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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> A (non accidental injuries), Re [2015] EWFC B100 (07 May 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B100.html Cite as: [2015] EWFC B100

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IN THE FAMILY COURT
(Sitting at Ipswich)

		8 Arcade Street Ipswich
		7th May 2015

HER HONOUR JUDGE ROBERTS:

1. This case is about a child I shall call Andrew F who is twelve months old. He is the son of Miss P F and, it is thought, of BG, although this man has played no part in Andrew's life or in this case. Suffolk County Council have brought care proceedings about Andrew following the events of October 2014. Andrew was found to have a broken leg and several broken bones in both of his feet. At the time, he was six months old, wholly dependent on his carers and pre-mobile. Andrew's mother was not able to explain what had happened to Andrew. She suggested that he could have been injured when in the care of her sister, Miss YF. Miss YF and her partner, Mr. K, were made interveners in the care proceedings and the hearing yesterday and today has been, first, to determine what has happened to Andrew and to see who bears responsibility, if possible. Miss F's boyfriend at the time, Mr D, was also invited to intervene in the proceedings, but has not responded and has not appeared or been represented.
2. Suffolk have been represented by Miss Rothwell, Miss F by Miss Jones and Andrew, instructed by his guardian, has been represented by Ms. Catton-Newell. The two interveners have attended and represented themselves. I have read statements by the social worker and from the mother and the two interveners. I have read medical reports from the treating doctors and from the two experts instructed for these proceedings and a schedule of agreements and disagreements, although in fact there were no real disagreements. I have read the evidence gathered by the police, including the medical evidence obtained by the police. I have heard evidence from the two doctors via video link, from Miss P F and from Miss YF and from Mr. K.
3. Andrew, meanwhile, is in foster care where it is good to hear he is progressing well and with no long term effects from the injuries. The local authority threshold document is based wholly on the injuries Andrew sustained and the failure to seek urgent medical attention for him. The guardian points out that the social work evidence and her own enquiries, as I now know from reading her report, show that Miss F was not providing Andrew with adequate care in all areas, quite apart from the injuries.
4. It is for the local authority to prove the threshold document on a balance of probabilities. First, looking at what is agreed or not in dispute, Miss P F's two older children, whom I shall call Sarah and Lily, aged five and three, live with their father, Mr K. This followed private law proceedings between the parties. Mr. K has subsequently formed a relationship with Miss YF F over the last two years and she helps him care for the two little girls and she is expecting her first child by him this month. Miss P F has not always had regular contact with her girls, but on the weekend of 17^th October it was agreed between the three adults that Miss P would have the girls to stay from after school on Friday 17^th October and that Andrew would stay with Miss YF and Mr. K. Miss P collected Andrew and returned the girls in the afternoon of Saturday 18^th October. At the time, Miss P was in a relationship with a man called Mr D. She spent most of her time at his home, although she slept at Haven Court, a unit for young mothers in Lowestoft.
5. On 18^th October, after collecting Andrew from Miss YF, Miss P took Andrew back to Jason's before going home very late that day. On Sunday 19^th October Miss P had a meeting with her key worker and then took Andrew to Jason's again. At some point that day she and Mr D had a falling out and Miss P brought Andrew back to Haven Court in the evening. Very late that night Mr D turned up causing a scene at Haven Court. Miss P spoke with him and then she and Andrew went to bed.
6. On the morning of 20^th October Miss P saw that Andrew had a very swollen right lower leg. She told and showed a Haven Court worker who advised she seek medical attention. The GP's receptionist did not give her an appointment as she already had one booked at 3.20 that afternoon. When the GP saw Andrew's leg, he advised that she take him to Accident & Emergency. Later that day Miss P did take Andrew to hospital where his injuries were identified. Andrew was kept in and then made the subject of a police protection order. I note that Andrew has been identified as having allergies to cow's milk and eggs and has had various allergic reactions prior to these events.
7. The injuries. The doctors are in agreement with each deferring to the other according to his or her specialty. Both doctors are experienced doctors and expert witnesses and gave their evidence carefully. It is unchallenged and I accept it. Dr. Andrew Watt, consultant paediatric radiologist, said in his report that there is a buckle fracture of the first metatarsal of the right foot. There is a spiral fracture of the mid shaft to the right tibia with slight angulation and overlap. Prominent soft tissue swelling is present. There are buckle fractures of the neck to the second and third metatarsals of the left foot and the bases of the second, third and fourth metatarsals of the left foot. Of the tibia fracture he said: "The fracture is spiral/oblique with slight angulation and overlap. The mechanism for this type of injury is an indirect twisting torsional force with or without bending. This fracture commonly occurs in ambulant young children and is usually the result of a low energy fall or twisting injury. The radiographic age of the fracture is eleven days or less on 20^th October. The fracture to the first metatarsal of the right foot suggests that there has been a mechanism injury of a crush or blow to the foot. The lack of healing on 20^th October suggests that the fracture is less than eleven days old on 20^th October. The left metatarsal fractures, the mechanism is the same. The fractures are less than eleven days old on 21^st October based on the lack of healing evident. Fractures of the metatarsals an extremely uncommon injury in children of this age and when occurring accidentally are usually the result of a crush injury such as a child's foot being trapped in a door. I would have expected these fractures to be variable in terms of symptoms and would probably not have shown significant clinical findings on examination after the fact as the fractures were un-displaced. Therefore, I would have expected a carer present at the time to possibly have realised that an injury had taken place. I would have expected that a carer who was not present at the time of injury may not have been able to identify that any injuries were now present. The fractures could have occurred at the same time as each other or at a different time within the time ranges given above." That all related to the foot fractures.
8. In fact, both doctors, as it became clear, think it is more likely than not that the injuries all happened at the same time, but it is not possible to be conclusive about this. Dr. Watt has identified no medical reason apparent from what he has seen why Andrew has suffered these injuries. Although the final results for vitamin D levels have not been analysed, there are none of the other indications that would exist if Andrew had a vitamin D deficiency.
9. Dr. Katherine Ward, consultant paediatrician, did a detailed analysis of all the evidence from a paediatric point of view. She too can identify no medical causes of the injuries and agrees with Dr. Watt about vitamin D. It is, of course, of note that Andrew was a bottle fed baby on feed adapted for his allergies but which contained all he needed in terms of vitamins. Dr. Ward agrees with Dr. Watt about the highly unusual nature of the injuries in a pre-mobile baby. She explained that the spiral fracture was more likely that not the result of torsional or twisting forces on the right leg. One would not expect a fracture of this nature to occur in the course of normal, or even rough, routine handling. "Fractures of the metatarsals of the feet are uncommon in both accidental and non-accidental injury and, in my opinion, these were likely to be the result of forced hyperextension or flexion of the feet. Again, such injuries do not occur as a result of normal or rough everyday handling of a child of this age". She said about the swelling and the bruising: "Whether the injuries were the result of some as yet non-disclosed accidental injury or the result of a non-accidental injury, I would expect a carer who was present at the time of injury to have realised that the child was injured by nature of the mechanism of injury and the child's likely response, immediate screaming likely to last for a period of minutes up to half an hour. This child developed swelling and bruising to the right leg associated with a spiral fracture of tibia. This would have been apparent to a carer who was responsible for bathing and dressing. Furthermore, the child would be irritable on handling the limb, resulting in crying. I would therefore expect a carer who had care of the baby following the fracture to have noted swelling, bruising, reduced movement and discomfort on moving the affected limb. Fractures to the feet are less likely to cause specific signs of injury, especially as both sides were affected."
10. In relation to the awareness of a carer present when the child was injured, Dr. Ward said: "It is likely that Andrew would have responded by crying immediately after the injury for a period of up to 30 minutes. Swelling and bruising will have evolved over a period of hours and it is likely that the child will have been generally irritable and showed pain by crying or movement of the limb during bathing and dressing. There may have been reduced movement of the right leg which was affected by the spiral fracture."
11. Turning to what the key people say, each of Miss P, Miss YF and Mr. K say that they did nothing and saw nothing which would explain Andrew's injuries. Miss P F says that the only time that Andrew was not in her care in the relevant eleven day period was 17^th to 18^th October when Andrew was with Miss YF F and Mr. K. Although Miss P spent much time with Mr D, she says she never left Andrew alone with Mr D during this period. The only suggestion she can make is that Andrew was injured when staying with Miss YF and that it may have happened if Miss YF put Andrew in the baby walker which had been acquired. Neither Miss YF nor Mr K have put through any theory as to what happened to Andrew.
12. The timing. There is nothing to suggest that anything untoward had happened to Andrew before the weekend we have been considering. The first reference to anything being possibly wrong was on 18^th October when Miss YF noted that Andrew's feet seemed fat. However, she said she pointed this out to Miss P F who was not concerned and thought it related to Andrew's allergies. In any event, the feet no longer seemed fat later that evening and I do not find any significance in this. Miss P F says that she noted that Andrew had a swollen ankle on the morning of Sunday 19^th October. She said that she pointed this out to the keyworker. The keyworker denies that this happened or that there were any concerns about Andrew's limbs on Sunday. In the witness box for the first time Miss P F said she tried to take Andrew to the hospital on 19^th October, but could not find anyone who could finance her or assist her to do this. Instead of taking Andrew to the hospital, she took him back to Mr D's until the early hours. That was the day of the falling out with Mr D. It was the next morning that she said she first saw that Andrew had a very swollen leg. If Miss P F had tried to take Andrew to the hospital on the Sunday, I find that she would have mentioned it to the GP or to the police or in her statement and I do not believe her.
13. I must consider the possibility of Andrew being injured in the care of Miss YF or Mr K on 17^th or 18^th October. Both Miss YF and Mr K gave evidence and I found them to be straightforward people who had come to court to assist the court. I did not form the same view of Miss P F. I found her to be defensive and less open with the court. I accept that she feels under threat and the stakes are high for her, but her stance was noticeably different from the other lay witnesses. It is the case that she said very different things in the witness box to what she had said previously, in particular about trying to get Andrew to hospital on the Sunday, and I did not believe her on that, as I have said. I also do not believe her account of having told her keyworker about an ankle problem on 19^th October and prefer the evidence of the keyworker that this did not happen. There is no reason for the keyworker to lie about this and her account was taken by the police within three days of the events, so she had a good memory of them. It is relevant that there are several notes within the social services records of Miss F not being honest with professionals, sometimes in relation to Andrew; for example, claiming to have taken him for medical treatment when there are no records that this has occurred.
14. I am asked to doubt the evidence of Mr K and Miss YF because of some discrepancies, but I do not doubt their evidence. I will deal with the issue of the baby walker later. Miss Jones says that Mr. K was confusing and possibly lying about the events of 18^th October, but I do not agree. The way the evidence came out was somewhat confused, but his account was clear and consistent and I find nothing relevant in the events of Saturday morning in the K/F household. It is also said that they have not been truthful about hitting the two children in their home, but I find nothing in this. The difference between tapping and hitting and different interpretations and the absence of the original records from social services all leads to what Miss Jones has been able to call discrepancies, but which I find to be nothing but mild confusion upon which nothing turns. I note that the two children are not under social services scrutiny, there are no concerns about excessive chastisement and I do not find that Mr K and Miss YF are being dishonest. It is a matter of interpretation. Where the evidence of Miss P F and that of Mr K and Miss YF differ, I prefer the evidence of Mr K and Miss YF .
15. Mr. K was at work for most of the relevant time and only came into contact with Andrew late on Friday evening when he and Miss YF got up to change and feed Andrew and I have no reason to disbelieve this account of a perfectly normal event with nothing untoward taking place. Mr. K describing nothing happening of any concern, he did not find anything wrong with Andrew on Friday night. Miss YF denied putting Andrew in the baby walker and leaving him in it and denied anything happening to him in her care. She said that she only put Andrew in the baby walker when Miss P F rang her on Friday night and asked for a picture of Andrew in the baby walker. She said she put him in it and took him out again. That cannot be absolutely correct as she told the police at the time that he loved being in it and pushed himself forward in it. I do not, however, consider this of relevance or significance. As Miss YF said, the account given to the police at the time must be more accurate and her memory is less good now. I accept that Andrew was only in the baby walker for a short time. The key point, however, is that there is no evidence that there was anything wrong with Andrew at the time Miss P F collected him on the afternoon of 18^th October. The medical evidence is such that if there had been such serious injuries to Andrew's leg and feet by that time, not only would Miss YF have known, but Miss P F would have noticed when she collected him and took over his care. I agree with Miss YF that if Andrew had had an accident in her care she would have acted appropriately. There is no evidence to suggest that she did anything deliberately to harm him and Miss P F had no concerns about his presentation.
16. The doctors have considered a theory put forward, initially coming from the police surgeon, that possibly Andrew sustained an injury whilst in the care of Miss YF , possibly in the baby walker, and that something which Miss P F did then on Sunday or Monday morning caused a secondary injury. I do not think this is at all likely and I dismiss it. The medical evidence is clear. If Andrew had had an injury on the Friday to Saturday which was not obvious at the time, it is most likely that anyone caring for him from then on would have noted discomfort, to put it at its mildest, but this did not happen. The most that Miss P F now claims is that he had a swollen ankle on the Saturday afternoon and she mentions in her statement that he screamed when Mr D touched his ankle. She could not elaborate on that. She did not tell the police of the scream, though did mention the slight swelling to the ankle. She was not concerned about the ankle and says all was fine on the Sunday in her statement, though, as I have said, she now says that she pointed out something to the worker on the Sunday.
17. She told the GP and the police at the time that Andrew was fine until Monday morning. I do think it is likely that Miss P F is trying to fit her evidence around the medical evidence. More importantly, however, to cause the significant swelling on the Monday Dr. Ward was clear there would have had to be a significant and memorable event on the Sunday or Monday to make the original fracture to be displaced and/or for the leg to swell up as it did and Miss P F says that nothing happened at all. Furthermore, the nature of the swelling on the Monday morning means, in Dr. Ward's opinion, that it is most likely that the injury took place in the 24 hours prior to Miss P F presenting Andrew to the key worker with a very swollen leg, which was between 10.30 and 11.50 that morning. The records are unclear.
18. I agree with Miss Rothwell that if Andrew had been injured in the baby walker, it is most unlikely that Miss YF would have put him back in it on the Saturday when she was expecting Miss P F to come round. Miss YF denies that anything happened in the baby walker and I prefer her evidence. When Miss P F came to collect Andrew he was asleep and not in the baby walker and I find this is another example of Miss P F trying to make evidence fit her story. On this basis, I exclude, on the balance of probabilities, the perpetrators being Miss YF or Mr K who had nothing to do with Andrew's care from the afternoon of Saturday.
19. Miss P F has been clear that other than the time Andrew was with Miss YF and Mr K, she was solely in charge of her son. Although she spent time with Mr D, her boyfriend, she says that she did not leave Mr D and Andrew alone. On her own account, therefore, the injuries must have happened in her care. I can think of no reason why Miss P F has not disclosed either an accident taking place when Andrew was in her care or witnessing another person hurting Andrew. The only logical conclusion is, therefore, that Miss P F caused the injuries to Andrew and I find the threshold criteria document proven on that basis.
20. As far as failure to seek medical help in a timely fashion is concerned, I have sympathy with a mother who has such limited resources, financially and socially. However, I do not accept that it was not possible to get help for Andrew at an earlier time. If Miss P F noticed the very swollen leg on Monday at 9.30, I have no explanation as to why she did not seek help from the Haven Court staff until 10.30 at the earliest. I can understand that she felt unable to get passed the unhelpful GP receptionist and, therefore, then waited for the 3.20 appointment already booked, but I do find it would have been more reasonable to find her way to hospital at that point. My main criticism, however, is that there was yet further delay after the GP appointment when she was told to get Andrew to hospital. He was not seen at the hospital until 6.30. I do not accept that she did all she could in this respect. If she had told the GP she had no means of getting to the hospital or told Haven Court, or even told her sister, there were ways and people who would have helped and there was, of course, the bus. Whatever the delay was about, it was not putting Andrew's interests first and was not the actions of a reasonable mother.
21. I do need to mention some other matters. Miss P F should not have been taking Andrew or, indeed, the girls round to Mr D who appears to have been an unsuitable person to have around the children. We know he bit Sarah, leaving a mark. Andrew was previously injured when in his care, apparently accidentally, and he thought it appropriate to come round with a friend late at night to cause a scene at Haven Court, a unit for mothers and pregnant women. She should not have been spending most of her time there in any event when she had the care of a young baby who needed routine stability. Miss F had been placed in Haven Court because she needed the support on offer there, but she was hardly ever there and so did not get much of that support and Andrew's health visitor, I am told, was also finding it hard to do her job for Andrew. There are concerns about where Andrew slept physically, in a chair, it would seem, and that he was left to give himself his bottle or was prop-fed, which is also not suitable.
22. All these matters are relevant to threshold, although not sufficient on their own. I take all these matters into account, along with the injuries when I do find that the threshold criteria were met at the time of the local authority intervention in October 2014.
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