Derbyshire County Council v Parents & Anor [2025] EWFC 336 (B)

[2025] EWFC 336 (B)
IN THE FAMILY COURT AT DERBY
Date Friday, 18 July 2025
The Morledge
Derby
DE1 2XE
Before
MR RECORDER WELLS
Between
DERBYSHIRE COUNTY COUNCILApplicantParentsRespondent-and –
Between
Child KRespondent
MR DAVID PAYNE, instructed by Imogen Cleary of Derbyshire County Council appeared for ApplicantMR BEN CLULEE, instructed by Diane Gunn of Elliot Mather Solicitors, appeared for First RespondentMR STEVEN VEITCH, instructed by Jason Burnett of Banner Jones Solicitors, appeared for Second RespondentMS HANNAH SIMPSON, instructed by Muctar Johal of The Smith Partnership appeared for Guardian
JUDGMENT
Digital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]Introduction[2]MR RECORDER WELLS: This is my judgment from a fact-finding hearing in public law proceedings which began on Tuesday, 15 July. I heard evidence on Tuesday and Wednesday, submissions on Thursday, and give this judgment today, Friday 18 July. The applicant is Derbyshire County Council, the mother is M, the father is F and the child is K.[3]K was born in August 2024 and when he was ready to leave hospital he went home to live with his parents. Until the events I am about to describe, there had not been any local authority involvement.[4]On 4 October 2024, the parents took K to hospital because he had some concerning and unusual marks to his hands. This resulted in safeguarding enquiries, including X-rays, which showed that K had a posterior fracture of the sixth right rib. On 11 October 2024, the local authority issued these proceedings. K is currently living in the care of his parents in the home of the grandparents, who are supervising all of their care.[5]The local authority threshold is entirely dependent on establishing that K's rib fracture was caused by one of the parents. The threshold is at page A35 of the bundle, subject to amendment as set out by the local authority in their written submissions. All respondents, including the guardian, tell me that on the totality of the evidence, the local authority has not proved their case on the balance of probabilities.[6]Legal principles relating to this fact-finding hearing[7]I start with essential principles regarding factual matters: 1. The burden of proof is on the local authority. 2. The standard of proof is the balance of probabilities. I will deal with identification of perpetrators later. 3. Findings must be based on evidence, including inferences which can properly be drawn, but not on speculation. 4. I need to take into account a wide canvas, I should not compartmentalise the evidence. All of the evidence needs to be seen in the context of other evidence in the case. 5. The evidence of the parents themselves is of the utmost importance. It is essential that I consider it carefully and form a view about their credibility and reliability. 6. Lies: people lie for all sorts of reasons, and it does not necessarily follow that just because a person is lying about one thing, they are necessarily lying about everything else. 7. Hearsay evidence is admissible, but I need to consider each piece of hearsay evidence and consider the weight that can be attached to it.[8]Regarding identification of a perpetrator, threshold can be established by finding that a child has suffered significant harm, without the need to establish precisely who caused the injuries.[9]The court should first consider whether there is a list of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probabilities and should seek, but not strain, to do so.[10]Where there are two or more possible perpetrators the question is not "who is the more likely perpetrator?" but "does the evidence establish that this individual probably caused the injury?". That is achieved by surveying the evidence as a whole as it relates to each individual. Only if the court cannot identify the perpetrator on the balance of probabilities should it go on to consider who from the list is in the pool of possible perpetrators, and the test for inclusion is whether there is a likelihood or a real possibility that they are the perpetrator.[11]In terms of factors to take into account when surveying the wider canvas, I refer to the case of Re BR (Proof of Facts) [2015] EWFC 41. Paragraph 19 makes clear that the lists are not some kind of test but rather a helpful framework within which the evidence can be assessed and the facts established. Paragraph 18 lists risk and protective factors. To save time I am not going to read them out, but I have studied them with care.[12]There has been substantial comment from the higher courts in recent years about the impression formed by a judge based on the oral evidence of witnesses in the courtroom. A contested court hearing is an emotionally charged and alien environment. It is usually unreliable and often dangerous to draw conclusions from a witness' demeanour as to the likelihood that they are telling the truth. Research has shown that people, in fact, cannot make effective use of demeanour in deciding whether someone is telling the truth.[13]In Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC, legal principles about this are set out. I have re-read in particular paragraphs 252 and 254 which, to save time, I do not intend to read out.[14]I asked the advocates to provide me with any particular references from authorities that would assist me in this case. What follows is from those very helpful written submissions.[15]The burden of proving the facts pleaded rests with the local authority. Where a respondent seeks to prove an alternative explanation but does not prove that alternative explanation, that failure does not of itself establish the local authority's case, which must still be proved to the requisite standard (The Popi M (Rhesa Shipping Company SA v Edmunds) [1985] 1 WLR 948).[16]The standard to which the local authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be considered when weighing the probabilities in deciding whether, on balance, the event occurred.[17]In A Local Authority v K, D & L [2005] EWHC 144 (Fam), describing the role of the court, Baker J made clear that there will be cases where the medical evidence is indicative of an inflicted injury, but the court on the totality of evidence does not find this to be the case, and vice versa.[18]Ms Simpson provides this helpful extract from that case:
"It is important to remember that i) the roles of the court and the expert are distinct and, ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision."
[19]The next case is Re LU v LB [2004] 2 FLR 263, which reminds me that a judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research may throw light into corners that are at present dark.[20]Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam) says this:
"In my judgement, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer a non-accidental injury merely from the absence of any other understood mechanism."
[21]Re S (Children) [2014] EWCA Civ 1447 says this:
"An hypothesis in relation to the causation of a child's injuries must not be dismissed only because such causation will be highly unusual."
[22]Finally, in A County Council v A Mother & Ors [2005] EWHC 31 (Fam), Ryder J said this:
"A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be."
[23]Chronology[24]For reference, the radiological timeframe for this fracture is from birth until roughly 23 September 2024. K was discharged on 17 August and went home with his parents.[25]On 18 August, K was reviewed at home by a community midwife. He was stripped naked to be weighed. No concerns were noted other than possible jaundice.[26]On 19 August, K was reviewed by a community midwife who recorded no concerns other than a possible tongue-tie.[27]On 21 August, K was again reviewed at home. There was good weight gain. He was again stripped and weighed, but no concerns noted.[28]The health visitor's initial contact with K was on 28 August 2024. Both parents were present and told the health visitor that K had a very bad night the previous night and had cried for several hours. The health visitor did not see K unsettled during the visit, other than when he was weighed, but he was "very easily pacified with a cuddle". K was stripped naked and weighed and no concerns were noted.[29]On 30 August, K was reviewed in clinic by a midwife. He was stripped and weighed and there were no concerns.[30]On 31 August, the parents noted that K was unsettled and would only sleep for a short period before waking up and crying. They tried to put him in the bath to calm him down, but when things were not working, they contacted 111 and then went to the GP about 10.00 pm, where they were told that K was probably just struggling with wind.[31]There was a health visitor home visit on 4 September 2024 to check K's weight and because he had been unsettled. Both parents were seen. No concerns were raised.[32]On 8 September, the parents contacted out-of-hours health services as K had been crying and had not slept much. It appears from the records that the parents did not go ahead with the appointment, but only because K had settled by the time they could have been seen.[33]On 9 September, the father phoned the duty health visitor seeking advice about K being unsettled and crying the previous day. He reported that he is able to comfort K effectively.[34]The father works in the army and was away from 16 to 20 September. The mother and K went to stay with the maternal grandparents while the father was away. The local authority in written submissions volunteers the concession that there is no evidence to support something happening during this week, in part because of the presence of one or both of the maternal grandparents. During that period, on 17 September, the health visitor spoke with the mother, and it is reported that the discussion was about the mother being calm but the father being panicky. They discussed the fact that this appears to be at odds with his job.[35]The father was away again with work from 22 to 27 September and 30 September to 3 October. The social worker's statement tells me that the mother had support from the maternal and paternal grandparents while the father was away, by way of phone calls and visits.[36]During the second of these periods, on 2 October, the health visitor visited the mother at home and saw her with K. The mother described some tensions with the father's family. She said she had found them supportive but somewhat overwhelming. She said she was feeling tense and on edge when his parents visited. The mother said that the father seemed anxious and was struggling, and that he had been tearful whilst he was away in the army. She felt that he was worried about her and K.[37]The health visitor's statement on this says as follows:
"The health visitor was not concerned about [the father] and felt his anxieties were normal for a new father and were proportionate."
[38]Dr Rose has reviewed the records for this visit in terms of K's health and described it as unremarkable. K was weighed again on this date.[39]On 4 October, the parents report that they took K on a long walk and then discovered marks to his hands. The social worker, in her statement, concedes that the family sought medical attention without delay.[40]There was a child protection medical on 5 October which led to X-rays, which led to the discovery of the rib fracture.[41]The medical evidence[42]Jeremy Brocklesby is a consultant in obstetrics and feto-maternal medicine. He has been practicing in obstetrics since 1995 and been a consultant since 2006. Regarding the birth process, he says that after a delay in the second stage, the decision was made to transfer to theatre for a trial of instrumental delivery.[43]There is an extract from the medical records within his report which says this:
"Asynclitism corrected and manually rotated to DOA, blades applied no difficulty. Good descent with two pulls, RML, episiotomy at crowning, head delivered with second pull, BD in good condition."
[44]Dr Brocklesby describes the instrumental delivery, specifically that K was:
"Manually rotated to occipital anterior and then forceps blades were applied and he was delivered over two contractions and there was no difficulty with the delivery."
[45]At E22, he explains the process of manual rotation. At E25, he inserts a list of "complications of forceps" which sets out the risks associated with that type of assisted delivery.[46]At E26, he summarises the Apgar scores and states:
"K did not require any vigorous resuscitation that could potentially have caused the rib fractures."
[47]The headline conclusions from his written report are: 1. He could not identify any antenatal issues that would predispose or cause the rib fracture. 2. The mother "underwent what appears to be a straightforward forceps delivery following a delayed second stage labour and a manual rotation of K’s head". 3. Based on the literature evidence and his experience, he could not "construct a mechanism" of injury during labour or delivery that could explain the fracture. He therefore concluded "on the balance of probabilities that the sustained injury was not caused at the time of the delivery and therefore must conclude that it occurred after delivery".[48]Turning then to his oral evidence, he is clearly a well-qualified expert and has a huge amount of relevant experience. He struck me as the direct opposite of a dogmatic expert witness.[49]The most obvious examples I can give are when he was addressing the following: 1. My discussion with him about his suggestion that he could not "construct a mechanism" for the injury and 2. Questions from the advocates, effectively suggesting that because we do not routinely X-ray babies, we will never really know the true number of rib fractures.[50]He explained what shoulder dystocia means. This is when the shoulder gets stuck behind the pubic bone. It was not present in this case.[51]Other than the length of labour, he did not consider it was a particularly difficult or traumatic labour from a medical perspective. He said "difficult" would be where you have to, for example, put your hand into the vagina to deal with shoulder dystocia.[52]Regarding forceps, he regarded this as fairly standard, saying it occurs in about 20 per cent of first pregnancies.[53]I do not say this as a criticism of him, but the question in the letter of instruction was: "Whether there is a realistic, as opposed to a fanciful or merely theoretical possibility, that the healing fracture was caused by the process of birth or delivery".[54]In his report, he talked about the balance of probabilities and did not say whether a birth injury was a possible cause. I queried this with him. He repeated the phrase in his report that "I cannot construct a mechanism". I asked if he was saying that he does not think it is possible, and he said (paraphrased) “I do not see how it would be possible".[55]He added to his written description of manual rotation. He explained that the baby's head stays above the pelvis and rotates within the uterus. As to any compression forces on the baby's body, specifically the ribs, he explained that while the head may not be, the baby's body is free to move within the abdominal cavity. It is only when the body goes into the pelvis that it becomes restricted.[56]In light of this, he explained he would never advise the patient of a risk of rib fracture in the context of manual rotation taking place in the way that I have described.[57]I found Dr Brocklesby's evidence extremely helpful in giving me an understanding of the implications of different assisted birthing techniques. I have checked my understanding with him and he agrees with the summary that I am about to provide: 1. Manual rotation, as it occurred in this case, is not relevant. Pressure is applied to the head, but there is no additional pressure applied by the medical professional to the ribs, and the baby is still within the more spacious area of the abdomen. 2. Forceps do not directly apply any pressure to the ribs and their use was for a very short period because, after two pushes, K was then delivered.[58]That medical evidence makes perfect sense to me and is something I can accept. In this particular case, there is no reason to believe that manual rotation or use of forceps made a rib fracture more likely.[59]I then deal with the issue of the prevalence of birth-related rib fractures and indicators as to their cause. He refers to Van Rijn et al (2009) research showing three cases of rib fractures and a review of the literature. He also refers to research by Högberg. I think it is helpful if I now set out what those research papers say. I have requested, received and studied both of them.[60]I will start with the Van Rijn research. It tells me that combined data of multiple studies on birth trauma (115,000 live births) show no cases of rib fractures resulting from birth trauma but that sporadic cases have been reported in the literature. The paper's focus is on the 13 cases identified by the researchers or in the literature. The abstract tells me that:
"9 out of 10 posterior rib fractures were in the midline. In 12 of the 13 children birth weight was high and in 7 children birth was complicated by shoulder dystocia."
[61]It starts by telling me that rib fractures in young children have a high positive predictive value for non-accidental injury, and later states that they are considered to be "highly specific for non-accidental injuries" with research indicating a positive predictive value of 95 per cent.[62]However, the research states that:
"Other causes for the occurrence of rib fractures in a young child have been reported and these should be considered when rib fractures are found."
[63]The report provides quite a detailed narrative account of the particular circumstances of four cases. In each of those cases, shoulder dystocia was present. That represents, based on what I have heard in this case, something quite different to K's scenario, and they are therefore not the best examples to study.[64]In that sense it is unfortunate, because all of the other cases referred to by this research and by the Högberg research do not have detailed narrative accounts of the birth process, but rather tables showing various statistical metrics.[65]I turn then to the table on page 3 of the research paper. The numbering is confusing, so I have added a column to the left and simply numbered the cases 1 to 13.[66]For reasons that I have given, I exclude from analysis those cases where shoulder dystocia was or may have been a feature. That leaves five examples, which I then subdivide as follows:[67]7 and 9: these are births without shoulder dystocia, without instrumental delivery, i.e. neither forceps nor vacuum, featuring one or more rib fracture and a clavicle fracture. The birth weights were 4,309 grams and 4,100 grams respectively, so on average perhaps 15 per cent bigger than K.[68]4 and 5: these are births without shoulder dystocia but with assisted delivery, featuring rib fracture but no fracture to other bones. The birth weights were 3,912 grams and 4,205 grams respectively, so on average perhaps 6 per cent higher than K. The lowest birth weight in this subgroup is 3 per cent higher than K.[69]The obvious similarities between these cases and K's birth are: 1. The absence of shoulder dystocia 2. The presence of an assisted delivery and 3. Birth weight.[70]The difference between K and these two cases is that K had a single fracture, whereas these cases have five and three rib fractures respectively.[71]The final category is number 10. This was a birth without shoulder dystocia and without assisted delivery. Three rib fractures were found but no fractures to other bones. The birth weight was 4,500 grams.[72]It can therefore be seen that none of the five examples precisely replicates K's scenario. We come very close with number 4 because the birth weight is very similar, there was no shoulder dystocia, there was an assisted delivery by vacuum, but the number of ribs fractured is higher than in K's case.[73]That said, number 7, which is different because of the presence of clavicle fracture, does feature a single fractured rib, the same as in K's case.[74]The research makes clear at page 4 that, in a large study, none of the children had rib fractures. However, it goes onto make clear that:
"This is an underestimation of the true incidence of neonatal fractures."
[75]I highlight that that sentence does not say it might be an underestimation, it says that it is an underestimation.[76]I should comment now on the assertion I previously referred to that "in 12 of the 13 children birth weight was high".[77]Number two in the chart has a birth weight of 3,300 grams. That was the lowest and must therefore be the one out of 13 that was not considered high. It follows that the other 12 cases are characterised by the authors of the research as having "high birth weight".[78]The range of birth weights of those 12 cases ranges from 3,800 grams to 5,896 grams. So, I make the observation that simply saying "12 of the 13 cases had a high birth weight" appears somewhat crude because there is a big difference between the birth weights within that characterisation. The highest birth weight I have described is 55 per cent higher than K but the lowest is lower than K's.[79]The research concludes by telling me that:
"The common denominator in nearly all cases was that neonates were large with a difficult delivery. A significant portion, 7 out of 13, presented with shoulder dystocia."
[80]I have already commented that, in terms of neonates being described as "large", that appears to include babies with a weight extremely similar to K's.[81]At page 4 of the research, I am reminded again that rib fractures in neonates are highly suspicious for non-accidental injury. It goes on to say that:
"Most of the fractures involve the posteromedial rib at or near the costovertebral junction."
[82]It then quotes the research paper which found that:
"87 per cent of the fractures occurred near the costochondral junction."
[83]A lay person reading that report in isolation may well conclude therefore that the particular location of the fracture within a rib is a factor capable of indicating inflicted injury is more likely. I will come back to what Dr Watt says about that later.[84]The research goes onto explain, in simple terms, the forces at play during birth. The sentence starts:
"In macrosomic neonates…"
[85]Everybody agrees that what that means is big babies. The research does not define the threshold for macrosomic.[86]It goes on to say this:
"In macrosomic neonates, during laboured contractions, the passage through the relatively narrow birth canal, additional rotational forces and leverage over the pubic symphysis re-exerts circumferential forces as encountered during bi-manual compression, but selected anterior displacement of the vertebrae, as in NAI, does not seem likely. "
This may be an explanation for the dominance of the mid-posterior over posteromedial with birth-related rib fractures. Relative fixation of one side of the thorax during labour provides the mechanical advantage to the other side, resulting in an asymmetrical fracture pattern, as in most patients with birth-related fractures."[87]He continues by saying that:
"Ipsilateral clavicular fractures can be explained by this mechanism."
[88]That makes perfect sense by reference to the table of 13 cases to which I have referred. All of the rib fractures described are unilateral. In all cases where there is one or more rib fracture and a clavicle fracture, the fractures are all on the same side. I remind myself that K has a fracture only on one side.[89]I turn next to the Högberg research. This set out:
"To explore, in the neonatal register, the current rate of birth-related and other fractures in the neonatal period and their association with perinatal risk factors."
[90]The introduction tells me that clavicle fractures are by far the preponderant birth-related fractures, and they explain the mechanism. They say that rib fractures are rarely reported in association with birth, only in case reports:
"That may have the same origin as clavicle fractures caused by the compression forces to the chest or in association with bone fragility."
[91]The research reminds me again that rib fractures are considered to have a high association with a maltreatment diagnosis. They say that:
"Present knowledge about birth-related fractures is mainly derived from single hospital studies with case reports that address specific types of fracture. Wide differences in reported incidences of birth-related fractures might also indicate that underestimates are a problem."
[92]They describe the aim of their studies being:
"To describe fractures diagnosed as birth related by type, age at diagnosis and associated maternal, birth and newborn infant characteristics, and other fractures occurring during the neonatal period."
[93]They devised a number of different categories, and these are set out at paragraph 2.2. They include, for example, whether there was an assisted delivery and, if so, what type, and also factors such as birth weight. In total they found 5,336 fractures, equating to 2.9 per 1,000 live births, diagnosed as birth-related fractures. The types of fractures found are set out at paragraph 3, and by far the most common are clavicle fractures.[94]Dealing specifically with rib fractures, they say at paragraph 3.4 that 10 were diagnosed in the early neonatal period. All of them also had clavicle fracture. 4 out of 10 had a dystocic labour, 4 out of 10 had vacuum delivery, 5 out of 10 had a birth weight of more than 4,000 grams and all of them had shoulder dystocia.[95]They say that:
"In the routine examination of newborn infants, clavicle fractures are especially looked for, whereas other fractures might be overlooked if there are no symptoms. However, if no crepitation or callus formation is found at the examination, there is still a risk for a fracture to pass unnoticed."
[96]As part of their discussion, they say that:
"Estimates of the incidence of birth-related fractures will never be accurate, in one study, half of the clavicle fractures were found incidentally by X-ray."
[97]Despite the risk factors, which are evident in the report, the discussion tells me that:
"Still, fractures do occur without any perceived complication or risk factors. Only 4.3 per cent of the clavicle fractures were associated with shoulder dystocia, and half of them occurred among newborn infants with a birth weight below 4,000 grams."
[98]Within the discussion, they also say:
"All 10 rib fractures diagnosed in the early neonatal period had shoulder dystocia."
[99]Then:
"The interpretation is that the same powers that cause clavicle fracture might also cause rib fractures. Most probably, rib fractures could be underestimated, as they could be clinically silent in newborn infants and overlooked on chest X-ray before callus formation."
[100]They also say this:
"Neither is there a special key code for rib fracture, and those might be overlooked in clinical and registered studies."
[101]They also report a study from Finland, with a similar design and setting, which reported a four-fold higher clavicle incidence than their own research. They say:
"Thus, our incidence of clavicle fractures is likely to have been an underestimate. This might be the case as well for asymptomatic skull fractures and rib fractures."
[102]They tell me that:
"A major limitation was that we did not have access to the clinical records for further assessment of events preceding the diagnosis of a fracture, such as obstetrical manoeuvres during extraction of the infant, regardless of the mode of delivery. Neither could we differentiate between occult fractures found incidentally by X-ray and those that were symptomatic."
[103]Returning now to the opinion of Dr Brocklesby. In his report at E26, he comments on the Van Rijn research and says that:
"The common denominator in all these cases was that the neonates were large with difficult deliveries, and 50 per cent were associated with shoulder dystocia."
[104]I asked him some questions about the issue of birth weight. He gave straightforward and open-minded responses. I asked him whether he agreed that we are in fact talking about quite modest variations in birth weight between K and some of the reported cases. He readily agreed that the difference between some of the research birth weights and K's is not significant.[105]I also explored, in lay terms, why it is that the birth weight is relevant. He agreed with my, perhaps clumsy, description that there are in effect two components: the size of the thing doing the squeezing, and the size of the thing being squeezed. He appeared to understand my query and the logic of it, because he rephrased it saying:
"Yes, that is the other side of the equation."
[106]He agreed that whilst we have data on the size of the thing being squeezed, i.e. the baby, we do not have any evidence about the difference in size of the birth canal in different women. He told me they used to measure this, but stopped back in the 1980s.[107]I asked him about his written report stating that he could not "construct a mechanism", given that there are cases where babies get rib fractures, and only rib fractures, during the normal birthing process. I asked him whether it is really right that he cannot "construct a mechanism", or whether it is the case that he does not accept that the mechanism applies to the facts of this case, i.e., because of the birth weight.[108]He said, paraphrased:
"Yes, that is probably a better way of putting it."
[109]Where I have real difficulty is that there clearly is an available mechanism, because there are examples in the research, as I have described, of a similar birthing process where rib fractures occur. The distinguishing feature from Dr Brocklesby's perspective appears to be birth weight, but the differences do not appear to me, or probably more importantly to him, to be significant.[110]The other part of the equation, which is the part of the mother's anatomy doing the squeezing, in terms of its size, is an unknown.[111]There is another distinguishing feature, however, which is the number of fractures. Dr Brocklesby did not comment on that in his oral evidence. Other witnesses did, and I will come back to that.[112]It was put to him on behalf of one of the parents that, based on the research, it is possible for a smaller baby to get rib fractures, and he said:
"Let us look at the research. They all had shoulder dystocia, so internal manoeuvres putting pressure on the baby's rib cage."
[113]That of course is a true statement in respect of the reported cases in the Högberg research, but categorically not the case in respect of the reported cases in Van Rijn research.[114]It was put to him that birth injury is possible in K's case, and he said:
"I suppose it is theoretically possible but I was asked to comment on the balance of probabilities. It cannot be completely ruled out."
[115]I turn next to what he has to say about the Högberg research. In his written evidence, he states that:
"This suggests that rib fractures are a rare complication of complex obstetric deliveries. They are not associated with cardiopulmonary resuscitation, and all of the ones reported in their database were associated with clavicular fractures."
[116]He agreed entirely with Mr Veitch that rib fractures in the literature are mainly an incidental finding when a clinician has a specific reason to look for another injury.[117]I pause here to make some observations on the Högberg research. One of the difficulties of it, compared to the Van Rijn research, is that they do not specify the birth weight, other than to put it in a category. So, for example, I don't know whether their babies in the over 4,000 gram category included babies very close in weight to K, or whether they were generally much bigger. There clearly appears to be an association from that research between rib fractures and the following: prolonged labour, vacuum delivery and birth weight.[118]The finding of that research was that in every single case there was a clavicle fracture. But it seems to me this relationship needs to be evaluated critically.[119]Dr Brocklesby was asked about when he might consider an X-ray to be clinically indicated, and he gave a very instinctive response. He said, for example, in cases of shoulder dystocia, and the manual processes involved in that, he may well think, and this is me paraphrasing, "I may have fractured the clavicle" and it is because of that fear that he may have fractured the clavicle that the X-ray is indicated in the first place.[120]In other words, in cases where there is an X-ray, it is often precisely because people are worried that there might be a fractured clavicle, and it is therefore not surprising when rib fractures are often found alongside clavicle fractures.[121]Answering questions from Mr Vietch, he accepted that although the Högberg research includes 1.9 million, it is not 1.9 million, and he agreed that we do not know how many, in fact, have bone imaging that might have identified a rib fracture. He conceded that we do not know the actual number of incidents of rib fracture, but told me, "we assume it is small".[122]Moving away from the research, there is an additional factor which Dr Brocklesby agrees is a significant unknown, and that is that we do not, in fact, know how many babies are born with rib fractures.[123]At E28, he reminds me that the actual incidence of fractures is unknown because the research studies have calculated the incidence of diagnosed fractures, and he states:
"It is unknown if or how many remain undiagnosed in the general neonatal population."
[124]He agreed with me that unless we simply go out and X-ray 10,000 babies, we will not know how many of them actually have rib fractures in circumstances when, based on current medical evidence, they would not be expected.[125]I do not say this as a criticism - in fact, it highlights the importance and value of cross-examination and oral evidence - but my impression of Dr Brocklesby's evidence was that it shifted during his oral evidence. He moved from suggesting that he could not construct a mechanism, to clarifying that the mechanism is there, but he did not accept that it provides an explanation in this case.[126]It also seems to me, however, that that evidence was given before he discussed in detail the modest difference in birth weight between some of the reported cases and K's, and he acknowledged the unknown in respect of the mother. As I have already set out, he did not rule out birth as a cause.[127]Dr Watt: He is the consultant paediatric radiologist and has held this position for 24 years. He is vastly experienced and well known to these courts.[128]Based on his analysis of images from the skeletal survey that took place on 7 October, the bone density appeared normal. He identified a healing fracture to the right sixth rib posterolaterally, which showed established callus formation. There was a single-layered periosteal reaction along the anterior distal humeral shaft, most likely physiological in nature.[129]He reviewed further images dated 18 October 2024; bone density remained normal. He observed slight progressive remodelling of the right sixth rib compared with the previous exam. He reminds me that dating fractures is an inexact science and best practice is to refer to weeks rather than specific days. Regarding timing, he thinks the fracture was probably at least two weeks old and up to seven weeks old as at 7 October 2024, and therefore he clarifies that it could date back to birth.[130]The mechanism in this age group is commonly a compressive force to the chest. At E41 he explains that for an accidental rib fracture in this group, a memorable incident with a compressive force or significant impact to the chest would be expected to have been identified. The amount of force required is not known but is beyond normal or even vigorous handling. This is because the rib cage of children this age is incompletely ossified and quite resistant and compliant.[131]Clinical studies have shown that the commonest cause for rib fracture in a young child is an episode or episodes of inflicted compressive force to the chest. Rib fractures are identified in the literature as a type of injury that has high specificity for non-accidental injury as a cause.[132]He goes on in section 1.1 to discuss the relationship between rib fractures and abuse by reference to research. He then says this is especially the case for posterior costovertebral rib fractures and he explains why. He confirms that K's fracture is not near the costovertebral junction.[133]At E42, line 6 to 14, he deals with symptomology and the fact that these injuries can often be clinically silent. There appears to be an agreement on these matters between the parties in this case, so I do not propose to set that evidence out in detail.[134]He discusses possible causes at E42 and what sort of things he would look for by way of a potential explanation. He considered the cause to be unexplained by the statements provided by the parents. He tells me that K's bones were at normal strength and there are no underlying vulnerabilities. He tells me that fractures occasionally occur as a result of birth-related trauma:
"But rib fractures are rare and almost always associated with shoulder dystocia and macrosomia."
[135]Nevertheless, he concluded at E44, line 16 that:
"It is therefore possible that the rib fracture occurred at birth; but this explanation is unlikely to be the cause."
[136]At line 18, he grapples with another issue, which is the number of fractures. He reminds me that there is only a single fracture in K's case, and then says:
"In the rare cases where rib fractures have occurred due to the birthing process, they are usually multiple."
[137]I highlight the word "usually". We know from one of the Van Rijn cases that, whilst accompanied by the clavicle fracture, only one rib was broken.[138]I turn now to his oral evidence. Regarding the suggestion which I have referred to about the link between abusive injuries and their location near the costovertebral junction, he said there is a theory that fractures near to the spine can only be caused by leverage by the spine, but added he is not sure how strong the evidence is to support this theory.[139]He did not reject the relationship altogether, nor did he appear keen on its significance. That evidence was slightly surprising in the sense that he had, in his written report, chosen to point out the correlation between the fracture site and inflicted causation.[140]He confirmed that K's fracture is lateral, i.e. "out to the side". He confirmed that rib fractures caused during delivery are usually unilateral, and that this is also the case with K.[141]He seemed confident that birth-related rib fractures are rare. He said we need to be, "circumspect" about the birth explanation because K only has a single fracture. His use of the word circumspect seems to me to portray an element of restraint. He did not tell me that a single fracture is impossible from some radiological or mechanical perspective.[142]He was asked, based on his clinical experience, what the usual reasons are which cause children to be X-rayed. He said that the vast majority of chest X-rays are because an infant has some kind of issue relating to the birth or underlying medical condition which was known about, or cardiac problems.[143]As to his overall conclusions, this was as per his written report. He said causation during birth is possible but not likely and, beyond that, he defers to other experts.[144]Regarding his evidence as to rib fracture if this was not a birth injury, I accept that completely and I think that all parties do. He clearly sets out the likely mechanism and force, and he correctly identifies that there is no account post-birth which explains the fracture.[145]Insofar as his evidence about the fracture occurring at birth, his evidence has been helpful. He draws to my attention a number of factors which lead him to conclude, from a medical perspective, on the balance of probabilities, that he does not think this was a birth injury. These include, for example: 1. The birth weight 2. The lack of shoulder dystocia 3. The fact that the injury was to a single rib 4. The fact that there were no other fractures, for example to the clavicle[146]It is with full knowledge of those factors that Dr Watt concludes this is not, on the balance of probabilities, a birth injury. It is also with full knowledge of those factors that Dr Watt concludes that a birth injury in this case is possible.[147]Dr Rose: Dr Rose is an experienced paediatrician and well known to these courts. He sets out that there were no abnormalities in the blood investigations, no biochemical evidence of increased bone fragility.[148]Regarding the rib fracture, he reminds me, by reference to research, that in 12 of the 13 cases the birth weight was high, whereas K's weight was "not high". He tells me that:
"Rib fractures during vaginal birth have been described but are rare, so on the balance of probabilities, K’s rib fracture did not occur during the vaginal birth."
[149]He goes on to say:
"It is my opinion therefore that the rib fracture suffered was more likely than not caused by inflicted injury."
[150]He deals with symptomology at E58. He describes rib fractures as "exquisitely painful" with distress for some 10 to 15 minutes, but thereafter many infants do not show signs of distress even if they are picked up. K may have behaved normally after the initial distress.[151]At paragraph 10 and 11 on that page, he deals with whether the symptoms of distress would be obvious to somebody observing them.[152]Turning to his oral evidence: I asked my questions first so that other advocates could follow up if they wished. I asked him about number four in the Van Rijn list, on the basis that the birth weight was similar to K's, that there was no shoulder dystocia, that there was an assisted delivery. I asked whether this looked quite a lot like K's case and he said, "I agree, the births look similar".[153]The local authority followed up on this issue and put to Dr Rose that the distinguishing feature is in fact that in the Van Rijn study all of the babies had multiple fractures, and in the Högberg research all of the babies had clavicle fractures, and Dr Rose accepted that fact.[154]There are, I believe, multiple fractures of some kind in all of the reported cases. It is not the case though that there are always multiple rib fractures. There is at least one example that we know about, which I have already referred to, where a single rib is affected.[155]Dr Rose is an incredibly experienced witness and, on a number of occasions, quite appropriately, he was keen to provide additional analysis in a helpful way beyond the simple question that he was asked. I think on one occasion he said something like "If I could just butt in there to add some additional information". It struck me in that context that when it was put to him that a distinguishing feature from the Van Rijn research was the number of fractures, he acknowledged that was true, but he was not asked, and did not volunteer any explanation as to the significance of it.[156]It was put to Dr Rose by the local authority: do you agree with Dr Brocklesby that the fracture is probably not birth related? He said, "yes based on Dr Brocklesby".[157]Dr Rose volunteered a caveat, which is that we do not actually know the denominator. He says that it is similar to infants with subdurals after birth; we do not know the incidence of this in infants because we do not scan them routinely. He went on to volunteer what I think I have recorded verbatim:
"The problem with research is we do not actually know the number that have rib fractures as we do not X-ray them. It may be that we do not have many, as infants are designed to be born, but it is not beyond the realms of possibility that a number are missed because a child shows no symptoms and is not X-rayed."
[158]He agreed with the local authority that we simply do not know the rate of rib fractures at birth, but he also agreed that the rate is almost certainly very low. He went on to rely on his own clinical experience in explaining that rib fractures are "probably uncommon". It was put to him by Mr Payne that "we know the rate is low, we just do not know how low", and he agreed.[159]He agreed with the parents' advocates that rib fracture at birth could be silent. In fact, he went further and said, "It is highly unlikely to be detected clinically". He explained that, at birth, the baby will often be crying and there may be many reasons for this. He agreed that we often see rib fractures with other injuries precisely because medics are doing X-rays in light of the existence of or concern about another injury. It was put to him that a reason for the clear link between identification of a rib fracture alongside clavicle fractures may be because people are looking for the clavicle fracture; he agreed with that. It was put to him that, whilst known cases of birth-related rib fractures are low, the research also suggests that they may be much higher. He said "Yes, but they are just hypothetical as we just do not know".[160]He was asked, based on his clinical experience, how many children are being X-rayed. He said he has no idea, but it is a very small proportion, he thought probably less than 1 per cent. I make clear that he was doing his best, it seemed to me, to come up with some sort of figure off the top of his head, and it was given only as a rough estimate.[161]Regarding symptomology, he said that all rib fractures are painful and the distress would be more than just a couple of minutes, but he agreed there is likely to be what was to be described as a bell curve in terms of responses and some children will present at both ends of the continuum.[162]Dr Rose was, overall, incredibly helpful. I don’t have a difficulty accepting his evidence as a standalone piece of work. It remains my task, of course, to consider not only his evidence but also the medical evidence as a whole, and also the entirety of the evidence as a whole.[163]The parents[164]I start with the mother's oral evidence. She explained that she had previous experience being around and cuddling babies, but that this was her first time of doing it full time. Between K's birth and 16 September, when the father went back to work, the father was on paternity leave and she explained that both parents were doing parenting tasks. She described the father as hands-on. She was breastfeeding, but at various points she was also expressing so that the father could give a bottle. Up to 16 September, the only period she would have been away from the father was when he would pop out of the house for 30 or 60 minutes to walk the dog or sometimes go to the shops. She told me they live in a 3-bed detached house, K would sleep at night in a ‘Next-To-Me’ bed. The house is relatively small, and she was clear that if K was crying everybody in the house would hear it. She felt that she would be attuned to K if he was crying in a different way suggesting he was hurt.[165]It was put to the mother that babies know how to push a parent's buttons, and they can push you to your limits. She did not agree with that. She said she had prepared herself. She said there were some periods when he was unsettled in the night, but there were also times where he would sleep for 6 hours straight. She said that she did not find any of this difficult.[166]That evidence was challenged appropriately by Mr Payne, and the mother explained further. She said she devoted herself to being the best mum she could be. She said she was prepared for difficult nights. She said that, of course, there were sleepless nights, but that she had expected that and it was normal. She acknowledged that there had been contact with the out-of-hours services, and that K had been unsettled, and that there had been times she was worried about him. She agreed that days like this were stressful and agreed that the inconsistency was not easy. She said that she "hated to hear him cry". I should make clear that I noted that remark; I did not interpret it in any way as her telling me she could not cope with him crying, but rather it struck me as a loving remark conveying the sense that no parent likes to hear their baby in distress.[167]She agreed that the father going back to work on 16 September was a big change and this is why she decided to go and stay with family. She did not agree there were times when she struggled. She said that, for example, there would be times when she would miss out on a meal because she was prioritising K, but she did not think this should be characterised as struggling.[168]She was asked if she would have been reluctant to tell people if she was finding it hard. She said this is not something she would be embarrassed about, so no.[169]She could not think of anything that caused the rib fracture other than the birth. She said she had always handled him carefully and told me she loves him more than anything. She said the only thing she could think of was that which is set out in her statement, for example, the father tripping on a step with K, but she reminded me that K did not cry, so she did not think this was the cause. This feature of the case is quite interesting and what I say now applies equally to the father.[170]The parents have provided very full descriptions, including occasions where something, however small, had been different to normal. The opportunity to exaggerate a number of these events has been available to the parents, and there is no suggestion, either in their written evidence or in their oral evidence, that they have taken the opportunity to do that.[171]She told me that the first time she was ever away from K was for the first court hearing in these proceedings on 14 October, and she seemed emotional as she recalled that.[172]Her evidence, in my view, was of the very highest quality. In a sense, as good as it gets in a case like this, both in terms of content and the way it was given.[173]In terms of the content, there is in my judgement not a shred of evidence that she has minimised or exaggerated on any topic. At certain points, I have felt an emerging curiosity about her depiction of parenting, especially given that this was a child who needed medical attention. But when seen as a whole it is clear that she had prepared herself well for parenting and largely took it in her stride. She describes herself as wanting to devote herself to being the best parent she could be and, other than the fracture, all other evidence in the proceedings, which I will come back to, corroborates the assertion that she is a skilful, attuned and loving parent. There is no evidence that she is lying about anything, and no suggestion she is even being inconsistent about anything that she has ever said, and so I find her an exceptionally credible witness.[174]In terms of how she gave her evidence, I remind myself that this should never be a significant part of the evaluation, but nor is it irrelevant. In my view, she exuded a gentle sincerity. She struck me as being wholly unguarded from start to finish. She appeared completely at ease and presented as though she was giving an open and spontaneous account. So, in summary, whilst she was expertly cross-examined, the reality in this case, in my judgement is that, other than the fracture, there is no material available which enabled the local authority to expose any risk factor in respect of this mother or any dishonesty, any lack of consistency, or any lack of credibility.[175]Turning to the father's evidence. He was more confident than the mother but not inappropriately so. He spoke with real clarity. He gave an enthusiastic and detailed account of his own observations of the birth process. In terms of the content of his evidence, I will probably say less than I did for the mother simply because much of it was confirming practical arrangements which she had already set out, for example, the date he went back to work, the routine, the layout of the house and so on. He gave answers to these questions with spontaneity, and his answers were entirely consistent both with what the mother had said and entirely consistent with what I see in all of the documents. At various points what struck me about him was how much he appears to simply enjoy parenting. For example, when discussing feeding he grinned as he said the mother would do most of the feeding, but he would be on burping duty. He told me he could not think of anything which could have caused the rib fracture after K was born nor could he offer any occasion when, for example, he had been out and come back and seen that something was wrong or that K was crying in an unusual way. He was asked questions along the same lines as the mother, i.e. that parenting a newborn baby can be really challenging (sleepless nights for example) and he said of course that is true but he also said he was used to getting up with the mother and also that as part of his work he is used to having less sleep than many people. He disagreed with the suggestion that parenting K had ever tested him to his limits.[176]I asked him what it was like switching between army barracks and life back home with a baby and he explained in practical and emotional terms how he finds this straightforward. He described leaving his uniform at work and leaving his work at work. He said he has never had an issue switching off. He just tries to enjoy time at home as much as he can. The way he gave his evidence was in my view compelling. He was engaging, spontaneous, unreserved on all topics whether they were practical matters of narrative or emotional issues such as the upset he had felt whilst away at barracks and the reasons for this. I found him extremely persuasive.[177]I remind myself yet again that the way people give evidence is not of significance compared to the content of it, but as with the mother there is no suggestion, in my view, that the father has lied about anything. No suggestion he has been inconsistent on any topic. No suggestion that he has minimised any issue, which he could have done in the way I have described (or could have done in respect of his emotional difficulties) and no evidence that he has exaggerated any issue, which he could have done.[178]It is only part of the picture, but as an independent part of the overall picture I reach this conclusion: the parents' presentation in court, generally the way they gave their evidence and the content of it, make it exceptionally difficult to believe that either of them has injured K and equally difficult for me to believe that they know what has happened and are lying to me about it.[179]The wider canvas[180]This is a classic single-issue case, not only in the sense that there is a single fracture but also in the sense that the parents were not known to social care before discovery of the injury. I have set out already a full list of potentially relevant protective and risk factors from the case of Re BR. I am not sure I can remember a case where I could reach this conclusion: I do not think there is any evidence at all in respect of the 16 risk factors in that case, and conversely, I think there is evidence to support the presence of all 9 protective factors. That is an extraordinary conclusion and reinforces the fact that, but for the medical evidence in respect of the injury, there would be no reason to believe that an inflicted injury would occur in this household.[181]The positive and protected factors in respect of the parents are added to by the social worker's written evidence. She reminds me that: 1. The parents have consistently sought support from professionals when they had worries for K, including leading up to the discovery of the fractures. 2. They have a high level of family support. 3. There has been no previous local authority involvement, no police concern in respect of them or any of their family. 4. Observations of the parents with K have been consistently positive. The local authority risk assessment from January 2025 praises the parents for their level of engagement and reminds me that they have a good support network not just of family members but also friends.[182]It reminds me that there are no other risk factors such as alcohol, drugs, home conditions or domestic abuse. In fact, the opposite is demonstrated. The assessment of the social worker is that the parents appear to have:
"A supportive relationship whereby they can discuss any issues openly with each other."
[183]Professionals have commented on the individual personalities and the characteristics of the parents. The mother is described in one assessment as:
"A very calm and caring character."
[184]There is a large body of evidence now available about these particular parents. They have been observed looking after K by multiple professionals, including the social workers, hospital staff, health visitors and midwives. Every single observation is free of concern. Every single observation I have read about suggests both parents are loving, gentle, responsive and capable. One phrase chosen by the local authority in their risk assessment in January 2025 to describe both parents was that they "have a lot of empathy" towards K.[185]The most convincing and detailed information in the local authority's risk assessment is that K was a much wanted and planned child. The parents provided detailed accounts about how hard they had worked on preparing for parenting, ranging from speaking to colleagues, reading books and doing lots of research about precisely which pushchair or cot they ought to get.[186]I acknowledge that the parents have from time to time spoken of some degree of difficulty. The mother told professionals that she found the father's family overwhelming at times. The father has been emotional when away at work. These, in my judgement, do not come close to indicating an increased risk of inflicted fracture.[187]Firstly, nobody is suggesting that these are mental health problems. Secondly, the only reason I know about them is because the parents have spoken to professionals openly and transparently about them. Thirdly, there is no evidence at all that any of these emotional ups and downs or difficult family dynamics have impacted on the completely positive care that they provided to K. Fourth, no professional has raised a concern about either parent's presentation. They strike me as fairly run-of-the-mill ups and downs, and if anything, I see it as a positive that they have had the emotional intelligence to identify them and willingness to talk to relevant professionals about them.[188]The parents have been particularly keen to engage with medical professionals. As set out in the chronology earlier, they had quite a few midwife visits, a handful of health visitor visits and also sought out additional support when they thought K was not settled. None of these professionals have raised any concern that these parents were not coping.[189]The social worker identified a "risk" that the mother had been isolated when the father had been working away "for long periods of time". I am not suggesting for a moment that the social worker is trying to mislead me here, and it may be that since that statement was written she would take a slightly different view, but I cannot agree with the characterisation that I have read. The father was not working away for long periods of time in the entire radiological window between birth and 23 September. He was away on one occasion for four nights and kept in regular touch. During that period, the mother was staying with the grandparents.[190]The period of particular concern, radiologically, is between 17 August and 16 September. That is the date that the mother went to stay with the grandparents. So that is a period of less than one month and, on my calculations, the parents engaged voluntarily with health professionals on nine separate days within that period. Every single interaction was of course voluntary. No appointment was missed or delayed, no appointment raised any concern or suspicion.[191]At paragraph 53 of Mr Payne's closing submissions, he sets out factors in the parents' evidence which it is asserted may explain how K came to be injured. I will deal with those now.[192]Firstly, that the parents were first-time parents. I am not convinced being a first-time parent should be seen as an inherent risk factor. I think I need to look at the particular case. This was a much-wanted baby. The parents have undertaken a huge amount of research and preparation. All of the evidence is that they were looking forward to it. There is no evidence that either of them finds any aspect of practical parenting difficult to manage. The vast majority of the radiological window was at a time when the father was on paternity leave, the time when the mother would have had the most support practically and emotionally.[193]Secondly, the local authority referenced the fact that there were times when K was clearly unsettled, and I have no difficulty accepting that an unsettled child has the capacity to be more challenging and more testing for the parent than a completely settled child. Whether that means it is a meaningful risk factor depends on the specific case. There is no evidence in this case that the parents presented at any time as frustrated with K or not coping. Sometimes in the early days children can be difficult, but many parents cope with this calmly and seek out professional support when needed, and this case appears to fall into that category.[194]Thirdly, the local authority argued that the mother's evidence was overly positive, and the submission in effect is that any other parent in her position would recognise it can be very difficult. Again, I think I need to be very careful because she has been very clear in her evidence that it was sometimes stressful, but there is no evidence, in my view, to gainsay her assertion that she generally coped well with that stress. The first few weeks of the life of your first child, particularly if being supported by your husband in a loving relationship, can be a wonderful time. Mr Payne did not, of course, put the case in this way, but I do not think I have the material to infer that it must have been more difficult than she is describing and that she is therefore undermined as a consequence.[195]The local authority says that against this background the scope for an incident of rough handling, or applying far more force than either of these parents would ordinarily use, is "easy to comprehend". I profoundly disagree with that. It strikes me as more or less incomprehensible that such loving, skilful, devoted and well-supported parents, unaffected by any known risk factor, would have inflicted this injury, and even less comprehensible that they could have concealed their guilt and lied about it.[196]Conclusions[197]Looking at the medical evidence as a whole, I am satisfied that the mother gave birth vaginally to a baby weighing 3,810 grams. The birth process was prolonged but was not complicated from a medical perspective by any process which subjected K to an increased risk of rib fracture. I am satisfied that rib fractures caused during birth are rare. I am satisfied that rib fractures are, all things being equal, highly indicative of an abusive cause. I am satisfied that there are discernible factors identified within the research and expert evidence in this case which have a bearing on the likelihood of a rib fracture appearing during birth. I am satisfied that the local authority correctly identify the following factors which are not present in this case: shoulder dystocia, complex or difficult delivery, multiple rib fractures and/or concurrent fractures to other bones.[198]I also accept that K's birth weight is not technically high, based on Dr Brocklesby's evidence. I accept that the weight of the baby is relevant to the issue I am considering. A higher birth weight increases the risk of rib fracture, a lower birth weight reduces it. Birth weights characterised as "high" are often seen in reported cases concerning rib fractures, which means that the logical mechanical impact of a bigger baby on the compressive forces during vaginal births can be seen as a statistical reality. I am satisfied that each of the medical experts has told me that a rib fracture occurring during the birth process I have described is a possible mechanism but not a likely one.[199]I consider that there are cases in the literature with striking similarities to many features of K's delivery. Dr Brocklesby identified such a case, with the distinguishing feature in his view being the difference in birth weight. The evidence which followed persuaded me that he was alive to, and accepting of, the fact that the weight differential was insignificant and that there are unknown and unknowable factors which influence the compressive forces.[200]Whilst not resiling at all from the proposition that macrosomia is a risk factor for rib fracture during vaginal birth, and that K's lower birth weight in comparison to many reported cases points away from this having occurred in his case, I am far from satisfied that his birth weight makes the mechanism impossible. This, in my view, is supported by the research. There are babies within the Van Rijn research with a very similar birth weight to K's. In fact, they described 12 of the 13 babies as having a high birth weight, and within that category there are babies with a similar birth weight to K. The Högberg research tells me that 50 per cent of the identified babies with rib fractures had a birth weight of more than 4,000 grams, and it follows that 50 per cent of them had a birth weight of less than 4,000 grams and would therefore have been close to, or potentially lower than (we do not know) K's birth weight. Dr Rose also identified a case from the research, describing it to me as very similar to K's other than, when prompted, the fact that in K's case it was a single fracture. He did not comment on the significance of this. Dr Watt, who did comment on the issue of single versus multiple rib fractures, was satisfied that a fracture during K's birth remains possible.[201]Based on the examples I have studied in the published research, I therefore conclude that there are babies born with similar weight to K, with no complicating shoulder dystocia or other complicating and risky procedures, where the mechanism of a vaginal birth caused rib fracture. I accept that K had a slightly smaller birth weight than some of those cases, and the existence of a single rather than multiple fractures are factors which are rightly identified as making K's fracture at birth less likely rather than more likely. I am not persuaded, for the reasons I have given, that those differences are demonstrated as being of such significance that K's case can be distinguished such that the mechanism is not possible.[202]I am also conscious that I have identified cases similar to K's in a very limited number of reported cases. Drawing on the research articles and the evidence from the experts in this case, it is clear that whilst the incidence of birth rib fractures is clearly very low, it is also clear that the rate is unknown, underestimated and underreported. If the limited number of rib fractures available within the research were confirmed as the definitive and exhaustive list of all of the cases where this has ever happened, I would be more persuaded by it. But we know for a fact, supported by the oral evidence I have heard, that there are more cases we simply do not know about.[203]As set out earlier, caution is needed; not only because the true rate of rib fractures is unknown, but also because of the circumstances leading to the discovery of rib fractures. It is clear, for example, that rib fractures are often discovered precisely because a clinician is concerned about the possibility of a fracture to another bone, most commonly the clavicle. The experts considered this point when it was explored with them in cross-examination, and it makes perfect sense. There must be caution in attaching too much significance to the co-occurrence of a clavicle fracture and a rib fracture in circumstances when the latter is often only discovered because the medic is looking for the former.[204]A similar analysis must apply - and is supported by the evidence I have heard - in respect of the correlation between certain risk factors and reported rib fractures. For example, Dr Brocklesby made clear that if a large baby was born following intervention to resolve a shoulder dystocia this may well lead the medical team to request X-rays. By contrast, where the circumstances of K's birth are present, as was confirmed to me by Dr Rose, there would be no clinical justification for an X-ray. I do not for a moment suggest the correlation between shoulder dystocia and rib fractures is entirely or even mainly a consequence of sampling bias, but there must be - and the experts agreed with this - an extent to which the statistics are self-reinforcing because it is far more likely that postnatal imaging will take place following a complicated birth.[205]Dr Watt in his written evidence appeared to rely upon a high correlation between inflicted rib fractures and their location near to the spine. The significance of that was wholly diluted in his oral evidence such that I place limited weight on it.[206]Dr Watt did confirm though in his oral evidence that all of the fractures in the literature are unilateral and that the same can be said for K. He did not say whether this was or was not significant. It is clearly a similarity between reported cases and K's case. I do not attach significant weight to the unilateral aspect of K's fracture, but if it points either way it points in favour of the parents' position rather than the local authority’s. I say that firstly because it represents a similarity between K's case and all of the reported cases and secondly by reference to the mechanical reality underpinning an asymmetrical fracture pattern which I have already quoted from the research.[207]I acknowledge that I have at times interrogated specific factors pointing towards or away from the birth mechanism, and I am acutely aware that I need to stand back and look at the factors as a whole, not just as they are set out in the research, but also as they are understood based on the significant clinical experience of the experts. When I do that, I have no difficulty in understanding why the experts, individually and collectively, take a view that - from a medical perspective (and that is an important qualification) - birth injury is probably not the cause.[208]But having carefully considered the medical and expert evidence, I am satisfied that K's rib fracture, though rarely caused during birth and more commonly associated with non-accidental injury, cannot be excluded as a birth-related injury. While acknowledged risk factors such as shoulder dystocia and macrosomia were absent, the expert and research evidence confirms that rib fractures can and do occur in births without those complicating features. Importantly, the rarity of such fractures must be viewed in light of significant diagnostic limitations. Rib fractures are often under-reported, missed without imaging and most commonly discovered when clinicians are already investigating other concerns. There is an element of sampling bias, particularly where imaging follows complex deliveries.[209]In this case, I find the absence of certain risk factors makes a birth-related injury less likely, but not implausible and not impossible.[210]I turn then to the suggestion that the injury was inflicted by the parents. I accept that this is a possibility. This is not a case where premeditated, persistent or even deliberate abuse is alleged. I cannot be certain that one of the parents has not compressed K's ribcage in a way that is alleged and lied about it. But whilst I concede that is a possibility, I find it enormously difficult to comprehend that it could actually have happened.[211]There are a range of aspects of the case which I find it incredibly hard to comprehend. It is not just a question of: could either of them have done this? I also ask myself, what would have driven one of these parents, given everything we know about them, to have behaved in that way, even if momentarily and without malicious intent? When precisely is it said that the father even had an opportunity to do it? And does the evidence genuinely sustain the belief that the mother could have done it, and then presented so calmly and genuinely and consistently to all professionals and then to the court?[212]In my judgement, it is the medical evidence and the medical evidence alone which would need to sustain a conclusion of inflicted injury. I do not agree with the local authority's analysis that there are any other material risk factors demonstrated that would have affected the parents in the first few weeks of K's life.[213]All wider canvas evidence points very powerfully against an inflicted injury. By way of example: 1. The oral evidence of the parents, which struck me as being compelling and truthful. 2. The factors I have described from the case of Re BR. 3. The fact that these parents were well-supported, not only by love for each other, but also love and support from family and friends. 4. The evidence of their demonstrated capability in practical parenting, which significantly weakens an assertion that they were likely to encounter a situation with K that they simply could not manage safely. 5. The evidence of the parents' temperaments and character, both generally and as demonstrated by the observations of multiple professionals, that they show love, warmth and empathy towards K without fail. 6. The fact that they exposed themselves voluntarily on a high number of occasions to medical professionals throughout the relevant period.[214]So for all of those reasons, whilst I accept that it is theoretically possible for any parent to cause an injury, beyond that I find it virtually inconceivable in this case. It is entirely inconsistent with the broader body of evidence before the court.[215]Thus, I am left with two scenarios, both of which, when looked at in isolation, appear unlikely. Is this a rare case where, notwithstanding the absence of a number of risk factors, K has sustained a fracture during birth? Or is it a case where a parent has, in circumstances wholly unsupported by the totality of the evidence, inflicted a fracture?[216]I revisit the legal principles that I set out earlier. The only question for me is whether the local authority have proved their case on the balance of probabilities. Mr Payne, typically fairly, explains in his closing submissions that rarity alone does not in and of itself establish the alternative of inflicted trauma, and that is consistent with the case law, which is that I should not dismiss a cause simply because it would be highly unusual.[217]Even when I weigh into the balance the absence of certain risk factors in K's case, the evidence that I have heard, together with the research, when analysed in the context of its acknowledged limitations, persuades me that birth injury is a possibility in this case.[218]The fact that the explanation from a solely medical perspective is unlikely, or even very unlikely, does not persuade me on the balance of probabilities that this is therefore an inflicted injury, because that scenario, for the reasons I have given, also seems very unlikely and in fact inexplicable.[219]The local authority have failed, therefore, to satisfy me on the balance of probabilities that K's rib fracture was caused by a parent after his birth, and that is what the threshold in this case is all about. It follows that K has not suffered significant harm attributable to the parents, nor was he, at the relevant date, likely to suffer significant harm and accordingly, in my judgment, threshold is not crossed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk

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