England and Wales Family Court Decisions (other Judges)

Date: 4 February 2016

Before:

Recorder Coleman

 

RE: C (Children) JUDGMENT

 

The Parties

These proceedings concern three children, TC (Dob 12.6.06), who is 9, and her brother TMC (Dob 25.11.11) who is 4. The child with whom I am particularly concerned is T, sometimes referred to as M in the papers, (Dob 22.5.14) and he is now 20 months of age.

The parents are KHC and ABC, who I shall call for convenience, but without any disrespect, "mother" and "father".

The applicant is the London Borough of Haringey. It is represented by Mr Wallace

The parents are represented by leading counsel.

Mother is represented by Ms Grief QC (instructed by Miles & Partners LLP)

Father by Mr Tughan QC (instructed by TV Edwards LLP)

The children appear through their children's guardian Ms Gross and are represented by Ms Bhachu (instructed by Lawrence and Co Solicitors)

 

The Proceedings

The Local Authority brought care proceedings and on the 12 ^th November 2015, HHJ Levy, at a CMH, set the matter down for a fact-finding hearing before me.

 

Those proceedings have occurred as a result of injuries to T:

a)        a greenstick fracture of the distal shaft of the left fibula and

b)       a metaphyseal bucket-handle fracture of the left distal tibia.

The evidence of Dr Fairhurst, a consultant radiologist, suggests that the fracture to the left fibula is likely to have occurred at a point between the 3.7.15 and the 6.7.15 and the fracture to the left tibia between the 22.6.15 and 6.7.15.

I have in mind the words of section 31 (2) and must consider whether T has suffered significant harm and whether that harm is attributable to the care given not being what it would be reasonable to expect a parent to give him.

I must therefore determine whether there has been culpability for the injuries whether deliberately, by neglect or otherwise.

I have at page A35 a schedule of findings, which the applicant asks me to make.

There are no other concerns at all about the care of the children and this is not a family, which has had any social services involvement prior to the injuries to T.

On the 24 ^th July 2015 DJ Day, in keeping with the recommendation of the children's guardian, declined to make interim care orders in respect of the two older children who have accordingly remained at home during the course of these proceedings.

T has been placed with his aunt.

I should add that to the credit of the Local Authority (and I suspect the guardian) there has been substantial contact with the parents.

The Law

I have always found it invaluable to remind myself of the legal principles set out by Baker J in

In A Local Authority v (1) A Mother (2) A Father (3) L & M (Children, by their Children's Guardian) [2013] EWHC 1569 (Fam), which I note were adopted with approval by Peter Jackson J in Cumbria CC v M and F [2014] EWHC 4886 (Fam)

1.         First, the burden of proof lies at all times with the local authority.


2.         
 Secondly, the standard of proof is the balance of probabilities.

3.  Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation ...


4. Fourthly, when considering cases of suspected child abuse, the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. 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.



5.  Fifthly ... whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. 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 who makes the final decision.



6. Sixth, cases involving an allegation of non-accidental injury often involve a multidisciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.


7.  Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.



8.  Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

 

9.  Ninth, as observed by Dame Elizabeth Butler-Sloss in an earlier case "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." This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother's two other children had experienced apparent life threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) 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."

 

10. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1: "Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient 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."


11. In Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed: "A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in 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.

 

12. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so."

Like Peter Jackson J I adopt this framework in the present case, which engages most of these principles to a greater or lesser extent. 

I would add the following:

1.         The observations of the court of appeal in M-B [2015] EWCA Civ 1027 concerning Re M (Fact-finding:Burden of Proof) [2013] 2 FLR 874 underline that Re M was fact specific and that the judge in that case was wrong to equate lack of parental explanation with a malevolent explanation and that what I must do is to determine whether the LA has established causation is culpable on the balance of probabilities.

2.        This is a case in which there are a number of matters of evidence which are hearsay. I must treat those with caution.

3.        I bear in mind that those matters of hearsay have not been subject to cross examination and I give them therefore such weight as I think fit. I also look to see if there is any supportive evidence or whether the hearsay evidence is supportive of matters on which I have heard direct evidence or in respect of evidence where there is no dispute. Alternatively does the hearsay evidence undermine other evidence.

4.        I have had the benefit of being referred to LB of Islington v Al-Alas and Wray [2012] EWHC 865 and a bundle of authorities, all of which I have read.

5.        In Al-Alas Theis J cited earlier authority in this way:

11. The importance of other evidence, particularly where medical opinion is not unanimous, should not be overlooked or undervalued. As Butler Sloss P said in Re U: Re B (Serious Injury: Standard of Proof) [2004] 2 FLR 263 at para 26 the court's responsibility is to survey a 'wide canvas' of the evidence (see: Lord Nicholls Of Birkenhead in Re H and R (Chid Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 at p23; Ryder J in A County Council v A Mother and Others [2005] EWHC 31 (Fam) para 44; In Re L (Children) [2011] EWCA Civ 1705 Thorpe LJ said in dismissing the appeal 'Clearly from the forensic standpoint, given any degree of uncertainty in the medical and scientific field, the judge's appraisal and confidence in the parent is absolutely crucial to outcome'.)

 

12. The frontiers of medical science are always expanding. As Professor Luthert was quoted in R v Harris [2005] EWCA Crim 198 para 135 'There are areas of ignorance. It is very easy to try and fill those areas of ignorance with what we know but I think that it very important to accept that we do not necessarily have a sufficient understanding to explain every case.'

 

13. Where there is disputed medical evidence guidance was laid down by Butler-Sloss P in Re U; Re B (Serious Injury: Standard of Proof) [2004] 2 FLR 263 at para 23

"In the brief summary of the submissions set out above there is a broad measure of agreement as to some of the considerations emphasised by the judgement in R v Cannings that are of direct application in care proceedings. We adopt the following:

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

 

(ii) Recurrence is not in itself probative.

 

(iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.

 

(iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.

 

(v) The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark."

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

 

I have at all times in mind article 6 of the ECHR.

 

Background

Father, ABC, was born on the 6.12.74 in Bangladesh and came to this country when he was 9 months old. After a period of going back and forth to Bangladesh he settled here permanently in 1977.

He works as a waiter in a restaurant in Surrey and has done so since 2012. His shift pattern is to work from each Friday evening until Monday night and he does not come back to London until late evening each Monday. In order to enable him to work those patterns he stays in a flat above the restaurant from Friday until Monday. This is confirmed by his employer.

Mother was born on the 8.7.85 in Bangladesh and met Father on about 10 ^th August 2003 following an arranged introduction.

They were engaged on 15 August 2003 and married in Bangladesh on 22 August 2003. They lived in Bangladesh until the autumn of 2003 when Father returned to the UK. Mother remained in Bangladesh until 18 August 2005 being visited by Father in Bangladesh on some 3 occasions.

Mother has required an interpreter to assist her in court and I bear this in mind when assessing her evidence.

When she came to the UK mother moved into the home of Father's parents and describes being happy living there.

On the 12 ^th June 2006 T was born by caesarean section. It was a difficult pregnancy since Mother suffered from high blood pressure and preeclampsia.

Following the birth the marriage went through some difficulties which Mother attributes to Father's long working hours after which he went out with friends. She has spoken with some frankness about both the difficulties in the marriage and the effect on her.

This led to Father leaving the home in July of 2010 and Mother taking some paracetamol which resulted in a hospital admission overnight. After this the marriage improved and TMC was born on the 25.11.11.

Once again there were problems with preeclampsia and high blood pressure.

Following the birth, the family decided that they wished to move out of the mother in law's home and they were housed in another London borough in April 2013. This move was problematic because T was still attending school in Tower Hamlets, where she was settled, and mother did not feel supported in the new borough where she had no family or friends. This meant a longer journey in the morning to take T to school.

Mother again became pregnant and once again suffered high blood pressure and preeclampsia. In addition she experienced stress and was referred to a psychiatrist who prescribed Sertraline Hydrochloride but this made her feel worse so she discontinued the drug.

T was born on the 22 May 2014.

Mother reports that T started crawling around his first birthday in May 2015, and in June started taking his first steps. About three weeks before the injuries he was standing with the assistance of furniture and about a week before the injuries was walking a few steps and then falling.

Mother indicates that between Tuesday and Friday she and the children are based at her home in Tottenham where Father helps with the care of the children.

Between Friday and Tuesday the mother and the children were based at the home of her mother in law, AC, in Tower Hamlets.

Prior to the 3 ^rd July 2015 Father took the family to his mother's home at about 8.45 am and dropped T and TMC at school. He would then return with mother and T where he would often have a rest and leave for work at about 2 pm.

He would return to his mother's property on Monday night after work and they would all return home to Tottenham on a Tuesday.

When Mother was at her mother in law's property she would be assisted in the care of the children by her mother in law, sister in law, TC or her brother in law, AC. Also present at the address is one of Father's brothers ASC.

While she was staying with her in laws, Mother would leave T to be looked after by her mother in law or her sister in law when she went to collect T from school on Friday and Monday afternoons.

Precipitating event

On Friday the 3 ^rd July 2015 Father went to work as usual and M went to stay with her in laws. Father indicates that nothing unusual happened in the week prior to the 6 ^th July. T appeared to be in good health.

On Saturday, 4 ^th July, Mother went to the park with the children and family members, AC, N, NA (14) and ZA (9).

During the course of the visit to the park T went down a slide between the legs of N, Mother's niece, who is 18.

In her first statement dated 28 August 2015, Mother describes what happened by saying that: "around 5 minutes after this, NA brought T over to me because he was crying. NA said that he thought that he was crying because he was scared. When I took T in my arms he stopped crying."

On the 29 ^th October, Mother made a second statement following a family meeting on the 5 ^th October, when family members tried to work out how T might have suffered the injuries that he did.

In her second statement Mother says that at one point she looked up from dealing with TMC and saw N coming down the slide with T. She was some distance away in the playground and was not aware that N was planning to take T down the slide. When she observed this she felt a bit concerned but did not intervene. That appears to me to be the sort of reaction that one would expect from a parent.

It appears that N had taken T down the slide on either 2 or 3 occasions. In evidence she said it was on just 2 occasions.

In her statement N reports that on the first occasion he appeared to enjoy going on the slide but on the second occasion before they got to the end of the slide he started crying. She says that she would describe the cry as a loud one.

She assumed that he had become frightened and because he was crying took him to the swing. As soon as she put him down he started crying. She therefore decided to take him to his mother. On the way she met her brother and T put out his arms as if he wanted to go to NA. However it appears that shortly after that, he spotted his mother and wanted to go to her.

Mother reports that T appeared to be very distressed and "was really sobbing".

She cuddled him and held him to her chest and within a minute or so he fell asleep. She then put him in his buggy where he slept for some 30-45 minutes until they left the park.

On their way home they stopped at another park and T woke and sat on Mother's lap. She notes that in retrospect he was quiet and subdued, and although he would normally want to go off and explore on that day he was very quiet and stayed on her lap.

Photographs were taken on that day and they appear at C85-87. In so far as one can determine anything from those photos, it does not appear that T is happy.

When they got back to the home of mother in law, AC, the paternal aunt, was cutting her husband's hair. It was then agreed that she would cut T's hair. It appears that during that hair cutting T became distressed and was crying. He was therefore handed back to Mother.

Mother reports that she therefore put T on her knee and held him tightly with his legs between hers and holding onto his arms so that he did not wriggle. Unusually he was crying so much that AC asked if she should stop cutting his hair although in the past he had been quite happy to have his hair cut. Mother took the view that since the haircutting had started, it was better to finish as soon as possible.

On reflection she considers he was probably in pain.

It was then decided to wash him and at that time he was still distressed and crying.

Mother recalls that T did not want her to put his left shoe on, although he was happy for her to put his right shoe on.

The following day Mother says in her statement that they went out shopping for most of the day with T in his pushchair. In retrospect he was not as bubbly as he usually was, but because they were out in the pushchair this was not too obvious.

She said that when they came back from shopping T was not his usual active self. He was just learning to walk at that time, but did not move around very much once they were home, seeming to prefer to be carried in her arms for most of the time.

She added that because they were a large extended family, at weekends he was looked after more by family members who would hold him while she was involved with her older children and various nephews and nieces.

Mother then prepared a 3 ^rd statement in which she says that although she had said in paragraph 62 of her first statement that when they returned from shopping on the 5 ^th July T was playing normally and standing and taking steps, this was not correct.

On the 5 ^th July, she says that they got up late and T was placed in his car seat, which was then removed and placed into the pushchair frame. He was therefore in his pushchair all day long when they were out shopping and did not want to get out and explore.

On the 6 ^th July, Mother noticed that T was having difficulty putting weight on his left leg and telephoned her husband who was at work. He told her to observe and see what happened. Later that morning she was still concerned and telephoned her sister in law, who spoke better English and who arranged an appointment with mother's GP. Mother attended the GP in the afternoon and was advised to take T to A & E, which she did.

At A & E a greenstick fracture of the left fibula was noted. Since there were no concerns, a plaster cast was applied and a fracture clinic appointment was made.

On the 13 ^th July T was taken to the fracture clinic where a repeat X ray showed a metaphyseal bucket handle fracture of the left distal tibia, which had not previously been discovered, although Dr Fairhurst was able to detect it on the X-ray taken on the 6 ^th July.

This rang alarm bells because metaphyseal fractures are associated with inflicted injury because of the twisting and pulling motion which is required.

Police and social services became involved and Social Services quite properly brought these proceedings so that the court could adjudicate on the matter.

Evidence

I have read the bundles filed although I did not read the medical notes, but rather invited the parties to refer me to any part of the medical notes which they considered relevant.

I have read the bundle of authorities, which was helpfully provided, and the various research papers, which have been included in the papers.

I would wish to thank counsel for their hard work both in putting together the bundle of authorities and in including various articles.

I have also seen the photographs of the slide which featured in the playground visit of the 4 ^th July.

I have heard live evidence from Dr Fairhurst, Professor Nussey, Dr Morrell, mother, father, N and AC, the paternal aunt. Nobody required SR, father's employer to attend to give evidence and I accept his evidence.

At the outset of these proceedings I sought confirmation that the Local Authority was not seeking to obtain findings against paternal Grandmother or paternal aunt and uncle. Similarly the parents did not seek to blame them for any of the injuries. Therefore while they must remain in the possible pool of perpetrators, they have not been made parties. I note that this was the course followed by Theis J in Al-Alas and Wray.

Medical evidence

There was, in the end, a high degree of agreement amongst the expert witnesses on the question of vitamin D deficiency and this agreement is summarised at E268. I am grateful to the Counsel for the children for preparing this and for the children's solicitor for arranging the meeting of experts.

I begin with the evidence of Professor Nussey. He is an eminent professor of Endocrinology at St George's Hospital Medical School, who has many years of experience.

I found him a careful, painstaking witness who was prepared to identify weaknesses in the research upon which he relied. He was able to say that the medical literature was "underwhelming in terms of fracture rates and estimating propensity to fracture. Both with rickets and any vitamin D level. In terms of the radiological fracture rates and so on there aren't really any decent papers to be able to draw on."

When he was asked to confirm the contents of the experts' meeting, he checked to make sure that his amendments had been incorporated.

Also I note that when he criticised the research of Bishop, which he described as dogmatic, he was clearly concerned that there was no references to any literature or any evidential base. He had written to the BMJ pointing this out and I infer from his evidence that no evidence had been provided as a result.

I found him an impressive witness and felt that his evidence was evidence upon which I could rely.

 

He has a particular interest and expertise in the field of vitamin D deficiency.

While I cannot do justice to the totality of his evidence he made the following observations:

♦   Indian sub-continent Asians in the UK are recognised to be at a high risk of vitamin D deficiency

♦   There is no evidence that mother received the nationally recommended vitamin D supplementation

♦   Pigmentation of skin reduces vitamin D production.

♦   Vitamin D is in very low concentrations in breast milk and it is known that T was fed on breast milk up to the time of the fracture.

♦   There is no evidence that T received any vitamin D supplements until shortly before the fractures which would have distorted the readings for Vitamin D without sufficient time for beneficial effects in the bones to be noticed.

♦   TC, T's sister was found to have low vitamin D.

♦   The failure to thrive by T is indicative of Vitamin D deficiency.

♦   The fact that T was born in May at the end of the winter would mean that mother's vitamin D level would be at its lowest. I note that mother is dressed traditionally with a head scarf and this inhibits her ability to absorb vitamin D.

♦   The fact that mother had preeclampsia despite the fact that all 3 children had the same father is statistically suggestive of vitamin D deficiency.

 

Taking all of these matters into account Professor Nussey says it is highly likely that T was suffering from vitamin D deficiency in prior to taking the vitamin supplements.

 

The consequence of this is as follows:

♦   It is likely that the bone tensile strength was reduced although the extent of this reduction is not quantifiable.

♦   While it is suggested that about 35-40% of bone mineral needs to be lost before it can be detected on plain film radiology the fracture rates are largely derived from post-menopausal women and there are few data for children

♦   There is evidence in experimental animals that rickets leads to a decrease in the tensile strength of bone and slows fracture healing. For ethical reasons there is no evidence for this in humans. "Although it is generally agreed that there is an increase in fracture rates in children with rickets this has never been quantified."

♦   In the case of T, if there had been histological evidence available, it is likely that he would be shown to have rickets.

♦   The number of fractures is not a delineating factor in determining causality.

I accept that evidence from Professor Nussey although in the event the evidence as to vitamin D deficiency was of marginal importance.

 

Dr Fairhurst

I turn now to Dr Fairhurst. She is a well-known consultant radiologist who regularly gives evidence in these courts.

I regret that on this occasion I did not find her an impressive witness.

I have a number of concerns about her evidence but in view of the agreement reached at the experts' meeting it is not necessary for me to make findings on these. Furthermore there was agreement between Dr Fairhurst and Dr Morrell that in the event that an accident took place on the slide the forces were such that any healthy bones would have been likely to fracture.

 

In her report at page E36, Dr Fairhurst had reported that: "metaphyseal fractures have been reported during treatment for club foot and have also been reported as the result of obstetric injury. Both these causes can be discounted here.

With these exceptions metaphyseal fractures do not occur accidentally and this type of fracture is highly indicative of non-accidental injury."

When she was picked up on this in cross-examination she sought to row back and said: "I did not mean to say that."

If this was an unfortunate slip it appears to be one that she made in Re S (A Minor) a decision of HHJ Wright, which is included in the bundle of authorities, which I was handed. At paragraph 42, if HHJ Wright has correctly recorded her evidence, she appears to have said something in identical terms.

Whether this is an indication of an unfortunate cut and paste or of a somewhat closed mind (or both) I cannot say on that evidence.

However in her statement and later in the experts' meeting, Dr Fairhurst rejected the suggestion that any injury could have occurred on the slide as set out the in the mother's statement and that of N.

It was apparent that Dr Fairhurst had assumed that T was sitting on the lap of N, which in fairness was what mother had said in her statement. However by the time of the experts' meeting and before giving evidence, she had been provided with N's statement saying that T had been held between her legs. I would have expected an open-minded expert to look very closely at the mechanism suggested for the injuries.

When I had read N's statement it did appear to me that there could well have been a twisting and pulling force going down a slide between the legs of an adult. I was therefore surprised that it appeared to have been given so little consideration by both Dr Fairhurst and Dr Morrell.

When Dr Fairhurst was taken to the statement of N, she accepted that she had made an incorrect assumption and that if the foot of T had become caught because he was wearing rubber shoes, this could have caused the twisting and pulling force which could cause both of the fractures on a single occasion.

It is regrettable that this did not emerge earlier. It is possible that this matter may have been dealt with more speedily.

 

I should add that the evidence of T crying out and being very distressed after the visit to the park and at home that evening should also have made the experts look again at the evidence relating to the slide.

I accept her concessions, the evidence of the nature of the fractures and the timing of the fractures. I do not consider that it is necessary for me to make any other findings in respect of her evidence.

 

Dr Morrell

Sadly, Dr Morrell also appears not to have read the statement of N with care. He had not seen the photographs of the slide before he stepped into the witness box. Some experts would have asked for them.

 

When he was taken to N's statement he accepted that if the foot had become caught or snagged this would have produced both the fractures. He also accepted that the descriptions of T's behaviour while going down the slide and afterwards and at home, was consistent with him having sustained an injury at the park.

He also agreed that because of the stage that T was at, in terms of walking, it was unsurprising that he did not show discomfort until the morning of the 6 ^th July and that the nature of the fractures, that is that they were not displaced, meant that he may well have been able to enjoy undisturbed sleep.

 

In answering me, Dr Morrell said that doctors are being told that metaphyseal fractures are indicative of inflicted injury. I am afraid that while such fractures may ring warning bells, they are not diagnostic of inflicted injury and should not be treated as such.

 

I am afraid that once again there does not appear to have been a careful reading of the account which had been given of events in the playground, and there appears to have been little weight given to the account of T crying out while going down the slide and afterwards.

 

Parents

I found that both parents were truthful witnesses.

Mother, gave her evidence clearly and without hesitation. When she did not know, she said so. She displayed appropriate distress when giving parts of her evidence. I note that there was a degree of frankness in her statement when she dealt with previous difficulties in the marriage and the effect that these had had on her. She did not seek to conceal these.

I recognise the limitations of hearing evidence through an interpreter, but I had the opportunity of observing her demeanour while she gave evidence.

She was cross-examined with moderation and Mr Wallace wholly appropriately assisted the court in testing her evidence. He was not able to suggest that mother had caused the injuries in a particular way or at a particular time because there was not the evidence available to enable him to do so.

Similarly with father, I found him to be a truthful witness. His evidence was far clearer than it appeared on the face of the police interview. Like the mother he answered directly and said when he did not know the answer after the passage of time.

 

Family members

I heard from N who had taken T down the slide. She gave her evidence quietly and carefully. Again if she did not know she said so. She could not say what had happened going down the slide because of the speed that she was travelling. She did not seek in any way to embellish her evidence.

 

I also heard from AC. She had cut T's hair on the night of the 4 ^th July and described how he had cried out which was unusual.

Both N and AC impressed me as witnesses of truth. I felt that I could rely upon what they told me.

When asked about the parenting skills of mother, both became appropriately distressed and it was clear that they regarded her as a model parent.

 

Findings

All of these findings are on the balance of probabilities

♦   These were, and are, loving parents who have a warm relationship with their children. This was particularly noticed by the hospital when mother brought T in.

♦   There have been no concerns about their parenting other than the fractures to T.

♦   Neither of the older children has raised any concerns. In particular, T has made it clear that she was not subject to physical punishment.

♦   I consider it inherently improbable that both loving parents inflicted injuries on separate occasions. If the injuries were inflicted only one parent was involved.

♦   While I am aware of the limitations of radiological timing of fractures, it is the best evidence which I have. On that basis, the injury to the fibula occurred on a date between the 3 ^rd July and 6 ^th July. The injury to the tibia occurred on a date between the 22 June and 6 ^th July. I bear in mind that metaphyseal fractures are difficult to detect and often no symptoms are displayed.

♦   There were no bruises or other injuries.

♦   The children were taken to Paternal Grandmother's flat on the morning of the 3 ^rd July in time to take the children to school in Tower Hamlets.

♦   It is indicative of the commitment of the parents that they were prepared to make a one-hour journey so that TC could remain at her school where she had taken time to settle.

♦   I accept the evidence of father that T was regarded by the parents as particularly vulnerable because of his small size when he was born.

♦   If Father is to be implicated in both injuries the only window of opportunity was the morning of the 3 ^rd July.

♦   Mother stayed at the home of Paternal Grandmother from Friday morning on the 3 ^rd July to the visit to hospital on the 6 ^th July.

♦   Living in the home of Paternal Grandmother were Paternal Grandmother, paternal aunt and her husband and child and father's brother.

♦   This family group was present each night and for most of the days during that weekend with other family members also visiting.

♦   It is inherently improbable that mother (or indeed father) could have inflicted injuries in the flat of Paternal Grandmother without other family members being aware of this.

♦   There is the additional improbability that injuries were inflicted while mother was staying with Paternal Grandmother. This is because of the deterrent factor of the presence of family members and the reduced strain on mother because of assistance being given in looking after the children by other family members.

♦   There appears to be no occasion on which mother was alone with T without some other family member being present or being in the flat with her.

♦   On the 4th July a significant event took place in the park when T was coming down the slide with N, his cousin. Her evidence was that he was sitting between her legs with his legs on the slide.

♦   Half way down the slide T gave a loud cry and was thereafter distressed until his mother was able to comfort him.

♦   The slide is long with a polished metal finish. This is likely to result in users travelling at some speed. This is not a small child's slide.

♦   The slide is quite wide. Anybody travelling down the slide would not be supported at the hips so there is room to slide sideways.

♦   Half way down the slide there is an undulation which would have the effect of causing users to be projected in the air or to have that sensation.

♦   If two people of different sizes and weights are travelling down the slide, it is likely that after the undulation they would be travelling at different speeds and/or would have a different momentum.

♦   The effect of travelling over the undulation is likely to unbalance anybody going down the slide.

♦   T was wearing rubber shoes, which would be prone to catch on the slide.

♦   T was of an age when he could do nothing to protect himself by way of adjusting his position or steadying himself. He would be unaware of the dangers of allowing his shoes to catch on the slide.

♦   If one takes together the speed at which one would travel down the slide with the weight of an adult (albeit that N is relatively slight of build) there would be considerable momentum. This would produce a substantial force.

♦   In the excitement of the slide I do not consider that N, would necessarily be aware if T's foot had caught after she had landed having been projected upwards by the undulation in the slide. She told me that she was not really aware of anything because she was travelling so quickly.

♦   The cry which T gave was more likely to be a cry of pain than one of fear. T had apparently enjoyed going down the slide before.

♦   That evening T was distressed when attempts were made to cut his hair and to wash him. He did not want a shoe put on his left foot.

♦   On the 5 ^th July T was taken shopping with his mother and other family members. He was in his pushchair for much of the day and was held by family members including, in particular, Paternal Grandmother.

♦   As Dr Morrell pointed out, when a child is just taking one or two steps it is less apparent to a carer that the child may have an injury to his leg.

♦   T woke in the early hours of the morning of the 5 ^th/6 ^th July and mother gave him paracetemol because she believed him to be teething.

♦   When T initially attended hospital palpation of his leg did not produce a reaction of pain although a reaction was noticed an hour or so later.

♦   I also accept the evidence of N that while they were waiting at hospital T was able to use a baby walker without apparent distress.

♦   I accept that T was not showing any signs of pain or injury when he was first taken to the home of Paternal Grandmother on the 3 ^rd July.

♦   On the balance of probabilities it is therefore unlikely that he had suffered any harm on the morning of the 3 ^rd July or before that date.

♦   On the evidence I have heard, this is a close, warm and child-centred extended family.

♦   While it is always possible that family members have contrived to cover up an assault on T, I have no evidence of this. I therefore look instead at their evidence to assist me in trying to decide what happened while T was at the home of his Paternal Grandmother between the 3 ^rd and 6 ^th July.

♦   I accept the evidence of mother that the first indication she had that there was a possible leg injury was on the morning of the 6 ^th July. Thereafter she immediately sought medical attention.

♦   The injuries must therefore have occurred between the 3 ^rd July and the 6 ^th July, when mother was rarely, if ever, left alone with T during the day and any assault would have been heard if it had taken place at night.

 

On the basis of those findings I consider it inherently improbable that the parents or either of them caused those injuries between the 3 ^rd and 6 ^th July.

If I find it inherently improbable that the injuries to T occurred while in the care of mother or father I have to ask how the injuries did occur.

♦   On the basis of the findings that I have made above, I find on the balance of probabilities that T suffered his injury when he was going down the slide.

♦   While it is not possible to point to a direct account of the infliction of the injuries, I find the circumstantial evidence compelling.

♦   I accept the evidence that T did not display any symptoms until after he went down the slide.

♦   Dr Fairhurst and Dr Morrell both agreed in evidence that if T was going down the slide with his adult cousin holding him between her legs if T's foot became trapped or caught that would provide a mechanism which would explain both fractures.

♦   Dr Morrell agreed that his cry half way down the slide, his distress afterwards, his distress at home when having his hair cut and while being washed and being reluctant to have his left shoe put on was consistent with him having sustained an injury while half way down the slide.

♦   The lack of apparent distress on the 5 ^th July is explicable in terms of the activities undertaken which involved T spending much of the time in his baby buggy and the early stage that he had reached in terms of walking.

♦   For the sake of completeness I do not consider that mother was negligent in not stopping N from going down the slide. Her reaction in feeling some anxiety was a natural one, but like many parents she did her best not to be over-anxious.

♦   Similarly I find that she appropriately sought medical assistance as soon as she was aware that something was amiss.

 

In view of the findings I have made, it is not necessary for me to go into questions of the contribution that might have been made by vitamin D deficiency. This is because it was accepted by Dr Fairhurst and Dr Morrell that if the injuries happened on the slide the force would have been such that normal bones would have fractured, given the forces involved.

However I do accept the agreed evidence of all of the experts that:

"There must come a stage where a child has a reduced vitamin D level and therefore drifting into the category of an infant/child who is at increased risk of fracture. (It is) unknown at what level that risk occurs or how long the vitamin D levels have to be sustained for. The literature is very limited."

 

It follows that since there are no other concerns about the care that the parents give to their children which is regarded as being of a high quality, the applications for care orders must be dismissed.

I would wish to record my thanks to all counsel for the assistance they gave the Court.