BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Family Court Decisions (High Court Judges) |
||
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Cumbria County Council v Q (Injuries to Infant with Bone Disorder) [2015] EWFC 59 (08 July 2015) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2015/59.html Cite as: [2015] EWFC 59 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
B e f o r e :
Sitting at Barrow-in Furness County Court
____________________
Between : CUMBRIA COUNTY COUNCIL -and- Q (mother) H (stepfather) C (father) -and- H & O (by their Children's Guardian) |
Applicant Respondents |
____________________
Gillian Irving QC and Zimran Samuel (instructed by GT Stewart Solicitors) for the Mother
Julia Cheetham QC and Arron Thomas (instructed by Clarkson Hirst) for the Stepfather
Jenny Scully (instructed by Gaynham King & Mellor Solicitors) for the Father
Michael Kennedy (instructed by Denby & Co) for the Children
Hearing dates: 23-25, 30 June & 1-2 July 2015. Judgment date: 8 July 2015
____________________
Crown Copyright ©
Mr Justice Peter Jackson:
Introduction
(1) The local authority's application for care orders.(2) The father's application for parental responsibility.
(3) The paternal grandparents' application for a special guardianship order.
The hearing
Family members
The mother
Mr H
*The father
*The paternal grandparents
* Mr H's parents
Medical professionals
Dr O, consultant paediatrician
Dr S, consultant ophthalmologist
Dr A, consultant paediatrician
Dr C, paediatric neurosurgeon, RMCH
*Dr U, specialty doctor, A&E
Ms S, health visitor
Nurse A
Nurse C
*Nurse P
Expert medical witnesses
Mr Peter Richards, consultant paediatric neurosurgeon, John Radcliffe Hospital, Oxford
Professor Stephen Nussey, Professor of Endocrinology, consultant endocrinologist, St George's Hospital Medical School
Dr Kathryn Ward, consultant paediatrician, Airedale General Hospital
Dr Andrew Watt, consultant paediatric radiologist, Royal Hospital for Sick Children, Glasgow
*Dr Stavros Stivaros, consultant paediatric neuroradiologist. Royal Manchester Children's Hospital (RMCH)
*Dr Sarah Dixon, consultant paediatrician, RMCH
*Professor Zulf Mughal, consultant in paediatric bone disorders, RMCH
*Professor Sally Kinsey, consultant paediatric haematologist, The Leeds Teaching Hospitals
Social work professionals
Liz Allen, social worker
Claire Patel, Children's Guardian
Background
The children's future
Why the children cannot live with the mother
The injuries to O
(1) A right linear parietal skull fracture(2) Associated overlying bruising and soft tissue swelling
(3) A subdural collection in the same area.
(4) A transverse fracture of the left distal radius (above the wrist)
(5) Fractures to the 7th and 8th left lateral ribs.
(6) A 4mm by 5mm bruise on the low extremity of the anterior surface of the right thigh just above the knee
The medical evidence
Metabolic abnormality
(1) It is likely that O was suffering from a metabolic bone disorder at the time he sustained the fractures to his skull, ribs and radius. It is not possible to be sure of a diagnosis, but on the balance of probabilities it is likely that he was suffering from partially treated vitamin D deficiency rickets.(2) The main reason for this conclusion is the abnormal findings from the skeletal survey in December. His skeleton was affected generally, characterised by osteopenia, splaying and cupping of the ends of the bones and sclerotic metaphyseal lines. These are some of the features that suggest partially treated rickets.
(3) The radiographs from December 2014 and those from April 2015 (which show an improvement in the abnormal appearances) are more consistent with a diagnosis of healing rickets than a genetic condition such as a bone dysplasia.
(4) Vitamin D is responsible and necessary for stimulating the placental transfer of calcium and phosphorous to the foetus in order to increase healthy bone formation and stimulate growth. About 80 per cent of the transfer occurs in the third trimester. Following birth, the child becomes entirely dependent on other sources of vitamin D primarily through exposure to sunlight and diet. O was a child who had difficulty feeding from birth. Further support for his having had rickets arises from the fact that the mother has recently been diagnosed with vitamin D deficiency during her current pregnancy and, on this occasion, in line with national guidelines, has been prescribed a vitamin D supplement. Despite the 2010 Guidelines from the Royal College of Obstetricians and Gynaecologists, the mother was not provided with a Vitamin D supplement by when pregnant with O.
(5) A diagnosis of osteogenesis imperfecta has been discounted.
(6) The biochemical findings are non-specific in formulating a specific diagnosis. The normal vitamin D test results might be explained if there was a period of adequate vitamin D intake prior to admission on 3 December.
(7) The clinical findings are also non-specific but would support a diagnosis of rickets potentially associated with a past history of intrauterine or subsequent vitamin D deficiency.
(8) There is no inherent or underlying haematological disorder present that would dispose O to spontaneous bleeding or bruising or to excessive bleeding or bruising following trauma.
(9) None of the presenting injuries are likely to be birth related
Bone strength
(10) It is likely that the metabolic bone disorder would have reduced the tensile strength of O's bones generally and predisposed him to fracture more easily following trauma.
(11) The exact forces required to break a bone in a child with normal bones are not known. Opinions based on experience of the population as a whole conclude that significant force outside that found in normal handling and childhood mishaps is required. These broad assumptions cannot be applied in the case of a child with a bone disorder.
(12) It is not possible to quantify the degree by which the tensile strength of O's bones would have been reduced. The radiographs from December 2014 provide a snapshot of the appearances of the bones at that point. It is not possible to say whether at an earlier date the appearances would have been even more marked and the tensile strength of the bones even further reduced, though the trajectory of improvement seen in the May radiographs allows for this possibility.
(13) Notwithstanding the presence of a metabolic bone disorder, some external force would have been required in order to cause the fractures. They would not have occurred spontaneously.
(14) On a spectrum ranging from a child of normal skeletal strength to a child with a severe skeletal fragility, O is likely to have fallen somewhere in the middle. An event which caused him to sustain a fracture would have been a memorable incident of some sort.
Mechanism
Ribs and wrist
(15) The likely mechanism for the rib fractures was a compressive force to the rib cage from front to back or back to front.
(16) The likely mechanism for the radial fracture was indirect bending or compression (as when a mobile child uses a hand to break a fall). In a pre-mobile child of O's age the former is the more likely mechanism
(17) Depending upon the level of force applied and the response of the child at the time, the following events might account for the fractures to the ribs and/or the radius in terms of timing and mechanism:
- The forces applied during a 'difficult' cannulation on 25 August.
- The choking incident on 19 September.
- The ophthalmological examination in October.
- The fall by H onto O on 17 October.
Skull
(18) The mechanism for the skull fracture was blunt trauma at the site of the fracture.
(19) In a child of normal skeletal strength it is highly unlikely that a skull fracture would have been sustained as a result of a low level fall, such as from a sofa. However, if there was a degree of underlying skeletal fragility, the likelihood of such a fall accounting for the skull fracture increases.
Subdural haemorrhage
(20) The pattern and distribution of the subdural haemorrhage, the absence of retinal haemorrhage, the absence of hypoxic-ischaemic change and the absence of haemorrhage in the cervical/spinal area all suggest that the subdural haemorrhage is more likely to have been caused by blunt force trauma resulting from the head impacting against a surface or object than a shaking injury.
(21) Although it would be unusual for subdural haemorrhage to be caused in the course of a low level fall it remains entirely possible that it was caused as a result of an event such as a fall from a sofa.
(22) The bruise on the knee is small but significant for its unexplained presence in a pre-mobile child. It was not present, or at least not seen, on 27 November. Its position does not suggest any specific mechanism, but it is unlikely to have occurred during the described fall from the sofa as it is not in the same plane as the head injury. It might have been caused by gripping but that is entirely a matter of speculation. It might equally have been caused accidentally by the leg banging against something or being struck by something.
Timing
(23) The dating of fractures radiologically is an inexact science. In this case it is complicated by the likely presence of rickets which may delay the normal healing process.
(24) Based upon the radiology alone the rib and radial fractures were between 1 to 3 months old on 8 December 2014.
(25) Based upon the radiology alone the skull fracture was less than about 2 weeks old on 3 December 2014.
(26) The bruising to the head is extensive and is likely to be associated with the same episode of blunt force trauma that caused the skull fracture and the overlying soft tissue swelling.
(27) The presence of swelling on 27 November is consistent with an injury occurring that day, and the enlargement of the swelling from 27 to 28 November and the emergence of the bruising is also in keeping with an event on 27 November.
(28) The subdural haemorrhage is likely to have been caused as a result of the same episode of trauma which caused the skull fracture and overlying soft tissue swelling. It arose in one of two ways: (i) the depression of the bone which caused the fracture directly caused a meningeal tear; or (ii) the fracture of the skull allowed forces into the intracranial space that would not otherwise have passed through, and those forces caused the tear. Whichever mechanism is preferred, the implication is that less force than normal could account for the subdural collection.
(29) The subdural collection is more likely to be an acute traumatic effusion than a longstanding chronic subdural haematoma in the light of these features:
- The absence of a rapid increase in head circumference prior to the admission on 3 December.
- The clear increase in the separation of the skull joints between 3 and 8 December, suggesting an active process whereby the intracranial volume was increasing in the acute phase of the admission.
- The appearance on the MRI scan of 4 December of increased compression of the lateral ventricle and the development of midline shift suggesting a rapid increase in intracranial volume.
- The mother's reports, recorded in the medical notes, of O becoming increasingly unwell after 27 November.
- The acute onset of a squint and the development of bilateral sixth nerve palsy between 27 November and 3 December
- The xanthochromic appearance of the cerebrospinal fluid evacuated from the subdural space during the craniotomy performed on 5 December.
(30) The bruise was probably recent (in that it was not obvious on 27 November) but cannot be timed with any precision.
Pain response
(31) With each of the fractures, O would have been expected to show a degree of pain and distress during the acute phase of injury. It would have been apparent to a carer present at the time that he was in pain.
(32) The skull fracture was associated with overlying soft tissue swelling that would have been apparent to a carer who was not present at the time although he/she might not have been aware of the skull fracture alone.
(33) In the cases of the rib and radial fractures a carer who was not present at the time would not have been expected to be aware of the actual source of the child's discomfort and to attribute the same to a fracture
Accounts given by the mother and Mr H
Approach to fact-finding
Conclusions
(1) This is an exceptional case. In a child with a normal metabolism the almost inevitable conclusion would be that these fractures, and in particular the broken ribs and wrist, would be likely to be the result of violence or at least of rough handling. Likewise, it would normally be extremely unlikely that such serious injuries as a skull fracture and a subdural haemorrhage would result from such a low fall. Taken together, the medical picture would point strongly to inflicted injury.(2) However, the fact that O was probably suffering from rickets means that conclusions that might have been drawn in a normal case would be unreliable and unsafe in this case.
(3) None of the injuries is of the kind that is particularly suggestive of inflicted injury.
(4) Looking at the broader background, the mother and Mr H both have dismal records for violence to each other and other adults. However, there is no evidence of a propensity for serious violence to children. On the contrary, the mother's physical treatment of both children has never caused any concern. H has never come to harm. O was taken to all his many health appointments. For his part, Mr H has never been criticised for his behaviour towards these or any other children.
(5) As indicated above, the mother is not a witness whose evidence can be relied upon. She is prone to lie on the spur of the moment. She is inconsistent. I have carefully considered whether her lies at the time of O's admission cast light on how he came by his injuries. My conclusion is that they do not. The mother is capable of lying without a logical reason or a sinister motivation. She has been sadly damaged by her experiences. She is isolated and involved in a mutually destructive relationship. My assessment is that she probably lied about being present on 27 November with hardly any thought for the consequences. Faced with figures of authority, she told a naive and pointless lie that was designed to support Mr H because he was in difficulty. I do not know whether he actually asked her to do this: it is equally possible that she was reacting to his need for support. Whatever the truth of the matter, it does not alter my conclusion that the mother's lies do not illuminate anything beyond her own difficulties.
(6) I am satisfied that an incident leading to O's head injury took place on 27 November and that it had occurred in the mother's absence. I believed the evidence she and Mr H gave of the calls made to and from the hospital and the mother's description of how O was when she returned was credible.
(7) The mother made no attempt to conceal the head injury. She behaved entirely appropriately in getting medical treatment for O at the earliest opportunity and persisting to seek help on the following days. She has never tried to avoid discussion about the event.
(8) In contrast to the mother, Mr H's account of what happened on 27 November has been consistent. Like her, he is not someone whose word can be taken at face value. He has a streak of self-pity and consistently minimised his responsibility for his behaviour, both criminal and domestic. He has not shown any sign of shame at his own account of having recklessly left a small baby in a dangerous position that led to a grave injury. However, having listened to his evidence about the events of that day, I did not find any solid reason to disbelieve it. In so far as any weight can be placed on his demeanour as a witness, Mr H appeared to be a man with a bad record who was scared of being convicted of something that he did not do, rather than a guilty man attempting to cover his tracks. There were moments in his evidence that rang true. Asked why he agreed to do some hoovering, he indignantly said that he was not lazy. Asked whether the injury happened as a result of him dropping O, he immediately replied "I'd have said if I dropped him." Asked a question based on the premise that we do not know what happened to O, he shot back: "I do know what happened – he rolled off the sofa." It is not the words themselves, but the manner in which they were said that made an impression.
(9) I am also confident that the mother and Mr H are not colluding to conceal occasions when they know injuries were inflicted. They are quite capable of forming a plan of that kind but they are not capable of sticking to it. Their relationship is so volatile and chaotic that one of them would be bound to try to spill the beans on the other at some low point, particularly as they have been facing not only these proceedings but also possible criminal charges. In short, it would be beyond them to maintain an effective lie.
(10) With regard to the specific injuries:
- I cannot identify with certainty when and how the fractures to the wrist and ribs were caused. I cannot exclude the possibility that they were caused by violent or rough handling, but I do not think it probable. Given O's particular vulnerability and very young age I consider it more likely, indeed probable, that these injuries were caused in another way. They may have been sustained on one of the occasions suggested by the mother and Mr H, or on a similar unrecorded occasion. To take an example, it is entirely possible that some or all of these fractures occurred when H fell on top of O. It is also entirely possible that the rib fractures were caused by Mr H in the stress at the moment when he was trying to prevent O from choking. All these were occasions when O was in real distress. Given his likely bone condition, injuries may have occurred without carers realising.
- It is less probable that the fracture to the arm occurred as a result of a medical procedure, but it cannot absolutely be discounted.
- The only candidates for the causation of the head injury are the described fall from the sofa, or an undisclosed accident, negligent or otherwise, or a concealed assault. I cannot exclude the second and third possibilities, but taking account of all the evidence I find that on the balance of probabilities the injury occurred in the manner described by Mr H.
- There is no basis upon which I can find that the small bruise to O's knee was an inflicted injury. Although Dr Ward was suspicious, she in the end had to concede that her suspicion was purely speculative.
(11) I therefore conclude that the local authority has not proved its case that O's injuries were inflicted injuries. At the same time, I approve its decision to put the matter fully before the court. The outcome could not be known until the evidence was heard and any other course would not have met the needs of the children.
(12) Making full allowance for the frailties of the mother and Mr H, and acknowledging the mother's assiduous efforts to get medical treatment for O, I consider that they deserve serious criticism for aspects of their conduct on and after 27 November. It was thoroughly foolhardy of Mr H to have left O in an unsafe position. The mother's wilful lies have complicated matters and made it more difficult for the doctors and the lawyers to get to the truth. However, in the end this is a case where the person who was present is probably telling the truth about what happened, while the one who has lied was not there at all.