St Helens Council v M and F (Baby: Multiple Fractures) [2015] EWFC 33

IMPORTANT NOTICE

This judgment may be published provided that the family members are not identified in any report. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Case No LV14C01661

[2015] EWFC 33

Date 21 April 2015

IN THE FAMILY COURT

Before

THE HONOURABLE MR JUSTICE PETER JACKSON

Sitting at Liverpool Civil and Family Courts

Between

Between :Applicant

ST HELENS BOROUGH COUNCILRespondents

MRespondent

FRespondent

C (a child)Respondent

Andrew Loveridge (instructed by St Helens Borough Council) for Local Authority

Karl Rowley QC and Tammi Bannon (instructed by Stephensons Solicitors) for Mother

Susan Grocott QC and Julie Forsyth (instructed by Haygarth Jones Solicitors) for Father

Clive Baker (instructed by Morecrofts LLP) for Child

Hearing Hearing dates: 3, 4, 6, 9, 13, 16 & 17 March 2015

Judgment date: 21 April 2015

JUDGMENT

JUDGMENT: St Helens Council v M and F (Baby: Multiple Fractures)

Publication of this judgment was postponed because of the existence of criminal proceedings in 2015 and until the outcome of a rehearing in 2017: [2018] EWFC 1.

Introduction

[1]On 27 June 2014, the local authority issued care proceedings in relation to C, a baby boy born in February 2014. His parents had brought him to hospital on 16 June with a swollen right arm. X-rays identified several old and new fractures of the arm and shoulder. A full skeletal survey was carried out. This showed that C had suffered no fewer than 26 fractures, affecting all four limbs, the ribs and the shoulder blades. The fractures had occurred on at least two separate occasions.

[2]C had been born prematurely at 30 weeks gestation with a birthweight of 1660g (3lb 10oz). At the date of his admission to hospital, his chronological age was 4 months and his corrected age was 6 weeks.

[3]The purpose of this hearing is to establish whether the local authority has proved that C’s injuries were inflicted by his parents. They both strongly deny this and rely on expert medical opinion that the injuries may have been the manifestation of a condition as yet unknown to medical science that caused transient fragility in C’s bones. Against this, other expert medical opinion considers it much more probable that the fractures and other appearances were the result of C being assaulted.

[4]All the doctors agree that extensive investigations have not shown C to have any known medical condition that might explain the fractures. At the same time they all agree that the radiological appearances seen in the skeletal survey are highly unusual. It is also agreed by everyone that C’s mother and father have been consistently observed to be caring parents, both before and after the hospital admission. The basis for intervention in this case rests on the origin of the fractures, and nothing else.

Fact-finding

[5]The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.

[6]Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can be about major topics and small details, things that are important and things that are trivial.

[7]The burden of proving a fact rests on the person who asserts it. So here the burden rests on the local authority throughout.

[8]Features of this case have prompted submissions about the standard of proof.

[9]The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this.(1) Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case. In my view statements of principle that suggest that an enhanced level of evidential cogency orclarity is required in order to prove a very serious allegation do not assist and may lead a fact-finder into error. Despite all disclaimers, reference to qualitative concepts such as cogency and clarity may wrongly be taken to imply that some elevated standard of proof is called for.

(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same.

(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But 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.

(4) Similarly, the frequency or infrequency with which an event generally occurs cannot be allowed to divert the court’s attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon, counsel for the mother, felicitously observe: “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low." I agree. It is exceptionally unusual for a baby to sustain 26 fractures, but C did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this or any other case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

[10]Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.

[11]When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.

[12]Where, as here, there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something, or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case.

[13]This principle is elaborated on in the three authorities cited by Mr Justice Baker in A Local Authority v A Mother, A Father and L and M (Children)

[2013] EWHC 1569 (Fam)

at paragraphs 55-57: 55) 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." 56) 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." 57) 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."

[14]Finally, where it is established that injury has been inflicted, the court should attempt, without straining to do so, to identify the perpetrator. Where it can be said of a person that there is no real possibility that they were responsible for the injury, they can be excluded from further consideration.

The hearing

[15]Evidence was given over the course of seven days from these principal witnesses (*evidence read) Family and friends The mother The father The maternal grandfather *Ms H, a SCBU mother *The paternal grandfather *Ms D, a friend of the mother Mrs H, a family friend Medical professionals Nurse D, Children’s Community Nursing Team (CCNT) Ms C, Health Visitor Dr O, General Practitioner *Dr S, consultant paediatrician and family friend Treating clinicians Dr A, consultant paediatrician, responsible for C in the Special Care Baby Unit (SCBU), after discharge, and on readmission *Dr L, consultant paediatric radiologist Mr J, consultant paediatric orthopaedic surgeon, who saw C in July and November *Dr F, consultant clinical geneticist, who saw C in August *Dr D, consultant paediatric endocrinologist, who saw C in November *Professor Bishop, professor of paediatric bone disease, who saw C in December Expert witnesses Dr Katherine Halliday, consultant paediatric radiologist, University College Nottingham Dr Jeremy Allgrove, consultant paediatrician and paediatric endocrinologist, Royal London Hospital and Great Ormond Street Hospital Dr Sze May Ng, consultant paediatrician and paediatric endocrinologist, Southport and Ormskirk NHS Trust *Dr Andrew Will, consultant haematologist, Royal Manchester Children’s Hospital

[16]Counsel’s closing submissions were delivered in writing. I reserved judgment to allow time for reflection; also, the parents had filed evidence about another premature child with fractures (Baby S) and some follow-up inquiries were necessary. The history Family background

The history

[17]The father is aged 32 and the mother 27. They met through a dating website in May 2013 and began their relationship soon afterwards. In May 2014, after the birth of C, they became engaged to be married. Their relationship appears to be a mutually supportive one.

[18]The summer of 2013 was a momentous time for the mother. Her own mother, to whom she was very close, was terminally ill and she was helping her father care for her. In July, six weeks after meeting the father, she came into a very large sum of money that allowed her to leave her job. Later that month she went overseas with the father and her parents for her brother's wedding. On returning to England, she discovered that she was pregnant. Five days later, her mother died while she was caring for her in her father's absence. In the immediate aftermath of that blow, she decided to continue with the pregnancy (she had begun the process of arranging a termination) and in October she and the father moved into their first home together. The pregnancy itself was not easy.

[19]All of this, and particularly the death of her own mother, caused the mother great emotional turmoil for which she appropriately sought counselling. In December, she was referred for cognitive behavioural therapy for anxiety and panic, and on 7 January she attended for an initial assessment. It was recorded that she was experiencing a lot of stress and that the impression was of anxiety disorder compounded by grief. A referral for urgent CBT was recommended but this did not happen due to C’s early arrival.

[20]In January 2014 , the father had an accident at work and has not worked since. As a result, the parents have spent most of their time together at home throughout C’s life and both have taken a full part in his care. Interviewed by the police, the father said that he and the mother had “basically lived in each other’s pockets and we’ve been there 50/50 for [C]”.

C’s birth and time in the SCBU

[21]C was well at birth and had very few problems in the neonatal period. He did not require respiratory support. Because of his prematurity, he remained in the SCBUfor five weeks.

[22]The parents were noted to be committed, though the mother was considered to be particularly anxious. Like many first-time parents, they were both intensely concerned about every detail of their baby’s health and development and the impression from the evidence is that from the time of C’s birth no issue, however small, would be likely to have escaped their attention.

[23]On 23 and 28 February, X-rays, referred to below, were taken of C’s chest and abdomen to check on the siting of an umbilical catheter.

[24]C’s consultant, Dr A, described him as a good graduate of the SCBU. He had no stormy periods, his breathing was essentially normal and neonatal infections were sorted out. His biochemistry was normal. It was a calm, normal career. He had jaundice and gastro-oesphageal reflux, which are common in premature babies.

[25]Throughout his early months, C experienced difficulties with feeding. As his father put it:

"He never fed well. He'd often not take the full amount, or take a long time, or throw it back. Sometimes he had bad days."

C was prescribed an escalating series of medications to treat reflux: Gaviscon and Ranitidine, replaced by Domperidone and in due course Omeprazole.

[26]C’s growth chart, completed by his health visitor, shows that his weight settled between the 9th and 25th centiles from March until mid-May. It then fell as low as the 2nd centile by the end of June before rising again to the 9th centile by August.

C’s time at home

[27]C was discharged home on 28 March and remained there for 80 days. He slept in his parents’ bedroom. The family received twice-weekly visits from the CCNT team of specialist nurses until they were discharged from that service on 22 May. There were also visits from health visitors (HV) and visits to the GP and hospital. C was therefore seen by health professionals every few days: nine times in April, nine times in May and four times in June before his last admission. The father exhibits a list showing the frequency of these contacts. To this I have added the dates on which the maternal grandfather cared for C, and also three lines. The first two lines bracket the window of time during which the majority of the fractures are thought to have been sustained (5 May to 2 June) and the third line shows the beginning of the window for the more recent fractures (6 to 16 June). 31 March CCNT 31 March HV 3 April CCNT 7 April CCNT 7 April Hospital visit 12 April CCNT 14 April SCBU visit, seen by CCNT 17 April CCNT 22 April GP appointment, vaccinations and 8 week check 25 April CCNT 25 April Hospital visit 28 April CCNT 28 April HV End April MGF babysits 1 May Visit to osteopath 2 May CCNT 2 May MGF babysits 7 May CCNT 9 May Dr S home visit 9 May MGF babysits 13 May MGF babysits 14 May CCNT 15 May MGF babysits 19 May MGF babysits 20 May GP appointment, vaccinations and 12 week check 21 May MGF babysits 22 May CCNT 29 May Baby clinic, seen by HV 30 May Dr S home visit 3 June HV 5 June Baby clinic, seen by HV 10 June Hospital visit, seen by Dr A 13 June CCNT (medication drop) 13 June MGF has lunch with parents and C 16 June Admitted to hospital

[28]With one exception, none of the professionals observed or suspected any injury. The exception was on 7 April, when the mother reported to a nurse visiting the home that C had two faint linear marks to the lower abdomen. He was seen at the hospital and the marks were accepted as having been caused by the buckle of his car seat.

[29]Evidence was given by Nurse D of the CCNT. She and other members of her team made visits weekly until 19 April and fortnightly after that as C was gaining weight. There were 12 contacts in all. She herself visited on 25 April, 28 April and 22 May, and dropped off medication on 13 June. She saw him undressed when weighing him. She noted that the parents handled C appropriately.

[30]Ms C, the health visitor, gave evidence of five contacts with that service between 31 March and 3 June. She herself visited on 31 March and 11 April and saw C at the clinic on 29 April. She saw him undressed on these occasions. Nothing concerning was noted on any of these visits. The parents were caring and attentive and excited to be at home with their son. The mother had an elevated score on the Edinburgh tests for postnatal depression, administered twice in April, but this was not considered significant given her overall family circumstances. Issues mentioned in the notes include C’s feeding and his occasionally unsettled sleeping.

[31]On 8/9 April, C cried all night. The mother telephoned the hospital and was told it was probably colic.

[32]On 12 April, the mother attended for initial assessment for counselling. She described low mood most days, with symptoms worse at night and an increase in worry about her son's health. She was recommended for counselling for complicated grief.

[33]On 14 April, C was seen on the SCBU. The parents reported him to have been crying and unsettled. Ranitidine was prescribed.

[34]On 19 April, the parents say that C’s arms appeared to be swollen and that his babygrow was tight. They speak of attributing this to a growth spurt and bought him some larger clothes that day. They did not seek medical advice, and even though the mother had a conversation about feeding with the CCNT nurse that evening, she did not mention C’s arms. The mother says that this was because he did not appear to be in pain.

[35]On 22 April, C was taken to the GP for his eight week check and inoculations. Feeding problems were described. Dr O checked him over. His limbs were normal. The Barlow and Ortolani tests were performed and the Morrow reflex checked. Dr O demonstrated how he had handled C, including by pulling him up by his arms to a sitting position.

[36]On 25 April, Nurse D visited. C was squirming while winded and was in obvious discomfort. This was attributed to reflux; it was sufficiently concerning for him to be taken to be seen at the hospital, where he was started on Domperidone.

[37]On 1 May, the parents took C to an osteopath for help with the feeding problems. They told her that he was constantly vomiting and during feeding would pull off the bottle and thrash back. During the consultation, C was quite unsettled so he was treated while being held by his mother. The osteopath describes his physical tone as tight and jittery.

[38]On 4 May, the grandfather contacted Dr S, a family friend and a senior paediatric colleague of Dr A, to ask for advice. He agreed to give it when he returned from holiday.

[39]On 5 May, the parents became engaged to be married.

[40]On 6 May, the mother began weekly counselling, which she has described as being helpful.

[41]On 9 May, Dr S visited. He found the home to be very baby-oriented. C was asleep, being looked after by his father. The mother said in evidence that she welcomed this visit because she was becoming increasingly frustrated by the advice she was receiving from hospital. Dr S did not examine C but said the parents could contact him if problems continued.

[42]On 20 May, C returned to the GP for his twelve week check and inoculations. Dr O checked him again and was satisfied with his progress. He could control his head and had good muscle tone. The parents describe the examination as being robust. It was suggested to Dr O that he may have applied sufficient force to have caused injury. He did not think this likely, even to weakened bones.

[43]When Nurse D visited on 22 May, C showed no sign of being in discomfort when he was weighed. It was an essentially normal visit.

[44]On 29 May, or on 5 June, when C was having his nappy changed at the clinic, the mother says that a health visitor asked her whether he always cried like that. The mother’s feeling was that C "didn't like being messed with".

[45]On 30 May, Dr S visited again at the request of the family. The mother was feeding C. She described his reluctance to take a full bottle and that he appeared to be upset, and she said that his weight was falling off. Dr S checked C’s mouth for any problems. He undertook to contact the hospital to arrange an early appointment.

[46]On 3 June, the parents told a visiting nurse that C had been vomiting since receiving his second immunisations on 20 May.

[47]On 6 June, the mother called Ms C, the health visitor, concerned about C’s poor weight gain. She said that she was reluctant to wake him for an extra feed at night as he slept very little. She is recorded as saying that she was feeling very stressed as she herself had to attend a clinic several times for treatment of a condition of her own while trying to manage C’s feeding. Ms C did not consider the mother's situation abnormal.

[48]C was also regularly seen by family and friends in the normal course of events. His maternal grandfather looked after him for short periods on seven occasions between the end of April and 21 May. The grandfather was joined as a party to the proceedings at an earlier stage on the basis that he had had the opportunity to injure C. In response he filed a statement describing each of the occasions listed above. The local authority accepted that he did not have the care of C during the ten days before the hospital admission in June and that he could therefore be excluded as a possible perpetrator of any later injuries. It being extremely improbable that the child was being assaulted by the grandfather and also by a parent, he was therefore discharged as a party at the outset of this hearing, though he attended every day and gave evidence as a witness.

[49]The grandfather spoke very highly of his daughter's qualities as a person and a parent, and had nothing but good to say of the father. He said that he had been shocked by C’s appearance at birth. He was tiny and his limbs looked deformed. There was also a time, probably in late April or early May when C’s arms had looked swollen. When he had changed C’s nappy around that time he was quite upset to be handled. There were times when he felt that C was happier on his own. At his daughter's request, he had twice contacted Dr S to ask him to have a look at C.

[50]The grandfather first learned that there was something wrong with C's right arm on the morning he was taken to hospital. Since then, he had not spoken to his daughter about what happened that morning or the night before or asked either parent whether they had injured C. Either that, or he may have asked them and they said they did not know.

[51]A number of other observers saw C during his time at home. The mother and a group of five other mothers of premature babies formed a Whatsapp group to exchange information and support. They sent messages to each other on a daily basis and met regularly, including at this family’s home. One member of the group, Ms H, records seeing C being visibly uncomfortable when he was fed on 5 June. She describes the parents in very positive terms, as does another of the mothers in the group.

[52]On 10 June, C was seen at hospital by Dr A, who had been informed by Dr S (the family friend) that the feeding difficulties had not resolved. The parents told him that C was still having difficulty in taking full feeds. He would start well and then slow down and cry at times. He could gag and it could take up to 45 minutes to finish his feeds. Dr A performed a full examination, picking C up to check his tone. He demonstrated this in evidence. It was suggested to him by the parents that the examination had been roughly conducted, leaving red marks on C. Dr A did not accept that he had done anything that could have damaged C’s arm. He viewed it as a case of reflux and added the medication Omeprazole, to be given by syringe. The physical examination revealed no abnormality and Dr A’s contemporaneous note describes C as a "picture of health". He arranged to see him again two weeks later.

[53]The parents experienced difficulties in administering the new medication and on Friday 13 June Nurse D delivered it in a different form to the home, where she saw C asleep in his father's arms. According to the parents, C had a bad night, but he slept through on Saturday and Sunday nights.

[54]C was the subject of an enormous amount of photography from the day of his birth. By the time of the admission to hospital in June no fewer than c.2000 pictures had been taken, and as many have been taken since. These have all been made available to the parties and I have seen a selection of about 220 of them. A number of these photographs were posted on Facebook.

[55]I have also viewed a selection of video recordings provided by the parents. Among the 21 clips submitted: on 19 May, C, filmed by the maternal grandfather, is moving all his limbs freely; on 13 June at 7.10 pm, C is not moving his left arm, but he is moving his right arm. Videos from mid-July onwards show C, who was of course a month older, moving all his limbs vigorously.

[56]The overall impression from the photographic record is of a proud family with an intense focus on the new baby.

[57]In addition, the mother has produced an extensive selection (180 pages) from the Whatsapp conversations with the other SCBU mothers. It provides a running commentary on the progress of their babies and their opinions, generally critical, of medical staff. Numerous messages reflect the mother's persistent anxiety about C’s difficulty in feeding. For example, on 26 May, she wrote "I just want to fix him :(" and on 27 May "Seems to have gone backwards", describing his having a bottle as "just an ordeal". On 5 June:

"Why isn't he putting weight on?"

On 12 June:

"He sucks on his dummy fine but just won't friggin feed."

[58]The weekend before C’s admission to hospital on Monday 16 June was marked by two public events. On the Saturday night, the World Cup game between England and Italy started at 11 pm. The Sunday was Father's Day. The parents had planned a family outing to a safari park on Monday.

[59]On Saturday 14 June, the father received Father's Day presents and cards from C, arranged by the mother.

[60]That evening, the mother went for a night out with girlfriends (including Ms D), the first such occasion since C was born. C was fed at about 6 p.m. The father drove the mother into town, leaving at around 7 p.m. and collecting Ms D on the way. Ms D remembers C sitting calmly in his car seat and showing no signs of distress at all. Having dropped the two adults, the father took C to visit his own father for something under an hour. The paternal grandfather remembers that C was asleep for most of the time but that when he was awake he held him for about 10 minutes and he seemed very content. The grandfather had seen the family together on several occasions since C’s birth and noted that he was a much loved child.

[61]On return home, the father says that he fed C on the sofa at 9.00 or 9.30 p.m. He took a number of photographs during the course of the evening, including several of the mother, holding C and dressed up to go out, and two photographs of C asleep on the sofa after his feed, which he sent to the mother while she was out. The mother says that when she got back at around midnight, the father let her in. C was asleep.

[62]The following morning, Sunday 15 June, the mother did the 6 a.m. feed. Between 10.30 and 11.30, the mother’s friend Ms D came by. She noted C was being fed and taking his food well, and that he was calm and showed no signs of discomfort or distress.

[63]About an hour later, Mrs H, a good friend of the mother’s late mother, visited C for the first time. She stayed for over an hour and held C. She thought he was holding his left arm awkwardly and she asked the mother if it was alright. C was placid and alert and did not cry. The mother was very gentle.

[64]C did not leave home that day. Both the mother and the father went out for short periods, leaving C in the other's care. The father describes it as having been a lazy family day. The four or five photographs of C that were taken on the day have been produced. It is not possible to draw any reliable conclusions about his physical state from them, nor do I reach any conclusion from the (relatively) low number of pictures taken that day.

[65]The parents describe bathing C together at about 8.30 p.m. The mother says that she thought that his right arm looked bigger than his left arm. He held it down the side of his body and he was not moving it. She drew it to the father's attention and he agreed. C did not appear to be in discomfort. The mother says that she wondered whether she should worry about it but that as it was nearly 9 p.m. she thought she would put C to bed and see how he was in the morning. She says that the father thought that she could be a little neurotic as a new mum and would encourage her not to worry. The father says that he was not too concerned "as he didn't seem to be in a lot of pain". They discussed whether they should take him into hospital and came to the conclusion that he seemed alright.

[66]C then had his bedtime feed. He vomited most of it. The mother took a photograph of the vomit on the floor beside the bed. Between 21.03 and 21.06 she sent these Whatsapp messages:

"This might sound really stupid but when your babies go through growth spurts do their arms go like floppy? His arms look bigger and don't work as well lol"

Gave him normal milk today and he's took a little bit more but had vomited ... give him anti reflux then and this was the result ..." and she attached the photograph of the vomit on the floor, continuing:

"He is sick like at least once a day and has been for 3 weeks ... some days it's been every feed, then some days he’s loads better with vomiting. He only took 90 ml then then brought all that back up :/" "... I'm not convinced it's just reflux."

[67]At 23.26, the father posted a Facebook message reading "Great first Father's Day as a dad :) thanks [mother] and [C] of course xx” He attached a photograph of C and himself taken two days earlier.

[68]The mother says that C woke at 6 am the next morning, Monday 16 June, and that she fed him, holding him in her arms with his right arm next to her body. She says that he did not seem to be in discomfort and she did not check his arm.

[69]Resuming her Whatsapp conversation at 08.06, the mother wrote:

"[C] slept from 10-6 again ... managed to get 110ml eventually. He has the first 50-60ml in about 5-10 minutes and then trying to get his tongue in the right place after that is a nightmare! But I got there! Lol. Think I'm going to right down what he has, how he has it and how long he takes to show his consultant cos there is defo a pattern with it xx"

[70]At about 9 a.m., C woke and the mother started to change his clothes on the bed. She says in her statement that he screamed when she touched his right arm and that it looked swollen. (The mother was reluctant to use the word "scream" when giving evidence, preferring to describe a loud cry.) It was obvious that he was in pain. The father was in the bathroom and heard "a pain-cry". They discussed what to do and the mother messaged her Whatsapp friends as follows at 09.15:

"He was in such a good mood then and as soon as I changed him and touched his arm that looks big and isn't moving as much he's screamed. His arms went like this a while ago too ... Is that normal? Like growing pains? He's had 40ml now and I'm struggling :/" and at 09.25: "… He's had 25ml and I've been going 25 minutes. And now he's virtually asleep."

[71]By 09.53, two other mothers had replied suggesting that the mother should take C to hospital. She replied at 09.56, saying that she had rung the CCNT team.

[72]When the mother spoke to the nursing team at 10.00, she was recorded as saying that [C] is still reluctant with his feeds but I am more concerned about the swelling on his right arm between the shoulder and elbow. [C] is not happy moving his arm." She reported that this has happened in the past and settled after a couple of days on its own.

C’s admission to hospital

[73]C was admitted to the hospital on 16 June at 10.30. He was examined and found to be well, alert and bright, but to cry when his right arm was moved or touched. There was no sign of bruising or other external injury.

[74]At 10.30, the parents were recorded to say:

"Parents state for the past 24-48 hours [C] has not been using right arm."

This is a potentially significant entry, given that it conflicts with the parents’ account that the abnormality to C’s arm was then little more than 12 hours old. However, the maker of the note did not give evidence and it would not be safe to rely on this information in reaching my conclusions.

[75]The arm was x-rayed. The report identified old and new fractures to the humerus and distal radius, and possibly to the right scapula. The bones appeared osteopenic (less dense/solid-looking).

[76]A full skeletal survey was carried out, revealing multiple fractures.

[77]The parents describe feelings of devastation when they were told that C’s arm was broken and of disbelief when they were told the findings of the full skeletal survey. At some point around the time of C’s admission, the mother had contacted her own father and he had joined them at the hospital.

[78]Dr A spoke to the parents and grandfather and examined C. He said that it was likely that C had brittle bone disease and that he had requested an urgent opinion from the paediatric radiologist, Dr L, and the endocrinologist, Dr D.

Medical investigations

[79]In the days and weeks that followed, Dr A, with the encouragement of the parents, arranged for a battery of investigations and tests.

[80]On 16 June, C’s calcium phosphate levels were normal. A raised level of alkaline phosphatase was consistent with bone healing. His Vitamin D level was found to be broadly normal and he has had no signs of rickets.

[81]Dr L reported on the skeletal survey on 17 June. There were no radiological signs of osteogenesis imperfecta (OI) but the appearances of the bones raised the possibility of metabolic bone disorder such as healing rickets or resolving metabolic bone disease of prematurity. The number of fractures was beyond what would be expected. The absence of bony pathology on the early x-rays made severe congenital bone disease less likely. The appearances were suspicious for non-accidental injury and no inborn errors of metabolism were seen that would combine this history and radiological findings.

[82]C’s eyes were examined on 18 June and were found to be normal, with no retinal haemorrhages.

[83]A CT brain scan was carried out on 18 June. There was some possible mild abnormality, but an MRI brain scan carried out on 3 July was normal.

[84]19 June, Professor Bishop, a national expert on children's bone disorders at Sheffield, advised Dr A that the x-rays did not indicate features consistent with known metabolic bone disease, particularly as severe bone disease would involve the spine, while C’s spine is normal.

[85]On 25 June, Dr L presented C's case to a specialist regional group of colleagues (the skeletal dysplasia meeting), which suggested that alongside non-accidental injury, the baby might have I-cell disease, Job Disease or scurvy.

[86]On 25 June, a plasma white cell lysosomal enzyme screening ruled out I-cell disease (mucolipidosis), a condition that can cause multiple bone fractures.

[87]On 30 June, a repeat skeletal survey was carried out. No new fractures were found. Dr L reviewed this survey, coming to the same conclusions as before and advising that correlation with bone biochemistry would be helpful. "The trabecular pattern is coarse and the bone texture remains abnormal, although with the extent of the fractures it is difficult to determine whether the changes relate to an underlying bone condition or to fracture healing."

[88]By 3 July, it had been established that C’s IgE level was low, which was inconsistent with his having Job Syndrome. Copper and ferritin levels were normal.

[89]C’s Vitamin C level was retested in July due to earlier sample problems. It was at a good level, ruling out scurvy, of which there had anyhow been no clinical signs.

[90]On 29 July (and subsequently on 27 August, 6 November and 8 December), the specialist unit at Sheffield reported that its analysis had identified no pathogenic mutations in the genes associated with OI. Further testing was not advised by Professor Bishop.

[91]Mr J, consultant paediatric orthopaedic surgeon, examined C on 31 July. The examination was normal. He reported that it was improbable that C’s injuries would have occurred without him being in some discomfort, though it was possible that this may have been interpreted as being due to reflux. Mr J wondered whether C had an underlying metabolic and/or genetic problem and felt that this should be explored. He advised a repeat skeletal survey towards the end of the year.

[92]Dr F, consultant clinical geneticist, examined C on 7 August. He did not identify any genetic cause of bone fragility or have any further suggestions for investigation beyond those already taking place. During the course of the hearing, the question arose as to whether whole exome genetic sequencing (analysis of all the protein-coding genes in a genome) would be likely to provide further information. Dr F advises that this was not clinically indicated and that a genetic bone disorder would be unlikely to be associated with transient changes of the kind hypothesised in this case. Even if some genetic variant was identified, it would be difficult to show that it was relevant to C’s history without finding the variant in other patients with the same history. The process of analysis would be a lengthy one and likely inconclusive. In the light of this advice, no party to these proceedings advocated further genetic investigation for forensic purposes.

[93]In October, C’s case was presented by Dr D at a regional "Radiology and Dysmorphology of Infant Errors of Metabolism Forum". The consensus was that even on the earlier x-rays, the bone texture was not significantly abnormal and certainly not diagnostic, and that the fractures were highly suspicious for non-accidental injury.

[94]On 21 October, C was examined by Dr Jeremy Allgrove, consultant paediatrician and paediatric endocrinologist.

[95]On 5 November, a further repeat skeletal survey was carried out.

[96]On 10 November, Dr D, consultant paediatric endocrinologist, examined C. The examination was normal. Dr D can find no underlying cause for the fractures. The features of the case strongly suggest non-accidental injury.

[97]On 27 November, Mr J reviewed C at his clinic. The examination was again normal.

[98]On 23 December, Professor Bishop examined C. He appeared a normal child. In a draft report for the police, Professor Bishop gave his opinion that there is no evidence of inherited or acquired metabolic bone disease at any stage and that the most likely cause of the fractures is inflicted injury. Professor Bishop mentions the existence of elevated periosteal reaction but does not comment on its significance.

Events since C left hospital

[99]The local authority began proceedings on 27 June and on 1 July an interim care order was made.

[100]On 3 July, C was discharged from hospital and placed with his paternal aunt. The parents have daily supervised contact, mainly supervised by the aunt. The quality of the contact is good and C is progressing well. There have been no further reports of fractures.

[101]The parents were interviewed by the police on 1 August and denied injuring C. Since the hearing, they have been jointly charged with an offence of causing or failing to take reasonable steps to protect C from serious harm under s. 5 of the Domestic Violence, Crime and Victims Act 2004 (as amended).

[102]On 11 September, there was a difficult meeting between the parents and Dr A. Dr A examined C and found him to be thriving. The parents had asked for a change of consultant. They said that Mr J thought that C had a metabolic bone condition. Dr A demurred, saying that the case was before the court. The father said that Dr A’s care had been substandard ("brushing it under the carpet as NAI when you haven't done a good job on my son") and that once metabolic bone disorder was diagnosed he would make sure that Dr A did not practise medicine again ("I'll come for your job."), something the father described in evidence as not being a threat but a promise.

[103]The Children's Guardian reports that the parents "are very child focused ... and have engaged well throughout. They present as being genuinely concerned for [C] and he is the focus of their lives."

The evidence of the parents and grandfather

[104]The mother says that she has never done anything to cause injuries. The problem was a medical one. She had never suspected the father. Apart from questions of love and trust, she would have noticed from C’s behaviour that he was being injured. He was never in great pain. Her relationship with the father was generally smooth, with only a few bickers.

[105]The father strongly denied injuring C. Feeding was a problem for C, not for them. He had never lost patience. It was slightly frustrating when C had not taken a full feed – you would pray that he had a good feed. The father dismissed any possibility that the mother had hurt C. She is a perfect mother. She adores C, as does he. It is absolutely impossible that she has harmed him. He had not asked her whether she had done anything because he knows that she did not. There is no way C could have received fractures unless he had an underlying bone condition. He might have had fractures in the SCBU that were not detected and have now disappeared.

[106]The father did not disguise his anger. He was disgusted. He considered that Dr A was trying to cover his own back because he had failed to detect fractures that were probably there at the time of the examination on 10 June. Instead, Dr A was "borderline obsessed with reflux". He and the mother have C's interests at heart better than any doctor or social worker. What has happened to C does not even come close to providing a reason for him not to be brought up by his parents. Non-accidental injury has been produced as an explanation for something the professionals cannot explain. It is not good enough for his son and he does not accept it.

[107]The grandfather was clear that he could not conceive of either of the parents hurting C. He had no idea how C had come by his injuries but knew his daughter was not capable of carrying out a vicious assault. Expert medical evidence Dr Katharine Halliday

Expert medical evidence

[108]Dr Halliday described the x-rays of 23 and 28 February, 16 June, 30 June and 5 November. She gave evidence about fractures and periosteal reaction (PR).

[109]The February x-rays cover the chest, abdomen and hips. There are no abnormalities. The bones appear completely normal for a baby of that age in terms of contour, texture and density (all the doctors agree that this is so). Any fractures sustained in the SCBU after the date of these x-rays would not be seen in the June x-rays. Spontaneous fractures can be found in babies born at 26-28 weeks or less, but not at 30 weeks, never mind four months later.

[110]The initial x-ray on 16 June covered the right arm and shows the following fractures, with * indicating fractures that show no sign of a healing reaction: 1* Right acromion (upper part of the shoulder blade) 2 Metaphyseal fracture of proximal right humerus 3 Metaphyseal fracture of distal right humerus 4* Comminuted fracture of the shaft of the right humerus occurring through the PR 5 Fracture of distal right radius and ulna

[111]The skeletal survey of 16 June shows the following further fractures: 6 Right middle metacarpal 7* Left acromion 8 Metaphyseal fracture of proximal left humerus 9 Metaphyseal fracture of distal left humerus 10 Distal left radius 11 Metaphyseal fracture distal right femur 12 Distal right tibial shaft 13 Distal right fibula shaft 14 Metaphyseal fracture distal left femur 15 Metaphyseal fracture proximal left tibia 16 Metaphyseal fracture distal left tibia 17 Distal left tibia shaft 18 Distal left fibula shaft 19 Left 6th, 7th, 8th, 9th and 10th ribs laterally 20 Right 6th and 7th ribs laterally

[112]The skeletal survey of 16 June also shows quite florid PR at the following further sites where no fractures are seen: the clavicles, the ulnae, the first metatarsals and the scapulae. There are no wormian bones in the skull.

[113]The presenting fracture to the arm (no. 4) went through existing PR that was in Dr Halliday's opinion associated with the older fractures at either end of the bone (nos. 2 and 3).

[114]The first repeat skeletal survey on 30 June shows all fractures as healing and there are no new fractures.

[115]The second repeat skeletal survey on 5 November is virtually normal. Apart from some minor changes at the end of the right humerus, the PR had gone.

[116]There are no significant disagreements between the experts about the radiological appearances themselves. In relation to the acromial appearances, Dr Allgrove posited that these were not fractures but accessory ossification centres. As to this, I accept the evidence of the radiologists, Dr L and Dr Halliday, who agree on the existence of a healing reaction in the skeletal survey of 30 June.

[117]Dr Halliday considered the reports of the original radiologists that the bones on the June x-rays appeared osteopenic (white). She agreed that the right arm looked a bit osteopenic but says that this was a very subjective and inaccurate way of assessing bone strength and did not indicate a predisposition to fracture. It might be the result of disuse of the limb following fracture. Osteopenia of prematurity is common in premature babies but there is no generalised osteopenia in the skeletal survey.

[118]Dr Halliday described the June x-rays as having two exceptional features: the number of fractures and the extent of the PR.

[119]The number of fractures seen may not be the most that Dr Halliday has ever seen but it is "up there with the highest".

[120]The periosteum is the covering on all bones. It is a fibrous, tightly adherent layer, slightly less adherent in children. It contributes to normal bone growth and in babies it grows at the ends. PR is also a response to abnormal situations. If the periosteum is lifted off the bone it will form new bone under it. This can happen after a fracture or twisting or as a result of infection or tumour. There can be rapid periosteal growth if a child has not been feeding and then receives remedial nourishment, but that would not explain the extent of the PR in this case.

[121]The appearance of periosteal healing can be used to date an injury, though the unusual amount of PR may slightly affect reliability of timing in this case. C had three fractures with no signs of healing. These occurred within 10 days of the x-ray. The remainder occurred in the period between 2 and 6 weeks before the x-ray. There were definitely two episodes of injury and there could, in Dr Halliday’s words, have been "loads". During her evidence, she performed a detailed analysis of the fracture sites, leading her to the view that a minimum of four or (more likely) five applications of force would be needed to cause this number of fractures. For example, the seven lateral rib fractures could all have been caused by one squeezing or squashing force.

[122]On C’s June x-rays, the PR is abundant at the fracture sites and also on bones that are not fractured, for example the clavicles and the 1st metatarsals in the arches of the feet. These appearances are extremely striking. The PR around each fracture is greater than usually seen and can be described as 'florid' or 'exuberant' in terms of the width of the reaction and the extent of the bones affected. Dr Halliday had never seen a case with so much PR on so many bones. She had seen PR this wide in isolated bones but not in so many bones. Its width and extent is unique in her experience.

[123]The bones without PR are most of the unfractured ribs, most of the hand and feet bones, the spine, the pelvis and the bones at the base of the skull.

[124]Except in cases of OI, the presence of PR does not indicate anything about the strength of bones. PR would not make bones weaker: if anything it improves bone strength, which is its purpose.

[125]It was suggested to Dr Halliday that the fractures and PR in C’s case were so unusual that interpretation was effectively beyond her experience. She disagreed, saying that the basic physiology of fractures and PR was standard; what was unusual was the nature and extent of the abnormalities.

[126]In Dr Halliday’s opinion the most likely explanation for these findings is that C had been subject to repeated trauma, and that by November the PR had resolved. In reaching this conclusion, she refers to the fracture sites, the possible cause of the PR, and the investigations into differential diagnoses.

[127]As to the fracture sites:(1) Eight of the limb fractures are metaphyseal. These are associated with inflicted injury (pulling or twisting).

(2) Metaphyseal fractures are not associated with bone disorders, where midshaft fractures are common. C had only one midshaft fracture (the upper right arm).

(3) Fractures to the acromia are also associated with inflicted injury and can be caused by the arms being yanked.

(4) The rib fractures are of a kind that would be caused by squeezing or squashing.

(5) Fractures to the 1st metatarsals are also associated with inflicted injury resulting from the foot being twisted. Dr Halliday speculated that the PR on these bones might be associated with fractures that cannot be seen.

(6) Fractures to the clavicles are also associated with inflicted injury. PR on the clavicles is an unusual appearance without an identified fracture, which Dr Halliday could not fully explain, unless it was the result of adult thumb pressure without fracture, or of rapid growth, or a combination of the two.

[128]Dr Halliday did not agree with Dr Allgrove about the significance of "symmetry" in the location of the fractures. She did not find this concept diagnostically helpful. She preferred to describe the fractures as bilateral and involving all limbs. She did not consider that there was genuine symmetry, instancing differences between the left and right tibias.

[129]As to the extent of the PR, Dr Halliday thought it likely that this was the result of repeated handling affecting fractures that had not been immobilised, leading to much more PR in the area. This may explain why the PR is exuberant in the limbs, which are subject to twisting, but not on the ribs, where there are only blobs of callus at the fracture sites. Less likely as a cause of extensive PR is rapid growth, though this may contribute.

[130]As to differential diagnoses:(1) Scurvy can be dismissed.

(2) This is not a case of Caffey’s Disease, which is a very rare and transitory condition normally found only in examinations and textbooks. It typically affects the mandibles and ribs, where whole bones are affected by PR.

(3) Some cancers (neuroblastoma, leukaemia), chemotherapy, congenital syphilis, are all inapplicable.

(4) There is no biochemical or clinical support for rickets.

(5) I-cell disease is very rare and has been discounted.

(6) OI has been discounted.

(7) Osteomyelitis (bone infection) does not offer an explanation. It appears in isolated sites and not throughout the body. It is easily detected clinically by raised temperature and is identified by blood tests.

(8) No one has suggested the discredited diagnosis of temporary brittle bone disease.

(9) C did not suffer from the metabolic bone disease of prematurity. This affects babies born before 28 weeks gestation weighing under 1500g. C is not in this category and his bone biochemistry was normal throughout his stay in the SCBU. Since the bulk of bone mineralisation occurs in the last trimester of pregnancy, it is possible that C’s bones were weaker than those of a baby of his age who was not premature, but not so much weaker as to cause fractures during normal handling.

[131]Dr Halliday could not think of any other known conditions that might have affected C. She had considered the question extremely carefully because the radiological appearances are so unusual and because, given the views of someone as experienced and respected as Dr Allgrove, she said that no stone should be left unturned.

[132]As to whether C was suffering from a transitory condition that no one has ever come across, Dr Halliday accepted that this must always be possible, but that it was much less likely than non-accidental injury. She agreed that for C to have suffered this many fractures, he would have to have been subject to pretty constant, quite vicious trauma.

[133]Dr Halliday says that she had always thought that non-accidental injury was probable in this case, but that her confidence increased a great deal when the November skeletal scan was normal.

[134]The core of Dr Halliday's detailed evidence is encapsulated in her response to written questions from the parties in November:

"My opinion is that the appearances are most likely to be due to non-accidental trauma. The fact that the bones have now returned to normal makes this even more likely in my view. I do agree that the florid periosteal reaction which is not obviously associated with fracture in all cases is very striking and it is more than one would normally find associated with injuries of this type. Possible explanations for this include: 1 Repeated trauma causing the periosteal reaction and fractures. 2 [C] has been injured but also suffers from an undescribed condition which makes him (suffer) from excessive periosteal reaction in response to fractures. 3 [C] suffers from a previously undescribed condition which makes his bones very fragile and also leads him to form excessive periosteal reaction. This condition spontaneously resolved between the ages of 4 and 9 months. In my view option number 1 is the most likely explanation and option number 3 is by far the least likely of these possibilities."

Dr Jeremy Allgrove

[135]Dr Allgrove is a specialist with a particular interest and expertise in bone and calcium disorders who frequently reports on cases where children have sustained unexplained fractures.

[136]Dr Allgrove’s views began to form when he first saw the x-rays. He says that he had never seen anything like this degree of PR or the remarkable symmetry. His initial reaction was "There is something wrong with this child's bones." He participates in an OI clinic and does not see this degree of PR purely in response to fractures.

[137]Dr Allgrove saw C on 21 October. In his report of 23 October, he stated his view that there is a strong possibility that C suffers from a metabolic bone disorder that would account for his abnormalities, and that the abnormalities are primary in origin rather than secondary to the presence of the fractures. His reasons are, firstly, that the PR is much greater than one would expect from the fractures, even with repeated trauma and, secondly, that it is striking that the abnormalities are almost exactly symmetrical and unlikely that trauma would cause such a degree of symmetry.

[138]At the conclusion of his report, Dr Allgrove wrote:

"In my opinion, there is good clinical and radiological evidence to suggest the fact that C is [suffering] or has suffered from an underlying metabolic bone disease which could account for the fact that he has sustained fractures and that this problem may now be resolving. Whilst there is no clear diagnosis here, it is possible that there may be scope for further investigations to try and identify if there is a specific cause for his problems."

He said that a further x-ray would be of considerable interest.

[139]Following the repeat skeletal survey of 5 November, Dr Allgrove was asked further questions. His answers included the following passages:

"Whilst I accept the fact that there is a possibility that these injuries have occurred as a result of repeated non-accidental injury, I remain unconvinced that the extent of the periosteal reactions can be explained solely by this." "

The fact that the appearances of the bones have largely returned to normal does reduce the chance that there is currently an underlying metabolic problem." "This is clearly not classical Caffey's Disease since this is not usually associated with fracture and he does not have the usual genetic abnormality to account for it. It is still possible that he has an as yet unidentified problem." Dr Allgrove concluded that it should be possible to undertake further genetic testing such as whole exome sequencing “to try to identify gene mutations that may or may not have been previously described".

[140]Dr Allgrove advises that there is no relevant family medical history in this case.

[141]He agrees that a number of differential diagnoses can be rejected:(1) It is very unlikely that C's condition was the result of his prematurity. Metabolic bone disease of prematurity is very unlikely since most infants who suffer from it are less than 28 weeks gestation and usually have quite significant problems within the neonatal period. Furthermore, bone disease of prematurity does not give C’s radiological appearances, as rickets is one of its major features.

(2) There is no reason to suspect vitamin C deficiency. The child did not have scurvy.

(3) Vitamin D levels were slightly low but this would not contribute to any degree of metabolic bone disease.

(4) C does not have osteopetrosis, an extremely rare inheriteddisorder whereby the bones harden and become denser. It has characteristic radiological appearances not seen in this case. Dr Allgrove mentions this condition in order to discount it.

(5) C does not have OI. Genetic tests for the most common genes are negative. There is a remote possibility of a different form of OI, but this is extremely unlikely as most other forms have severe clinical manifestations.

(6) C does not have Caffey's Disease: it is usually present at birth and it was not here. It is associated with a particular genetic mutation, which tests have excluded.

(7) There is no evidence that he had osteomyelitis.

(8) He did not have healing rickets.

(9) He did not have osteopenia of infancy.

(10) There is no such thing as temporary brittle bone disease.

[142]Dr Allgrove considers it possible that C suffers from a variant of Caffey’s Disease, namely a genetic problem that causes transient bone fragility. There is a condition that produces symptoms like Caffey’s in infants treated with prostaglandin, but it is not well understood.

[143]Dr Allgrove considers that C may begin to have fractures again in mid- childhood but he does not strongly urge that there should be further testing. He described the tests for OI that had been carried out, saying that there was no purpose in pursuing that further. As to a search for an unknown condition, he said that whole exome sequencing remains a possibility on the "no stone unturned" principle. However, it is unlikely to produce results as we would be looking for something unknown – "aiming in the dark". Lastly, there is a possibility that C’s bones were sufficiently undermineralised as to render them more susceptible to fracture, but there is no direct relationship between bone density and fractures and no valid test (such as the DEXA test) for a child of his age.

[144]Dr Allgrove agrees that the fractures were the result of some sort of force being applied to C's bones. The question is, was this abnormal force to normal bones or normal force to weak bones? He was struck when speaking to the parents by their descriptions of C being irritable when handled. He surmises that he may possibly have been exhibiting irritability from "uncomfortable bones". It suggested that something was going on. It was then put to him that C’s irritability could have been the result of his fractures, and he agreed.

[145]Dr Allgrove regards the lack of external injury as a little surprising. The more the injuries, the greater the possibility of external marks, though it would depend upon the nature of the force applied. Pulling and twisting might not cause bruising.

[146]In answer to written questions, Dr Allgrove says that C's pain response to the fracture of his arm (no. 4) may have been different from his reaction to the other fractures as the refracture (as he described it) is said to be through an established periosteal reaction.

[147]He would not expect a child that was being injured to gain weight, but rather to lose it.

[148]As to symmetry, he would not expect multiple inflicted injuries to cause such a degree of symmetry. It would have to be a systematic approach. On the other hand, an underlying problem predisposes to symmetrical fractures.

[149]Taking matters together, Dr Allgrove maintains the view that there was something going on in C’s bones that had some influence on the fact that he had these fractures. He has referred to Caffey’s Disease as it causes transient abnormalities, but it is not associated with fractures or bone weakness. He had seen one confirmed case in his career and the manifestations were not similar to C’s condition.

[150]He did not discount repeated trauma as an explanation for the extensive nature of the PR, but he thought it unlikely and noted that neither he nor Dr Halliday had seen it before. Even with this profusion of fractures, he thought it unlikely.

[151]Asked whether the condition would have to have coincided with C’s time in the care of his parents as well as being unknown and transitory, Dr Allgrove did not wish to commit.

[152]He agreed with much of Professor Bishop’s opinion, but noted that he had not addressed the question of the extent of the PR.

[153]He says that any fracture would cause some degree of discomfort and irritability, however it was caused and whatever the bone density. Damage to the nerves of the periosteum causes pain. The child would cry and self-splint by not moving the limb. Fractures of the long bones are likely to be obvious to carers, though minor fractures and rib fractures might be less so.

Mr J

[154]He was the paediatric orthopaedic surgeon who reviewed C in July and November. Although not instructed as an expert witness, he participated in the experts’ meeting and gave evidence at the hearing.

[155]He has seen many children for musculo-skeletal surgery. In view of the symmetry of the fractures and exuberant callus formation, which is in his view unlikely to be the result of fractures alone, he considered that one should be 100% sure that all reasonable metabolic conditions have been excluded before arriving at a diagnosis of non-accidental injury.

[156]Had this been non-accidental injury, he would have expected C to have been seriously ill, with features of distress and pain.

[157]As to the question of pain, he said that a fracture remains a fracture and the child's reaction would be similar whether inflicted on fragile or normal bone. He would expect the fractures to the shaft of the right arm and to the acromia to prompt a cry of pain that would be obvious to anyone in the vicinity. Thus, he would expect the fracture to the upper right arm that brought C to hospital (no. 4) to be noticed at the point that had occurred. It is a substantial bone, even if it was fragile. The same applies to the older fractures to the lower right arm (no. 5). You would get a report of an incident.

[158]Less force would be required to fracture fragile bones, but even if C had bony fragility, it is unlikely, though not impossible, for those to have been caused in the course of normal, careful handling.

[159]He noted that there were no spiral fractures, which can occur with twisting. A spiral fracture causes substantial stripping of the periosteum and would produce a greater degree of PR, but these fractures are mostly transverse.

[160]He also noted that the more fractures there are, the greater the chance of there being external injury if the bones are normal.

[161]He agreed that metaphyseal fractures are not characteristic of fragile bones.

[162]He said that the issue of symmetry prompts you to ask: are we missing something? It does not give you a diagnosis but prompts you to think harder when painting the diagnostic picture.

[163]All in all, the case continues to trouble him and leaves him with a lingering doubt. In Mr J’s view, we should exhaust all possibilities before we say that injury has been inflicted. As things now stand, until the geneticists say that everything possible has been done, he is comfortable with saying that the cause of the fractures is unknown.

Dr Sze May Ng

[164]Dr Ng is a paediatric endocrinologist whose doctoral thesis was a study of extremely premature babies.

[165]While stating that she did not consider the degree of PR to be within her expertise, she expressed the view that the extensive PR in this case is likely to be a consistent with the extensive number of fractures.

[166]In her detailed report, Dr Ng has provided a fully-researched account of the differential diagnoses that have been considered in this case.

[167]Dr Ng regarded an unknown transitory condition (such as a Caffey-like condition) as being highly unlikely, bearing in mind that the genetic testing had not to date shown any mutations. It was accordingly likely in her view that the fractures were due to trauma.

[168]Having said that she deferred to the radiologists on the question of symmetry, Dr Ng nonetheless noted that the spine was normal, which would not be expected with metabolic bone disorder. She also remarked that symmetrical injuries can be caused by adults using both hands, gripping the child’s chest or causing torsion of the limbs.

[169]Dr Ng thought it possible that C may have had a mild degree of osteopenia of prematurity. Although the biochemistry around birth did not show low phosphate and high alkaline phosphatase, it is possible that he was suffering from osteopenia between April and June. However, that cannot cause fractures, particularly metaphyseal fractures. Also, a depleted iron level is highly unlikely to be relevant to bone strength.

[170]Dr Ng did not think whole exome sequencing was indicated. A very extensive genetic array has already been performed and nothing has been found. She suggested that the geneticist, Dr F, be consulted, and he now has been.

[171]Dr Ng considered that a diagnosis of "cause unknown" would come in if no other explanation fitted the picture. She regarded the possibility of such a condition, particularly a transient one, as extremely unlikely. As to the various rare known conditions, none came close.

[172]Dr Ng more than once referred to standard student medical training that when assessing a case one must exclude a diagnosis of non-accidental injury.

[173]Like Mr J, Dr Ng would expect a significant abnormal reaction from the child, particularly if more than one bone was broken at the same moment. Even if there was no response on one occasion, this would be unlikely to be the case for repeated fractures. Based on her clinical experience of receiving histories from patients, including those with OI, she would expect a sudden scream of intense pain. It would be different from normal crying, for example from reflux. Like Mr J, she would expect the mid-shaft fractures to be particularly painful. She would expect a pain reaction in relation to the broken arm (no. 4) even in the presence of existing PR.

Dr Andrew Will

[174]Dr Will is a consultant in paediatric haematology. He advises that there is nothing in the haematological investigations that could be related to the development of bony fractures.

The case of Baby S

[175]During the evidence, there was discussion of the likely reaction of a baby at the moment when he suffered a fracture. As a result, the mother contacted the mother of Baby S in the final days of the hearing, and she provided a statement to the following effect.

[176]Baby S was born prematurely at 27 weeks, weighing 635g. He remained in hospital in intensive care and in the high dependency unit and was discharged after 16 weeks. He was on a ventilator for a considerable part of this time.

[177]During his time in hospital, Baby S suffered six occult fractures of which neither his family nor the medical staff were aware at the time they occurred. The fractures were to the wrists, leg, hand, rib and ankle. After he went home, he suffered two more fractured ribs.

[178]Although Baby S is now said to have a normal pain reaction (for example when receiving vaccinations) he is not reported to have shown any signs of pain or discomfort associated with his fractures. They were noticed by chance or picked up on x-rays.

[179]By coincidence, Baby S was under the care of two witnesses in the present case: Mr J (orthopaedic surgeon) and Dr D (paediatric endocrinologist).

[180]A series of questions was prepared for the doctors caring for Baby S. In response, the following information has been provided by Dr D2and Dr S2 (consultant neonatologists), by Mr J and, in the form of clinic letters, by Dr D. The information is to this combined effect:(1) Baby S was diagnosed with metabolic bone disease of prematurity. This conclusion was reached on the basis of abnormal biochemical tests (calcium and phosphate concentrations), bone enzyme levels and “thin” bones on x-ray. There is no specific blood test or X-ray test that allows the diagnosis to be made.

(2) An additional diagnosis of OI is thought unlikely but cannot be completely ruled out.

(3) Baby S had thin bones with pencil-like cortices and wormian bones in the skull. His sclerae are gray.

(4) While in hospital, he suffered fractures to both wrists, 8th/9th rib, skull, right tibia and right first metacarpal. These fractures were mainly in areas typically associated with cannulation and blood sampling and can occur with minimal handling with children with such severe bone disease.

(5) The initial fracture was detected as his left wrist looked swollen. Subsequent fractures were detected on screening x-rays. Most of the fractures occurred without any clinical signs observed by the medical staff. Clinical signs are often non-specific and difficult to attribute to a fracture. At other times, deformity of a limb, redness, swelling and pain, might be apparent in a baby who has sustained a fracture.

(6) It is difficult to be certain if Baby S showed any pain response. It is difficult to judge pre-term infants’ pain. They often cry or appear to be in pain during routine care. Any pain from a fracture may have been interpreted as being due to this routine care. In addition, preterm infants are often on analgesia and/or sedation which may mask painful episodes.

[181]Although Dr D did not provide specific answers to the parties' questions, a comparison between the clinic letters in Baby S’s case in July 2014 and C’s case in December 2014 is of assistance in understanding whether and to what extent the two cases are comparable. The parties’ submissions The local authority’s submissions

The parties’ submissions

[182]Mr Loveridge submits that the only possible causes for C’s fractures are inflicted injury or a transient and as yet undetected/undescribed metabolic bone condition. Based on the evidence of Dr Halliday, Dr Ng and Dr Bishop, the latter possibility can properly be discounted.

[183]The local authority relies on the evidence of all the doctors that C is likely to have shown a pain reaction at the time the fractures were sustained.

[184]The local authority accepts that there is a complete lack of what might be described as the usual markers for child abuse. That absence, it says, provides a contextual background and is probative of nothing. It is common ground that if the fractures were inflicted, the parents are the only possible perpetrators.

[185]The parents’ very positive account of their relationship and home circumstances should be set alongside the following features:(1) The shortness of the relationship.

(2) The stresses on the mother throughout the pregnancy.

(3) The anxiety of C’s prematurity.

(4) The mother's symptoms of anxiety and anger, leading to counselling.

(5) C’s persistent and escalating feeding problem, and the evidence of the stress that this caused the mother.

(6) The fact that neither parent was working and that they were therefore spending most of their time in each other's company.

[186]It is noted that the parents did not disclose that C’s arms had appeared swollen on 19 April until 16 June.

[187]It is further noted that the parents did not seek medical advice on the evening of 15 June, nor (according to them) did they check on C first thing the following morning. Their changing account of whether C screamed or cried when touched is noted.

[188]The fact that medical professionals did not detect the fractures during their frequent contacts with C can be explained by the natural focus on reflux.

[189]The parents' suggestion that C may have been injured by Dr O or by Dr A is an attempt to deflect attention from their own conduct.

[190]The local authority submits that the evidence points to the father as being the perpetrator of C’s injuries on at least two occasions as a result of momentary losses of control, and that C’s arm was fractured when he was in the sole care of his father on the night of 14 June. The mother failed to protect C from the risks posed by the father and was aware of the last injury earlier than she contends.

The mother’s submissions

[191]Mr Rowley QC and Ms Bannon submit that there is nothing in the mother's personality or past that is consistent with the perpetration of repeated violent assaults on a tiny baby. She is an essentially good person, whose accounts have been consistent and whose credibility has not been damaged. Her occasional low mood was understandable and she dealt with it appropriately. She repeatedly sought medical attention for C. The local authority has failed to posit a plausible narrative for the mother to have perpetrated the injuries, which must arise from normal handling in the presence of some organic process. The opportunity for either parent to inflict injury without the knowledge of the other would have been very limited. It would have happened "out of a clear blue sky".

[192]The burden rests on the local authority to prove such serious allegations. There is an enhanced need for cogent, clear evidence supporting its case. There is no burden on the mother to prove anything. She does not have to prove that C’s condition is due to an alternative medical condition.

[193]The fact that C had swollen arms on 19 April is more consistent with his having had PR without fracture, as a result of a metabolic problem.

[194]The Whatsapp messages show the mother is consistent in her concern for C. It is unlikely that the messages on 15-16 June could be written to conceal the fact that C had been abused.

[195]Dr Allgrove’s reply that the existence of PR at the fracture site (no. 4) might affect C's pain response is noted.

[196]The medical evidence must not be allowed to assume a disproportionate status. Further, a conclusion that the cause of an injury is unknown does not represent a professional or imaginative failure. Rather it is a realistic reflection of the limits of knowledge and a diligent application of the burden and standard of proof.

[197]Dr Allgrove and Mr James showed themselves to be more open-minded than Dr Halliday and Dr Ng, and their evidence should be preferred in a case with such exceptional features. Dr Halliday was unable to explain the reaction over the clavicles. Dr Allgrove’s particular experience and distinction should be noted. Professor Bishop's contribution can only be regarded as secondary in that he does not account for the extent of the PR.

[198]There is more than enough evidence to prevent the court from concluding that C's bones were normal in the weeks leading to his admission. Moreover, we do not know whether C had injuries to parts of his body other than the abdomen in February, or whether he had later injuries that had disappeared by the time of the June x-rays. The absence of fractures thereafter may be due to especially careful handling and to improved nutrition.

[199]The absence of any external signs of harm is very significant.

[200]The fact that no sign of injury was suspected by professionals during multiple examinations (no less than 21 are listed) is noted.

[201]The wealth of information from the pictorial record and social media is noted.

[202]Opinions that C would have uttered a distinct cry of pain obvious to anyone in the vicinity should be treated with caution. They are principally based on assumptions. Research evidence (Farrell and others, 2011) shows that 9% of children of up to 6 years old with normal bones were not recorded to cry after a fracture. The evidence relating to Baby S reinforces that it is not safe to infer a ‘standard’ pain response in the case of a child with bone pathology. It is not safe, therefore, to use the absence of any identified causative event and acute pain response as a basis for undermining the mother’s credibility.

[203]Reliance is placed on an aspect of a recent judgment of HHJ Bellamy in Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015). In that case, the allegation was that a mother was responsible for causing bilateral leg fractures to a child of just under a year of age. Accepting the evidence of (as it happens) Dr Allgrove, the judge found it possible that excessive use of a mid-strength topical eczema cream might have led to bone demineralisation and a propensity to fracture in a child with some degree of hypotonia and hypermobility of her joints. He concluded that the local authority had not proved its case and dismissed the proceedings.

[204]The relevant paragraph of the judgment concerns the judge’s observations on the likely pain reaction of a child to fractures. I will recite that passage at paragraph 258 below and comment on it there.

[205]The court, says Mr Rowley, should look at the whole of the evidence and not focus unduly on the events of 15-16 June. There is not an iota of criticism of the way in which the parents have cared for C in the 16 weeks before his admission and the 9 months since. On the contrary, there are consistently positive reports.

[206]The local authority has not adduced evidence of sufficient quality to overcome the inherent improbability of the acts alleged against the mother.

The father’s submissions

[207]Inevitably, the submissions of Miss Grocott QC and Miss Forsyth run in the same course as those made on behalf of the mother. Where they overlap, I shall not duplicate.

[208]It is submitted that the photographs show an almost daily record of C's progress, of the parents' mutual affection and their delight in caring for him. This is supported by many testimonials, including from his maternal grandfather.

[209]The father reported no stress factors while C was at home: he had everything he wanted in life. He had only handled C with love and care and has never lost his temper.

[210]There is nothing untoward in the parents not examining C first thing on the morning of 16 June. It was not time to get up, it was time to feed him and C seemed not to be in discomfort.

[211]In considering the medical evidence, the fact that the radiology is "unique" should be the starting point and single most important factor.

[212]The fracture pattern is inconsistent with momentary loss of control.

[213]There were missed opportunities to obtain complete biochemical readings.

[214]An undescribed Caffey-like condition is not fanciful.

[215]The totality of the evidence does not support a finding of a likely "memorable event" or the local authority’s submission of a likely fracturing event on the evening of 14 June; it remains the case that there is no reliable evidence for identifying when, within the 10 day window the event occurred.

[216]Dr Halliday's approach appeared to be that if you could not identify a cause then you had to diagnose non-accidental injury and not an unknown cause.At least in the case of the clavicles, the diagnosis must be cause unknown.

[217]Similarly, Dr Ng’s approach involved arriving at a diagnosis of non-accidental injury by a process of exclusion ("a default setting") rather than evaluation of all the evidence.

[218]Reliance is placed on Phipson on Evidence (18th ed.) p.163 at 6-07:

“Burden of Proof in Civil Cases (b) Deciding cases on the burden: cases where no findings are possible and/or all explanations are improbable While a judge or tribunal of fact should make findings of fact if it can, in exceptional cases it may be forced to the conclusion that it cannot say that either version of events satisfies the balance of probabilities. In such a case the burden of proof may determine which party succeeds. The judge or tribunal of fact may only dispose of a case on this basis if it cannot reasonably make a finding one way or the other on a disputed issue. Where there are two improbable theories, the elimination of one does not automatically lead to the acceptance of the other, equally improbable theory. The judge is not bound always to make a finding one way or the other. He has open to him the third alternative, saying that the party on whom the burden of proof lies in relation to any fact has failed to discharge that burden. The judge must be satisfied on the evidence that a particular fact or state of affairs is more likely to have occurred than not. If a judge concludes that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not does not accord with common sense. Elimination of an improbable theory may of course lead to the acceptance of a competing theory that is not improbable where the available evidence supports this.”

[219]Further, experts in Children Act proceedings are specifically directed to consider the identification of an unknown cause. Where there is a range of opinion on any question to be answered by the expert, the Family Procedure Rules 2010 PD25B 9.1(g) requires an expert to identify and explain, within the range of options, any “unknown cause”, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise.

[220]The local authority's final case that the injuries were caused by the father and that the mother had failed to protect was not put to either of them in cross-examination.

[221]In summary, it is more likely than not that C suffers from an underlying transient bone condition, or that there is an unknown cause, which appeared clinically as a grossly abnormal PR and bone fragility leading to multiple fractures from routine handling, including but not limited to medical examinations. Alternatively, the local authority has failed to discharge the burden of proof upon it.

The Children’s Guardian’s submissions

[222]The Guardian does not advance a positive case as to the cause of C’s injuries. On his behalf, Mr Clive Baker has marshalled the extensive medical records into a detailed chronology and presented a closing analysis of the evidence.

[223]He notes that there is in this family an absence of most of the risk factors known to be associated with child abuse as well as the presence of significant protective factors. He has assembled the following lists from the NSPCC; the Common Assessment Framework and the Patient UK Guidance for Health Professionals: Risk factors• Physical or mental disability in children that may increase caregiver burden

• Social isolation of families

• Parents' lack of understanding of children's needs and child development

• Parents' history of domestic abuse

• History of physical or sexual abuse (as a child)

• Past physical or sexual abuse of a child

• Poverty and other socioeconomic disadvantage

• Family disorganization, dissolution, and violence, including intimate partner violence

• Lack of family cohesion

• Substance abuse in family

• Parental immaturity

• Single or non-biological parents

• Poor parent-child relationships and negative interactions

• Parental thoughts and emotions supporting maltreatment behaviours

• Parental stress and distress, including depression or other mental health conditions

• Community violence Protective factors

• Supportive family environment

• Nurturing parenting skills

• Stable family relationships

• Household rules and monitoring of the child

• Adequate parental finances

• Adequate housing

• Access to health care and social services

• Caring adults who can serve as role models or mentors

• Community support

[224]Mr Baker notes that the protective factors appear to have been abundant, while the only readily identifiable risk factors are the family circumstances (the mother’s reaction to the death of her mother) and the fact that C, while not suffering from a disability, was difficult to feed.

[225]However, it is observed that there is a prima facie case for the parents to answer. C has 26 fractures that occurred whilst the child was in their care.

[226]The following propositions are universally accepted by all the medical experts:• There was no abnormality (either in terms of bone presentation or the existence of fractures) that could be visualized on the x-rays taken on 23 and 28 February.

• There are no indicia of a condition at or shortly after birth that pre-dispose the child to some congenital bone abnormality that would explain multiple fractures.

• By the time of the x-rays taken on 16 June, 26 fractures can be identified, the majority which were between 2 and 6 weeks old and a minority of which were no more than 2 weeks old (and probably 10 days or less).

• Since the child’s admission to hospital on 16 June there have been no further fractures, either whilst he was in hospital or since he has been placed outside the parents’ care;

• The x-rays taken on 5 November are essentially normal.

[227]Within that factual structure, there are three possible conclusions that can be reached:• Inflicted trauma

• Bone fragility consequent upon an undetected metabolic bone disorder

• Some other unknown cause.

[228]It is suggested that the possibility that Dr O and/or Dr A caused injuries can be easily dealt with – if C had bone fragility it must be possible that some examination of a child designed for ‘normal’ infants may cause fractures – just as normal parental handling may do. It is fanciful to suggest that a ‘normal’ child could have sustained fractures as a consequence of either examination. Accordingly, a detailed consideration of those examinations does not assist the court in determining the cause of the injuries as a whole.

[229]If the court considers that the parents are telling the truth when they assert that they did not inflict injury, that is the end of the matter.

[230]Mr Baker then analyses matters that possibly support each possibility. Unidentified Metabolic Bone Condition

[231]The doctors agree that the number of fractures is very high and the extent of the PR is remarkable. Such a large number of fractures to normal bones would increase the likelihood of external injury, which would have been likely to be noted during the many professional examinations. Dr Allgrove and Mr James also regard the question of symmetry as potentially significant.

[232]While the evidence of a possible mild degree of osteopenia would not account for these injuries, any bone abnormality may be relevant to the possibility of some other abnormality – either as an exacerbation of or alongside another fragility or as a marker for a general problem.

[233]In light of the experience of Dr Allgrove and Mr James, considerable weight must be attached to their misgivings regarding attribution of these injuries to some inflicted cause. No Underlying Metabolic Bone Condition

[234]No expert was able to identify a known condition that gives rise to transient bone fragility with a presentation similar to C’s.

[235]No condition has been identified in this specific child despite extensive and considerable testing.

[236]Dr Allgrove agrees that the essentially normal November skeletal survey makes it less likely that there is an underlying genetic condition here but it does not exclude it completely.

[237]There is a coincidence between the time that the fractures occurred and the time C was in the care of his parents.

[238]The newer, major humeral and acromial fractures and the older fractures to the right radius and ulna are identified by the doctors as likely to give rise to acute pain. There is no account from the parents of any acute pain response from C at the time of fracture, a notable omission in the context of so many fractures when the medical evidence asserts that the level of pain experienced by the child would not be materially affected by an underlying bone fragility.

[239]It may be accepted that reflux may mask chronic pain, but the index of suspicion must be raised by the absence of any report of a pain reaction at any time at all until 16 June. There was clearly a chronic pain reaction to the humeral fracture, a pointer to there being no abnormality in the child’s general pain reaction. It is notable that the humeral fracture is not the only long bone fracture and yet no other chronic pain reaction is reported by the parents.

[240]Turning to the parents’ evidence about 14-16 June, Mr Baker tentatively suggests that these matters should be considered as potentially significant, while cautioning against over-interpretation born of hindsight:• The mother’s evidence about knowing (or not knowing) the difference between a child’s different types of cry may be significant

• The absence of any photographs/videos showing the child’s whole body after the father had sole care on 14 June, despite C being, to quote the Guardian’s observations “the most photographed baby ever”

• The parents’ accounts of the child screaming (or not) in pain and the decision-making process that led to the child receiving medical attention, in contrast with an apparent willingness to contact medical professionals at other times

• The report of abnormality in the child’s arms on 19 April (just outside the estimated age of most of the fractures), but this not being mentioned to medical professionals at any time before 16 June

• The anomaly of Mrs H’s evidence (something noticeably unusual with the left arm on the morning of 15 June) – she could be entirely mistaken – she could be mistaken about which arm – there may have been nothing wrong with either arm - or it could be entirely irrelevant

• The mother’s observation that the father sought to quell her concerns on the evening of 15 June may be significant.

[241]I have recorded Mr Baker’s submissions extensively because they are a model for the assistance that counsel for the child can offer in a case of this kind.

Conclusions

[242]This is self-evidently a troubling case. C has either been exposed to serious assaults by one or both of his parents, or he has had – and if so may still have – a serious medical condition that led to him sustaining terrible injuries. In determining whether the local authority’s allegations have been proved, I have been greatly assisted by the quality of the medical evidence and by the expertise of the advocates and those instructing them. I have also benefited from the opportunity to review and reflect upon the evidence and submissions in the time since this judgment was reserved.

[243]Given the importance of the matter for the family and the nature of the medical debate, I make no apology for the unusual length of my review of the evidence and submissions. In a case of this sort, a broad brush approach is not appropriate. It would not be acceptable to conclude that the local authority’s case succeeds because the child had multiple fractures in the care of his parents and that the only identified candidate as a cause is inflicted injury; nor would it be acceptable to conclude that the local authority's case fails because these are apparently impeccable parents and there is a genuine conflict of opinion between reputable medical experts. Instead, it is necessary for the court to sift the detail and to go where the evidence leads. After such a troubled start in life, C deserves nothing less.

[244]Having considered all the evidence and submissions, my central findings of fact are as follows:(1) The investigations into C’s medical condition have been thorough and comprehensive. No further investigation is necessary.

(2) As the doctors agree, C was not suffering from any known metabolic condition that could explain the existence of the multiple fractures seen in the x-rays taken on 16 June 2014.

(3) Having carefully considered the possibility, I find that he was not suffering from an as yet undiscovered medical condition.

(4) I reject the conclusion of "cause unknown" i.e. that we do not know the cause of the fractures.

(5) I find that C’s fractures were inflicted injuries resulting from assaults that occurred on at least two occasions in the preceding six weeks.

(6) The injuries were inflicted by one or both of the parents. It is not possible to exclude either parent or to say whether one or the other is the more probable perpetrator, but it is likely that the same parent caused all the injuries.

(7) It would be surprising, but not impossible, for one parent to have assaulted C without the other parent being aware or becoming suspicious. However, since the court has not heard the truth, it is impossible to say at this stage whether there has been any failure to protect C.

(8) The older fractures were caused between 5 May and 2 June, but it is not possible to narrow down the time or times when they occurred.

(9) Nor is it possible to identify the time or times when the later fractures occurred. It is likely to have been not long before C was presented at hospital and it may have been after Mrs H left the parents and C alone at about 1.30 p.m. on Sunday 15 June.

(10) Despite the extent of the injuries, there is no indication that they were caused intentionally, still less of any deliberate cruelty. It is likely that the assaults were carried out by an exasperated carer who repeatedly lost control.

[245]I now give my reasons for reaching these conclusions with reference to the medical and other evidence, privileging neither in the process of reasoning, and allowing that a medical conclusion adverse to the parents might be outweighed by other evidence in their favour.

The medical evidence

[246]The investigations into C’s condition have been exhaustive. The matter has been looked into by the ten consultant doctors named in this judgment and a number of others beside. I am satisfied that all possible medical evidence has been gathered. There is no avenue for further investigation. In particular, whole exome sequencing would be of no likely forensic value and would in any case be incompatible with C’s need for these proceedings to be concluded.

[247]There is for practical purposes complete agreement about the medical findings in this case: see paragraph 226 above. To that list I would make the significant addition that it is not disputed by any doctor that the mechanism for C’s fractures could be inflicted injury: it is the likelihood of this that is at issue.

[248]The difference of opinion between the four doctors who gave evidence as expert witnesses concerns the interpretation of the findings. On the one hand, Dr Halliday and Dr Ng have concluded that the fractures are probably the result of inflicted injury. On the other hand, Dr Allgrove and, to an extent, Mr J have concluded that there may be an alternative explanation.

[249]In my judgment, the most persuasive interpretation of the medical findings in this case is that given by Dr Halliday. Her evidence was clear and balanced. She gave proper weight to the number of fractures, the extent of the PR and the issue of symmetry. She did not seek to avoid features that might suggest alternative explanations, such as the osteopenic appearance of the initial June x-rays and the PR to the clavicles. Her consideration of alternative diagnoses was comprehensive and realistic. I accept her medical findings and conclusions in their entirety.

[250]The report of Dr Ng was closely researched and thorough. It was of particular assistance in its examination of alternative medical conditions. She gave full weight to her view that there may have been a mild degree of osteopenia of prematurity, something that Dr Allgrove discounted. As to Dr Ng’s process of reasoning, I understand the origin of the concern expressed by Miss Grocott. Dr Ng at times appeared to suggest that if you could exclude other known diagnoses but could not exclude non-accidental injury, then the conclusion was that this was non-accidental injury, thus overlooking the possibility of an unknown cause. However, this concern is in my view more apparent than real and may arise from the rather definite way in which Dr Ng sometimes expressed herself. In fact, she did give full consideration to the possibility of an unknown cause. I accept her medical findings and her conclusions.

[251]Dr Allgrove brought a wealth of experience to his consideration of C's case. I accept his evidence in relation to potential known alternative diagnoses. However, I find that his core opinion that "there is good clinical and radiological evidence to suggest the fact that C is [suffering] or has suffered from an underlying metabolic bone disease" overstates the matter. I accept that there is clinical evidence (such as the absence of external injury or of a complete failure to thrive) and radiological evidence (numerous broadly symmetrical fractures and exuberant PR). These features should, as Mr J has put it, prompt us to ask the question "Are we missing something?" However, they do not in themselves provide an answer. Dr Allgrove’s thesis that this child may suffer from an as yet undiscovered condition cannot be rejected with absolute certainty – the unknown can never be conclusively disproved – but on my assessment of the medical evidence it is extraordinarily unlikely. Further, his analysis elevates the unusual features of the evidence mentioned at the expense of other features that are not only consistent with but in some cases associated with inflicted injury, for example the numerous metaphyseal fractures, the substantially normal biochemistry, the normal November x-rays, and the significance of fractures apparently occurring only at home. Accordingly, and with full acknowledgement of Dr Allgrove’s expertise, I prefer the evidence of Dr Halliday and Dr Ng where opinions diverge.

[252]Mr J made a helpful contribution from a surgical perspective. His evidence was illuminating on the question of the extent of the PR and on the question of pain. His view that one should be 100% sure that all reasonable metabolic conditions have been excluded before arriving at a diagnosis of non-accidental injury is a proper one for a clinician and I respect his lingering doubts. However, the court's task is not performed by reference to certainties or to lingering doubts, but by reaching factual conclusions on the balance of probability. Dr J sounded a valuable cautionary note but his evidence does not undermine the opinions of Dr Halliday and Dr Ng as to the probable cause of C’s injuries.

[253]My conclusions from the medical evidence are these:(1) C had normal bones.

(2) The cause of the fractures was the application of excessive force to his limbs and torso.

(3) The mechanisms described by Dr Halliday and Dr Ng (gripping or squeezing of the chest, twisting or bending of the limbs) would cause fractures of this nature.

(4) The absence of external injury (bruising or other marks) is noteworthy but such injuries would not necessarily be expected unless there were blows to the body.

(5) The eight metaphyseal limb fractures and the fractures to the shoulder blades are of a kind associated with inflicted injury.

(6) C did not suffer from any of the numerous rare medical conditions considered by the specialists. There are no grounds for believing that the doctors have missed something.

(7) The highly distinctive radiological picture provides a good reason to consider the possibility that C may have suffered from an as yet undiscovered transient metabolic bone disorder, but having considered the possibility in depth, I find that there is no good reason to believe that he did in fact suffer from such a condition.

(8) The only reason for particular attention having been paid to Caffey’s Disease is that it is a transient metabolic bone condition. In all other respects, C’s condition is quite different from Caffey’s, which affects whole bones in different parts of the anatomy and is not associated with fractures.

(9) A diagnosis of "unknown cause" is a respectable one in any case when the cause of a medical condition is unknown, and will particularly arise in the context of controversy at the frontiers of medical science: the authorities referred to at paragraph 13 above arise from cases of baby deaths involving "the triad" of head injuries and possible Sudden Infant Death Syndrome.

(10) In this case, I find that the cause of the findings is not unknown, even in relation to the PR in the clavicles and the metatarsals. Given that the injuries to the other bones were the result of assaults, it is entirely possible that the PR seen on the clavicles was the result of force applied by adult thumbs that disrupted the periosteum without causing any identifiable fracture. Likewise, the PR seen on the metatarsals can be explained as being the result of an application of force, perhaps by a twisting of the feet, with or without fracture. .

(11) Such symmetry as exists in the distribution of C's fractures is not inconsistent with injury being inflicted during momentary losses of control. I do not accept that there would have to be a systematic approach. Each of the injuries could readily have been caused by sudden, momentary force applied by an adult who was holding the child’s arms, legs or chest with both hands.

(12) The wide extent and florid nature of the PR in this case is explained by the profusion of the fractures and the fact that they were not immobilised and will have been disturbed by repeated handling. It is not possible to know whether rapid growth played a part, but it may have done.

(13) Even if C had a mild degree of osteopenia of prematurity, it would not have significantly predisposed him to fracture.

(14) C suffered from gastro-oesophageal reflux which proved intractable. Medical personnel believed that this was his only complaint, and treated him accordingly. It is now clear that he was suffering from far greater difficulties, beginning at some point in the six weeks before his admission. This may coincide with the falloff in his weight gain shown by the growth charts, but that would be speculation. Nonetheless, the presence of so many untreated fractures undoubtedly affected his response to being handled, so that he has been described by his parents and grandfather as being "antisocial" or as wanting to be left alone. It is also very likely that the fractures made him even more difficult to feed.

(15) The routine examinations by Dr O and Dr A did not cause fractures. I accept that iatrogenic fractures have been known to occur, particularly with extremely preterm infants, but, having heard from these doctors, I am satisfied that that is not the case here.

(16) The investigations marshalled by Dr A were organised and thorough. There was no question of any bias towards a diagnosis of inflicted injury; on the contrary, he began from the working assumption that the cause might be an organic one. He took appropriate specialist advice from tertiary centres in reaching his clinical conclusions.

Pain

[254]I deal with this issue separately as it has particular implications for the parents' credibility.

[255]All the doctors who give evidence in this case stated that fractures are painful, regardless of whether bones are normal or not, and that a distinctive pain reaction would be expected from C when a bone was broken. The nature of the acute reaction might vary depending upon the bone. The nature of the chronic reaction might be confused with the child's reaction to reflux.

[256]The cause of the fractures was undoubtedly the application of force to C’s body by an adult, who must have been touching him at the moments when the bones broke. The fractures did not occur spontaneously and C did not cause the injuries to himself. They happened as a result of adult handling. The question was whether the bones could have been weakened so that they fractured on normal handling.

[257]There is no doubt, if only from the evidence relating to 16 June, that C has a pain reaction. It is in my view inconceivable that he suffered as many as 26 fractures without his pain being obvious on at least one occasion, and very likely more, to whoever was handling him at the moment the bone was broken and to anyone else in the immediate vicinity. This applies particularly to the five fractures of the right arm and the fractures to the acromia.

[258]I return to consider the aspect of the judgment of HHJ Bellamy in Re FM mentioned at paragraph 203 above. A paediatrician in that case had given evidence that there must have been "a memorable event" at the time the fractures occurred. At paragraph 115, the learned

judge said this:

"As I have noted, that opinion is frequently given by paediatricians in cases such as this. In my judgment the contention that there must have been a ‘memorable event’ is unhelpful and potentially prejudicial to carers. Not only is it a formulation which invites an inference as to the veracity of any carer unable to describe a ‘memorable event’ [but] in my judgment it also comes perilously close to reversing the burden of proof, suggesting that a carer should be able to describe a ‘memorable event’ if the injury really does have an innocent explanation."

[259]Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.

[260]Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. For example, in the research article relied upon by the mother in this case, carers said that 91% of the 206 young children in the sample had cried when they sustained a fracture. Whether or not that is true for the population at large, medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.

[261]In relation to C, I find that an adult was undoubtedly in the closest proximity to him whenever the injuries occurred and that he will have cried in pain when his bones were fractured. The inability of either parent to describe a single occasion when he reacted in this way is highly suspicious. The only incidents that they have offered for consideration occurred in doctors’ surgeries.

Baby S

[262]My preceding conclusion is not affected by the information provided about Baby S. It is clear that the situation of that child was entirely different to the situation of C. He was vastly more premature than C, as seen from their respective birthweights: 635g as opposed to 1660g. Baby S had a highly problematic neonatal career. His bones were undeniably abnormal and he was diagnosed with metabolic bone disease of prematurity, which C does not have. One has only to read the clinic letters written in the two cases by the paediatric endocrinologist, Dr D, to see that the conditions of these two babies, and the doctor's opinion of their origins, were not comparable.

[263]Nor does the possible absence of a noted pain response in Baby S suggest that the same would apply to C. Baby S was in an intensive care environment in circumstances where his responses to fractures to his fragile bones, in several instances associated with sites of cannulation and blood sampling, could in the opinion of his consultants be missed or mistaken.

[264]I admitted the evidence in relation to Baby S because the mother was prompted to seek it by exchanges that took place during the hearing and because in a case of this nature it seemed fair to do so. Having now considered that evidence, I do not find it helps me in considering C’s situation.

C’s environment

[265]I accept that there were many favourable aspects to the family's situation. The parents are intelligent and able people who have the support of family and friends, a beautiful home and financial security. The arrival of a first baby was an exciting adventure for them, as it is for most new parents, and soon after that they became engaged to marry. I do not doubt their love for C, or the fact that he has been the focus of their lives from the day he was born.

[266]But even situations like this have their difficulties. I do not accept that this family was living under "a clear blue sky". Alongside the happiness of C’s birth, there were clouds. The mother and father were in a new relationship. They had not been living together for five months when C was born after what might be described as a whirlwind pregnancy, and that short period had been emotionally traumatic for the mother. They did not have the routine of employment, in the father's case for the first time in his adult life. They had a premature baby who was persistently difficult to feed. The mother was plainly stressed by a number of factors. Of course, none of this is uncommon and still less does it indicate a propensity to injure a child. However, it is a more realistic assessment of the environment in which C was living than the calm and unruffled picture painted by the parents.

[267]None of this proves that C was assaulted, but it is not difficult to envisage how one of the parents might have lost control for the first time, quite possibly in exasperation at his slowness or inability to feed, and how this led to a vicious circle in which C’s injuries made it harder for him to feed, and so on.

The parents’ credibility as witnesses

[268]There are cases where a witness’s evidence is of such quality that it outweighs all other evidence and the court is able to accept it unconditionally. That is not the case here. The parents are no doubt credible narrators of normal life events. However, with regard to the specific issue of C’s injuries, I did not consider that I could rely on the evidence of either of them.• Both of them notably downplayed the stresses that they were undergoing as new parents of a demanding baby.

• Both were anxious to minimise the time when C was in the care of one parent alone, with a view to showing that there was no real opportunity for him to have been injured without detection.

• Their explanation for not having asked any health professional about the problems with C's arms on 19 April was unconvincing, given the mother's continuous anxiety about every aspect of C's development.

• Their evidence about the final Sunday evening and Monday morning was unsatisfactory. – It is highly implausible that they would do nothing at the point when they found something worryingly wrong with C’s arm on the Sunday evening, and then that they would not think to check it first thing on Monday morning, when both of them were awake to feed him. – Their account of how the fracture was then discovered lacked authenticity. The mother's reluctance to repeat in evidence the account in her statement of C having screamed was concerning. – The length of time it took before medical help was obtained for C, some 4 hours after he woke up and 13 hours after the problem with the arm is said to have been first noticed, is inconsistent with the likely response of such assiduous parents. – Even then, the mother had first gone onto Whatsapp before the suggestion that C needed to be taken to hospital was made by another mother.

• The mother’s Whatsapp messages do not help me to decide whether she was oblivious to what was happening to C, or concealing it.

• The parents' effort to pin responsibility for C’s injuries on Dr O and Dr A did not have the hallmarks of a search for explanations, but of attempts to divert attention elsewhere.

• The same can be said of the father's behaviour towards Dr A on 13 September, which did not in my view arise from genuine indignation, but from a belief that attack is the best form of defence.

• I have referred above to the lack of any account of a memorable event.

Opportunity

[269]C was a much observed baby. Family, friends and professionals were in and out of his life on an almost daily basis. Even so, C spent the vast majority of his time in the sole care of one or both of his parents. The episodes in which he was injured will have lasted moments and may, at least on some occasions, have occurred when one parent was out.

[270]C's fractures were not apparent to the many adults who saw him, including during medical examinations and in intimate family situations. While this is on the face of it surprising, it does not take the matter much further forward. If the issue was whether C had fractures at all, it might. But he did have fractures and the fact is that they were not noted by anyone outside the home.

[271]Of course, if one parent was injuring C, the first line of protection would be the other parent. In assessing the opportunity for C to be injured in the home, I have considered the degree of protectiveness that each of them has shown. Unfortunately, they both demonstrated an unquestioning loyalty to the other, to the extent that neither has even asked the other the obvious question:

"Have you done something?"

In contrast, they have shown an inexhaustible curiosity for investigating alternatives (rare conditions, unknown conditions, doctors) that might place responsibility elsewhere. This would be understandable if each parent was in a position to know with absolute certainty that C had not been injured by the other. But they cannot both be certain, and however emphatically they protest, such claims amount to little more than blind faith. An innocent protective parent in this situation would, at whatever cost, confront the other parent. That has not happened here and the conclusion that I draw is that the dynamic between these parents has deprived C of a level of protection when he was at home as well as depriving the court of their best assistance in finding out what happened to him. It may be that in the overall circumstances, asking such questions of each other represents too great a risk to the parents' relationship and to their rather idealised image of family life.

[272]The other person who is in a position to have got closer to the heart of the matter is the maternal grandfather. He too has had a very difficult time in recent years. He is clearly devoted to C. He came across as concerned and well-meaning, but he was similarly incurious about what may have happened in the home, particularly in the period leading up to C’s admission to hospital.

[273]I accordingly conclude that there was plainly the opportunity for C to suffer injury from one or both of his parents, despite the level of surveillance and the protective factors.

Identification of perpetrator

[274]I do not accept the local authority's closing submission that the father alone can be identified as being responsible for C’s injuries. The basis for that submission is that the father had sole care on the night of 14 June, that "only" five photographs of C were taken on 15 June and that on one interpretation of the evidence he steered the mother away from getting medical attention on the night of 15 June. These are flimsy reasons for discriminating between the parents.

Closing remarks

[275]Although I have in one sense reached my conclusions with a heavy heart, the welcome corollary is that C is a well child who does not have underlying health issues. Whatever has gone wrong in the past, this family has strengths. A decision about the future now needs to be made. The parents have the opportunity in the short remaining period of these proceedings to say more about what actually happened. I hope for C’s sake that they will seriously reflect on their positions and face up to their responsibilities.

[276]I will hear the parties’ proposals for the remaining stage of these proceedings. _____________________