, levering applied to the shoulder or upper limb.
xx) The left shoulder injury occurred less than 2 weeks prior to 19.7.17 and so between 5 and 17.7.17
xxi) The right shoulder injury occurred 2 and 4 weeks prior to 19.7.17 and so between 21.6.17 and 5.7.17
Dr Ng, Consultant Paediatric Endocrinologist advised as follows:
i) A' s earliest blood test results demonstrated normal calcium levels, normal parathyroid hormone, and normal vitamin D levels. Her x-rays in July at 6 weeks of age did not show evidence of osteopenia. No phosphate or alkaline phosphatase levels were available (such tests significantly increase the sensitivity of the screening and identification of infants at risk of metabolic bone disease).
ii) A demonstrated no evidence of Vitamin D deficiency, or abnormal levels of calcium or parathyroid hormone levels or evidence of radiological rickets.
iii) The mother's antenatal history (and/or gestational diabetes), or constitutional issues were not relevant to A' s injuries, nor is A' s birth weight (2 – 59kgs).
iv) Osteogenesis Imperfecta was highly unlikely in this case.
v) Rib and femoral fractures are extremely painful and the vast majority of children would cry. Metaphyseal fractures are consistent with excessive pulling and twisting, or from shaking. No proper explanation has been provided by the carers.
vi) The history given of B jumping on to A cannot account for her injuries. The injuries are not due to any underlying bone fragility, or genetic cause, and are likely to have been inflicted.
i) The chromosome deletion noted does not mean that A has either Prader Willi or Angelman's syndrome;
ii) Neither syndrome is associated with bone fragility or fractures in infancy;
iii) There is a distinction to be made between genetically detected and hypermobility EDS;
iv) Hypermobility can be hard to determine in a child under 5 given their flexibility generally at that age;
v) Hypermobility EDS is not generally associated with bone fragility or fractures in infancy.
Dr Jayamohan – Consultant Paediatric Neurosurgeon at the Oxford Radcliffe Hospital records that A suffered:
i) A right parietal skull fracture – This was caused by force (trauma) in the absence of bone disease or other relevant problem (no such evidence being apparent). It was about 7-10 days old, as the swelling had subsided (rarely there can be no swelling, however) – the trauma might not have been serious enough to alert a caregiver. Birth trauma is unlikely to cause a linear skull fracture, with 5 out of 10,000 sustaining fracture, and none in spontaneous delivery births.
ii) A small superficial parenchymal bleed in the left posterior temporal region - there is fresh blood less than 10 days old which shows no signs of underlying vascular formation or other abnormality so that only trauma is likely to have caused this bleed. A collagen disorder might increase the risk of such bleeding from normal behaviour.
iii) Bilateral frontal cleft lesions – These are quite unusual. They are associated with trauma. They appear to be several days to three weeks old. These are difficult to explain save by way of an undisclosed trauma. The fresh blood suggests it is possible that all these occurred from one event 10 days prior to the CT scan [ie10.7.17]. Alternatively, there could be two incidents; one causing initial cystic change, the next a re-bleed. EDS could be relevant to these bleeds.
Dr Saggar – Consultant in Clinical Genetics is a senior lecturer in medicine, has the great advantage of years of general training and experience (35 years as a medical doctor) and subsequent experience in specialisation (28 years in clinical genetics). He confirmed A' s rare small microdeletion on chromosome 15q (a "de novo deletion"), which explained A' s reduced muscle tone, developmental delay and congenital heart defect; it may have significant consequences for A in the future. This chromosomal area is known to have a neuro developmental locus, and a link in regulating brain formation. That brain area generates responses to pain and also bone formation. EDS is also located in the same area. He advised:
i) Fragility in the bones and the vascular system cannot readily be explained by a single genetic mutation;
ii) In recessive forms of OI you would expect to see more dramatic changes in the x-rays to the skeleton. This is absent in A' s case;
iii) If this were a rare case of vascular anomalies with OI, one would not expect to see spontaneous haemorrhage;
iv) Importantly none of the genes affected by the gene deletion identified in A are known to cause vascular fragility or fractures;
v) It is probable that the mother has type 3 EDS and there may possibly be some EDS in the paternal side too, so that A has a 50% chance (at least) of inheriting some aspects of EDS, but there was very little clinical evidence of EDS at the time of A' s examination;
vi) Type 3 or hypermobility EDS is not associated with fractures in the absence of vitamin D deficiency, or some other gene mutation mimicking EDS type 3;
vii) The number and distribution of the fractures are most unusual for hypermobility or type 3 EDS, and significantly in any event a memorable trauma would be needed to account for these, and although unlikely, reduced bone density as a predisposing factor could not be completely excluded;
viii) The deleted region would not, however, predispose A to cerebral bleeding;
ix) Subject to birth related trauma (as to which he deferred to others), he was clear that EDS hypermobility was an inadequate explanation for the number and distribution of the fractures;
x) Methylation testing was normal, so any connection with osteoporosis connected to PWS was irrelevant, he confirmed this in the experts' meeting.
xi) Ultimately, he concluded that whilst it was unclear if A had type 3 EDS, the real issue was whether it could really account for the number and extent of the fractures, in combination with cerebral bleeding (if not birth related) and whether there was evidence of force or injury to cause the bleeding or fractures, albeit a lesser force;
xii) Post-birth cerebral bleeds may be different in children with type 3 EDS;
xiii) On balance he reiterated that there is a 50% chance of A inheriting some aspects of EDS hypermobility from her mother, but in the experts' meeting and in evidence confirmed that he could detect no hypermobility in A,so could only say there is a 50% chance of inheritance which might become clear later in testing. He did not however find A to be especially hypermobile;
xiv) Even if A was to be found to have type 3 EDS, and even if a lesser force was applied to produce the fractures and the sub-durals, there would still need to be a memorable event for each.
"It is most likely that your daughter has EDS and this is the cause for what has occurred" – he later told me that he had seen hundreds of these cases, and it was reasonable to reach that conclusion. A had EDS to a high degree of certainty.
The Parents Evidence
The approach of the medical witnesses
Conclusions on the medical evidence
Hypermobile Ehlers Danlos Syndrome (hEDS)
Vitamin D Deficiency
The chromosomal micro deletion 15q at 11.2
"Despite its prevalence physical abuse is difficult to diagnose. Suspicion increases when the reported mechanisms of trauma seem inconsistent with the injury, when trauma is denied as when there is a delay in seeking medical care. Such inferences are frequently no more than a clinician's expectations about an average child's response, crying, guarding the injury or behavioural changes, in turn prompting the parents to seek medical attention. Perceived delays in seeking medical assistance may raise a concern of abuse. Recent guidelines regarding medical evaluations of physical abuse recommend asking about the child's behaviours relating to the injury. In addition, law enforcement and child welfare professionals request medical opinion about a child's expected behaviour after sustaining a fracture", as here.
"91% of children cried after injury. Parents observed no external sign of injury in 15%of children, and 12% of children continued to use the affected extremity normally. The majority of children with accidental fractures are therefore symptomatic at the time of injury, but a significant notable minority do not follow the expected pattern of behaviour, either they use their extremity post injury or exhibit little irritability after injury. When a delay in seeking medical treatment occurs it is most likely to be related to the absence of physical signs of injury rather than crying or irritability".
Undiagnosed metabolic bone disease
1. That I have greater difficulty in adopting a conclusion that the medical findings are in whole or in part of an unknown condition or combination of conditions. No one ruled it out, but the collective view was that A did not suffer from such a condition.
2. That I do not accept that A' s condition arose from some identified medical cause.
3. That A did not suffer from vitamin D deficiency at all, or of such significance that it was responsible for demineralisation of the bones, or that there was any demineralisation from any other cause.
4. That there is no other known overlooked condition, or combination of, conditions.
5. That A' s condition is not as a result of an unknown pathology beyond our current understanding.
6. That A had normal bones.
1. The medical evidence points to a unified diagnosis of trauma.
2. The mother was A' s primary carer, the father, as far as I can tell, was never alone with her, but did care for A when the mother was resting. A may exhibit unusual responses to pain.
3. There is no reported mechanism for any of the injuries (other than the toy and B's injury on his mother's lap – both of which I reject).
4. There is no explanation as to how A might have sustained so many twisting and pulling injuries.
5. The mother failed to take A to be seen by a doctor, doing everything in her power to get advice and opinion without A being physically examined. The mother deliberately delayed.
6. I reject the mother's explanation for not immediately taking A to the doctor or hospital.
7. I find that the parents deliberately chose to hide A' s condition evidenced by not telling AR when he visited that evening of their concerns for A (he could in addition have cared for E, whilst they took A to hospital); by the mother underplaying A' s condition to her friend that afternoon; and by lying to her own father later that evening that all was well (when in fact she was seeking help from the hospital).
8. The parents were reluctant to follow Dr McGuiness's advice and take A to hospital that evening.
9. The parents, the mother in particular, was persistently hostile and obstructive at the hospital, the body scan was as a result delayed, until they finally acquiesced at 3pm the next day.
10. The communications between the parents, which were most unusual, the mother writing on the father's phone (because her own phone battery had died), demonstrates their collusion:
"Hi a couple of things to ponder …
1. Shld we have told them about [B] as I'm sure they are going to check
2. Stay strong and alert they are all around us for a reason."
Post Script 14 November 2019