Her Honour Judge Hesford :
I INTRODUCTION
- These proceedings concern three children, C aged 4, B aged 3 and A aged almost 2. This judgment relates to A and the injuries which he has suffered. The proceedings were originally issued in relation to all nine children of the family but the six older children are no longer parties although they remain, of course, relevant to the future of these children.
- This was listed as a nine day fact finding hearing to determine the cause of fractures sustained by A, being posterior fractures to the 5th, 6th, 7th and 8th ribs on the right hand side and to his 7th rib on the left hand side. The hospital attendance which led to the identification of the injuries took place in February 2024 when A was admitted to hospital suffering from suspected bronchiolitis and underwent a chest X-ray.
- Sadly these fractures are not the only medical issues which concern A. A was diagnosed with cerebral palsy during these proceedings, in November 2024, and he has had significant health issues from the time of his premature birth at 28 weeks. He has been subjected to several medical interventions including surgeries. He underwent treatment for a patent ductus arteriosus whilst an inpatient in the Neonatal Unit and surgery to repair an inguinal hernia at the age of 4 months. A was also medicated for metabolic bone disease, with medication (Joulies phosphate) having been prescribed for this, which was then discontinued in November 2023. He remains a very poorly little boy and his future is uncertain.
- In the interests of attempted brevity, I have not set out all of the evidence which I have heard and read but have highlighted particularly relevant matters. Nevertheless, all evidence has been considered and taken into account. Since the bundle amounts to in excess of 4500 pages in total, including the medical evidence and research papers, it is inevitable that this judgment will necessarily be detailed. This judgment would have been longer, but the developments during the oral evidence ultimately curtailed the proceedings, as I will address in due course, leading to the local authority seeking permission to withdraw its applications. There has been judicial continuity throughout.
- This judgment is structured as follows:
Section I: Introduction
Section II: The proceedings, the hearing and case management
Section III: The background
Section IV: The findings sought
Section V: The parties positions
Section VI: The legal principles regarding fact finding
Section VII: Research literature
Section VIII: The treating clinical health evidence
Section IX: The expert medical written evidence
Section X: The parent's evidence
Section XI: Other evidence
Section XII: The oral evidence of the experts
Section XIII: Withdrawal
Section XIV: Discussion
Section XV: Conclusion (and law relevant to withdrawal)
II THE PROCEEDINGS, THE HEARING AND CASE MANAGEMENT
- The local authority applied for care/supervision orders on 18 March 2024 in respect of all nine children. Interim care orders were only made for the youngest three. A has not lived at home since the proceedings were issued. Initially he was placed with relatives but later with a friend of the parents. He has extensive supervised contact with his parents and siblings. B and C remain at home in the care of their parents with supervision by a family member.
- All parties agreed that this was a single issue case regarding the causation of rib fractures to A. The court was tasked with determining whether A had suffered non-accidental/inflicted injuries and if so, then to determine the perpetrator of the injuries if possible. Depending upon my findings (if any) and the party's positions thereafter, A's future welfare would be considered later. The hearing was scheduled to take place over 9 days but ultimately concluded in 3 days. It was an attended hearing save for the experts who gave evidence remotely for their convenience.
- This case is now at week 56, the significant delays having been caused by the need to obtain extensive medical expert opinion not just in relation to the injuries themselves but also in relation to wider aspects of A's medical history, diagnosis and treatment. Much of the medical evidence and the opinions of the experts was not accepted by the parents and was actively challenged during the hearing.
III THE BACKGROUND
- A is the youngest child of a large sibling group of nine children who have been living together in the care of the parents (NB "parents" being defined for the purposes of this judgment as the respondents). This is a blended family. The parents met in 2020 and formed a relationship, moving in together in October of that year. At this time, the mother had 4 children, D, E, F and G aged between 8 and 16. Their father is X. The father had 2 children, H and J aged between 10 and 13. Their mother is Y. There are three children born jointly of these parents, A, B and C.
- A was born prematurely at 28 weeks and 2 days gestation. The mother reported that it was a difficult birth with A suffering a pulmonary haemorrhage, subsequent sepsis, three bleeds to his brain and two blood transfusions and that she has osteoporosis, Vitamin D deficiency and hypermobility which is a trait within her family.
- On 15 February 2024 mother took A to hospital with concerns about decreased feeding. Although A had always been a baby who was frequently sick, she was worried that he was struggling to feed, with reflux and it appeared to her that his condition was becoming worse. On 16th February 2024 A was seen at [a] Hospital for possible bronchiolitis when a chest x-ray was taken. He remained in hospital until 23 February. The x-ray was reported on 6th March 2024 when four rib fractures and a possible humeral fracture were identified.
- The parents were requested to return A to [a] Hospital where he was admitted and further investigations took place including a skeletal survey. A second opinion was provided by Dr L at [a different] Hospital who confirmed fractures to the right 5th, 6th, 7th and 8th posterior ribs and a potential healing fracture of the proximal phalanx of the left index finger. Dr L opined that the rib fractures were all caused at the same time. She suggested that the rib fractures were more than 5 days old at the date of the original imaging on 16th February 2024. She further reported that bone density appeared radiographically normal and that there were no features to suggest any underlying skeletal dysphasia or metabolic abnormality of the bones.
- Explanations proffered by the parents at the time that the injuries were discovered were discounted by the treating clinicians leaving the possibility of the injuries having been caused non-accidentally.
- Further possible explanations were later put forward by one of the older children, E, who was ABE interviewed on two occasions by the police in respect of her accounts. The experts dismissed her explanations as possible causes.
- A's significant prematurity has caused a number of health issues during his early life, from the time of his premature birth, and he has been subjected to several medical interventions including surgeries. He underwent treatment for a patent ductus arteriosus whilst an inpatient in the Neonatal Unit and surgery to repair an inguinal hernia at the age of 4 months. He was treated with Joulies phosphate for metabolic bone disease of prematurity until November 2023 when it was discontinued at the instruction of the consultant. A also suffers from reflux and has been prescribed omeprazole for this condition. More recently in November 2024 A was diagnosed with cerebral palsy, which the mother had held, and, raised longstanding concerns about.
- Issues regarding his bone and general health were raised on behalf of the parents, and explored with the court appointed medical experts.
- Such is the complexity of A's medical history that a medical chronology was prepared by SWIFT and a further detailed chronology which includes references to the medical records and test results was prepared by the mother's legal team. Both of these documents were included in the bundle.
IV THE FINDINGS SOUGHT
- At the time protective measures were taken, namely on 15 March 2024, when the applicant local authority commenced care proceedings in respect of the children, the local authority asserted that A was suffering and the children C and B were likely to suffer significant physical harm, emotional harm and ill treatment. The harm and the likelihood of harm were attributable to the care given to A and likely to be given to all the children if the order were not made, such care not being what it would be reasonable to expect a parent to give to them.
The following facts and matters were relied upon in support of the contention.
1. The children are C , B and A .
2. The mother of the children is M . Their father is F .
3. On 15 February 2024, the child A then aged 7 months was admitted to [a] hospital suffering from suspected bronchiolitis. A chest X-ray was taken on that date, as part of the investigations into his health. A was discharged from hospital on 23rd February 2024.
4. Subsequent consideration of the X - ray dated 16 February 2024 revealed healing fractures of the posterior aspect (back of the chest near the spine) of the right 5th, 6th, 7th and 8th ribs, and the left 7th rib.
5. The healing fractures to A's ribs were aged between 2 and 6 weeks on 16 February 2024. Accordingly the fractures were sustained between around 2 January and 2 February 2024.
6. Having regard to the position of the fractures and in particular the proximity of the left sided rib fracture to those on A's right side, all the rib fractures were on balance inflicted at the same time.
7. The mechanism of causation of the fractures was a single episode of severe compression of A's chest. The mechanism was traumatic and the force required to cause the fractures was significant and excessive. No explanation has been given by either parent of an accident which would account for the fractures being caused.
8. The fractures were not self inflicted, nor were they birth related.
9. The fractures to A's ribs were inflicted by an adult. The perpetrator of the fractures was either his mother or his father.
10. A does not suffer from any condition that would cause his bones to fracture as a result of the application of lesser force.
11. At the time the fractures occurred, A would have been in pain and shown signs of distress which would have lasted for some moments. He would have cried in pain, as distinct from a cry usually given to signal hunger or tiredness.
12. The parent who inflicted the injuries would have been aware that their actions had caused A pain and led to a significant injury.
13. A carer who was present when the injuries were inflicted or sustained would have known that A had been injured.
14. Following the fractures being inflicted, A would have experienced pain and been distressed in the event of pressure being applied to his chest in the area of the fractures during handling, bathing and dressing.
15. There was a failure on the part of A's parents to seek timely medical attention in respect of the rib fractures.
V THE PARTIES POSITIONS
- There is no dispute that A has suffered fractures as set out in the schedule of findings. What remained in issue was how or why these have occurred. Both parents denied harming A.
- At the commencement of the hearing, it was advanced by the local authority that the fractures occurred between 2 January and 2 February 2024 with a single act of significantly forceful compression to the chest area as a mechanism of causation a squeeze. In the view of the local authority, the injuries to A were caused by a tired parent experiencing a momentary loss of control in a busy household, when they were suffering from the strains and stresses of caring for nine children, the youngest of whom was experiencing health problems and we now know has cerebral palsy. The parent would have known that they had caused harm to A. The local authority submitted that there were also relationship difficulties at the time. In doing so they relied on the opinions of the medical experts and the evidence of the social worker including that from her conversations with the parents. They could not themselves identify the perpetrator. They did not seek to persuade the court that the parents had sought to deliberately harm A.
- The mother accepted that the x-rays revealed the rib fractures but not that they definitely occurred during the period of 2 January to 2 February 2024 nor that they were inflicted by herself or the father. She sought to challenge the experts on issues of timing, causation, mechanism and also potential accidental or organic causes including birth.
- The father's position was similar to the mother although he accepted that the injuries were not birth related.
- I will address the final position of the local authority later in this judgment.
VI THE LEGAL PRINCIPLES
- I now turn to the law which I apply when making findings in this case.
- In order to make a care or supervision order the local authority must prove that the situation justifies the intervention of the State. This means that the Local Authority must establish, on the ordinary civil standard of proof, the statutory threshold set out in s.31 (2) Children Act 1989. It also means that the Article 6 and 8 rights of A, B, C, their parents and indeed their siblings are engaged.
- The relevant date for the purposes of threshold in this case is 15 March 2024, the day upon which protective measures were taken for (predominantly) A. At the time of the initial application, the local authority sought to remove all nine of the children from the care of the parents, but I declined to make the majority of the orders sought on the basis that the risks to the older children were not the same as for the younger ones and it was neither proportionate nor necessary. Interim care orders were made for only the three youngest. The older children remained as parties to the proceedings until their discharge by my order of 18 March 2025 when I gave the local authority permission to withdraw these applications. Since 15 March 2024 protective measures have been in place continuously for A, B and C. For a period of time the older children were registered "at risk" on the Child Protection Register following a child protection conference after my refusal to make interim care orders for them. The Guardian was neither notified of the local authority's intentions nor of the meeting itself and the children were greatly upset by the decision and the interference in their lives. This has now lapsed.
- In the context of this case I have reminded myself of Ryder LJ's judgment in Re S [2014] EWCA Civ 25. In particular I have read carefully paragraphs 19-21 of that judgment where he says:
19. The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
20. The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, 'accidental injury' is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a 'non-accidental injury', there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.
21. The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.
- In respect of the task of determining whether the 'facts' have been proven the following points must be borne in mind, referred to in the guidance given by Baker J (as he then was) in Re L and M (Children) [2013] EWHC 1569 (Fam) and confirmed by the President of the Family Division Munby P in In the Matter of X (Children) (No 3) [2015] EWHC 3651 at paragraphs 20, 47 24. Additionally, I have considered the judgment of Lord Justice Aikens in Re J and Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26. The burden of proof is on the local authority. It is for the local authority to satisfy the court, on the balance of probabilities that it has made out its case in relation to disputed facts. The parents have to prove nothing, and the court must be careful to ensure that it does not reverse the burden of proof. As Mostyn J said in Lancashire v R [2013] EWHC 3064 (Fam), there is no pseudo-burden upon a parent to come up with alternative explanations [paragraph 8(vi)] although as Peter Jackson J (as he then was) confirmed in Re BR (Proof of Facts) [2015] EWFC 41 at paragraph 41 the nature of the history given by a carer of a child who has suffered a serious injury is a matter that doctors are entitled to have regard to in forming their opinions. The weight given to that opinion is of course a matter for the judge hearing the case.
- The standard of proof to which the local authority must satisfy the court is the simple balance of probabilities. As Lord Hoffman observed in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35:
"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 by the court that something might have happened. The law operates a binary system in which the only values are nought and none".
The test remains the same regardless of the seriousness of the allegations. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred. Putting it simply if a matter is not proved to have happened then I must approach the case on the basis that it did not happen.
- Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The dividing line between the drawing of inferences and speculation may not be a clear one; it is essentially a matter of judgment Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12 [2011] 1 FLR 1817 and Re A [2015] (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11 [2016] 1 FLR 1.
- The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and the court should also have regard to the context - A County Council v A Mother, A Father and X, Y & Z [2005] EWHC 31 (Fam). The court does not consider the expert evidence alone, it must take account of a wide range of matters which include the expert evidence but also its assessment of the credibility of the witnesses and the inferences that can properly be drawn from the evidence. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence rather than adopting a compartmentalised approach. The court invariably surveys a wide canvas - Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567. The wide canvas is of fundamental importance. In Re T [2004] EWCA Civ 558, Butler-Sloss P put it as follows: -
"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 other evidence and 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".
Accordingly, the opinions of medical experts must be considered in the context of all of the other evidence. The roles of the court and the expert are distinct, and it is the court that must weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision. In relation to the wide canvass of evidence I have reminded myself of Lord Nicholls' speech in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 where he stated that:
"[101B]
The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."
- The evidence received in this case, as is invariably the case in proceedings involving allegations of injury, includes expert medical evidence from several medical specialists. However, as observed by Butler-Sloss P 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".
In the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim, Lord Justice Judge 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."
Case law has emphasised the importance of taking into account the possibility of an unknown cause. Lord Justice Moses in R v Henderson and Butler and others [2010] EWCA Crim 126 stated 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."
In Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam, Mr Justice Hedley (also who sat on the Henderson case) developed this point further at paragraph 10:
"The 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".
At paragraph 19 he added a further 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 nonaccidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made."
Specifically, in Re U, Butler Sloss P stated at para [23]:
"i. the cause of an injury or an episode that cannot be explained scientifically remains equivocal.
ii. recurrence is not in itself probative.
iii. particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause
iv. the court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour proper is at stake, or the expert who has developed a scientific prejudice v. the judge in care proceedings must never experts or that scientific research will throw light into corners that are at present dark."
- I have reminded myself of Mr Justice Charles in A County Council v KD & L [2005] EWHC 144 Fam 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."
- Mr Justice Ryder (as he then was) observed in A County Council v A Mother and others [2005] EWHC 31 (Fam)
"A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be".
- The inability of a parent to explain an event cannot be relied upon to find an event proved, Re M (A Child) [2012] EWCA Civ 1580 at paragraph 16.
- The burden of disproving a reasonable explanation put forward by the parents falls on the local authority, paragraph 10 of S (Children) [2014] EWCA Civ 1447.
- There is no burden shifted to the parents to prove a natural cause for symptoms. In Lancashire County Council v D and E [2010] 2 FLR 196 FD Charles J said:
"[36] The exercise of identifying a perpetrator, or pool of perpetrators, forms part of the exercise of considering whether there was an inflicted injury. In my view, it is important to remember this because it removes or reduces an approach which considers the overall question from the standpoint that someone with the opportunity to injure a child has to show that he or she did not do so. Again, in my view, the approach of the local authority and the guardian, at times, came perilously close to this. The correct position is that a medical view as to the most likely cause of injuries is that that cause is clearly established as a real possibility that has to be considered, in all the circumstances of the case, together with the other possibilities, in determining whether a child was the victim of an inflicted injury."
- In Re M (Fact finding: Burden of Proof) [2013] 2 FLR 874 at paragraph 881 Ward LJ stated:
"That, too, was the effect of the judge's view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents were required to satisfy the court that this is not a non-accidental injury."
- The evidence of the parents and of 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, Re W and another (Non-Accidental Injury) [2003] FCR 346.
- In Y, V and B (Fact-Finding: Perpetrator) [2024] EWCA Civ 1034, Lord Justice Baker stated the legal principles to be applied when considering whether a perpetrator or pool of perpetrators can be identified. Having considered the authorities which explain how the attributability condition is S31(2) can be met by a pool finding, he stated this:
7. It is therefore possible in cases of non-accidental injury for the attributability condition to be satisfied without identifying the person who inflicted the injury. But it is well established that a court should where possible endeavour to identify the perpetrator. The standard of proof for identifying a perpetrator is the balance of probabilities: Re C (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11 ; Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678. [
]
Baroness Hale, endorsing the earlier statements in the Court of Appeal in North Yorkshire County Council v SA [2003] 2 FLR 849, said (at paragraph 43):
"If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case."
- Paragraph 11 of Lord Justice Baker's judgment summarises the recent guidance on how a judge should approach the task of identifying whether someone is in the pool of perpetrators. That guidance had been given previously by Peter Jackson LJ in Re B (Children; Uncertain Perpetrator) [2019] EWCA Civ 575. At paragraph 46 of Re B, Peter Jackson LJ explained the purpose of the concept of the pool in these terms:
"Drawing matters together, it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill- treatment and where the only 'unknown' is which of a number of persons is responsible. So, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the relevant allegation can be proved to the civil standard against an individual or individuals in the normal way. Nor does it arise where only one person could possibly be responsible. In that event, the allegation is either proved or it is not. There is no room for a finding of fact on the basis of 'real possibility', still less on the basis of suspicion. There is no such thing as a pool of one."
At paragraph 49, Peter Jackson LJ gave the following guidance:
"The court should first consider whether there is a 'list' of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability
Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is should A or B or C be placed into the 'pool'."
- Finally, Lord Justice Baker reminded us in Re Y, V and B supra that Peter Jackson LJ in Re B added these further observations:
"51. It should also be noted that in the leading cases there were two, three or four known individuals from whom any risk to the child must have come. The position of each individual was then investigated and compared. That is as it should be. To assess the likelihood of harm having been caused by A or B or C, one needs as much information as possible about each of them in order to make the decision about which if any of them should be placed in the pool. So, where there is an imbalance of information about some individuals in comparison to others, particular care may need to be taken to ensure that the imbalance does not distort the assessment of the possibilities. The same may be said where the list of individuals has been whittled down to a pool of one named individual alongside others who are not similarly identified. This may be unlikely, but the present case shows that it is not impossible. Here it must be shown that there genuinely is a pool of perpetrators and not just a pool of one by default."
- Previously it was suggested that a court in care proceedings should "not strain to identify a perpetrator". but Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 confirmed that this is no longer good law and as summarised by King LJ in that case at paragraph 34:
"
judges should no longer direct themselves on the necessity of avoiding "straining to identify a perpetrator". The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B [2019], he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question."
- In relation to the issue of similar fact evidence and propensity I have considered Peter Jackson LJ in S (Children: Findings of Fact) [2023] EWCA Civ 1113 para [30]:
"I also consider that the judge was in error in relation to the issues of propensity and hindsight bias. The question of propensity or similar fact evidence arises where an individual's behaviour in other circumstances makes it more likely that he will have behaved in the manner now alleged: see R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088, [2020] 4 WLR 132 at [23]. In that case, the question was whether a's behaviour towards one partner was admissible in relation to allegations made by another partner. Here, the court was concerned with a sequence of events within the same family. Self-evidently, one finding about a parent's behaviour towards a child might be relevant to another similar allegation and there was no need to resort to the concept of propensity or to erect artificial barriers around the assessment of evidence. Similarly, the well-known concept of hindsight bias cannot deflect the court from making a common-sense assessment of the evidence as a whole, and I do not understand the judge's apprehension that the local authority was asking him to do something unusual or impermissible."
- In relation to hearsay evidence, I have considered the guidance of both Butler-Sloss LJ in R v B County Council ex p P [1991] 2 All ER 65 at 72J
"a court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied on"
and Munby P in in Re A (A Child) [2015] EWFC 11 at 9
"
the Local Authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second or third hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it".
- Care and caution must be exercised by the court in considering reliability based on demeanour or behaviour in the witness box (Macur LJ in Re M (Children) [2013] EWCA Civ 1147), human memory is not infallible (see Leggatt J in Gestmin v Credit Suisse [2013] EWHC 3560) and the pressures of giving evidence can impact witnesses (A (A child) [2020] EWCA Civ 1230).
- Finally, had it been necessary for me to do so I would also have directed myself to how I should treat any lies that I find have been told when I evaluate the evidence. I should take care to ensure that I do not rely upon the conclusion that an individual has lied on a material issue as direct proof of guilt but should rather adopt the approach of the criminal court, namely that a lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth - Re H-C (Children) [2016] EWCA Civ 58 at paragraphs 97-100. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything: R v Lucas [1981] QB 720. It is important to note that, in line with the principles outlined in R v Lucas, it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child (H v City and Council of Swansea and Others [2011] EWCA Civ 195). In Lancashire County Council v The Children [2014] EWFC 3 (Fam), at paragraph 9 of his judgment Jackson J (as he then was) said:
"To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the accounts. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural - a process that might inelegantly be described as 'story-creep' - may occur without any necessary inference of bad faith."
- It would also have been appropriate, when considering what, if any, reliance could have been placed on any asserted lie, to have applied the approach outlined by Macur LJ at paragraph 58 of A,B and C (children) [2021] EWCA Civ 451.
VII RESEARCH LITERATURE
- Given the nature of the case advanced by the parents, they filed and sought to rely on for the purposes of cross examination of the expert witnesses a number of research papers / case studies. These mainly related to bone health and the specific issues of Metabolic Bone Disease of Prematurity and the use of Proton Pump Inhibitors for acid suppression. These were included in the Medical Bundle II and were all provided in advance to the three expert witnesses. Permission was given for appropriate questions to be put to the expert witnesses concerning these issues in advance of this final hearing in an attempt to narrow any issues. They all confirmed that they had read the papers and were familiar with them and that the contents had been taken into account in preparing their responses. The responses from the experts are contained in their reports / addendums / answers. Their written opinions were unanimously unchanged and they made appropriate concessions to each other's expertise.
- The use of medical research literature as evidence in care proceedings has been considered very recently by the Court of Appeal in D and A (Fact-Finding : Research Literature) [2024] EWCA Civ 663. In that case, the Court of Appeal examined whether the lower court had erred in utilizing medical research literature as a pivotal element in establishing the causation of injuries sustained by the child. The parents contested the findings that suggested non-accidental injury, arguing that the court had overstepped by conducting an independent analysis of medical literature rather than solely relying on expert testimonies. The appellate court ultimately found that the lower court had indeed overemphasised its own analysis of the research literature, thereby undermining the balance of evidence presented.
- This lengthy and detailed judgment was a timely reminder to the court of the balance which must be maintained when considering medical research and of the need to step back and consider and evaluate all of the evidence including the crucial oral evidence of the experts. The court must remain impartial and refrain from independent analyses that may skew its evaluation process. The court's decision must be based on the totality of the evidence in accordance with the established law to which I have already referred and in particular Re T [2004] EWCA Civ 558. Also relevant and referred to in the D & A judgment are the cases of Collier v Simpson (1831) 5 C & P 73 which affirmed the admissibility of published scientific works through expert testimony rather than direct quoting by counsel; A County Council v K D & L [2005] EWHC 144 (Fam) which clarified the distinct roles of the court and experts in weighing evidence and Re BR (Proof of Facts) [2015] EWFC 41 which as I have already stated, provided a framework for assessing risk and protective factors in fact-finding hearings.
- I have borne this in mind in coming to my decision
VIII THE TREATING / CLINICAL HEALTH EVIDENCE
- The clinicians are witnesses of fact, they provide the primary evidence from admission to hospital and additionally in relation to A's ongoing treatment for his medical issues not related to the matters to be decided in this hearing.
- Included within the trial bundle are reports from a plethora of clinicians as well as A's full medical records. These include the initial Child Protection Medicals prepared by Dr P (and Dr J) dated 12 March 2024, Dr J dated 28 March 2024 and Dr E dated 23 April 2024. There is also evidence from Dr B Consultant, Paediatric Radiologist, dated 28 January 2025 and D, Paediatric Consultant dated 3 February 2025 as well as a full set of A's medical records. None of the treating medics were called to give evidence.
- The initial child protection medicals contain details of various events which the parents disclosed and thought may be relevant to the injuries including an incident on 7 February 2024 when A was crying and B picked him up and the events in the few days thereafter including the visit to hospital.
- Dr P is A's treating paediatrician and her overview report sets out the diagnoses and treatment for A. She confirms that A remains under treatment by various professionals for his medical issues.
She confirmed diagnoses, inter alia:
- Cerebral palsy with periventricular leukomalacia seen on MRI head.
- Severe gastro-oesophageal reflux.
- Metabolic bone disease of prematurity - Phosphate supplements stopped November 2023
- Wheezy episodes especially with viral infections.
IX THE EXPERT MEDICAL WRITTEN EVIDENCE
- The medical evidence has been extremely relevant to this case, as no accepted mechanism for the injuries has been provided and indeed the final expert medical evidence remained challenged by the parents. The court appointed experts were Dr Jeremy Allgrove, Consultant Paediatric Endocrinologist, Dr Jonathan Cardwell, Consultant Paediatrician and Dr Karl Johnson, Consultant Paediatric Radiologist.
- There have been a number of reports, addendums and responses to questions prepared throughout this case as matters developed and were investigated and clarified with regards to A's health and potential explanations but no professionals' meeting took place, with the agreement of the legal representatives despite an order for the same, as this could not be convened. This was recorded in the order from the PHR on 18 March 2025, based on costs and proportionality. There was no dispute between the Part 25 experts. They agreed that there was no organic condition that would account for A sustaining the fractures as a result of lesser force. They agreed that none of the accidental mechanisms of causation suggested by the parents would account for the fractures, nor would the explanations offered by A's sibling E.
- I will summarise their written evidence. I will address their oral evidence in the "Discussion and Analysis" section of this judgment.
Dr Allgrove - Written Evidence
- Dr Allgrove is a Consultant Paediatric Endocrinologist and part of the multidisciplinary osteogenesis imperfecta service at Great Ormond Street Hospital. He has been a Consultant Paediatrician since April 1988 and has a particular interest and expertise in bone and calcium disorders of children. He was instructed to consider issues concerning A's past and present medical history and diagnoses, and the possibility that he may have metabolic bone disease. He filed one report dated 30 July 2024 and two addendum reports dated 3 September 2024 and 14 February 2025.
- In summary, Dr Allgrove's opinion was that at the time of the fractures, A did not have metabolic bone disease (MBD). He noted that A's biochemistry was normal and there was no radiological evidence of MBD. In his opinion, there was nothing to suggest an increased propensity to fracture.
- He further confirmed that despite having noted the reference in A's medical records to A having Metabolic Bone Disease of Prematurity (MBDP), his opinion remained the same. Whilst A's medical records and testing results following his birth suggested that he may have been going to develop MBDP, he was treated appropriately to prevent this. His opinion was that A's bone density was normal.
- The diagnosis of cerebral palsy did not alter his opinion and nor did consideration of additional x-rays taken in June and October 2024.
- He did not accept that E's accounts of A falling from her arms provided an explanation for the fractures.
- He did not accept that increased risk of fractures was a known side effect the use of omeprazole, but did accept that it was a controversial area, with several research/study papers and mixed results, although not all papers included assessment of premature infants. Whilst there was some evidence to suggest that extensive use of Proton Pump Inhibitors (PPIs) in adults and older children may increase the risk of fractures, the situation with regard to younger children, particularly infants and particularly those who have been premature, was less clear.
- He discounted A having had any propensity to fracture as a result of the application of lesser force at the time the fractures occurred and discounted the accidents/handling of A as described by the parents as being likely causes of the fractures.
Dr Cardwell - Written Evidence
- Dr Cardwell is a specialist in paediatrics and child health based in Northumbia, having worked in paediatrics for 30 years and as a consultant for over 20 years.
- Dr Cardwell filed one report dated 22 August 2024 and two addendum reports dated 4 September 2024 and 18 February 2025. He set out a detailed paediatric overview regarding A's health and summarised these as follows at paragraph 6 of his 22 August 2024 report (prior to the cerebral palsy diagnosis):
- A was born at 28+2 weeks' gestation. He has problems with cow's milk protein intolerance and gastro-oesophageal reflux.
- He was fed a specialist formula, he had some thickener added to his milk, this was to reduce the risk of aspiration of milk when he drinks and is also helpful to manage symptoms of gastro-oesophageal reflux.
- He is also on various supplements including iron, folic acid and other vitamins in view of his prematurity.
- These conditions, gastro oesophageal reflux and cow's milk protein intolerance are common and self-resolving.
- There are comments around slow weight gain and failure to thrive, however his growth seems to be continuing to progress along lower Centile lines.
- He has some risk factors for developmental problems, these include his prematurity and the finding of IVH grade 2 on early cranial ultrasound scans.
- There is a comment in the letter from speech therapy, 3rd June 2024, about him having signs of developmental delay.
- However, at this point the records, I have reviewed, do not indicate that he has a specific diagnosis of conditions such as cerebral palsy.
- He has some evidence on videofluoroscopy that he is at increased risk of aspiration when feeding fluids. This is managed by thickening his milk and fluids slightly. There will need to be continued review of this. On occasions this issue resolves when children grow and develop, however sometimes it is a persistent issue.
- He will remain under follow up of health visiting services, allied health professionals including speech therapy and dietetics and paediatric consultants to monitor his development.
- He deferred to Dr Johnson regarding the aging of the fractures and the force needed to cause them. He deferred to Dr Johnson regarding the possibility of the accidental causes suggested as mechanisms for the fractures. His paediatric opinion was that B aged 2 years in January 2024 would not have been able to generate sufficient force to cause the fractures when holding A as described by the mother.
- His opinion was that A would have demonstrated distress when the fractures occurred and that a carer would have noted a cry of pain and would have an awareness of an injury having been caused. Thereafter the symptoms and the duration of these would have been variable but it is possible that A may have demonstrated pain or distress on handling.
- He discounted the pulmonary hemorrhage and subsequent treatment for this suffered by A at 36 hours of life as a cause of the fractures. He deferred to Dr Johnson on possible mechanisms of causation including the fall from the bed and deferred to Dr Allgrove on issues of bone health.
- He discounted the insertion of a nasogastric tube on 16 February 2024 as relevant to the fractures particularly given the radiological opinion that they were older in time than that date.
- He confirmed that the diagnosis of cerebral palsy did not change his opinion. He considered that the account given by E in her second police interview dated January 2025 of dropping A would not explain the fractures.
Dr Johnson - Written Evidence
- Dr Johnson is a Consultant Paediatric Radiologist based at Birmingham Children's hospital where he has worked since 1998. He is a past chair of the British Society of Paediatric Radiology.
- Dr Johnson filed one report dated 5 July 2024 and two sets of responses to questions dated 6 September 2024 and 14 February 2025.
- Dr Johnson identified the healing fracture injuries of the posterior right 5th, 6th, 7th and 8th ribs and the left 7th rib on the x ray images taken on 16 February 2024 and offered an opinion as to their age , being in the region of 2 - 6 weeks of age on 16 February 2024. He was, however, appropriately cautious and indicated that the dating of fractures from imaging is imprecise and is not an exact science.
- Having regard to the position of the fractures, Dr Johnson stated that in his opinion, all the right sided rib fractures occurred at the same time and on the balance of probabilities, given the similar location (on the opposite rib), he thought that the posterior left 7th rib fracture occurred at the same time as the right sided rib fractures. Therefore in his opinion, and on the balance of probabilities, all the rib fractures occurred at the same time from a single episode of chest trauma. His opinion was that the fractures occurred as the result of significant force being applied to the bones. The mechanism was likely to be chest compression given the fractures, on balance, having been caused at the same time.
- Dr Johnson discounted general "rough and tumble" as having caused the fractures. He stated that the fractures would not have occurred from normal domestic handling, over-exuberant play, or rough inexperienced parenting. He discounted the insertion of a nasogastric tube, B having gripped A roughly round the chest while carrying him, and a fall or drop from the bunk bed or from E's arms as having caused the fractures, since in his clinical experience, multiple bilateral rib fractures do not typically occur from falls although he could not completely exclude a fall from 1.4m as a possible mechanism. He was, however, clear that E's descriptions of A throwing himself back and being dropped was unlikely to have caused the fractures.
- He clearly and appropriately set out the limits of his opinion in his first addendum report and declined to be drawn into stating an opinion as to issues around A's clinical presentation.
- His opinion was that A's bones appeared to be normal radiologically. In his report of the 5th July 2024 he noted that it was possible, although relatively rare, for a child to have an underlying abnormality of their bones which may predispose them to fracturing but for the bones to appear radiologically normal, later adding in his responses of the 12th February 2025 that the most common (of the rare causes) would be some form of metabolic bone disease and that there is an inherited condition called osteogenesis imperfecta (OI), a rare genetic disorder in which the bones are more fragile than normal. He added that the majority of children with OI have radiological signs but that there was, however, a subclass of OI in which the bones appear normal. He confirmed in his most recent addendum that having seen the recent x rays, his opinion was unchanged and remained that there was, from a radiological perspective, no evidence of metabolic bone disease.
X THE PARENT'S WRITTEN EVIDENCE
- The mother filed six statements in total throughout this case, with her final statement dated 18 March 2025 specifically dealing with the schedule of findings. There have also been position statements filed on her behalf.
- In her response to the findings, she made it clear that she had never harmed any of her children and she specifically denied harming A. Similarly, she had never seen or suspected the father of harming A. She accepted that there were rib fractures, occurring at the same time, but not that they were definitively caused during the period stated by the experts. She could not recall any event or behaviour which would have put her on notice of an injury to A during that period. She did not accept that the injuries were necessarily caused by an adult. She had not heard A cry abnormally due to any injury save in hospital when he had a nasogastric tube fitted and a cry when he fell with E. Otherwise, his cries were normal for him. She pointed out that A did not cry in pain when examined at two hospitals when the fractures were already present. She had not failed to seek medical attention as she was not aware of any injuries.
- She raised issues of causation and mechanism including organic, medical, and accidental causes, including any cause emanating from or contributed to by the fact of A's prematurity or feeding difficulties impacting on bone development, including the possibility of them being birth related. She still believed that A may have a condition that could impact fragility of bones due to use of omeprazole/prematurity/a genetic condition (such as OI) and/or other as yet unidentified/undiagnosed medical causes. A is a child with a complex medical history, who had been seen by professionals on numerous occasions, whose fractures were overlooked by professionals handling him and who has had lengthy periods of hospitalization, has had feeding issues and undergone numerous medical procedures. The relevance of these in isolation and in combination needed to be fully considered and explored with the experts in oral evidence.
- In her other written evidence, she set out the details surrounding the events of A's birth and immediate aftermath including his complex medical needs and treatment, with him remaining in hospital for six weeks. In the few months following his birth, he underwent multiple treatments and investigations for issues including feeding, breathing, haemorrhage, bleeds on the brain, heart, bone issues, a hernia, and an eye disease. He was taken to his GP on several occasions as she was concerned about his sickness, wheezing and coughing; he had bronchiolitis twice. She set out that both she and father have osteoporosis in the family and she has hypermobility. She was concerned about cerebral palsy from an early stage.
- The only possible explanations for the injuries which she could think of, save for organic causes, included E's handling and dropping A, B's handling of A when she was in the bathroom and the difficulties inserting a nasogastric tube.
- The father filed four statements in total throughout this case, with his final statement dated 17 March 2025 specifically dealing with the schedule of findings. There have also been position statements filed on his behalf and a response to the local authority written opening dated 4 April 2025.
- In his response to the findings, he denied responsibility for causing any injuries to A and had seen nothing to suggest it was the mother. They were over-protective of the children, particularly A with his medical needs, taking him for treatment regularly. He considered that the timeline for the injuries could be much longer than the expert opinion, as far back as October 2023 when A had his hernia operation. He was guided by the experts as to it being a single episode of compression albeit he sought clarification as to matters of force and possible metabolic bone issues. He accepted that the injuries were not birth related.
- Like mother he raised issues of metabolic bone disease. He accepted that A would cry and be in pain at the time of the injury and be distressed and upset and that anyone with him would have been aware. However, since A had always been unsettled due to his complex medical history and from all the medical procedures he has endured from birth, it was more difficult in distinguishing when he had been overly unsettled which could have indicated such injuries having occurred. He had not failed to seek medical attention as he was not aware of any injuries and indeed he and the mother had been proactive in seeking treatment for A whenever he was unwell.
- In the other written evidence, he set out in considerable detail how traumatic the events surrounding the birth were for the mother, himself and A. He confirmed that he found out from the child protection medical that A's treatment for his metabolic bone disease had ended in November 2023
XI OTHER EVIDENCE
Daughter E
- E, the mother's daughter, was aged almost 13 in the period suggested by the experts for A's injuries. She has given ABE interviews on two occasions about firstly A falling off the bed and secondly her dropping him on to the floor. The experts agreed that these descriptions were unlikely to cause the injuries to A, with Dr Johnson stating "In my clinical experience, multiple bilateral rib fractures do not typically occur from falls. In my opinion, multiple rib fractures occurring from a fall of 1.372m would still be unusual. In my clinical experience, the height of any fall which could result in rib fractures would need to be considerable (e.g. from a first-floor window). I do not think a fall from 1.4m would cause multiple rib fracture but I could not totally exclude it as a possible cause."
POLICE EVIDENCE
- I have also read the police interviews with the parents. There is nothing in the contents which particularly assisted with this fact finding process.
XII THE ORAL EVIDENCE OF THE EXPERTS
- The oral evidence of the experts was crucial to the resolution of this matter. The written reports were all prepared on the basis that A had no relevant underlying condition which affected his bones. Dr Allgrove's initial report dated 5 August 2024, which was clear as to this opinion, was provided to Dr Cardwell and Dr Johnson and they deferred to his expertise in preparing their own later reports. This opinion was not shared by the parents who have always maintained that A must have bone health issues. Consequently, the experts were cross examined at length, particularly on behalf of the mother, in relation to A's medical history and bone health, and associated matters.
- During Dr Allgrove's evidence, considerable attention was paid to A's biochemistry and historical blood test and bone profile results by Miss Meyer KC in cross examination, with particular attention to the results concerning alkaline phosphatase (ALP). This cross examination proved to be pivotal. In Dr Allgrove's initial report, he noted the test results taken at A's admission to hospital on 7 March 2024 where the AKP level was normal at 253 IU/L and he stated "There are several references to A having had metabolic bone disease of prematurity (MBDP). However, I can find no evidence to suggest that he did have MBDP. MBDP occurs in premature infants, usually born before 28 weeks' gestation, because the physiological rate of mineral accumulation in utero is very difficult to replicate post natally, since most of the mineral is acquired during the last trimester (i.e. after 28 weeks). MBDP is principally a condition caused by mineral deficiency, both calcium and, particularly, phosphate. It can usually be detected by a combination of biochemical abnormalities including low plasma phosphate, raised parathyroid hormone and raised alkaline phosphatase. In addition, radiological changes of rickets may be seen on X-ray and fractures may occur.
In A's case, I can find no evidence of any of these. He was treated appropriately with phosphate supplements, notably Joulie's solution
in anticipation of possibly developing MBDP and this appears to have been avoided.
- In his addendum report dated 3 September 2024 responding to questions he confirmed that his opinion that A was not suffering from MBD was based on the blood test results and x-rays and he addressed the blood test results from 17 July 2023 "He had a number of risk factors for Metabolic Bone Disease of Prematurity (MBDP) including his prematurity and relatively low birth weight. His biochemistry was rightly monitored carefully to ascertain whether or not he might be developing MBDP. These showed that he did have a somewhat elevated alkaline phosphatase (ALP) which peaked at 965 IU/L on 17th July 2023 when he was one month old. This rapidly corrected and three weeks later was within the quoted normal range
These results suggest that he may have been going to develop MBDP but appropriate treatment was institute to prevent this.." His final report confirmed that he had received and considered the blood test results undertaken between July and October 2023.
- Dr Allgrove was then taken to the individual intervening blood test results contained in the medical bundle between 13 July 2023 and 9 November 2023 in detailed cross examination which also addressed issues of the research papers, bone development in utero and post premature birth, and the use of PPIs. I do not intend to address all these issues in this judgment but will address only the more pertinent matters which ultimately led to the change of direction of this case.
- Dr Allgrove accepted that he had not addressed the intervening blood test results specifically in his report but they had been alluded to. The relevant reports were those when he was admitted to hospital in March 2024 and the ALP had been satisfactory and in November 2023 when the Joulies Phosphate (JP) was discontinued, so there was no reason to think that as they were satisfactory in November 2023, they were not in January/February at the time of the injury. As they were examined in closer detail, it became clear that A's levels of ALP were, however, neither satisfactory nor improving and were abnormal. Indeed, at the time that A's treatment with JP was discontinued in November 2023, they remained above the appropriate range. When presented with this detailed information, Dr Allgrove accepted that the levels of ALP appeared to be rising and there was no other reason for an increase in A's ALP other than that the JP was not working or A was not receiving sufficient dose. He further stated that he now disagreed with the decision of the treating medics to discontinue the administration of JP for A in November 2023.
- Dr Allgrove also accepted that he had approached his task without all relevant information and that a far more accurate test for bone health was parathyroid testing. This had not been undertaken and no results were available for consideration. He was keen not to speculate. He ultimately agreed that during the relevant time in December 2023 through to early February 2024 (the period when the fractures are likely to have occurred) there was no accurate measure of A's bone health. In short, we could not rule out that he had or was developing MBD at the relevant time for the fractures.
- Under challenge he also conceded that the relevance of Omeprazole as a PPI could not be dismissed in respect of A's bone health and was clearly and firmly of the opinion that as this was a controversial area, further research would be of benefit medically. Finally, he accepted that if A did indeed have some form of bone density issues that the force required to fracture his bones would have been less than if he had normal bone development.
- The oral evidence of Dr Cardwell and Dr Johnson followed. Their written reports had all been based upon A having normal bone health and development as that was what had been opined by the treating experts and confirmed by Dr Allgrove, and to whom they had deferred. Having been updated as to the concessions made by Dr Allgrove, they again appropriately deferred to his expertise.
- Dr Cardwell accepted that if a child did indeed have bone health issues, then less force would be required to cause a fracture and the child would show less symptoms of the same. Further, as A had been an unsettled child, with previous pain issues on feeding and with the plethora of his health issues, a parent or carer may have noticed nothing different in his presentation, and been unaware, based on all of the medical advice they had received about his conditions; in short for A it was part of his normal presentation. He was aware that whilst in hospital and prior to the evaluation of the x-rays, no treating professional had noticed any pain from fractures. There was considerable further cross examination and expansion of medical matters which was also pertinent but does not need to be addressed here.
- Dr Johnson was clear, again deferring to Dr Allgrove, that the issue of A's potential MBD directly and further affected the accuracy of dating the fractures, which was in any event difficult, imprecise and subjective. The radiological dating of fractures was based upon the healing response to fractures and the rate at which healing took place would be slower in a child with a bone disorder. His previous opinion of two to six weeks for the fracture time-frame had been based upon A having normal bone health and that period could now be extended to up to 8 weeks, so from late December 2023. He agreed that the force required to cause the fracture may be reduced but the mechanism would be the same, a single episode of chest compression, which could be instantaneous. He remained of the opinion that a fall described by E was an unlikely mechanism but could not rule it out as possible and conceded in cross examination that this was particularly the case if A was suffering from a bone disorder at the time. He himself had never experienced rib breaks such as A's from such a fall in his own clinical practice.
- I was impressed by the fair and open manner in which the doctors considered the questions put to them, in particular Drs Cardwell and Johnson who despite having had no warning of the concessions made by Dr Allgrove before commencing their oral evidence, were thoughtful, fair and very impressive. I am satisfied that they were all balanced and fully complied with their duties to the court. I am grateful to them for their assistance.
XIII WITHDRAWAL
- At the end of the second day, at the conclusion of the evidence of the three court appointed experts, the case took a quite different path than was originally planned. The parents were due to give evidence the following day, potentially also the social worker. However, the court, together with the other parties, was notified in the evening via email that the local authority would be seeking permission to withdraw the application the following morning.
- The local authority, in submissions the following morning explained that having heard the evidence of the experts, particularly Dr Allgrove, they had become concerned about the likelihood of establishing their case in line with the threshold. The threshold had always been pleaded on the basis that A's bone health was normal in accordance with the evidence which they had received from the various experts and professionals and this underpinned their whole case. The findings sought as to trauma, force and distress were all predicated upon the same fact. It transpired that a meeting with the Head of Service, management, the Independent Reporting Officer and other relevant professionals had taken place the previous evening and there was unanimous agreement that an application to withdraw would be made.
- The matter was accordingly concluded with short submissions by all parties on day three and the court indicated agreement with the application to withdraw the applications and made some brief concluding comments, but confirmed that a detailed written judgment would follow.
XIV DISCUSSION
- This has been a far from straightforward case. There was a complex medical situation and there remains no explanation for the injuries. The parents have put forward various potential scenarios which are no longer ruled out as possibilities in view of the medical concessions. I do not need to decide how the injuries occurred, nor who was responsible.
- There are a number of possible findings that can be made at a finding of fact hearing. The court could find that the injuries were inflicted and that one or both of the parents was responsible for causing them or the court could be unable to decide which parent was responsible and that both should remain in the pool of perpetrators. On that basis, the s31 Children Act 1989 threshold for making a care order would be established. Alternatively, the court could consider that the injuries were caused or contributed to by an organic cause, that they were caused accidentally, or that they are simply unexplained. In all of these such circumstances, the threshold for the making of a public law order would not be established, and the proceedings would fall away. In such circumstances the parents would each be exonerated from having caused the injuries and from failing to seek timely medical attention for A. It would not be possible to contend that there was a risk to any of the children from the parents.
- The burden has always fallen upon the local authority, as applicant, to satisfy the court that it is more likely than not that the injuries were inflicted as pleaded in its schedule. The fact of the fractures having occurred did not place any legal responsibility upon the parents to account for the injuries. Indeed it was this issue, and the fact that the parents were scheduled to give evidence the following day which caused the urgency for the local authority at the conclusion of the medical evidence. In simple terms, if the local authority were unable to satisfy the burden of proof in respect of the threshold it would not be appropriate for the parents to have to give oral evidence to explain how the fractures may have occurred. To do so would be to reverse the burden of proof.
- It is important that I record that I consider that the actions of the local authority in this matter cannot be criticised, neither in bringing the application in the first place nor in proceeding to final hearing. It was the very testing of the evidence which has led to the conclusion of this matter. I also consider that the local authority have acted in an extremely positive and pro-active manner in seeking to conclude the matter quickly at this stage of the proceedings and with absolute good faith.
- Unexplained fractures in non-mobile children are strongly associated with abuse, often leading to a conclusion that the injuries are non-accidental. In many of these cases, parents who are faced with multi-expert opinions concerning the injuries do not actively challenge the expert evidence for assorted reasons despite disagreeing with the same. Their reasons are undoubtedly varied and could include fear of the whole court process or experts themselves, believing the other party was a perpetrator or even lack of competent legal representation; there are no doubt other reasons. Many parents could have backed down when faced with nine reports from three eminent experts, all in agreement to such a level that no professionals' meeting was even necessary. They could have opted not to challenge the evidence and to either accept the potential of a pool finding or hope for a decision that they were not held responsible for another reason, with the medical evidence standing as untested.
- That was not the case in these proceedings though. These parents from the very first hearing have effectively sought to prove their innocence and vindicate their belief that A has issues with his bone health due to his prematurity, feeding and other related issues. Their positions have been aligned throughout with neither doubting the other's innocence. It was consistently suggested on their behalf that a number of features present in this case could be indicative of bone fragility including prescription of Gaviscon and Omeprazole, nasogastric feeding, and prematurity. However, until this hearing, the unanimous evidence of the experts was that despite A having an early diagnosis of Metabolic Bone Disease of Prematurity, the treatment he received was successful and none of these, singly or jointly, amounted to a recognised condition or diagnosis indicating underlying fragility. Nor did they present as features which, albeit falling short of a formal diagnosis, were suggestive of bone fragility.
- This case demonstrates the importance of a full and thorough forensic examination of evidence in cases of suspected child abuse.
- I remind myself of the need to consider each piece of evidence (including that of an expert medical nature) in the context of all the evidence and that medical/scientific knowledge is of an ever-evolving nature. The words of Butler-Sloss LJ from twenty years ago are even more relevant today with the pace of change in today's medical science.
- The parents have received first class representation throughout this matter and at final hearing by King's Counsel. The roles played by the mother's legal team at this hearing, in particular Miss Meyer KC and Mr Carey, as well as being supported by Ms Marshall KC and Ms Holt for the father, have been pivotal. They have continually sought to challenge and clarify the medical aspects of the case, including preparing a full detailed medical chronology and it was directly as a result of Miss Meyer KC undertaking an extremely detailed and skilful forensic analysis of A's medical records and blood test results with Dr Allgrove in cross examination, followed by further questions to Drs Cardwell and Johnson that the application has ultimately been withdrawn.
- This case has highlighted the need for detailed consideration, challenge, and cross examination of expert (and all) evidence by experienced counsel where is it not accepted and the crucial role played by the specialist family bar and child panel solicitors in these proceedings. That includes the local authority's counsel Ms Birtles with her support, guidance and realistic advice to the local authority during the development of the trial and the children's solicitor Ms Scarisbrick for the instruction of the experts in the first place.
- Although the parents did not give evidence and the application has been withdrawn, I consider that it is important that I recognise the role played by these parents. From the very first hearing they have behaved with dignity and integrity, even in the face of the accusations and with their own health issues. They have appeared to be truthful and honest throughout. Save for the injuries to A, there is no criticism of the way in which the mother and father have cared for all these nine children and indeed the parenting assessment was very positive save for the unexplained injuries. Since A's birth they have advocated for him and sought to get him the best possible and timely treatment and since these proceedings commenced over a year ago, their care has been observed and scrutinised by various professionals. The picture which has emerged, not least from the highly positive parenting assessment undertaken of the Local Authority, is that these are loving and caring parents who are absolutely devoted to all their children and provide them with positive, nurturing and supportive care. From everything which I have read, I can find no evidence or suggestion that they have behaved in any way which could have led to A being injured deliberately, recklessly or negligently by them. On the contrary, they have consistently sought to protect him. The medical records show that they were caring parents, with frequent visits to the doctor when A was unwell, they have sought and accepted advice and even brought forward a medical appointment to 16 February as they were worried about him, then pushed for him to stay in hospital for treatment as they were not happy that he should go home. This, of course, was the trigger visit for the x-rays which led to where we are today.
- I would also wish to comment upon the commitment and effort of the social workers. Despite a somewhat rocky start with some disagreements and misunderstandings, the social workers have worked extremely hard to build a positive relationship with the parents and to support the whole family during this very difficult and complex process. This has ultimately led to such a positive relationship that it is likely to continue even after the conclusion of these proceedings, the mother having described the allocated social worker as "amazing".
XV CONCLUSION (and law relevant to withdrawal)
- Where a local authority determines that the medical evidence falls short of proving that an injury to a child was inflicted and/or attributable to a lack of reasonable parental care, in what circumstances should it be allowed to withdraw its application?
Rule 29.4(2) of the Family Procedure Rules provides that a local authority may only withdraw an application for a care order with the permission of the court. The circumstances in which such permission will be granted has been considered in a number of cases, which were helpfully distilled by Baker LJ when delivering the lead judgment in Redbridge London Borough Council v B and C and A [2011] EWHC 517 (Fam). Applications to withdraw can be divided into two categories:
Firstly: Where the local authority will be unable to satisfy the s.31(2) CA 1989 "threshold criteria" for making a care or supervision order; and
Secondly: Where, on the evidence, it is possible for the local authority to satisfy the threshold criteria.
- To fall within the first category, the inability to satisfy the criteria must be obvious (Re J, A, M and X (Children) [2014] EWHC 3741 (Fam)). If so, the application must succeed; there can be no successful objection to an application to withdraw care proceedings where the threshold for the making of an order will not be crossed. See also the more recent application of this test by the Court of Appeal in Re CG (A Child) [2020] EWCA Civ 848 [2020] 4 WLR 92 judgment of Baker LJ paras-[16]-[20]
- It was submitted by all advocates that this case falls into the first category and I concur.
- I grant permission to the local authority to withdraw their applications. I make no findings. There being no threshold, there is no welfare decision to consider.
- I hope it is apparent from the totality of this judgment that there can be no doubt that the local authority were right to bring this unusual and extremely difficult case. This is not a case which could have been determined in any way other than testing and evaluating the evidence. However distressing for the parents as to what has happened, and their separation from their child, this is not a case that could in my view have been dealt with any differently other than these court proceedings and final hearing.
- This case has concluded in relatively unusual circumstances. I considered that it was important for the parents and experts to have a full explanation of how matters evolved and also so that the parents had a record of the decision other than a short brief oral judgment if they ever need to explain events. I hope this judgment goes some way to assist with that.
HHJ Shelley Hesford
Date 16 April 2025
