Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam)

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.Case No EX11C00063[2013] EWHC 968 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/02/2013
Before
THE HONOURABLE MR JUSTICE BAKER
Between
In the Matter of the Children Act 1989ClaimantAnd in the matter of ED, JD and TD (Minors)ClaimantDevon County CouncilClaimant
Mr Mark Whithall appeared for ClaimantMr Paul Storey QC and Mr Christopher Butterfield appeared for 1 st Respondent MotherMs. Tina Cook QC and Ms Katie Phillips appeared for 2 nd Respondent FatherMiss Elizabeth Ingham appeared for GuardianHearing Hearing dates: 4th - 22nd February 2013
JudgmentTHE HONOURABLE MR JUSTICE BAKER:
[1]On 5th July 2011, a baby girl was taken to the Royal Devon and Exeter Hospital by air ambulance having collapsed at home. She was discharged the following day but brought back to hospital a few days later where further investigations revealed that she had sustained subdural haemorrhages and bone fractures. Her twin brother was then admitted to hospital where it was discovered that he too had suffered subdural haemorrhages and nine rib fractures. Understandably, the medical staff at the hospital thought they were probably dealing with a case of non-accidental injury and notified the social workers and the police in accordance with usual protocol. The Local Authority duly started care proceedings.[2]That was 19 months ago. In the interim period, the twins and their parents have resided at the home of the maternal grandparents.[3]Today on 22nd February 2013, I have dismissed the Local Authority’s application for care orders in respect of the children and of their baby brother, T. This judgment sets out the reasons for my decision.

Background Summary

[4]The children’s mother was born in 1973 and is 39 years old. She is the middle child of three born to a comfortably-off couple who lived initially in Hampshire but subsequently moved to Devon. The father was born in 1981 and is thus 31 years old. He is the oldest of four siblings. He hails from Essex where his parents, who work in a school, still live.[5]It is an important feature of this case that each parent suffers from a range of medical conditions. The mother has provided a long list of ailments from which she has suffered, including spondylolisthesis, Raynaud’s syndrome, painful joints, a tendency to easy bruising and excess joint laxity. In the course of genetic and clinical investigation during these proceedings, she has been diagnosed with a condition known as Ehlers-Danlos Syndrome, as discussed below.[6]The father has a history of medical problems with a diagnosis of recurrent kidney stones causing renal colic, probably Crohn’s Disease, vitamin B deficiency and possibly enteropathy induced by anti-inflammatory drugs. His problem with kidney stones is possibly linked to an imbalance in calcium in his body. His recurrent kidney stones necessitate regular treatment including operations two or three times a year and very frequent visits to his GP. In evidence, he told me that he occasionally spends the whole day in bed as a result of his health problems. In the course of these proceedings, genetic and clinical investigation has revealed that he is probably suffering from a form of joint hypermobility. His poor health has affected his employment record. At present he is not working, his last post being that of assistant hotel manager.[7]The parties met online in 2008 and started a relationship. They wanted to start a family but experienced considerable problems. Following IVF treatment at the Royal Devon and Exeter Hospital, (hereafter “RDEH”), however, the mother became pregnant in mid-2010 and as is not uncommon after IVF, it emerged that she was expecting twins. Up to that point, the parents had not lived together but in January 2011 the father moved to live with the mother in her bungalow in Devon.[8]During her pregnancy, the mother suffered sickness and acid stomach, and in the latter stages, swollen legs. The twins were born on 21st February 2011: a girl, hereafter referred to as E, and a boy, hereafter referred to as J. The babies were born by planned Caesarean section and were 2 ½ weeks premature. Both babies were well after birth, although it was noted that there was some blue colouration in the whites of E’s eyes.[9]On 26th February, after five days in hospital, the twins went home. Initially both slept in the same cot in the parents’ bedroom but, after a few weeks, they were separated at night. At first, E and the father moved into the spare room while J and the mother remained in the parents’ joint bedroom.[10]Following their return home, the twins were regularly seen by the health visitor, Mrs Still. The health visitor records and the red book for each twin have been produced for this hearing at which Mrs Still gave oral evidence. She is obviously a very experienced and highly competent health visitor. Significantly for this case, she examined both E and J very regularly during the first few weeks of their lives, by my calculation 17 times between 14th March and 5th July. On the first visit, and every visit thereafter, the babies were each weighed naked.[11]It is accepted that J had no discernible health issues although subsequent investigation has demonstrated that he has congenital kidney malformation with a vesicoureteric reflux and also slightly prominent subarachnoid spaces. From an early stage, however, concerns were raised about E’s poor feeding. In addition, there were concerns about sounds she made when breathing, which suggested that she had a floppy larynx, or laryngolmalacia. The mother took her to the GP about this on 18th March.[12]When both children were seen again by the health visitor on 28th March, Mrs Still noted in respect of E:
“Only slight weight gain. Vomiting feeds and only taking small quantities at all times. To try larger holed teats.”
The next day, E was seen by another GP who prescribed Gaviscon infant powder. A further review by the GP took place on 1st April. On 5th April, Mrs Still visited again. On this occasion, she noted about E:
“Now fully formula-fed using Optimal Comfort and no Gaviscon. Still vomiting after feed but less so and weight gain good over four days. 4 ounces.”
Two days later, E was seen again by the health visitor at home who noted; “Steady weight gain. Maintaining growth on 0.4 centile.” Both children were seen again by the health visitor on 12th, 18th and 26th April.[13]On 27th April, the babies had their eight week check with the GP and their first set of vaccinations. The GP’s record concerning E states inter alia:
“Still feeding concerns. Weight along bottom centile. Mum very careful with plotting. Not crossed centile yet. Seems more settled on Gaviscon. Review in one month or sooner if weight falls off. Discuss if weight drops off, refer paeds [ie paediatrician]. Happy with this.”
Of J, the GP noted inter alia: “Much bigger than sister”.[14]The difference between the children is evident from photographs produced by the parents in the course of this hearing. Judges are, of course, used to being shown pictures of children who are the subject of proceedings. It is, in my view, very important to have that opportunity. In this case, I was shown 2 albums out of a total of 19 volumes of photographs so far compiled by these parents, from which I was able to discern a striking difference in their appearance in the children at this early stage of their lives. In contrast to their current appearance, where there is a striking resemblance (as is apparent from a DVD which I have just been looking at) one would not have known at that point that they were twins.[15]Another feature that emerges from the photographs is the manifest devotion displayed by both parents to the children. I bear in mind, of course, the importance of not reading too much into photographs, but I do consider that the albums produced by the parents, and the enormous art book proudly produced by the mother in the course of the evidence, are significant evidence demonstrating how much these parents love their children. They were, and are, besotted with them.[16]Returning to the history, E was seen at home by the health visitor again on 3rd May. On 9th May, she was seen by the GP. The next day she was seen by the health visitor who visited again a week later on 17th May when she saw both children. On 19th May, E was seen by a paediatric registrar in relation to the feeding difficulties. A further prescription of Gaviscon and Zantac syrup was prescribed to deal with the problems.[17]At around this time the parents changed the sleeping arrangements after the father had been unwell. Thereafter, E slept in the parents’ bedroom with the mother and J slept in the spare room with the father.[18]On 25th May, a second series of vaccinations was given. The next day, 26th May, both children were seen at home by the health visitor again. On the following day, 27th May, J was seen by the GP. The mother had concerns that he had been vomiting after feeding. On examination, no problem was noted and he was described as “happy boy, smiley”.[19]At some point towards the end of May, the parents report that E experienced an episode in which she appeared to turn white. The mother’s account in her statement was as follows:
“She had been crying a lot, then suddenly stopped. I had her on my lap ready for a feed but when I noticed the white of her skin, I took her into the conservatory to look at her in the natural light. She was very pale with only the ends of her fingers red. She was bluish around the lips. I thought her eyelids looked bluish.”
The mother did not seek any medical advice about this episode at the time.[20]On 13th June, the mother took E to the GP again with further concerns about her feeding problems. The GP advised that she should keep trying to feed her at home but that, if she continued not to feed that day, she should be taken to hospital. On examination, the GP noted that E seemed very well and smiled. The GP took the opportunity to observe the mother feeding E, who on this occasion took 30 ml of feed in the consulting room. In the medical records, the GP noted:
“During feeding took few gulps then stopped for rests, ie, breaths, then short feed. Pattern like this all along. Resp [ie respiratory] cause for poor feeding.”
[21]On the following day, the mother returned with E to the surgery. E was seen by another GP who noted:
“Bright, smiley. Mouth wet. Fontanelle not depressed. Good tone.”
On the same day, both children were seen at home yet again by the health visitor. On the following day, 5th June, E was seen at the RDEH by a paediatrician who noted:
“E has a longstanding upper respiratory noise which has been present from birth. History of breathlessness on feeds.”
On 21st June, E was seen at home again by the health visitor who noted:
“Much more settled. Some weight gain 2.5 ounces. Smiley and more comfortable. Taking larger amounts of feed.”
On 22nd June, both babies had their third sets of inoculations. On 27th June, E was seen again by the health visitor who noted:
“SMA high caloric milk. Tolerated well. Taking 50 to 120 ml and not posseting.”
On the following day, E was reviewed at the clinic in respect of her feeding. Her mother reported that she had stopped taking the reflux medication and E’s vomiting had improved. In addition, the mother informed the GP that she had increased the size of the teat hole on E’s bottle and that this had helped E’s suckling and drinking of milk.[22]On 29th June, J was taken to the GP by the mother who was concerned about a non-blanching rash on his neck. The GP’s note of examination records that the rash was present and that the mother informed her that it had started on the previous evening after an episode of screaming. In every other respect, J was well. The GP diagnosed that J had some petechial bruising described in the notes as “SVC distribution” which in oral evidence the GP explained meant was consistent with being caused during a screaming fit, rather than any more serious aetiology such as meningitis.[23]On 5th July, E was seen again by the health visitor at home at about 10.00 am. Weight measurements revealed that she had put on 7 ounces. As they told me in evidence, this was very welcome news to the parents. The entry in the health visitor records states:
“Much better weight gain. Looks healthy and happy. Feeding improved greatly.”
It was agreed that E would thereafter be taken to the child health clinic for weight advice rather than weighed at home.[24]At around lunchtime that day, E collapsed and was taken to hospital. The circumstances of that incident have been the subject of an intense focus during this hearing. The parents have given the following account.[25]Once both children had gone to sleep after the health visitor had left, the mother went outside to sand down a piece of furniture, whilst the father stayed watching TV and playing on Xbox in the living room. According to the father, he heard E cry or scream and went into the bedroom where he picked her up and brought her back into the living room. In evidence, he stated that he wanted to calm her down before she was fed, so he sat down on the sofa and put her between his legs facing away from his body in the direction of the TV. He then noticed that she had flopped to one side and, when he looked at her, he saw that she had gone pale and was turning blue. He then picked her up, placed her on his shoulder and walked out of the living room into the conservatory and called for the mother who was still sanding down the furniture in the garden. She came in and took, or snatched, E from the father, shook her gently, placed her on the sofa in the conservatory and gently shook her shoulders again. In passing, I interject that no mention was made of these acts of gentle shaking until the hearing before me.[26]At that point, the parents say that E was not breathing. She was seen to arch her back, almost into the shape of the letter C, and at one point the father tried to blow into E’s mouth without success. The mother then told him to ring 999. A tape recording and transcript of the call have been made available. They demonstrate that E was initially not breathing, then breathing only slowly, while the mother was trying to revive her.[27]A paramedic arrived followed by an air ambulance. The ambulance record notes:
“Nil rash present. Nil evidence of photophobia. Head moving freely. Nil obvious neck stiffness.”
E was taken by the air ambulance to hospital where she arrived at 14.29. She was then examined by Dr Pearson, a doctor in the emergency department, who wrote up a note at 15.20 which she said in evidence was immediately after the examination. The note reads:
“Suddenly unwell at 13.30. Cried ‘right paddy’, due a feed. Well this morning. Brother got a cold. Went pale and floppy, stopped breathing for 30 seconds. No jerking. Odd gasps on return of breathing, then back to normal.”
The note continues:
“On examination crying grizzly, not in pain. Apyrexial. Fontanelle slightly bulging even when not crying. Rash non-blanching on scalp. Handling OK. Grizzling when awake again. Apnoea attack? Cause.”
[28]In the course of her admission, two canulas were inserted into her hand. The first doctor who attempted this procedure had some considerably difficulty and a second doctor took over. During this procedure, E held to be held firmly by the arm and, according to the mother, became distressed. E was detained overnight but discharged the following morning. The discharge summary recorded that the petechial rash had resolved, she seemed well and concluded that it was thought that E had had a reflux anoxic seizure.[29]On the following day, 7th July, the parents phoned NHS Direct after E had been unwell overnight with a temperature. The mother states that she had noticed that E’s fontanelle was slightly raised. A doctor visited and his notes describe E as being well, active with a good cry and good colour, and generally normal.[30]On 8th July, the parents phoned the surgery on two occasions with further concerns about E. Initially, there was some talk of her being taken to hospital again but, as she had apparently improved during the day, the medical advice was to monitor her at home. When a GP visited during the evening, he again examined E whom he found to be initially crying but otherwise apparently well, although there were still a few petechiae on her neck which the GP attributed to the crying.[31]In the early hours of the following morning, 9th July, the mother noticed that E had a bulging fontanelle during her early morning feed. She contacted the out of hours doctor again and was referred to the hospital where E was admitted later that day. The notes of her initial examination described E as:
“afebrile, alert, interactive” but also noted that she had a tense and bulging fontanelle. The initial impression included within the differential diagnosis: “Query raised intracranial pressure. Query infection. Query meningitis.”
[32]On 10th July, E underwent an MRI scan and was found to be suffering from intracranial bleeding. Ophthalmic examination, however, revealed no subconjunctival nor retinal haemorrhage. Initially, according to the medical records, the doctors did not have a strong impression of a non-accidental injury and therefore decided at that stage not to inform other agencies. Later that day a lumbar puncture was performed to extract cerebrospinal fluid to test for evidence of infection. In the course of that procedure, E was held firmly by the legs. Subsequently, some small petechiae were observed on her legs which the examining doctor thought to be attributable to her being held there during the lumbar puncture procedure.[33]Meanwhile, the father was at home looking after J. He states that, on 9th July, he noticed a clicking sound when he picked J up. On the following day, J screamed whilst in his baby bouncer, which the father later ascribed to being knocked by the large family dog passing through the doorway where the bouncer was hanging and, when the father picked him up, he again heard a clicking sound. The parents say that they discussed this issue that evening over the telephone and the mother advised the father to take J to the doctors if he was concerned.[34]On the following day, therefore, Monday 11th July, the father took J to the GP. The medical records and the statement of the GP (who was unfortunately unavailable to give oral evidence) states that the father “sometimes” hears a clicking sound. The GP’s record of her examination of J states:
“Bright, smiling, well baby. No rashes/bruising. Chest clear. No discomfort on pressure over ribs. Audible slight click on one occasion when pressure over left over left upper back. ? Scapula ribs.”
In her statement to the police, the GP said that there was nothing about this examination that gave rise to any suspicion of non-accidental injury.[35]At the hospital the medical team, headed by consultant paediatrician, Dr Hart, had concluded by that point that the differential diagnosis of E’s condition included non-accidental injury and necessitated an examination of her twin brother. The father was, therefore, asked to bring J into hospital where he was examined by Dr Hart. The father again mentioned the clicking sound that he had heard. A nursing sister present during the examination, Nurse Ahmed, felt and heard the clicking sound when she picked J up. Dr Hart noted that J seemed: “well, thriving, normal” and, on seeing J undressed, noted no bruising and no tenderness over the chest. An MRI scan revealed however that J, like his sister, had intracranial bleeding, and a skeletal survey revealed the presence of a number of rib fractures. A skeletal survey then carried out on E revealed that she too had a single rib fracture but also a fracture of her right ulna.[36]Initial chemical analysis suggested that the children had low levels of vitamin D but this was later attributed to a systemic error in the hospital laboratory. A consultant chemist, Dr Salzmann, gave evidence before me and stated that it had subsequently been discovered that over 200 such tests had been misreported by the laboratory during that period.[37]As a result of these discoveries, the hospital contacted the police and Social Services and a child protection investigation was started. Later, on 12th July, the father was admitted to the same hospital having suffered a relapsed in his medical condition and he was detained for several days. After a series of strategy meetings, the Local Authority started care proceedings on 21st July. The proceedings were immediately transferred to the county court and a preliminary hearing took place before His Honour Judge Wildblood QC on 25th July. At that hearing, the maternal grandparents put themselves forward to care for the children. In those circumstances, the Local Authority decided not to pursue its application for an immediate interim care order at that stage.[38]At a discharge meeting on the following day, Dr Hart drew attention to the fact that the evidence suggested the children’s injuries had been sustained on more than one occasion and therefore, expressed concern about the proposed placement with grandparents. Nonetheless, the children were duly discharged and thereafter lived with their parents at the home of the maternal grandparents under a written agreement with the Local Authority.[39]On 9th August, Judge Wildblood gave a further series of directions including provision for the instruction of a range of expert witnesses and timetabled the case due to a fact finding hearing.[40]On 5th October, E was readmitted to hospital following a respiratory incident which was thought, after examination, to amount to either a breath-holding episode or a choking incident.[41]On 1st November, J was admitted to hospital with suspected meningitis but fortunately was found not to have that condition.[42]Initially the fact finding hearing was listed before Mr Justice Holman on his visit to the Western Circuit in February 2012. In the event, however, that hearing did not go ahead. Analysis of the family history had led to a provisional diagnosis that the mother was suffering from the connected tissue disorder known as Ehlers-Danlos syndrome, some types of which are known to be associated with both bone fragility and subdural haemorrhage. In addition, as stated above, it was known that the father suffered from a variety of medical conditions. At a directions hearing prior to the anticipated fact finding hearing, Mr Justice Holman therefore agreed to the instruction of an expert geneticist, Professor Pope, to consider the possible implications arising out of these conditions, and he adjourned the fact finding hearing until the Autumn of 2012.[43]Meanwhile, the mother had unexpectedly become pregnant again by conventional means rather than IVF, and on 24th April 2012 she gave birth to her third child, a boy hereafter referred to as T. In accordance with the plan agreed at a pre-birth strategy meeting, T was discharged into the care of his parents and grandparents under a written agreement in similar terms to that already covering the twins.[44]On 13th May 2012, T was admitted to hospital after an incident in which he had allegedly fallen out of a Moses basket. Medical examination revealed that he had sustained skull fractures to the parietal bone together with a subdural haemorrhage. As a result, the Local Authority issued care proceedings in respect of T and applied for interim care orders in respect of all three children with a view to removing them from the care of the family altogether.[45]That application came before me fortuitously sitting on circuit on 18th May. On the basis of a tightened safeguarding agreement signed by all family members and the Local Authority, I adjourned the application for interim care orders to the following week. On 24th May, I conducted a contested hearing of the Local Authority’s application for interim care orders in the course of which I considered detailed medical evidence in respect of T’s injuries and took oral evidence from several family members. I heard evidence in particular from the mother and maternal grandmother, which I accepted, that T had accidentally fallen out of the Moses basket onto a wooden floor, a distance of between 18 and 24 inches. Preliminary medical evidence indicated that his injuries were consistent with that explanation.[46]At the conclusion of that hearing, I delivered a judgment in which I indicated that I broadly accepted the family’s account of how T had sustained his injuries and dismissed the application for interim care orders. I indicated that my decision was preliminary and that I anticipated the Local Authority would seek a more detailed examination of that incident at the final fact finding hearing. I then gave further directions for the final hearing to be heard, so it was thought, before Mr Justice Holman in the Autumn. In the event, the Local Authority has chosen not to pursue any allegation arising out of the injuries sustained by T at this hearing.[47]Subsequently, Professor Pope recommended that some further tests be carried out before expressing a conclusive opinion as to the relevance of the parents’ respective genetic conditions. Those tests were delayed and as a result, the hearing before Mr Justice Holman had, unfortunately, to be adjourned again. The consequent was that the fact finding hearing was re-listed before me in Exeter in February 2013.

The Issues and the Hearing

[48]Under section 31(2) of the Children Act 1989:
“A court may only make a care order or a supervision order if it is satisfied: (a) that the child concerned is suffering or is likely to suffer significant harm and (b) that the harm or likelihood of harm is attributable to; (i) the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him or (ii) the child being beyond parental control.”
[49]Manifestly, both E and J suffered significant harm in the form of bone fractures and intracranial bleeding. The issues in this case are simply:(i) whether that harm was attributable to the care given to them not being what it would be reasonable to expect a parent to give - in other words, whether the injuries were inflicted non-accidentally by one of the parents - and(ii) if so, the identity of the perpetrator.[50]Nine bundles of documents were put before me for this hearing comprising inter alia: statements from various witnesses, in particular the parents themselves; expert reports; supplementary letters and emails from a variety of specialists, namely: Dr Hart, the treating paediatrician; Professor Ian Hann, Paediatric Haematologist; Dr Maurice Salzmann, Consultant in Clinical Chemistry at the RDEH; Dr Robert Sunderland, Consultant Paediatrician instructed as an expert witness; Mr Peter Richards, Consultant Paediatric Neurosurgeon; Dr Katherine Halliday, Consultant Paediatric Radiologist; Dr Philip Anslow, Consultant Paediatric Neuroradiologist; Dr Paul Brogan, Consultant Paediatric Rheumatologist and Professor Pope, Consultant Geneticist; a schedule compiled after an experts’ meeting attended by several of the above; Local Authority documents, including care plans; medical records for the children and parents; documents disclosed by the police, including various further statements taken during the course of their enquires; material identified by the mother in the course of very extensive searches on the internet and elsewhere; plus documents generated by counsel - position statements, skeleton arguments, chronologies, medical research papers, bundles of legal authorities and closing written submissions.[51]At the hearing the following witnesses gave oral evidence in this[52]At the conclusion of the hearing I had the benefit of most helpful written submissions from counsel: Mark Whitehall on behalf of the Local Authority; Paul Storey QC and Christopher Butterfield on behalf of the mother; Tina Cook QC and Katie Phillips on behalf of the father and Liz Ingham on behalf of the Guardian. At this point, I would like to pay tribute to all counsel and their instructing solicitors for their diligent and highly professional work on behalf of their clients.

The Law

[53]In determining the issues of this fact finding hearing, I apply the following principles. First, the burden of proof lies with the Local Authority. It is the Local Authority that brings the proceedings and identifies the findings they invite the court to make. Therefore, the burden of proving the allegations rest with them.[54]Secondly, the standard of proof is the balance of probabilities, Re B [2008] UKHL 35. If the Local Authority proves on the balance of probabilities that E and/or J have sustained non-accidental injuries inflicted by one of their parents, this court will treat that fact as established and all future decisions concerning their future will be based on that finding. Equally, if the Local Authority fails to prove that E or J was injured by their parents, the court will disregard that application completely. As Lord Hoffman observed in Re B:
“If a legal rule requires facts to be proved, a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one.”
[55]Third, findings of fact in these cases must be based on evidence. As Lord Justice Munby, as he then was, observed in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation”.[56]Fourthly, when considering cases of suspected child abuse, the court must take into account all the evidence and furthermore consider each piece of evidence in context of all the other evidence. As Dame Elizabeth Butler-Sloss, President observed in Re U, Re B 9 (Serious Injuries: Standard of Proof) [2004] EWCA Civ. 567, the court “invariably surveys a wide canvas”. In Re T [2004] EWCA Civ. 558, [2004] 2 FLR 838 at paragraph 33 she added:
“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.”
[57]Fifthly, the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental injury includes expert evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council v KD & L [2005] EWHC 144 Fam. at paragraphs 39 to 44, Mr

Justice Charles observed:

“It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up 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.”
Later in the same judgment, Mr

Justice Charles added at paragraph 49:

“In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”
As Mr Justice Ryder observed in A County Council v A Mother and others [2005] EWHC Fam. 31: “A factual decision must be based on all available materials, ie. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be”.[58]Sixth, in assessing the expert evidence, I bear in mind that cases involving an allegation of shaking involve a multidisciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of his or her own expertise and defers where appropriate to the expertise of others: see the observations of Mrs Justice Eleanor King in Re S [2009] EWHC 2115 Fam.[59]Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them: see Re W and another (Non-accidental Injury) [2003] FCR 346.[60]Eighth, it is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything: see R v Lucas [1981] QB 720.[61]Ninth, as observed by Dame Elizabeth Butler-Sloss President in Re U, Re B, supra “The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research may throw a light into corners that are at present dark”. This principle inter alia was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of two of her 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 quashed her convictions. There was no evidence other than the repeated incidents of breathing having ceased and there was serious disagreement between the 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, Lord Justice Judge, 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.” 62. With regard to this latter point, recent case law has emphasised the importance of taking into account to an extent that is appropriate in any given case the possibility of the unknown cause. That was articulated by Lord Justice Moses in R v Henderson and Butler and others [2010] EWCA Crim. 126 at paragraph 1: “Where a 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.”
[63]In Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam. Mr Justice Hedley, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further at paragraph 10:
“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.”
Later in the judgment at paragraph at paragraph 19 Mrs

Justice Hedley added this observation:

“In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of 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 non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”
[64]Finally, when seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator: see North Yorkshire County Council v SA [2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of a non-accidental injury, the court must be satisfied on the balance of probabilities. It is always desirable where possible for the perpetrator of a non-accidental injury to be identified, both for the public interest and in the interests of the child, although, where it is impossible for a judge to find on a balance of probabilities, for example, that parent A rather than parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so: see Re D Children [2009] 2 FLR 668, Re SB Children [2010] 1 FLR 1161.

The Fractures

[65]In addition to the initial report prepared by Dr Jane Ferguson, a Consultant Radiologist at the RDEH, an expert’s report concerning the fractures sustained by the twins has been provided for the purpose of these proceedings by Dr Katherine Halliday, Consultant Paediatric Radiologist at University Hospital Nottingham. In her report dated 12th December 2011 she examined the skeletal surveys carried out on each child on 12th July 2011 and repeated on 25th July 2011.[66]From these x-rays, Dr Halliday identified the following injuries in E’s case. (1) A periosteal reaction along the medial aspect of the distal right ulna with what Dr Halliday describes as a “slight buckling of the cortex” which indicated, in Dr Halliday’s opinion, the presence of a fracture. In the earlier survey, the reaction was faint but by the later survey it had become much thicker. By comparing the appearance of the injury in the two x-rays, Dr Halliday reached the conclusion that it had occurred sometime between 20th June and 8th July. She described this in her report as a transverse fracture of the distal right ulna which would have been caused by the application of a force at that point, for example, by a direct blow or angulation. In oral evidence, Dr Halliday explained that this injury was the infantile equivalent of a transverse fracture. Infants’ bones are very much more bendy and it is unusual to see a clear fracture line from an x-ray, although Dr Halliday suggested that it may be visible at microscopic level. She confirmed that there was no sign of any equivalent injury to the left forearm. (2). A fracture of the left tenth rib at the costovertebral junction which, as Dr Halliday explained in oral evidence, is at the back of the torso where the rib articulates with a part of the spinal structure known as the transverse process. The thickened appearance of the rib in the first x-ray suggested a healing fracture and the appearance of the second x-ray was unchanged. Dr Halliday, therefore, came to the conclusion that this fracture had occurred sometime between 12th March and 28th June. In her oral evidence, cross-examined by Mr Storey, Dr Halliday accepted that it was not absolutely impossible the fracture dated back to birth but she considered this to be unlikely.[67]From the skeletal surveys conducted of J, Dr Halliday was able to detect the following injuries:(1) Bilateral fractures of the lateral aspect of the second, third and fourth ribs. These fractures were visible on the first survey conducted on 12th July and confirmed on the second survey carried out 13 days later. The appearance of these ribs on both surveys led Dr Halliday to conclude that they occurred between 1st June and 28th June. In oral evidence, she agreed that the fractures were very symmetrical.(2) More recent fractures of the posterior left ninth, tenth and eleventh ribs. These fractures were visible on the second x-ray but not the first. As a result, Dr Halliday concluded that they could not have occurred before 2nd July. In her report she said that the last date at which they would have occurred was 12th July but importantly she asserted in cross-examination by Mr Storey that from the radiological appearances alone, the fractures could have been sustained as late as 18th July, that is to say at a time when J was in hospital. Pressed by Mr Storey to estimate the age of these fractures in the light of that adjustment, she said that she thought that at the date of the second skeletal survey on 25th July they were about two weeks old but could be between 7 and 18 days old. J was, of course, admitted to hospital on 11th July, 14 days before the second skeletal survey.[68]Dr Ferguson had considered that there was a possibility of a metaphyseal fracture of J’s right tibia, but Dr Halliday, whilst noticing some irregularity of the medial aspect of the proximal right tibia, did not consider that this represented a fracture and this point is not pursued by the Local Authority.[69]Dr Halliday advised in her report that rib fractures are strongly associated with non-accidental injury in babies of this age and are thought to be caused by compression of the chest, for instance, when the baby’s torso is squeezed between adult hands. They are extremely rare accidental injuries and no accident has been described which could account for the injuries in this case. For that reason, Dr Halliday expressed the view in her report that all the rib fractures in this case were more likely than not to be non-accidental.[70]In her report, Dr Halliday stated that no one knows exactly how much force is required to produce injuries of this sort but it is certainly considerable for both the rib and the ulna fractures and much more force than would normally be used when caring for babies of this age. This statement assumes, of course, that there is no increased bone fragility in either child. There was no evidence of any such fragility on the x-rays.In oral evidence, Dr Halliday stressed that it is not necessarily the case that issues with bone density would be detectable on x-rays. She accepted that radiography is a relatively blunt instrument in terms of assessing bone density, especially since the introduction of modern computerised technology.[71]In cross-examination by Mr Storey, she agreed that generally a reduction in bone density cannot be detected by x-rays in adults when it is less than 20 per cent to 40 per cent, although there are no standards available to indicate whether or not this is the case in children. She added, however, that, where fractures have occurred in young children, loss of bone density is very obvious. Dr Halliday said, “I wouldn’t necessarily be able to see loss of bone density but I wouldn’t accept that fractures were due to loss of bone density if not visible on the x-rays”. In other words, bone density may be reduced without being detected on x-rays but, if it were sufficiently reduced to give rise to fractures with normal handling, then Dr Halliday would expect to see it.[72]Save for the fractures, the bones appeared normal to Dr Halliday with no evidence of osteogenesis imperfecta, such as wormian bones, and no other abnormal signs.[73]In answer to a question from me, Dr Halliday said that she was completely confident each child had sustained injuries on two separate occasions.

Intracranial Bleeding

[74]Expert opinion on the intracranial bleeding suffered by E and J was provided by Dr Philip Anslow, Consultant Neuroradiologist at the John Radcliffe Hospital in Oxford, and Mr Peter Richards, Consultant Neurosurgeon at the same hospital. They based their expert opinion on neuro-imaging of the twins’ bones, consisting in the case of E of an MRI taken on 10th July and a CT scan taken on 11th July 2001, and, in the case of J, a CT scan on 13th July and MRI scans taken on 13th July and 3rd August.[75]Dr Anslow reported that the MRI on E on 10th July disclosed bilateral extra-axial subdural collections which were of signal very close to cerebrospinal fluid. As he explained in oral evidence, he interpreted this as meaning that they were months old at the date of the scan. In addition, the MRI disclosed subacute subdural blood in the posterior fossa and the lumbar spine, together with tiny flecks of subacute blood within the subdural collections. He thought that the acute subdural bleeding was between 5 and 15 days old at the date of the scans.[76]The CT scans taken on the following day confirmed the presence of bilateral low density extra-axial highly subdural collections with evidence of fresh blood within the subdural collection on the left side, near to the top of the head.Dr Anslow explained in the experts’ meeting that this blood was less than ten days old at the date of the CT scan. In his report, Dr Anslow expressed the view that the bilateral low density subdural collections were either acute traumatic effusions or chronic subdurals. There was no evidence of acute impact trauma either on the scan or from the history. In Dr Anslow’s opinion, the right diagnosis was that they were chronic subdurals which from their appearance must have been more than six weeks old. Dr Anslow thought that it was difficult to think of a cause for the sub-acute blood in the posterior fossa and lumbar spine other than trauma, although the amount of trauma was open to speculation. In oral evidence, he said that the trauma would not necessarily have occurred at the location of the bleeding because blood can track through the subdural space even as far as the lumbar spine.[77]So far as J was concerned, Dr Anslow reported from the CT scan that there was a subdural collection of the same density as cerebrospinal fluid on the right-hand side. On the left, there was a high density subdural with evidence of fresh blood both on the posterior and superior aspects. He noted the change in the contour of the skull over the left sided subdural which suggested that it had been present for some time. The first MRI scan, taken on the same day as the CT scan, ie, 13th July, confirmed the features present on the CT scan. In addition, however, Dr Anslow noticed a membrane visible within the subdural collection. The MRI taken on 3rd August disclosed that the left-sided subdural collection now contained a mixture of both old blood and fresh blood. Dr Anslow commented that:
“The scan showed the classic features of a chronic subdural which has been present for months. There is blood in the subdural which has come from the membranes visible on the scan. This blood can occur spontaneously without any trauma and in support of that the second MRI shows sub-acute blood which has occurred when the child was in care.”
[78]In oral evidence, cross-examined by Mr Storey, Dr Anslow identified a number of recognised causes of subdural haemorrhage. He accepted the contention put to him in cross-examination that all forms of birth are associated with subdural bleeding, including Caesarean sections. In his opinion, it is possible that the chronic subdurals he has observed in this case could date back to birth. If a chronic subdural was present, subsequent re-bleeding was possible even with normal handling, as demonstrated by the fact in this case that J had sustained re-bleeding in the subdural space while in care.[79]Dr Anslow agreed with Mr Storey that, if a child was susceptible to easier external bleeding it follows that there is a likelihood that he or she is susceptible to easier internal bleeding, including intracranial bleeding. Furthermore, the presence of a haemangioma externally raised the possibility of there being internal haemangiomas and, if so, Dr Anslow thought that less force would be required to lead to the shearing of blood vessels so as to cause intracranial bleeding.[80]Mr Richards agreed with Dr Anslow’s identification of the subdural collections but differed slightly in his interpretation so far as E was concerned. In her case, he noted that from a paediatric neurosurgical perspective, the brain structure and myelination were normal for her age with no neurovascular abnormality visible. Her head shape was normal with no external soft tissue visible on the CT scan. He studied the haematological, metabolic and bacteriological investigations and found no evidence of underlying disease. His analysis of the account of E undergoing the episode on 5th July when she became floppy and stopped breathing concluding that this was likely to represent a transient episode of encephalopathy. In the absence of any recognised medical condition, one explanation for both the encephalopathy and the acute subdural haemorrhage was an episode of injury. So far as the darker fluid observed on the CT scan was concerned, he agreed with Dr Anslow that it could represent either older bleeding that was in the process of breaking down, ie, a chronic subdural haematoma, or a mixture of fresh blood and cerebrospinal fluid known as an acute traumatic effusion. He differed from Dr Anslow preferring the latter as the explanation in this case.[81]In oral evidence, he observed that there were no clinical features visible which would be associated with a chronic subdural. There was no enlargement of the head. Furthermore, the account of the apparently encephalopathic episode was more consistent with an acute bleed than with a re-bleed into a chronic subdural. He said in answer to Miss Ingham that chronic subdurals are known for re-bleeding but such events are normally symptom-free. It would not be expected that a re-bleed into a chronic subdural would lead to a collapse or that any event that caused a collapse in the presence of a chronic subdural might lead to some re-bleeding in the subdural. In E’s case, the evidence was compatible with one event leading to intracranial damage, leading in due course to the child becoming acutely unwell and then recovering. Mr Richards stressed that the evidence was compatible with this explanation but not diagnostic. In cross-examination by Mr Whitehall, he accepted that encephalopathy is simply the disturbance of brain function for which there are a lot of possible causes and in this case there was no medical condition that was readily identifiable as a cause.[82]In the case of J, Mr Richards also noted that there was no sign of any neurovascular abnormality, nor any abnormality in the ventricles or subarachnoid space, although the subarachnoid space was slightly enlarged. In J’s case he agreed with Dr Anslow that there were possible membranes visible within the left-sided subdural collection. In addition, there was evidence of some growth in J’s head circumference between birth and the date of his presentation to hospital in July. Overall, Mr Richards considered there was some “weak evidence of skull growth greater than normal in J” which would support the theory that the fluid seen on the scans was a chronic subdural haematoma. He added that, in the subsequent scan three weeks later, the collection was resolving, although not completely resolved, which would be unusual although not completely unknown for a chronic subdural. He concluded, however, on a balance of probabilities that the collection within J’s subdural space was a chronic subdural whilst not excluding the possibility that it was an acute traumatic effusion.[83]By way of general comment, Mr Richards observed in his report that there are only four potential causes for the intracranial injuries sustained by the children in this case:(1) A medical condition or conditions which have combined to mimic the features of injury;(2) Both children were unduly fragile and therefore suffered injury from handling which would not be expected to cause injury;(3) Events have occurred which were capable of causing the injuries to the children of which the carers were aware but they did not have the mental capacity to appreciate that such events could cause injury or(4) Events have occurred which the carer or carers were aware of but they have chosen not to inform medical staff.[84]So far as the first explanation is concerned, Mr Richards said in his report that he considered it unlikely that the children had a medical condition or conditions which mimicked injury, adding:
“The possibility of an unknown condition has to be entertained but thus far no medical condition causing acute encephalopathy, acute subdural haemorrhaging and rib fractures spontaneously has been reported where there is no question of trauma. Given the worldwide system of disseminating knowledge in the medical profession, both through published papers and the internet, were such a case to become apparent it would be rapidly reported. I, therefore, consider it unlikely that these children are the victims of a new previously unreported condition. Given that these children have presented with similar injuries and that they are twins, the possibility has to be considered that they harbour some similar genetic predisposition towards injury and are, therefore, unduly fragile and capable of being injured by normal handling. From my review of the cases I cannot identify any known condition which would render the children abnormally fragile.”
[85]In his report, Mr Richards went on to observe that the presentation of both children, were they the result of a shaking injury, would be compatible with injuries during momentary loss of control. He added:
“The absence of any history of severe prolonged encephalopathy, retinal haemorrhages or more severe extra-cranial injuries other than the rib fractures would suggest that, if shaking injuries were the cause of these children’s presentations, they were at the lower end of the range regularly encountered in such cases in terms of the degree of force applied. However, they are indicative of inappropriate handling of infants even if it was momentary.”
[86]Mr Richards added that, given the quick recovery of the children, it was possible that the perpetrator of such injuries, whilst appreciating that the event was inappropriate, may not have appreciated if that significant injury had occurred.[87]Mr Richards observed that if the intracranial bleeding amounted to an acute traumatic effusion rather than chronic subdural haemorrhage, it was likely that it would have occurred within the ten days prior to the presentation at hospital. If, however, the appearance represented chronic subdural haemorrhages, into which there has been a spontaneous re-bleed, then it is likely the event which originally led to the chronic subdural haematoma was several weeks prior to the presentation to hospital.[88]In his oral evidence Mr Richards developed his observations about a momentary loss of control:
“In my clinical experience and medico-legal work, there tend to be three patterns: a few children who have been clearly beaten up with a variety of injuries - there is nothing to suggest that in this case; a number of children present with clear signs of having been abused over a period of time - there is nothing to suggest that kind of behaviour; the majority of cases seem to be carers who have not any intention or imagination that they had injured the children but do so in a momentary loss of control - this case would fall into that category.”
He added that there was nothing to suggest that a severely high level of force had been used but added that children of this age should not be being injured at all.[89]Mr Richards was asked about the recent research which has demonstrated that the incidence of birth related subdural haemorrhage is much greater than previously realised. He expressed the opinion that there is no reason why birth-related acute subdurals should behave in a different way and that, as a result, it is his opinion there is no reason why some of those haemorrhages should not develop into chronic subdurals. He has himself some experience of children of three to six months of age with large heads and chronic subdurals for which there is no other obvious cause, save for birth. He accepts that birth was a potential cause of the chronic subdural which he considers existed in J’s case.[90]In passing, I record that, in closing submissions, Mr Whitehall referred at some length to the three well-known research papers by, respectively, Whitby et al, Looney et al and Rooks et al, and submitted on the basis of that material that the risk of subdural haemorrhage following an elective Caesarean section is “remarkably slight”. It was unfortunate this point was not developed in cross-examination of the experts. On their evidence, however, based on the research and their own clinical experience, birth related subdural haemorrhage occurs after all types of delivery.[91]In further cross-examination by Mr Storey, Mr Richards expressed the view that one shaking motion with a subsequent arrest of movement was sufficient to cause a subdural haemorrhage. He does not subscribe to the view that a general flailing action is required. He agreed that the categories of subdural haemorrhage are not closed and noted that type 4 Ehlers-Danlos Syndrome was one recognised cause. He added:
“It strikes me we do not know everything”
. He added he thought it was a fair comment to say that a history of easy bruising in the context of EDS in the family could lead to a tendency to bleed more easily, stating that this was “a vulnerability we do not fully understand”.[92]Finally, to the evident relief of the parents, Mr Richards expressed the view that it was probable that these children will grow up normally. “The chances of anything happening to them are remote, miniscule.”

Genetic Factors - Professor Pope

[93]Professor F.M. Pope is a consultant in connective tissue genetics at the West Middlesex new University Hospital in London. His special expertise lies in the clinical diagnosis and classification of inherited diseases of connective tissues, including the role of abnormalities of connective components such as collagen in the causation of disorders such as osteogenesis imperfecta and Ehlers-Danlos Syndrome, hereafter “EDS”. Over more than 25 years, Professor Pope has acquired a national and international reputation for the clinical classification, biochemical, microscopical and DNA testing of families suffering from such disorders. He currently assesses over 100 families a year. He is also published very widely in the context of inherited abnormalities of connective tissues.[94]EDS is a group of inherited connective tissue disorders caused by a defect in collagen. There are a number of different types of the syndrome and symptoms vary depending on the type. In type 3, for example, there is a prominence of joint hypermobility. In type 4, on the other hand, also known as vascular EDS, there is a tendency to fragility in blood vessels.[95]In his first report dated 3rd September 2012, following both clinical examinations and laboratory analysis, Professor Pope concluded that the mother suffered from relatively mild inherited connective features which were consistent with EDS type 3. He further concluded that, whilst the father did not suffer from EDS, he had relatively mild inherited connective features which are consistent with a condition known as joint hypermobility syndrome. Other types of EDS were excluded clinically and/or after electron microscopy, although the possibility that the parental clinical features might have been caused by subtle mutations of certain genes could not at that stage be completely excluded.[96]So far as the twins were concerned, Professor Pope concluded that E had features that resembled her mother’s EDS type 3 whilst her brother, J, had much milder features possibly consistent with his father’s joint hypermobility syndrome. In theory, E’s clinical features could predispose her to easier subdural bleeding, although it was much less likely that J’s clinical features could explain his subdural collections. In addition, Professor Pope thought that it was unlikely that the fractures sustained by the children could have been explained by these factors. However, the electron microscopy conducted on samples provided by the parents revealed a pattern of collagen “mispacking” typical of osteogenesis imperfecta. Professor Pope, therefore, recommended further genetic testing to exclude the possibility of certain mutations linked with osteogenesis imperfecta which can occasionally cause both fractures and subdural bleeding. As a result, a direction was given for a further DNA sequencing of the relevant genes. The result of those tests formally excluded the possibility that either twin suffered from osteogenesis imperfecta linked to EDS except for the very small technical possibility of 2 per cent of type 1 collagen mutations which were not detectable by those methods. Such sequencing eliminates 90 per cent of all other osteogenesis imperfecta mutants caused by collagen type 1 errors and the remaining 10 per cent can be eliminated clinically on grounds of lack of clinical severity. Further examination of the two children’s urinary cross-link profiles excluded the clinical possibility they might suffer from type 4 EDS.[97]In oral evidence, Professor Pope told the court it is his experience the evidence of fractures in cases of type 3 EDS was not strong. He pointed out, however, that the medical literature presented a slightly more complicated picture. Some evidence in the literature suggested that in some cases of type 3 EDS there was evidence of lower bone density, although other research papers reached a different conclusion. In Professor Pope’s view, EDS type 3 was a very variable disorder and it is possible that there are some subsets which feature lower bone density. Type 3 is, said Professor Pope, the most common but least distinctive of the EDS types and was not yet fully understood.[98]Cross-examined by Mr Storey, he conceded that it was fair to say that not all subsets of type 3 had yet been identified. Whereas the clinical examination of the papers had been conducted in a way which enabled formal testing to be carried out, such an approach was not possible in the case of the children because of their very young age. Instead Professor Pope had to resort to mere observation. His conclusion was, given the adult characteristics shown by the mother, the features demonstrated by E were consistent with her having inherited her mother’s condition. In J’s case, his features were less strong and there was no convincing evidence of an inherited condition. Professor Pope felt that in all probability, his features would be more consistent with those of his father.[99]It is a fact that no bone density scans have been carried out on these children. Professor Pope explained this had not been considered because of an absence of an adequate control set against which any results could be compared. Although Professor Pope is not a radiologist, he explained that his experience was that radiographs were not sufficient to enable an abnormal bone density to be detected. I have already referred to Dr Halliday’s evidence on this point above.[100]In cross-examination by Mr Storey, Professor Pope said that about 90 per cent of type 3 EDS is inherited. In this case, the mother certainly has type 3 EDS and in Professor Pope’s opinion it is probable that she has inherited it from her own mother. Furthermore, the mother’s two siblings have symptoms consistent with EDS. Professor Pope conceded that, if EDS in this case is familial, it is not confined to females because the mother’s brother is showing symptoms. As a result, it follows that genetic EDS in this family could pass through both the male and female lines.[101]Mr Richards gave evidence after Professor Pope and was supplied with a full note of his evidence. Adding to his own observations concerning the unknown cause in the light of Professor Pope’s investigations, Mr Richards considered that it was “unlikely but not impossible”. He noted that Professor Pope seemed to think it unlikely that there was anything arising out of his investigations to explain the injuries, “but he is not ruling things out”. Mr Richards observed that there were still aspects about connective tissue disorders which were not yet fully understood, adding, “Even Professor Pope has some dark corners”.

Paediatric Overview - Dr Sunderland

[102]Dr Robert Sunderland is a consultant paediatrician formerly employed at the Birmingham Children’s Hospital. He is regularly instructed as an expert witness in cases of suspected child abuse. In this case he has prepared a number of reports analysing the medical records in respect of both children. He has not, however, examined either E or J.[103]Dr Sunderland observed that there is no known disease that causes both fractures in bones and subdural haemorrhages. Equally, noting that there had been no further reported injuries following the placing of the children under the overall care of the maternal grandparents, Dr Sunderland observed that there is no disease that disappears on change of carer. In the absence of any chemical or metabolic disorder, Dr Sunderland considers that it is exceedingly rare for pre-mobile children to sustain fractures accidentally. He expressed the view in his report and in the experts’ meeting that a possible explanation linking the injuries was squeezing of the chest while the baby was being shaken. Without a clear explanation of significant accidental trauma, there must be concerns that these were non-accidental injuries.[104]Dr Sunderland observed that the causation of subdural haemorrhage is a matter of some contention. In the absence of certain haematological or metabolic disorders, Dr Sunderland advised that the mainstream medical view is that subdural haemorrhage is caused by vigorous shaking/whiplash motion of the head/neck. He noted, however, that this has been challenged by pathologists and engineers because of analysis of traffic accidents which have identified that the forces required to cause subdural haemorrhage in such circumstances are more substantial than can be generated by humans while shaking.[105]Cross-examined by Mr Storey on behalf of the mother, Dr Sunderland acknowledged that the children in this case had been seen by health visitors and other professionals on a number of occasions after at least some of the injuries had occurred and that no one had noticed any problem. Dr Sunderland said that he had himself missed rib fractures in babies during his career.[106]Mr Storey reminded Dr Sunderland of the fact that T had sustained a fracture to his skull in circumstances in which, as found at the interim hearing and accepted now by all parties, he had fallen accidentally from a height of between 18 and 24 inches. Dr Sunderland acknowledged that it was unusual but possible that low level falls of this type could cause fractures. He accepted that the fact that this had caused in T’s case was a part of the overall picture when assessing as sustained by the twins.[107]Cross-examined about the explanation for E’s collapse, Dr Sunderland suggested that one possibility was that she had coughed up some acid from her stomach which had led to laryngeal spasm. Another possibility was that the collapse had been caused as a result of some pressure on the brain leading to a transient seizure and a transient stopping of breathing. He accepted there was a possibility that E had suffered some form of collapse and that her injuries had been sustained in efforts to revive her. Ultimately he was unable to give a definitive view from a medical perspective as to whether the injuries were accidental or not. Asked as to whether the injuries in this case followed the category of something unexplained beyond medical knowledge, Dr Sunderland said that on the balance of probability, he did not consider that these injuries fell into this category although he observed that “you can never say never in medicine”.

Parents’ Evidence

[108]Both parents filed extensive statements in the form of documents prepared specifically for these proceedings and earlier documents prepared in the course of the police investigation and gave oral evidence over several hours during which they were subjected to a rigorous but scrupulously fair cross-examination by Mr Whitehall on behalf of the Local Authority.[109]As Ms Cook and Ms Phillips point out in closing submissions, the court and the court alone has the benefit of hearing and seeing the parents give evidence. I say straightaway that I found both parents to be honest witnesses. The mother’s evidence was clear, concise yet full. I was satisfied that her answers were as accurate as possible in the circumstances. The father was inclined to answer a question about something he had done by replying about what he would have done. At times, this tendency made it difficult to be entirely confident about the accuracy of his answers but this did not lead me to doubt his honesty. I expressly reject, with respect, Mr Whitehall’s submission that the father’s evidence was “deeply unimpressive”. Ms Cook submits that the father may be inarticulate and a poor narrator but that does not make him dishonest or a likely perpetrator of physical abuse to a child. She adds that if anything, his lack of sophistication prevents him from hiding the truth.[110]I have, of course, carefully considered whether the parents presented a deliberately false picture to me to conceal evidence of abuse. I find that this has not happened. Plainly, as Mr Whitehall fairly accepts, this assessment of the parent is a crucial aspect of my overall analysis.[111]It is to my mind striking that Mr Whitehall was only able to identify two areas of the evidence where there has been any substantial inconsistency in the various accounts given by the parents. The first concerns the father’s accounts of the circumstances in which the children were put back to sleep on the morning of 5th July when or after the health visitor was present at the property. Mr Whitehall rightly submits that in oral evidence the father failed to give any explanation the differences between one account when he stated, “By the time the health visitor was ready to leave both the babies had fallen asleep. I think E was due a feed at the time but we didn’t want to wake her as she was asleep, so both babies went to bed for a sleep” and his earlier comments to the police on 12th January to the effect that, “E had had screaming tantrums when the health visitor left. She lay on the cot or centre of the bed. I may have then put her in the cot.” This discrepancy does not, however, relate to any episode when it is suggested that the children might have sustained any injury and I do not regard it as significant.[112]The second discrepancy concerns the account given by both parents in court, but not in any previous account, of how the mother gently shook E after her collapse on 5th July. Mr Whitehall submits that it is “beyond belief” that the parents with the experienced legal representatives they have had since July 2011 and the thorough forensic enquiries which have been undertaken that they have allowed their written explanations to remain so un-garnished, to use Mr Whitehall’s word, by what is now said by both of them to have happened. Their exaggeration on this point generates, he submits, a deep unease as to whether they are co-operating in a search for the truth throughout their testimony.[113]The parents’ response to this, both in cross-examination and in final submissions, is that they had hitherto been proceeding on the basis of a demonstration given by Dr Hart as to the vigorous type of shake that would be required in order to inflict the injuries subsequently found in E. It was only in the course of Mr Richards’ evidence, they say, that they became aware that the less vigorous movement might be relevant.[114]I agree with Mr Whitehall that it is surprising that neither parent mentioned this slight shaking movement prior to this hearing, bearing in mind the exhaustive amount of preparation that has been carried out by them and on their behalf. Listening carefully to their accounts about this, however, I did not find that their failure to mention it at an earlier stage led me to have any serious doubts about the evidence on this point.[115]At this point I mention very briefly the evidence of the grandparents. In this case, I have no doubt whatsoever about the honesty of all four of them, although they were unable in the event to give any evidence of real value as to the issues before me. I record in passing that the maternal grandparents have done a wonderful job in supervising the care of the children over the past 20 months.

Submissions

[116]In his comprehensive closing submissions on behalf of the Local Authority, which I have fully considered, Mr Whitehall accepts that, both individually and as a couple, these parents are loving parents who have demonstrated for the most part appropriate care and nurturing of their three children. Mr Whitehall has been as clear as he could be that the Local Authority’s case is not that the twins have been subjected to deliberate and cruel ill-treatment but rather that they have been injured by one or other parent unintentionally but non-accidentally in a series of moments of loss of control.[117]He points to a number of stress factors which were, he submits, operative in the early months of the twins’ lives, namely the fact that the couple only started living together a few weeks before the twins were born and so were still getting used to each other as well as to parenthood; the fact that they were caring for twins; the fact that the mother was recovering from a Caesarean section; the mother’s own health difficulties; the father’s own significant health difficulties which were particularly debilitating and at times prevented him from assisting in the care of the children; the different feeding patterns which each twin followed; and the anxieties about E’s significant feeding problems.[118]Mr Whitehall rightly suggested there has been no serious challenge to the evidence that the children sustained injuries; the issue, therefore is attributability. He submits that detailed medical testing of each twin has ruled out both common and uncommon disease or disorder. Despite the earlier confusion over vitamin D levels, the court has heard evidence from Dr Salzmann and that would show that the twins’ vitamin D levels were within normal range.Whilst acknowledging that Professor Pope accepted that there were two schools of thought as to whether there can be bone density reduction associated with EDS, and that he had expressed the view that EDS is a variable disorder and that not all categories are as yet fully resolved, Mr Whitehall submitted that overall Professor Pope’s evidence indicated that it was exceedingly unlikely that the children had inherited any condition that made them more susceptible to fractures, that neither the mother nor the father had any history of fractures that were linked to their connective tissue disorders or to the joint hypermobility problems, and that there was no evidence that the children were prone to easy bruising.[119]So far as the intracranial bleeding was concerned, Mr Whitehall submitted that neither twin has a condition which predisposes him or her by dint of vascular fragility to greater susceptibility to subdural haemorrhaging. He reminds the court of the view of Dr Sunderland, Dr Anslow and Mr Richards that subdural haemorrhaging in the absence of a particular medical condition does not occur spontaneously but rather following some event. The events put forward by the parents, do not, he submits, account for the subdural collections in this case. In the absence of a particular medical condition, therefore, an unexplained event or events have given rise to the subdural bleeding. Given the age of the children and the fact that they were constantly in the care of either or both parents, an unexplained event raises a high suspicion of non-accidental injury.[120]As stated above, Mr Whitehall drew my attention in closing submissions to the research papers cited above as to the incidence of birth-related subdurals and the support of a submission that such subdurals are rarely associated with Caesarean section deliveries, although this point had not been fully developed in cross-examination of the experts.[121]Finally, and importantly, Mr Whitehall submitted that subdural collections and the fractures should not be considered in isolation to one another. The type of the injuries, their potential causes, the fact that no plausible explanations are offered, linked, with the medical view of Dr Sunderland that there is no known condition which can cause both subdural haemorrhaging and bone fractures, strongly suggest that taken as a whole the injuries are non-accidental.[122]In reply Ms Cook and Ms Phillips begin by identifying what they describe as a “constellation” of unusual features in the case. First these are injuries and symptoms seen in twins. The research as to such similar events in twins is limited. They are, additionally, children conceived through IVF where research appears to be similarly limited. Then the parents both have an unusual number of medical features and conditions. The extent to which any combination of these has transferred to the twins cannot be known. They remind me that they rely on the fact the mother has EDS type 3 with a history of easy bruising and that this is a symptom shared by other members of her family. They point out that the twins have features and symptoms of EDS which are more pronounced in E than J, although the symptoms in J may develop as he gets older. E has hemangiomas externally and it is, therefore, possible that she has them internally. If so, they may have increased her susceptibility to intracranial bleeding. In addition, E has other medical problems including gastroesophageal reflux, laryngomalacia and possibly apnea. J has congenital kidney malformation. All the fractures, furthermore, were asymptomatic despite the children being handled regularly by professionals. Both children have suffered a number of petechiae over a long period of time in different circumstances. At least some of the injuries are likely, on the balance of probabilities to have occurred after 11th July once the parents were under complete supervision.[123]Furthermore, Ms Cook and Ms Phillips rely on the fact that the only expert in this field, Professor Pope, is of the opinion that the categories, types and symptoms of EDS are not closed. It is not, therefore, known what impact the combination of EDS and collagen defects will have on any one individual. They remind me that Professor Pope said it was fair to say that EDS is a variable disorder and not all categories are fully resolved and that in some quarters there is held to be an association between EDS and reduced bone density.[124]They furthermore point to the fact that T’s fracture from a low level fall, witnessed by the maternal grandmother and therefore, not falling under suspicion, gives rise to further questions as to the level of susceptibility of these children within the family.[125]So far as the subdural haemorrhages are concerned, Ms Cook and Ms Phillips submit that the tenor of Professor Pope’s evidence was that caution should be exercised in interpreting such haemorrhaging in the presence of a familial history of EDS. They remind me of Dr Anslow’s view that there are a large number of causes of subdural haemorrhage with an increasing number of sub-categories being discovered over time and that Mr Richards accepted that his view is that half the population is born with subdural haemorrhage and that the categories of causation of subdural haemorrhage are not closed.[126]Overall, on the issue of the subdural haemorrhage, Ms Cook and Ms Phillips submit that the timing research and medical evidence given by respectively Professor Pope, Dr Anslow and Mr Richard indicate that they may well be birth injuries. In those circumstances, and having regard to the fact that it is not disputed that J sustained at least one acute subdural after his admission to hospital on 11th July, Ms Cook and Ms Phillips submit that it would be unsafe for the court to conclude, on the balance of probabilities, that these subdurals were inflicted by the parents or caused by excessive or inappropriate handling.[127]So far as the fractures are concerned, Ms Cook and Ms Phillips draw attention to Dr Halliday’s change of opinion in cross-examination by Mr Storey as to the timing of J’s lower rib fractures. Her revised opinion is that the window in which those fractures occurred is from approximately 7th to 18th July with the likeliest date being about a fortnight before the scan on 25th July, ie, 11th July. Mr Whitehall submits that this is consistent with something having occurred to J whilst he was in the sole care of his father after the mother had taken E back to hospital. Ms Cook and Ms Phillips respond, on the other hand, that there is thus a significant possibility that the fractures occurred after J was himself admitted to hospital that day. This leads, they suggest, to a conclusion that those fractures could have occurred as a result of normal handling and in those circumstances there is no reason why the other fractures to the upper ribs might not have been sustained in the same way. They add that the timing of the second, third and fourth rib fractures, broadly the whole of June, makes it very surprising that, when the health visitor was visiting weekly and observing him dressed and undressed, handling him and seeing him naked, she did not observe or experience any of the features one would normally associate with such fractures.[128]So far as E’s ulna fracture is concerned, Ms Cook and Ms Phillips submit that it is likely that it was sustained in the repeated attempts to insert a canula in E’s arm following her admission to hospital on 5th July.[129]As for the episode of encephalopathy involving E on 5th July, they invite the court to accept the suggestion made by Dr Sunderland that she may have had an acid reflux which caused a laryngeal spasm or had had a reflux anoxic seizure. They point to the evidence that she arched her back into the shape of the letter C, which Dr Sunderland described as a recognised movement when a child gets acid in the gullet, and they reminded me of the other incident when E went white and/or held her breath. They point out that reflux anoxic seizure was the diagnosis of the treating doctors on admission on 5th July.[130]Ms Cook and Ms Phillips make a number of submissions about what they call the wider canvas issues. This is not a family burden with social or financial problems. These children were much wanted, cherished twins, conceived by IVF whose care was shared equally between their parents. It is clear from both assessments of the extended family and all the evidence that these parents come from stable and established family backgrounds. There are no difficulties in their relationship. Ms Cook and Ms Phillips submit that the Local Authority’s hypothesis of alleged shaking at lunchtime on 5th July does not fit with the picture of a family feeling that it had turned the corner that day with a significant improvement in E’s weight gain as measured by the health visitor that morning.[131]They also rely on the undoubted fact illustrated by a very helpful chronology prepared by Miss Ingham on behalf of the children’s Guardian, who otherwise wisely made no submissions at the conclusion of this hearing, that both the twins and their parents had very frequent contact with health professionals from the point of their return home after birth up to their admissions to hospital. None of those professionals noticed any sign of any injury on either child.[132]These points were inevitably repeated by Mr Storey and Mr Butterfield in their equally thorough closing submissions on behalf of the mother. There are three points which, although alluded to in submissions on behalf of the father, are given particular prominence by those representing the mother.[133]First they particularly emphasise the fact, found by this court at the interim hearing and not now challenged by the Local Authority, that T sustained fractures to his skull and a subdural haemorrhage after a low level fall of 18 to 24 inches. This amounts, they submit, to further evidence of familial susceptibility to fractures.[134]Secondly, so far as the fractures are concerned, Mr Storey and Mr Butterfield submit that there is a real possibility that the children were suffering from reduced bone density given the familial history of EDS. In the circumstances, the court is left with an unknown degree of force required to cause bone injuries in the case of both children. They submit that it is not good enough nor accurate for reliance to be placed on the suggestion there had been no fractures since all of this came to light. The reality is that no one knows whether there has been any bone injury or fractures because the children have not been re-x-rayed. Given the fact that the previous fractures were all symptom free, it cannot be assumed that there would be any symptoms if the children had sustained further fractures since the start of these proceedings.[135]Finally, they submit that given the extensive history of multiple medical problems within the family the possible explanation of unknown cause must be seriously considered.

Decision and Conclusion

[136]Plainly E and J sustained injuries which amounted to significant harm. The issue for this court to determine is whether that harm was attributable to the care given to them, being less than that which a reasonable parent would give.[137]At the outset of the investigation, Dr Hart and the social workers and the police were faced with two children who had suffered a multiple of bone fractures and subdural bleeding and in the case of E, an episode of encephalopathy. Not surprisingly, they considered that these factors pointed strongly towards a diagnosis of non-accidental injury. As a busy consultant paediatrician in a local hospital, Dr Hart was doing his job properly and conscientiously in investigating and instigating child protection procedures and in explaining to the parents in frank terms his view, based on the available evidence and the established understanding of cases involving such injuries, that this was prima facie a case of child abuse.[138]Had this case been decided on the basis simply of the information then available, it is likely that the court would have reached a similar conclusion but, as has been made clear many times in many reported cases, not least by Dame Elizabeth Butler-Sloss President in Re T and in Re U, Re B, as cited above and repeated by counsel in this case, the court surveys a wider canvas. A court hearing application for care orders based on cases of suspected physical abuse of children must follow the evidence and pursue the enquiry in whatever detail and for however long is necessary to arrive at the truth. In this case, it was decided, rightly as it turned out, to seek expert opinion from a range of experts and to explore the family medical history in much greater depth than normally occurs in care proceedings.[139]My impression is that the longer this process has gone on, the greater the degree of uncertainty. Gradually the inquiry unearthed a number of unusual features.[140]The first, and to me particularly striking, is the fact that there were hardly any external signs of any of the injuries sustained by either of the children. Until the MRI, CT scans and x-rays were carried out, nobody had any idea that these two little children had sustained the large number of injuries that were subsequently discovered. It is remarkable and in my view highly significant that these children were seen very frequently by a range of health professionals, including being regularly examined naked by a very experienced and highly competent health visitor, and yet not a single bruise or mark or other sign was ever seen on either child that might have suggested that either of them had sustained a fracture. Furthermore, neither child exhibited any signs of pain and discomfort that might have been attributable to such an injury, save for the incident in hospital to which I shall return.[141]This, therefore, gives rise to the very real possibility that these children had sustained their fractures as the result of the application of forces that were insufficient to cause bruises. Of course, not every fracture will be accompanied by external evidence such as bruising or swelling or pain or discomfort but it is to my mind very surprising that none of the fractures in this case were accompanied by any of these signs.[142]With that preliminary observation, I return to the family medical history. On any view it is complex. Both the mother and the father have different and difficult medical histories. Each deals with their various conditions in different ways. The mother is something of a stoic. The father, if he will forgive me saying so, is something of a valetudinarian, but neither exaggerates or fabricates their conditions. It is just part of their lives. I agree with Ms Cook that the consequence is that the parents separately together have an unusual number of medical features and conditions, the combination of which if they have been transferred to the twins cannot be known.[143]Furthermore, and central to that unknown combination, are a number of conditions which prima facie may lead to an impact on bone fragility. The mother now has a clear diagnosis of EDS, inherited from her own mother and now, in Professor Pope’s view, possibly passed onto her daughter, E. The father has joint hypermobility and in Professor Pope’s view, J has symptoms similar to that condition. Whilst I accept Professor Pope’s evidence that subdural haematomas are not normally associated with the type of EDS from which the mother suffers, I also accept his evidence that there is a lack of clarity and understanding about some aspects of the syndrome, in particular its association with fragility. In Mr Richards’ phrase, there are dark corners of this area of medicine which even Professor Pope, the world expert, does not understand.[144]In addition, there is an area of the family medical history which, surprisingly, even this exhaustive inquiry has not, to my mind, fully explored. The father suffers from kidney stones. They are, in fact, his most troublesome ailment. Stones are sometimes, although not always I understand, associated with an imbalance of calcium and other minerals in the body. J also suffers from a congenital kidney malformation, the extent of which is not yet established. It is to my mind at least possible that there is a link between kidney stones, the possible association with calcium imbalance, and reduced bone density.[145]Dr Halliday accepted that x-rays were a blunt instrument for detecting reduced bone density, although I agree with her view that it is likely that any deficiency in bone density sufficient to cause multiple fractures would be detected on x-ray. On the other hand, there is the opinion of Professor Pope that the incidence of reduction of bone density in children with EDS is relatively unclear because of the absence of any controlled studies.[146]At this point I recall my earlier finding regarding T. That was, of course, an interim finding but it has not been revisited at this hearing. In other words, it is accepted by the Local Authority. As a result, I proceed on the basis that T sustained skull fractures as a result of a low level fall witnessed by the mother and maternal grandmother. The consensus among the experts is that such an occurrence is unusual but not impossible. Mr Richards alluded in his oral evidence to a growing number of cases in both his clinical and medico-legal practice in which he and his colleague, Mr Jayamohan from the John Radcliffe Hospital, have come across fractures attributable to low level falls. In passing, I express the hope that research into such cases will be undertaken to increase the level of understanding on this important topic. The significance of T’s fractures for this case is that it is another pointer to the possibility that the children in this family may be more susceptible to fractures than other children.[147]To these matters I add a number of other factors. First, these children are twins, conceived by IVF. I accept Ms Cook’s submission the research into such circumstances are limited. Secondly, I note the striking symmetry in J’s bilateral upper rib fractures. Thirdly, there is the fact that E had external haemangioma and may, as Dr Sunderland, Dr Anslow and others accept, have internal haemangioma which might, therefore, increase her susceptibility to intracranial bleeding.[148]Fourth, I accept the evidence that J’s subdural haemorrhage were chronic with minor incidents of re-bleed. So far as E is concerned, Dr Anslow felt that the prominent collections were chronic whereas Mr Richards favours the alternative explanation of acute traumatic effusion. I find that it has not been proved that E had sustained an acute intracranial bleed. Given that her twin had a chronic subdural haemorrhage, there is to my mind a strong possibility that her subdural collection is also a chronic. Furthermore, I accept the view of Dr Anslow that it is possible that such chronic subdurals date back to birth. The publication of research papers on the incidence of birth-related subdural haemorrhage alluded to by Mr Whitehall in his closing submissions have fundamentally altered the understanding as to the incidence of intracranial bleeding in babies. Subdural haemorrhages are very, very common in babies, and although they are apparently less common after a Caesarean section, they are found after all types of delivery. Like many judges, I have a strong sense that there is more to be learnt about this issue after further research studies have been concluded.[149]I accept Mr Richards’ evidence that, if this is a case of a chronic subdural leading to a re-bleed, it is unlikely that such a re-bleed would lead to any encepholapathic episode such as occurred with E on 5th July but I find the evidence shows there are a number of possible causes for that episode, as postulated by Dr Sunderland.[150]Finally, there is the question whether some of the injuries were sustained in hospital. I accept Dr Anslow’s evidence that at least one injury, J’s re-bleed detected in the further MRI on 3rd August, was definitely sustained in hospital. In a sense, that is not surprising because it is now accepted that a chronic subdural is susceptible to re-bleed with minimal force or even spontaneously. Counsel for the parents have, however, doggedly pursued the theory that other injuries may have been sustained in hospital. The first is the fracture of E’s ulna. On any view, this was an unusual injury and at first sight very worrying. At the outset, when counsel for the parents started to explore the question of whether it could have been sustained during the attempted insertion of the canula on 5th July, I was, frankly, sceptical but, as the case has proceeded, and particularly in the light of Nurse Gray’s evidence, she having witnessed the difficulties the doctors had and described the way in which E’s arm was held, and, having regard to the evidence of the mother, which I accept, as to the distress and discomfort this manifestly caused in E, I have come to accept that it is at least a real possibility that the injury to the ulna was sustained in that way. I stress that I am not criticising the doctors involved and I am not making a finding to that effect. It is, however, a real possibility that is part of the overall picture. Then there is the evidence about J’s posterior rib fractures. Dr Halliday’s change of opinion as to timing may be significant because it moves the window forward in time to an extent that it becomes more likely that they were also sustained in hospital, although again I stress that I am not making a finding to that effect.[151]The Local Authority’s case regarding those latter fractures is that they provide an important clue as to the cause of the injuries in this case. Mr Whitehall submits that the likeliest interpretation is that J’s fractures were inflicted by the father whilst he was caring for him on his own after E had been returned to hospital but, to my mind, the striking feature about this area of the evidence is that the father, as is his want, sought immediate medical advice about this clicking sound. If he had been responsible for injuring J through an act of a momentary loss of control, as Mr Whitehall suggests, I think it highly unlikely that he would have taken J to the GP. As it is, he did take J to the GP who heard the clicking but noticed no other sign and did not get any sense that this was a case of child abuse. I find that the father’s behaviour about this episode of clicking is wholly inconsistent with what would have been expected of someone who had inflicted a non-accidental injury on the child. On the contrary, it is entirely consistent with what one would expect with a properly concerned parent.[152]This brings me to the wider canvas. It is an important part of the evidence in this case that, save for the injuries, there is not one scintilla of criticism of the way in which the mother and father have cared for these children. In the period leading up to the admission of the children in hospital, and in the 19 months since that admission, their care has been observed and scrutinised by a large number of professionals and the picture that emerges, not least from the highly positive assessment carried out on behalf of the Local Authority, is that these are doting parents who are devoted to the children and provide them with a very high level of care. This was obvious to me throughout the hearing, from the way they spoke about the children, the large numbers of photographs taken and produced in the 19 albums, the huge book of artwork, the DVD of the children and the smiles on their faces on the many occasions when the children are being spoken of, not least as I am giving judgment. Put simply, this couple are simply dotty about their children.[153]Although it is not impossible that such parents could have inflicted injuries in a momentary loss of control, it would in my view be surprising. I accept that there were the stresses identified in closure by Mr Whitehall. I accept that in some cases, such stresses might lead to a momentary loss of control but I do think it unlikely that this happened on four occasions, or possibly more than four occasions, in this family. In any event, as I have already indicated, I find these parents to be truthful and honest witnesses and I accept their evidence.[154]I accept that I may be wrong. I do not criticise the Local Authority for bringing these proceedings. There is a possibility that these injuries were inflicted by one or other of the parents in a momentary loss of control but I find that the Local Authority has not proved that that happened on a balance of probabilities. That is my finding and that is the basis upon which these children will be cared for hereafter. Accordingly, the threshold conditions under section 31(2) of the Children Act are not crossed and this application is therefore dismissed.[155]I conclude with a few final observations. This case demonstrates yet again the importance of a full and thorough forensic examination of cases of suspected child abuse. A full and thorough investigation involves a number of elements. First, it requires judges of sufficient experience who are able to manage cases through the course of the proceedings. Judicial continuity is a crucial component of the modern family justice system. This case was due to be managed and heard by Mr Justice Holman but, for reasons set out above, the interim hearing and in due course the final hearing have been conducted by me. The fact that I heard the interim hearing concerning T and then the final hearing has been, I think, of very considerable importance.[156]Secondly, this case required the involvement of a range of experts from different disciplines. If the case had been decided purely on the basis of the treating doctors, the outcome may have been very different. The perspective brought, in particular, by Dr Halliday, Dr Anslow, Mr Richards, Dr Sunderland and Professor Pope has been very important. Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings.[157]Thirdly, this case demonstrates that, whilst it will be possible to conclude the vast majority of care cases within 26 weeks, as proposed by the modernisation reforms, there will still be a small minority of cases, exceptional cases, where the investigation takes longer. In this case, the further testing proposed by Professor Pope which led to a series of adjournments was unquestionably necessary. Judges must be vigilant to identify those rare cases which require longer time. It is, of course, important that these cases are identified as soon as possible at the outset of proceedings and that any delay is kept to a minimum.[158]Finally, this case demonstrates again the crucial role played by the specialist family bar and solicitors. The role played by all of the representatives for all of the parties in this case has been of the utmost importance. All judges are very concerned at the prospect of an increase in self-represented litigants and the consequences for the family justice system. Not enough recognition is given to the contribution to the family justice system made by family lawyers.[159]The High Sheriff of Devon sat in for one morning of this hearing, as it happened during the evidence of Mr Richards, and afterwards expressed to me his astonishment at the level of specialist knowledge required of counsel, in this instance, Mr Storey, entrusted with the task of cross-examining the expert. This is one small illustration of the indispensable contribution made by family lawyers in this type of case. Without that contribution, it would be impossible to ensure that justice is done.

order

Professor Hann; Dr Pearson, Paediatric SPR who examined E on arrival at hospital on 5th July; Nurse Ahmed, Paediatric Nursing Sister at the RDEH; Professor Pope; Dr Sunderland; Dr Anslow; Dr Salzmann; Dr Griffiths, the GP for the twins; Dr Hart; Mr Richards; Mrs Still, the health visitor; the maternal grandmother; the maternal grandfather; Dr Halliday; the paternal grandmother; the paternal grandfather; Nurse Gray, a nurse who witnessed the insertion of the canula into E’s hand on 5th July; the mother, and the father.

Cited in 44 later judgments

and 35 more of the most senior