- Warwickshire County Council applies to the court for care orders in respect of two children, C and D, twins born in 2009. The case comes before me as a fact-finding hearing.
Background history – an overview
- The mother is 21 years old. The father is 24 years old. Their relationship began in December 2007. They began living together sometime in mid-2008. They lived in a flat above the plumbers' shop where the father worked.
- In September 2008 the mother became pregnant. Following their birth the twins were seen by health professionals on a regular basis. On 17th July they were seen by their GP, Dr W, for their six-week check. Dr W carried out routine tests (the Barlow test and the Ortolani test) to check for developmental dysplasia of the hips (often referred to as 'clicky hips'). Although the outcome of these tests was normal, it is clear that both before and after the six week check the parents were concerned that C had clicky hips. Either at or prior to that appointment (it is not clear which) C was referred for a scan of her hips.
- The day before the appointment with Dr W the mother found what she initially thought to be a rash on both children. She pointed this out to Dr W. Dr W thought the children may have a blood clotting disorder. She arranged for them to go to the local hospital for blood tests. The mother took the children to the hospital. She was accompanied by her father (GF) and paternal grandmother (PG).
- At hospital, the children were seen by Dr R, a paediatric registrar. Dr R was of the opinion that the marks were not a rash but bruising. The bruising was to the children's chests and arms. C also had bruising to her left hand and abdomen. Dr R was suspicious that the bruise on C's abdomen may be a bite mark. The children were admitted to hospital. They remained in hospital from 17th to 20th July. The local authority's Children's Services department was contacted. The police were informed.
- A full skeletal survey of both children was undertaken on 20th July. That same day a strategy meeting was held. It was decided that the parents should be allowed to take the children home but on condition that there was round the clock supervision from a number of named members of their respective families supported by a Working Agreement. The Working Agreement was signed. The children were discharged.
- On 22nd July C was unsettled. The mother was concerned about her. She arranged an appointment with Dr W. Dr W diagnosed oral thrush. There were no further concerns until the following weekend.
- On 26th July the mother was concerned about C's hips. She telephoned NHS Direct. Eventually she spoke to Dr Y. Dr Y invited her to take C to see him at the local hospital where he was providing an out of hours GP service. The father and his aunt, PA, went with them. During his examination Dr Y carried out the Barlow and Ortolani tests. The family say that he handled C roughly. Dr Y does not accept that.
- On Sunday evening 9th August the parents and PG noticed swelling to C's right thigh. It was decided that the mother should ring the Health Visitor, Ms K, the next morning.
- Ms K made a home visit at around 6.00pm on 10th August. After examining C she arranged for her to be seen by Dr W. Dr W advised that C needed a hip scan and an X-ray. The father took C to the hospital. GF and PG went with him. An X-ray revealed that C had a healing, angulated and malaligned fracture of the mid shaft of her right femur. She was admitted to hospital. D was also admitted as a precaution.
- The X-rays were reviewed by Dr Stephen Chapman, Consultant Paediatric Radiologist at Birmingham Children's Hospital. Dr Chapman advised that given the extent of the callus formation the fracture must have occurred between 13th and 27th July. As the skeletal survey undertaken on 20th July had not disclosed any evidence of a fracture he advised that the time frame for the fracture be shortened to the period 20th to 27th July.
- The parties were given leave to obtain a second opinion from Dr Alan Sprigg, Consultant Paediatric Radiologist at Sheffield Children's Hospital. Dr Sprigg agreed with Dr Chapman as to the timing of the femoral fracture. Upon reviewing the X-rays Dr Sprigg was of the opinion that C had also sustained a fracture to her right 9th rib. He advised that the rib fracture must have been sustained sometime during the period 14th to 28th July. Dr Chapman does not agree with Dr Sprigg's interpretation of the X-rays.
- On 28th August 2009 the local authority issued care proceedings. Upon their discharge from hospital the local authority initially agreed to the children being cared for by their maternal great-grandparents. In October the local authority became aware that the maternal great-grandmother ('GG') had acted as supervisor for the parents on the night of 21st July. Given that GG may, therefore, be included in any pool of possible perpetrators, it was decided that the children should be placed in foster care. The children have been in foster care since 15th October 2009.
- The parents separated on or around 6th September 2009. They have remained separated.
- On 26th January 2010 I ordered that there should be a fact-finding hearing. The local authority seeks findings that the children have suffered bruising; that C also sustained a bite mark, a femoral fracture and a rib fracture; that all of these injuries were non-accidental injuries; that the parents and/or other family members were responsible for causing those injuries; and, with respect to some of those adults, that they had failed to protect the children.
- The local authority's schedule of findings led to GF, the maternal grandmother ('GM'), GG, PA and PG, being granted intervener status. Apart from PA, each of them has appeared as a litigant in person at this hearing. The parents believe the fracture to C's femur was caused by Dr Y as a result of his rough handling of her on 26th July. Dr Y was also granted intervener status
- During the course of her closing submissions on behalf of the local authority, Miss Isaacs indicated that the local authority no longer sought a finding that C had sustained a fracture to her 9th right rib.
The general bruising and alleged bite mark
- The marks said to be bruising were pointed out to Dr W on 17th July. The starting point for exploring when and how the bruising was caused is 14th July. That was when C was last seen by a Health Visitor; her records state 'No concerns documented'.
- The mother has produced her diary. She says that it was normally made up either in the evening or the next day. Perhaps the most striking feature of her diary is that although some days she makes no record about where she has been or what she has done she nonetheless makes a note of GF's shift. When asked why, she said she did it so that she remembered when he was at work so that she knew where and how to contact him. There is a very close relationship between the mother and GF.
- The mother has prepared two written statements. I have a transcript of her police interview on 20th August 2009. I have her diary. She has given oral evidence. Throughout all of this there is a reasonable degree of consistency in the account she gives about the events of 14th to 17th July. The following narrative emerges.
- On the evening of Tuesday 14th July the parents had gone to the maternal grandparents' home. When they were about to go home GM put the girls in their car seats. She mentioned that the car seat belts needed to be loosened as they were getting tight. The mother told the police 'we loosened the straps on the Wednesday afternoon-ish'. That would have been on 15th July.
- On 15th July GM visited. She stayed until tea-time. Two of GM's friends also visited. The mother left the three of them looking after the children whilst she went to the bank. After tea she and the father took the children to PG's house. They left them there whilst they went to Tesco. Whilst they were in Tesco PG telephoned to say that the children needed feeding. They returned immediately. They fed the girls. They went home sometime between 9.00pm and 10.00pm.
- The girls woke for a feed at around 00.45am. Both she and the father fed them. The girls wouldn't settle. The father said he would take them out. She assumed he had taken them for a ride in the car. She went to bed. She woke at 5.00am. The girls were ready for their next feed. They were still strapped in their car seats on the floor next to the bed. The father was in bed asleep. She had not heard them come back. At no point did she hear the twins screaming.
- The father overslept. He should have gone down to open up the shop at 8.00am. He didn't. There is some disagreement between the parents as to whether the father had stayed at home all day (the mother's evidence) or had gone into work and then later been sent home because he was tired (the father's evidence). This is not a significant area of disagreement. On this issue I accept the father's evidence.
- That morning GF came round to the flat. He helped the mother to wash and change the twins. This was around 10.00am. It was then that they noticed 'red blotches like a rash' on the girls. In her written evidence she describes the mark on C's abdomen as 'a bruise on her stomach'. In her oral evidence she said she had noticed the red mark on the abdomen. She had thought was a rash. She didn't then notice the bruising around the red mark. She hadn't seen that bruising until she was with Dr W the next day.
- In her written evidence the mother says it is 'clear to me now that the rash was actually caused by the straps on the car seats'. She accounted for the bruise on C's stomach in the same way saying that it 'is in the position of the car seat buckle and the same shape as the buckle.' It is clear from the photographs that the bruise to the abdomen is not in a central position, where the buckle would normally be, but some distance to the right of centre. The mother has subsequently explained this by saying that C wriggled in her car seat and frequently lay on her left side with her right side projecting forward. She has produced a photograph showing C in that position.
- The mother tried to make an appointment with her GP. She couldn't get one. The twins were due to have their six week check the next day so she decided just to keep an eye on them and point the marks out to the doctor the next day.
- Her mother and her aunt came round later in the morning. In the afternoon she and GM went shopping leaving the children with the father. PG came round that evening. The mother had shown her the marks. They carried out a 'Tumbler Test' to check whether the 'rash' might be meningitis.
- In addition to her diary, the mother also kept a daily record of the time each baby had had a feed and of the quantity of the feed. This is a very imprecise document. Sometimes it was made up at the time of the feed. Sometimes the information was written on a scrap of paper and then transferred to the record book some time later. There is no real consistency about whether the time recorded is the time when a feed began or when it ended. Its value for forensic purposes is fairly limited. However, it does highlight some inconsistencies in the evidence of some of the adults.
- I noted earlier that the mother said that after the 00.45am feed the children had next woken for a feed at 05.00am. In his final witness statement the father says that the girls woke up at 3.00am; he fed them whilst the mother remained in bed; he could not get them off to sleep so he put them in their pushchair and went for a walk; they were fast asleep by the time he returned home; he put them back into their Moses basket; he believes he eventually got back to bed at between 4.00am and 5.00am. In his oral evidence the father confirmed the mother's account of the timing of the feeds. He said he had taken them out in their double buggy at around 1.45am. The mother was still awake when he left. When he got back he left the twins strapped in their car seats. He did a bit of housework before going to sleep. He could not remember what time he had gone to sleep. The next feed had been at 5.00am. Both he and the mother had been involved in that feed. After their feed the girls had been put down in their travel cots or Moses baskets. Later in the day the mother and GF told him about the marks. He had not seen the marks himself until he changed C at 2.00pm that afternoon. He was confident the marks had not been there when the twins were changed at 5.00am though he accepted they had been changed by lamp light so the marks could have been missed.
- The father confirmed that prior to the marks appearing he had loosened the children's car seat belts because GM had said they were too tight.
- In hospital the parents consistently explained the marks as having been caused by the children's car seat belts. That is the account they gave when first interviewed by the police on 27th July.
- The parents' evidence about the events of 14th to 17th July is largely corroborated by maternal grandparents and PG. GF had first seen the marks on 16th July when he bathed the children. The mark on the abdomen was the most noticeable. He had not entertained the possibility that the marks could have been the result of non-accidental injury. If any of the marks were non-accidental injuries he did not know who had caused them. He said it was a mystery to him.
- Although GF insists that he was not the first person to suggest that these marks had been caused by the seat belts it is clear that he did believe that to be the cause. During his police interview he said that when Dr R was noting the marks on body charts
'I thought…that they look like the straps on the seat belts. So I actually asked her to measure the marks properly on the children and put it on the forms and because we had to bring the kids in the carry seats I asked her if she wouldn't mind measuring the straps as well, and they were the same. I think it was about 2.5, 3 cm. in width and they just looked to be the same sort of thing. So I was quite happy that it was the seat belts.'
- PG had not seen any marks on the children on the evening of 15th July. She had changed both children into their night clothes shortly before they left her house at around 10.00pm. There were no marks on them then. When she visited the parents' flat on the evening of 16th July the mother had shown her the marks. They had mentioned that the marks to the twins' chests may have been caused by the seat belts but had not suggested the seat belts as a possible cause of the marks on C's abdomen. She carried out a 'Tumbler Test' to check for meningitis. She advised the parents to seek medical advice. The mother told her that the twins were due to have their six week check with the GP the next day.
- The children had been using these car seats since birth. There is no suggestion that they had previously caused any marks on either child. The parents continued to use the same car seats after the children were discharged from hospital on 20th July. The children have not suffered any further similar marks since 20th July.
The general bruising – the medical evidence
- Dr W saw both children for their six week check on 17th July. They had been taken to the surgery by their mother. GM was also present. The mother had pointed out the marks on both children. Either the mother or GM had suggested that the marks may have been caused by the children being fastened too tightly into their car seats. In addition to that possibility Dr W said she had also considered whether the children may be suffering from a blood clotting disorder. The note she put in C's record reads 'skin Bruising to right abdo flank and red marks to limbs - ?cause for easy bruising'. Dr W arranged for the children to be seen at the hospital later that same day. Her note reads 'Easily bruising d/w paeds SHO UHCW will kindly see in CED'.
- The first entry in the hospital records notes:
'bruising to the arm. Since yesterday…another bruise on the abdomen which mum claims due to wriggling in the car seat…both upper arms small bruising mark size of 2cm x 1 cm, Abdomen: - old bruising mark over the abdominal wall. Plan – to discuss with reg on call'
It is unclear who made this note though it seems likely that it was the triage nurse.
- The paediatric specialist registrar on call was Dr R. She examined the twins. The mother told her she had noticed bruising to the children's arms the day before. After listing the marks Dr R notes 'Imp [impression] NAI – bruises no explanation'.
- Dr R described the marks in letters written to Children's Services on 23rd July. With respect to C she identified the following:
1. On the right side of her upper chest she had two 5 mm red/purple bruises.
2. On her right arm she had two 5 mm red/purple bruises on her upper arm and an 8 mm red purple bruise on her lower arm just below her elbow.
3. On the back of her right arm she had a long linear red/purple bruise which was 2.5 cm long with an irregular edge.
4. On her left arm she had two red/purple bruises 8 mm each.
5. On her lower abdomen (tummy) she had a series of bruises which were two grey semicircular bruises with central red petechial marks. This bruise was 4 cm x 3 cm across.
6. She had a small scratch on the right hand side of her nose which parents says she had done since being in CED with her nails.
7. She had bruising on her left hand, a small less than 5 mm bruise on her left ring finger by the knuckle and a 1 cm bruise on the ulna surface of her hand (the surface near her little ring finger).
With respect to D, Dr R identified the following:
1. A collection of bruises on the left hand side of her chest including a 2 cm linear bruise above her left nipple, two 5 cm bruises around her left nipple and a 1 cm bruise on her left nipple. These were all red/purple in colour.
2. She had the following bruises on the right side of her chest: a 1 cm linear horizontal bruise over her right nipple and a 5 mm bruise medially to her right nipple. These were red/purple in colour.
3. She also had a 2 mm scratch under her left eye which parents said she had done the previous day with her nails.
4. She had a semicircular grey/blue bruise on the back of her left forearm which was 2.5 cm in length.
The local authority accepts that the scratches to both children may have been caused accidentally.
- Although not referred to in her notes, Dr R accepted that the family had mentioned that the marks could have been caused by the belts on the children's car seats.
- Dr R had appreciated the need for the marks to be photographed. Unfortunately, at that time on a Friday afternoon there were no facilities for medical photographs to be taken at the hospital. She was concerned about leaving it until Monday and so arrangements were made for the marks to be photographed by the police. The photographs were not taken until the next day, 18th July. They were taken at some time between 10.00am and 14.15pm, though it is not clear precisely when. The photographs are not of particularly good quality. They do not show all of the bruises noted by Dr R.
- Dr R conferred with two Consultant Paediatricians, Dr S and Dr T. Dr S's note reads:
'I have seen and examined C and talked to her parents and grandparents. They found the marks yesterday AM. [They took her to the] Health Visitor for check today and mentioned them. Thought due to car seat belt as she wriggles a lot and puts arms inside loops. Examination shows bruises as per body chart R + L forearm'
- De S thought the bruises to the arm could be caused by the seat belts. Dr T agreed. Her note reads
'Advised I could see how possibly tight belts could cause bruises but that I have never seen this before.'
- I turn finally to the expert evidence. Dr Peter Sidebotham is a Consultant Paediatrician. He has considered all of the statements, reports and medical records. He has also examined the car seats. In his report he considers, first, the evidence in respect of the bruising to D. He says:
'14.6 …the marks observed on examination consisted of two clusters of bruises over the upper chest, a bruise on the left forearm, and a small scratch beneath the left eye.'
'14.7 The bruises over the chest fall into two distinct groups, each of which is aligned in a roughly curvi-linear arrangement; that over the right side running across the chest from the right nipple, whilst that over the left side runs down the length of the chest from the armpit and over the nipple. The marks have been described as bruises by the examining doctors and appear as bruises on the photographs. They do not have the appearance of eczema or any other rash, and in my opinion these are bruises. Bruises to the chest are extremely unusual, particularly in non-mobile infants and should always raise the possibility of non-accidental injury. These bruises could be caused by either direct blows to either side of the chest with an object corresponding to the overall curvi-linear shape, although the appearance is not distinct enough to match any specific objects; by compression of the skin against the underlying rib cage; or by friction along the line of the marks. The general distribution would correspond to the alignment of the shoulder straps from the car seat and would fit within the overall diameter of those straps. I would not expect such bruising from normal handling, although if the shoulder straps were adjusted too tightly and were compressing the chest, through clothes over a long period, they could cause such bruising. Although I have not previously seen, or heard, of bruising such as this caused by shoulder straps, it is my opinion that this could provide a reasonable and sufficient explanation for the bruising to her chest. [emphasis supplied] I cannot however rule out other possibilities, including directly inflicted blows, compression, or rubbing of the chest.'
- Though Dr Sidebotham accepts that the parents' account may give an explanation for the bruising to D's chest, he does not accept that it provides an explanation for the bruising to D's arm. He says
'14.8 The bruise on the left forearm is in an unusual site and bruising such as this is extremely rare in infants of this age. The bruise could have been caused by a direct blow, compression, or friction. The shape suggests that it would have been caused in one of these ways by contact with a curved object. Given its location, it would have required either a high degree of direct force, or a lesser force sustained over a longer period. As D's arms would have been outside the straps of the car seat, I do not believe this bruise could have been caused by the car seat itself. It is possible that this could have been caused by her arm being pressed down hard onto a curved object over a long period, but in my opinion this would have required an external force to be applied, and would not result simply from her arm resting on a curved object. I am unable to suggest any plausible accidental explanation for such an injury, and in my opinion, the most likely explanation is that this is an inflicted non-accidental injury.'
- Dating of bruises is notoriously difficult and inexact. Dr Sidebotham notes that the children were seen undressed in clinic on 14th July. The site and pattern of the bruises on D's chest 'were such that they would not have been missed by a health professional weighing babies on the 14th.' He concludes that 'it is reasonable to assume that the bruises appeared between the 14th and 17th July.'
- As for the bruising to C's chest, Dr Sidebotham's position is the same: the bruising can be adequately explained by friction/compression by the shoulder straps of the car seat being applied too tightly, though he cannot rule out the possibility that these bruises are non-accidental, inflicted, injuries.
- Dr Sidebotham does not consider that the car seat belts provide a credible explanation for the bruising to C's arms. With respect to her left arm he says
'15.3 The two bruises on the left forearm are described as red/purple 8mm bruises. One of these is visible on the photographs and has the appearance of a dumbbell shaped bruise. This overlies the soft tissues of the forearm and could have been caused by a direct blow, or a compressive or pinching force. Of these, a pinching force is, in my opinion, the most likely explanation to account for this injury, and it has the characteristics of a pinch mark. I am unable to identify the second bruise on the photographs. The body chart indicates that it is higher than and separate from the bruise described above. In the absence of any clear photographic evidence, I am unable to provide any clear opinion on the nature or causation of this bruise.'
- The two 5mm bruises and the 8mm bruise to C's right upper arm, noted on the body chart, cannot be identified on the photographs. Dr Sidebotham says
'15.4 …I have no reason to doubt the examining doctors' description of these as bruises, but in the absence of any clear photographic evidence, I am unable to provide any clearer opinion on the nature or causation of these bruises.'
- Dr Sidebotham next deals with the bruises to C's left hand. He says they are 'in an unusual position.' It is not illustrated in the photographs. Dr Sidebotham's opinion is based on the body chart and the description in the hospital records. He says
'15.5 I have no reason to doubt that these are bruises, but I am unable to comment further on the description. Such bruising could have been caused by a direct blow or by direct compressive force. Neither bruise has the characteristics of a pinch mark. The bruises could have been caused non-accidentally or accidentally. No account of any accidental injury sufficient to cause these bruises has been provided, so in my opinion, the most likely explanation is that they have been caused non-accidentally.'
- Finally, Dr Sidebotham deals with the bruising on the palmar side of C's right forearm. He says that this bruising
'15.6 …has a linear configuration with one straight edge and a more irregular edge on it's ulnar side. The bruising overlies the soft tissues of the forearm. The bruise has a clear, straight edge on one side. It is similar in position to that observed on D's left forearm, but has a different shape. It is described as bruising in the medical notes, and the appearance on the photographs would support this.'
As with the similarly-placed bruise on D's left forearm, Dr Sidebotham is unable to suggest any plausible accidental explanation and therefore concludes that the most likely explanation is that this is a non-accidental, inflicted, injury.
- In his oral evidence Dr Sidebotham said that he does not think there is any aspect of the children's car seats that could plausibly account for the bruising. He has been a paediatrician for twenty years and has never seen such marks on a child caused by car seats and neither has he heard reports from colleagues or read in the literature about such bruising caused by car seats. He was later persuaded by Mr Piers Pressdee QC, counsel for the father, to accept (as indeed he appears to accept in his written report) that the seat belts are a plausible explanation for the marks on the children's chests. Indeed, he went so far as to say that the parents' explanation is 'tellingly consistent with the location of the marks'.
- If the children's arms were not restrained by the seat belts then the seat belts could not have caused the bruises to their arms. Dr Sidebotham would not expect children of that age to have been able to force their own arms inside the seat belts. However, if for some reason the children's arms were restrained by the seat belts then he would be more open to the possibility that the seat belts may have caused the bruising to the upper arms. Indeed, the more so is that the case if the seat belts were, in fact, too tight, as the parents suggest. Dr Sidebotham also said that the possibility of the children's arms having been restrained by the seatbelts was not something he had 'registered as significant'. If the arms were inside the seatbelts then he would be 'more open to the idea' that the seatbelts had caused the bruising to the children's arms, and particularly those to the upper arm.
- Dr Sidebotham accepted that if the children were strapped into their car seats sufficiently tightly and for a significant length of time then that could cause marks. The parents' evidence is that on the evening of 15th/16th July the children were left strapped in their car seats for around three hours.
The alleged bite mark to C's abdomen – the medical evidence
- The parents contend that what some have suggested is a bite mark to the right of C's abdomen is, in fact, a mark caused by the buckle on the seat straps. They have given that explanation consistently from the outset. No alternative explanations have been offered.
- This injury was observed by Dr W on 17th July. Either the mother or GM had offered the explanation that it had been caused by the buckle on C's car seat. Dr W noted that this mark 'fitted' the mark of the seatbelt of the baby carrier C was in.
- At hospital, Dr R's first instinct was that this was a bite mark. She noted '2 semicircular grey bruises…central echymosis…looks like a bite mark'. A few lines later she refers to 'what appears to be a bite mark on abdomen.' In her letter to Children's Services she makes no reference to her initial belief that the bruise to the abdomen may have been a bite mark.
- The children were subsequently seen by Dr S and Dr T. The note made by Dr S reads
'Oval bruise on R lower abdomen…I have seen the baby in the car seat. The lower crotch buckle is smooth underneath, low in the groin and central. It looks consistent with a bite mark but I could not exclude the less likely possibility of bruising related to the buckle. However this is not an injury we see commonly in relation to car seat belt buckles.'
Dr T wrote
'Advised of bruising. Explained that I could not say that the bruising on abdomen was bite as now it is very feint and no teeth marks.'
- Dr R attended a Strategy Meeting on 20th July, the day the twins were discharged from hospital. The minutes of Dr R's contribution to that meeting state that
'The mark that looked like a bite mark was explained as possibly being made by the central buckle on the car seat but the mark wasn't in the right place so it was difficult to understand how it could have caused the bruise. Teeth marks were not seen but a semi circular faint greyish mark with red in the middle is indicative of a bite or such mark. The appearance of this mark gave concerns as it was unexplained rather than an obvious non accidental injury. It is possible that it may have been caused by the car seat but Dr S and other medical staff have not seen other babies with similar injuries. If the straps were too tight then it might be possible that they caused the bruises. The hospital feel this can not be ruled in or out.'
- The parties have obtained a report from Dr Z, a dental surgeon with a qualification in forensic dentistry. Dr Z said that in his opinion the mark on C's abdomen had been caused by a bite and that it is likely that the perpetrator is aged over 12. Having explained the approach to identifying bite marks, Dr Z says
'I am unable to identify any individual tooth marks that would enable me to identify individual teeth and as such the forensic significance of the injury is extremely low. However, given the overall morphology of the injury, the size of the arches, the presentation of the class characteristics and the opposing, semi-circular bruises it is my opinion that this is, on the balance of probabilities, a definite bite mark. I have been asked to consider other possible mechanisms but none are apparent to me…I cannot conceive of another mechanism that could have caused a patterned injury such as this.'
- Dr Z explains that there are four 'conclusion levels' recognised by the American Board of Forensic Odontology and recently adopted by the British Association of Forensic Odontology. These are (i) 'exclusion' – the injury is not a bite mark; (ii) 'possible bite mark' – an injury showing a pattern that may or may not be caused by teeth, could be caused by other factors but biting cannot be ruled out; (iii) 'probable bite mark' – the pattern strongly suggests or supports origin from teeth but could conceivably be caused by something else; and (iv) 'definite bite mark' – there is no reasonable doubt that teeth created the pattern. I asked Dr Z on a scale of 0 to 10 how certain he is that this is a bite mark. His answer was '10 out of 10'.
- Dr Z's opinion depended heavily on the interpretation of the police photographs. He was challenged about whether the photographs were of sufficient quality to enable such a judgment to be made. Although the photographs were not the best he has seen he described them as 'not bad'. In arriving at his conclusion Dr Z had inverted the coloured photographs creating what is, in effect, a negative image of the marks. In his opinion this negative image shows that the two arches are teeth marks, even though the level of definition is not sufficient to be able to match the images to the teeth of any particular individual. He was absolutely clear that he can see teeth marks on those images. In contrast, it was notable that none of the doctors who cared for C in hospital, who therefore saw her in real time, was able to see any teeth marks or abrasions
- After producing his report Dr Z was asked to compare car seats, baby slings and baby bouncers to the marks on C's abdomen in order to advise whether any of these items of equipment could have caused the mark. His initial response was to say that this was outside his training and experience as a forensic dentist. He was subsequently persuaded to take a look at these items of equipment. In his second report he says
'I have carefully and thoroughly examined each of the items supplied to me. This has included an assessment of the catches, locks, attachments and accessories. I have been unable to determine any aspect of the items supplied to me that could account for the appearance of the injury to the abdomen of C…'
- In his oral evidence Dr Z initially stood by his conclusion that there is nothing about the car seats that would produce the mark on C's abdomen. However, when pressed he accepted that whilst he is in no doubt that the two semi-circular areas of bruising are caused by dental arches (i.e. bite marks) it is possible that the red marks in the centre of those two arches may have a different cause. He accepted that the car seat buckle could have caused the marks that appear inside the two semi-circular arches of bruising.
- A number of alternative causes were explored with Dr Z. He excluded the possibility of the marks having been caused by an adult 'blowing raspberries' on C's tummy. This would not have involved the teeth coming into contact with the skin. He excluded the possibility of 'love bites' since this would have tended to leave circular petechial bruising. He also excluded the possibility of finger nails having caused the mark, perhaps caused by an adult struggling to fasten a wriggling child into a car seat.
- Mr Pressdee drew Dr Z's attention to a website to which he (Dr Z) is a contributor. The website sets out the 'conclusion levels' referred to in his report, though in greater detail. The 'conclusion levels' are referred to under the heading Terms Indicating Degree of Confidence That an Injury is a Bitemark. As for the highest degree of confidence, the 'definite bitemark', the website reads
'There is no reasonable doubt that teeth created the pattern; other possibilities were considered and excluded.
'Criteria: pattern conclusively illustrates (classic features) (all the characteristics) (typical class characteristics) of dental arches and human teeth in proper arrangement so that it is recognizable as an impression of the human dentition' (emphasis supplied)
- Dr Sidebotham was also invited to express a view on this issue. He says that
'The bruising observed on C's abdomen has a very distinctive and clear pattern, with two semi-circular bruises and a central area of petechial bruising. The medical notes describe the semi-circular bruises as grey, but they appear more brownish-yellow in the photographs. This may indicate a normal progression of resolution of the bruising, or may reflect differences in lighting and other conditions between when the bruises were first observed by the examining doctor and when the photographs were taken. The bruising has the characteristic appearance of a human bite mark, and is oriented in an appropriate plane for someone to have bitten C from the side.'
He goes on to say that
'The bruising on C's abdomen overlies soft tissues and could only have been caused by a compressive (gripping) force between two opposing semi-circular objects. It could not, in my opinion, have been caused by direct pressure on or a blow to the abdomen by a circular object. I cannot think of any accidental explanation for such an injury…I can see no way in which this bruising could have been caused by any of the…equipment which I have seen. The marks do not have the appearance of eczema or any other medical condition. I therefore agree with the opinion of Mr Z that these marks have the characteristics of, and could only have been caused by, a human bite.'
- Dr Sidebotham stood by these views in his oral evidence. He said he found it 'very difficult' to describe the marks on the abdomen as anything other than a bite mark. He accepted that there are no obvious puncture marks. He suggested that there must have been just enough pressure to cause bruising but not enough pressure to cause puncturing of the skin. He said the marks were sufficiently old that the photographs showed only the 'remnants of the marks'. In his experience, 'in the majority of bite marks you do not see teeth marks'. Like Dr Z, Dr Sidebotham ruled out the alternative explanations that were put to him.
The femoral fracture – chronology of events from 20th July to 10th August
- On 20th July Ms L became the children's allocated social worker. A Strategy Meeting was held that day. The minutes record that the parents had been consistent in their explanation that the bruises had been caused by the belts on the children's car seats. No concerns were expressed about the parenting of the children. It was noted that the mother had sought advice and assistance appropriately in respect of her concerns about the children.
- The Strategy Meeting decided that the children should be returned to their parents' care under a Working Agreement. The agreement provided that there should be round the clock third party supervision of the parents' care of the children. Only people approved by the local authority should act as supervisors. The parents were required to keep the local authority advised of who was caring for the children.
- In terms of C's presentation before the beginning of this window it is appropriate to note two concerns that had been raised with health professionals. Firstly, in the first few weeks of her life the parents and other family members refer to C having generally been more unsettled than D, frequently crying and difficult to settle. This is evidenced in C's Personal Child Health Record (the 'Red Book'). An entry on 24th June 2009 records 'very colicky during evenings'. An entry on 1st July records 'remains very colicky'. It was thought C may have milk intolerance. No similar concerns are recorded in D's Red Book. At C's six week review on 17th July Dr W notes 'referred to dietician'.
- Secondly, the parents say that from an early stage they noticed that C had clicky hips. C's hips were checked at birth. No abnormality was detected. However, the parents and both grandmothers all say that in the early weeks of her life they heard C's hips click. At the six week review the Red Book records 'awaiting hip scan'. There is no similar entry in D's Red Book. It is not clear whether the need for a hip scan was identified at the review or whether Dr W is reporting that arrangements had already been put in place for a hip scan. The hip scan was eventually carried out on 23rd September 2009. A report on the scan said that C's hips 'move fully and are stable, and are clear Grade 1 on the scans.'
The skeletal survey on Monday 20th July
- On 20th July both children underwent a full skeletal survey. The mother went into the X-ray room with D. The father wanted to go in with C. The mother insisted that GF should go in with C. It is clear that the father felt deeply aggrieved by this. This is not the only occasion when he felt he was being pushed out by the maternal family. He felt overpowered by them. He said that prior to the Strategy Meeting on 20th July GF had told him what to wear and what to do and to let the mother do the talking. This theme of GF taking control, and being looked upon by other members of his family to take control, runs throughout the evidence.
- GF has expressed concern about the way in which the skeletal survey was undertaken. He has suggested that the femoral fracture could have been caused by rough handling by the staff. In his written statement GF describes how C was laid down on a table whilst the X-rays were taken, all of her clothing having been removed apart from her nappy. Initially she seemed content. Around twenty X-rays were taken. In between X-rays the nursing staff moved C into position for the next X-ray. It was a long process. At times the nursing staff had to restrain her so that she was perfectly still. After a while she began to cry. He goes on to say
'I recall seeing the nurses hold a knee and with finger and thumb on C's ankle near to her Achilles heel area, to take one set of images. She had to be repositioned several times per image.'
- Though he says that C became upset as the X-rays were being taken, GF does not say that he heard a crack or that C cried in a way he had not heard before. He said nothing to the nursing staff at the time. He said nothing to any other professional at the hospital. He said nothing to the social worker.
- The children were discharged later that day. A note in the hospital records states that
'C has been very settled throughout the day. All observations within normal limits. Both parents and grandparents present throughout the day and caring for C appropriately. Skeletal survey performed as requested. Feeding well 3-4 hourly. Discharged home with grandparents and parents as per instructions from strategy meeting. Health visitor present and aware of plan. Parents fully aware of working agreement.'
- There is some evidence of a change in C's behaviour after leaving hospital. In her police interview the mother said that C had 'just been worse and worse' since the skeletal survey on 20th July. She wasn't sure whether it was the X-rays that had unsettled her or the fact that she was separated from D (the twins having hitherto shared a cot). In contrast, no changes were noted in D's presentation.
Monday evening 20th July
- After leaving hospital the parents had expected to care for the children that night under the supervision of maternal grandparents. The grandparents had other ideas. They had been at the hospital for the previous twenty four hours. They wanted to get back to their own home for a bath, a change of clothes and to unwind. They proposed to care for the twins at their own home that night. That came as a complete surprise to the parents. It led to an argument, though the extent to which these four adults are prepared to concede it was an argument is variable. The mother said she 'wasn't happy' about the girls going to her parents' house but there was nothing she could do about it. She did not remember arguing about it. Her parents would have known she wasn't happy but there had been no shouting. It was suggested to her that the disagreement had become 'heated'. She said she could not remember, though the smirk on her face as she said this suggested to me that she remembered rather more than she wanted to tell. The father said there had been what he called a 'full on blown row'.
- GF said that GM suffers from gastritis and irritable bowel syndrome. She had wanted to spend the night in her own home. He, too, had wanted to go home. He was tired and wanted his own bed. The problem was resolved by the parents agreeing to the twins spending the night in the care of their grandparents. The reality is that they had no choice.
- If the grandparents had been hoping for a peaceful night, they did not get one. The grandparents kept a note of the times when the children were fed. The record indicates that C was fed at 10.30pm, D at 00.15am, C at 01.30am, D at 03.30am, C at 04.00am and both twins at 07.30am. GM and GF sleep in separate bedrooms. The twins slept in GF's bedroom. GF could not remember which of these feeds he had done himself. He remembered that he and GM had been 'up pretty much all night'. He also remembered that the arrangement had been that whoever fed a child would also change that child. It had clearly been a very tiring night. GM said that the children had been 'a handful'.
- During the course of what I regard as very inadequate police interviews of GF and GM there was no detailed discussion about their care of the children on the night of 20th/21st July, or indeed the 23rd/24th and 24th/25th when the twins were again cared for by GF and GM at their home.
Tuesday evening 21st July
- GF and GM returned the children at around 10.30am on 21st July. Ms L said that she had arrived at the flat at around 11.00am. She saw the children. The parents expressed no concern about them. However, the mother appeared distressed because the children had spent the previous evening at her parents' home.
- That night, GG was the supervisor. She had not been approved by the local authority. Although the impression given by the mother is that the plan for GG to supervise that evening had been made some time in advance, GG's evidence was that the arrangement was not made until that evening. She could not remember if she had told her social worker that GG was going to supervise. She claims that she was under the impression that so far as the local authority was concerned GG was an acceptable supervisor.
- The mother says it was an uneventful night. She had gone to bed just after midnight. GG slept in the attic bedroom. She had a baby monitor up in her bedroom so that she could hear what was happening downstairs. The twins had slept in a Moses basket in the mother's bedroom. She had not woken at all during the night. If anything untoward had happened during the night then she was unaware of it.
- In the mother's feeding log the time 3.15am was entered as the time for the next feed, but was then crossed out. The next entry is timed at 4.00am. The father says that after this feed he could not get C to settle so GG had taken her off him. He remembers her holding C and nursing her until she settled.
- In the early hours of the morning the father sent a series of text messages to his mother, PG. The content of those messages is highly suggestive of something having happened to C's right leg. There were six messages in total:
Message 1 (sent at 01.30a.m.):
'Im in t front room [GG] is upstairs and [the mother] is in t bedroom so social services r happy. [GG] jus helped me feed both nd nw we goin sleep til nxt feed. I really wanna cry bt i gotta stay strong for t girls nd [the mother].'
Message 2 (sent at 04.14 a.m.):
'I dnt kno wats up wit her evry tym u move her she screams at t top of her voice. [The mother] says she has been lie it eva since [GF] brought her bk.'
Message 3 (sent at 04.20a.m.):
'Screamin at t top of her voice wit real tears i wud ring t docs bt im scared to'
Message 4 (sent at 04.26a.m.):
'Dnt tel [the mother] by it looks as if Cs nt movin her right leg as much by I dnt wanna take her t see docs cuz we wud av them taken frm us.'
Message 5 (sent at 04.37a.m.):
'[GG] is here wit us she jus changed her nd lookd at leg nd lookd fine nd by t way neva say i cant cope again ok. Im usually t 1 who gets up to feed them at nyt perfectly ok.'
Message 6 (sent at 04.44a.m.):
'Im jus really scared incase something is really wrong wit her cuz we wud lose her. as I said [GG] is cuddlin her atm tryin t get her settled.'
- The father did not mention these text messages either in his police interview or in his first two written statements. In his third written statement he says that he woke the mother at around 4.00am because C was crying. She was not particularly concerned. She had been 'dismissive'. She knew he had been sending text messages to his mother and had been annoyed. Although the text messages describe C as 'screaming' with 'real tears' and not moving her right leg he does not describe any incident that could have caused that behaviour.
- The mother says she was not aware that the father had sent those messages. She did not become aware of them until they were disclosed by PG in May 2010.
- GG has filed a brief response to the local authority's threshold document. That response was drafted for her by her son, GF. She has not filed a witness statement. She has not been interviewed by the police. The first and only account given by GG was in her oral evidence.
- GG accepts that she acted as supervisor on the night of 21st July. She had not been approved by the local authority. The local authority was not aware that she was going to supervise that evening. In key respects her evidence is completely at odds with the evidence given by the parents.
- GG and her husband own the flat in which the parents lived and also the plumbing business which was run from the shop premises below. On occasions, whilst visiting the shop she would also go upstairs to see the parents and the twins. On 21st July she went up to the flat at about 6.00pm. GF and GM were there supervising. She was asked if she could supervise that night. She agreed but said she would first need to go home to pack an overnight bag and get her husband's tea ready. She returned to the flat at around 9.15pm. GF and GM were still there. They left after about fifteen minutes.
- The mother's log of feeding times records that the twins were fed at 9.15pm. GG said she thinks they were being fed when she arrived, though she was not entirely certain about that. After the twins had been fed and put down in their cot she, the mother and the father sat watching the television and talking.
- The next feed was at midnight. Both twins were fed, the mother feeding one and the father the other. The children had cried when they wanted feeding but there was nothing unusual about their crying. After being fed the children were put back in their cot. The cot was in the main bedroom, where the mother slept. After the children had been put back down the mother went to bed, the father settled down to sleep on a sofa and GG went upstairs to the bedroom in the attic.
- There was no baby monitor in the attic bedroom. She went to sleep. She believes she was woken at around 3.15am. C had woken for a feed. She had not heard her cry. The father came upstairs and told her that he was going to feed C. She went downstairs with him. C was still in her cot. The mother was still asleep. She watched the father take C out of the cot, take her into the lounge and feed her. Nothing untoward happened during that feed. C did not seem to be out of sorts. She did not scream. She did not cry 'real tears'. The father handled C appropriately; he had been patient, gentle and kind. At no time had the father expressed concern about C's right leg. He had not asked her to take a look at it. As she put it, at the time of this feed she saw a perfectly normal child who was hungry and taking her feed. She did not see the father send any text messages. She watched him put C back in her cot. He then settled back down to sleep on the sofa. That would have been at around 4.00am.
- After the feed GG went back to bed. She believes she went straight back to sleep. Although she sleeps very soundly she is confident that if either of the children had screamed she would have heard it. In fact, the next thing she remembers is hearing the children start to cry at around 6.45am. They were ready for their next feed. She went downstairs. Both parents were in the lounge. The twins were still in their cot. The parents then fed them. There was nothing unusual about C's presentation. At 07.50am the father went to work. At around 9.00am GM arrived at the flat. At around 9.30am GG left the flat for a hair appointment. She returned to the flat later to collect her overnight bag. She thinks that was at around 11.00am.
- PG was interviewed by the police on 4th September 2009. She made no reference to the text messages. It was not until May 2010 that she first disclosed them. She was criticised for not immediately reporting them to the local authority. It was suggested to her that she had been trying to protect her son. She denied this. She said she had 'totally forgotten' about the texts until her mobile phone's 'in-box' became full. She had then read through the messages. She deleted some but retained these because she thought they might be important. She alone decided which texts to keep and which to delete.
- Though nominally a party to the Working Agreement PG was on holiday when it was signed and was never subsequently asked to sign. She said did not even see the Working Agreement until she became a party to these proceedings. Criticism for failing to honour the terms of the Working Agreement is, I accept, misplaced. However, criticism that she failed to disclose the texts immediately she became aware of the fracture is more justified. She is an intelligent lady. She must have appreciated the significance of the texts. She was asked why she had not disclosed them sooner. She said she had been reassured by the indication in the texts that GG did not think there was anything amiss. I did not find this explanation convincing.
22nd July
- On 22nd July GM supervised for most of the day. PA supervised overnight. There are a number of inconsistencies in the evidence about the events of that day. What is not in doubt, however, is that that afternoon the mother took C to see Dr W. She says that C was unsettled on 22nd July. She had been unsettled since leaving hospital on 20th July. She cried when moved – when changing her nappy or her clothes or when bathing her – and she took longer to feed. She had thought C would have settled down and was concerned that she hadn't. She decided to make an appointment with the doctor.
- GM confirmed that C had been 'very difficult to settle – more difficult than usual' and that she had agreed it would be a good idea to make a doctor's appointment. GF was at work. The mother rang him and asked him to come and take her and C to the surgery. It remains unclear why she thought it so important that GF should attend that appointment with her.
- The Practice Manager has confirmed that the appointment with Dr W was at 3.59pm. The only significance of the time of the appointment is that it undermines PA's evidence about the sequence of events that afternoon. She said that she left work at around 2.00pm. She went to the flat. She was adamant that she had arrived at the flat at around 3.00pm. GM's two friends were not there. She did not see GF at all that afternoon. She was not aware that C had been taken to the see the doctor. It is plain that PA's evidence about the events of that afternoon is not reliable.
- GF's recollection was that C was unsettled and that the mother thought something was wrong with her. He came out of work, went to the flat to collect the mother and C and took them by car to the surgery. He then took them back home. No-one had suggested that anything untoward may have happened during the early hours of that morning.
- Dr W had spoken to the social worker, Ms L on 20th July. She had been informed about the child protection issues. She was aware of the concerns about the children. In her record of this appointment Dr W says
'Came with g.father – mother and g.father not happy as mum have 24 hr supervision and Police involved – once all settled g.father states he will be taking things further as not happy with recent events. Has been brought in today as she cries when feeding - looks like she is in pain - is hungry, taking feeds but then cries.'
- Dr W had been told that C had been taking her feeds but had been crying and looked in pain. She was not sure how long this had been going on for. She had only examined the top half of C's body. She had not checked her legs. So far as she could remember she thought C had been brought into the consultation room in her car seat. She had been taken out of the car seat and laid down on the couch. She was asleep to begin with but had then woken. Dr W could not remember how C had been when she woke. Nothing she observed led her to think that there was anything abnormal in C's presentation. She diagnosed oral thrush for which she prescribed Nystatin.
23rd and 24th July
- PA had stayed the night on 22nd July. She told the police she had not seen anything about C's presentation that had caused her concern. She was not told that C had been taken to see Dr W that afternoon. She remembered that C had been 'grisly that day although C was usually grisly'. She said that C had been 'a bit more grisly than normal'. She would not settle for either of the parents so PA had tried to settle her. She says
'I picked her up, lay her on my chest, she brought up some wind…C then fell asleep straightaway'
- PA remembered the children having their nappies changed later in the evening. She did not notice anything untoward. She then went to sleep in the attic bedroom. The father had slept on the sofa. She did not sleep very well. She says
'I was repeatedly up and down the stairs checking in general that all was ok. [The mother] slept with the bedroom door open all night. I had the baby monitor in my room so that I could hear any noises, but everything was fine…It was around 6am/6.30am when I heard the girls stir. In fact [the father] came up to get me as both girls were awake and needed to be fed.'
She said that the baby monitor was a new one and was still in its box.
- In the morning PA was in the process of changing and dressing the children when GM arrived. GM got one of the twins dressed and PA the other. She says that when the children were being changed
'I did not see anything unusual or of concern with either of her legs. When [GM] went to change the other twin, I did not hear the twin scream or cry out in pain. Both girls would cry when they were being changed, as if they didn't want to be touched but there was nothing unusual or concerning when both girls cried that morning when they were being changed.'
- It was the mother's birthday on 23rd July. That evening the twins stayed overnight with maternal grandparents so that the parents could have a night out. Although the twins were returned to their parents the next day they spent the following night staying with their maternal grandparents. It remains unclear why that was so.
25th and 26th July
- The mother says that on 25th and 26th July C was unsettled but no more so than usual.
- PG returned from holiday on 24th July. Her first overnight supervision of the children was on 25th July. From that date onwards PG supervised the overnight care of the children most evenings. In her police interview she said she had not noticed anything untoward on 25th July except that 'C was crying more than normal'. However, on Sunday morning, 26th July, when she changed C's nappy, she noticed that her leg 'was a bit more swollen than it normally was':
A: Her legs – her leg's always been slightly larger than the other, but nobody's sort of said there was a problem or they'd have asked a question. So I just put that down to, you know, one of those things, cause some people do, don't they. And then on the Sunday it was slightly more enlarged than it was previously, so I advised them to get it checked in case…
Q: So what did you think was wrong with her?
A: I did wonder whether she'd got a problem with her hip because M's always been told that she has got clicky hips. Apparently that's normal for babies is what she's always been told.
Q: Are you aware of C having a clicky hip?
A: Yes, she has had, because on occasions when she moves about you can occasionally hear a sort of little noise…just like that (witness snaps fingers). It's nothing major.
Q: and you have heard that?
A: I've heard that.
- In her oral evidence PG said she did not notice anything different about C's leg on the Saturday evening (25th July) but that on the Sunday morning she noticed it was swollen. The swollen area was 'soft'. She also said that since a time soon after C was born she had noticed that C's leg appeared swollen, that C held her legs in an unusual way and that she had heard her hips clicking.
- PG went to work. She next saw the children when she supervised later that evening. By then C had settled; she was 'more settled than normal'. She put that down to the fact that C had been given Calpol. From 26th July to 10th August PG had supervised most evenings. She did not notice anything else amiss until 9th August.
26th July – the examination by Dr Y
- The mother made two telephone calls to NHS Direct on 26th July. The first call was made at 14.42pm. She was asked what the problem was. She replied,
'Erm well she's seven weeks old and her hips click quite a lot and we're waiting for a hip scan and she just won't stop crying…and we think she might have clicked it out of place…She can move her feet and everything but she just can't straighten her leg out her feet are still moving…its like a proper scream.'
- Dr V returned the mother's call. She knew that the mother was concerned that C had clicking hips. She asked whether C had had any scans. The mother said she had not. There was then the following exchange:
Dr: Oh I see this was discovered when she was born was it
M: No erm they said that she was okay when she was born but erm ever since then they click now and then.
Dr: Yep
M: But they said it was nothing to worry about
Dr: Okay
M: And erm well the last couple of days she just keeps screaming basically. We took her to the doctors and they thought she had thrush in her throat.
Dr: Yeap
M: They gave her some medicine for that that's why they thought she was crying 'cause it was hurting her throat.
Dr: Okay
M: Erm but she's more or less finished that medicine now and she's still screaming
Dr: When, when, when was when, when was she seen then when was that vaguely er last week some time
M: Wednesday
Dr: Wednesday was it (yeah) okay and when you say she's screaming is she sometimes very quiet and perfectly alright or
M: Erm she's only okay when she's either asleep or being cuddled
- The doctor said she doubted that the distress was due to a problem with C's hips. She advised the mother to ask her GP whether the arrangements for the scan could be progressed more quickly. The conversation then moved on:
Dr: …but look obviously your putting on her nappies and things and you can do that alright that's no different by putting that on when you put the nappies on
M: She screams
Dr: She screams but she's been screaming like that for some time
M: Yeah she doesn't like having her nappy put on at all
Dr: Okay…if things were as they were I would say get in touch with your GP tomorrow and see whether they can hurry things along if she seems to be constantly unhappy then she'll have to go up to the A&E children's A&E at [the hospital] (okay) and they'll have to have a look at her there I'm not sure they'll scan her on a Sunday that's why I'm just a little bit iffy about you don't really want to have x-rays unless you really, really have to but if you're that unhappy then I'd take, I'd take her up there and they'll have to look at her and decide what they want to do.
- Dr V advised the mother to give C Calpol. When she read the instructions on the bottle, the mother was concerned that given C's age and weight it was not appropriate to give her Calpol. She called NHS Direct again, this time seeking advice about administering Calpol. She was called back by a triage nurse. After an initial recap of the conversation she had had with Dr V the conversation continued as follows:
Nurse: She's still not happy
M: No the only thing we can think of is her hips click quite a lot
Nurse: When she was born did the erm paediatrician have a look at her hips for you
M: Yeah they checked them and they said they weren't too bad but they'; get us a scan (yeah) and she hasn't had it yet we're still waiting for an appointment
Nurse: Does it does she seem bothered by moving her legs or when you're sort of changing her nappy or her clothes does that seem to make her worse…
M: She doesn't like having her nappy or her clothes changed she screams
- The nurse said that the mother really needed to speak to a doctor and promised that a doctor would call her back. A few minutes later Dr Y telephoned. Again the mother repeated the history. She made it clear that C had been screaming. Dr Y invited her to take C to see him in the out of ours clinic at the local hospital. The father and PA went along too. Their accounts of what happened at that consultation differ significantly from Dr Y's account.
- According to the mother (and confirmed by the father and PA) C was crying loudly throughout this consultation. In her first witness statement the mother describes what happened. She says:
'47. Dr Y then held C's thighs and manipulated her legs in "running on the spot" and rolling her legs out and up and other hip manipulations. During this manipulation there was a loud click or crack sound, so loud that the 2nd Respondent who was sitting on the other side of the room heard it and questioned it. The click was far louder than usual clicky hips that we had noticed with C. The 2nd Respondent said something like "What was that? Why was it so loud, is that right?" I also commented on the click and Dr Y told us it was normal. We were clearly asking about the click/clack sound, not the consultation generally. Once Dr Y had answered the question we did not repeat the question.
'48. During the hip manipulation and especially as the click sounded, C's crying changed in character, to a loud high pitched squealing, yelping type of cry. There was definitely a different quality to her cry at that time and she kept it up while I redressed her. I noticed that there were red marks on her thighs from where Dr Y held her. I had never noticed reddening of the skin from other doctors checking her. It was as though he had held her legs tighter…'
- Although the mother wrote in her diary that she had taken C to the hospital that afternoon, she makes no mention of the concerns just outlined.
- In all essential details the mother's account is confirmed in the statements and oral evidence of the father and PA. In his police interview the father talked about the 'click' that he heard when Dr Y was carrying out the Barlow and Ortolani tests:
Q: You heard a click
A: Yeah
Q: How did she react when…
A: She screamed her head off, proper yelped out really
- PA told the police that C's crying 'got louder and it got harsher…I'd say it was more a pain cry than a normal cry…' She was concerned about Dr Y's rough handling of C. She said she was 'quite shocked – shocked enough to let [PG] know'. She had never seen anything like this happen when her own children were medically examined. The 'click/clack' noise she heard was 'totally different to anything I had heard before'. She had not shared her concerns with the parents because she had not wanted to alarm them.
- PA shared her concerns with her sister, PG, later that evening when PG got home from work. PG told the police 'My sister wasn't happy with the way the doctor examined her, because he really pulled her around apparently.'
- That afternoon Dr Y was working for a private company providing out of hours GP cover. It was in this capacity that he saw C on 26th July. She was not his patient. This was the only time he has ever seen her.
- Dr Y has been aware of the allegations about him since a relatively early date. He was seen at his surgery by Detective Constable G on 24th August 2009. Her note reads:
'I have visited Dr Y at [his surgery] and spoken to him about his examination of C at the hospital on 26th July. Dr Y states that he did a full examination of C and there was no sign of clicky hips. C was in good spirits and did not cry or scream at all. He denied that there was any 'click' or 'crack' sign at all and stated in no uncertain terms that if there had been a fracture at that time he would have been aware of it without a doubt. He stated C was moving her limbs OK and that he had no concerns about her or the parents at that time. Dr Y also states that the swelling from a fracture occurs almost straight away and that he would expect the swelling to appear within a day or 2 of the fracture occurring. He is confident that the paediatrician who examined C on the 6th August would have seen if there was a fracture and that the most likely time this occurred was between the 6th and the 9th August when the swelling was noticed.'
- On 8th September Dr Y was interviewed under caution by Detective Constable G and Detective Constable F. He said that when C was brought to see him he examined her. He carried out the Barlow and Ortolani tests. He described what these tests are and how they should be carried out. He was then asked about C's presentation:
Q: Okay. Now at that point then when they arrive and they come in how was C?
A: From what I can recall – this has been from July – from what I can recall she was okay. She wasn't crying at that time and she wasn't crying during the examination either. I examined her and then they left. It has been quite awhile, but from what I recall she wasn't unsettled, she wasn't crying.
Q: Would that be something that you would write in your notes if that had been the case or not necessarily?
A: Yes, if she's constantly crying you might mention irritable or crying all the time, but if it is not of particular note I wouldn't write it down. But if after the consultation she was crying, distressed I would say I'd put it down in the notes, yes.
- Dr Y said that he had examined C's hip but could not detect any clicking. He went on to say 'I was not concerned about anything physically wrong there when I examined her. I couldn't pick up anything abnormal on my examination'. The officers told Dr Y that the parents and PA were giving a different account of this examination:
Q: Okay, so you didn't hear a click?
A: I couldn't hear a click and when I did the examination I don't think I heard anything, because if that was the case I would have documented it.
Q: Okay. [The mother, the father and PA] all say that they heard this click and that they questioned you about it and said, "What was that? Is that normal?", and you said "That's perfectly normal."
A: I don't know whether they questioned about the click. I don't know what they asked. I examined them and they said "Is it normal?". I said, "yes, it is normal" after examination. I don't think they asked me what is the click or what is the crack, no…
Q: Okay, was there a crack?
A: No. If there was one I would have said that there was a crack and written it down. Because there was no crack or click I didn't document it.
- Dr Y was adamant that he did not see or hear anything abnormal. Asked whether he had caused the femoral fracture he said 'No I didn't, because if I did, if I had felt anything at that time it would have raised concerns to me and I would have referred them in the best interests of the child.'
- The underlying themes of that interview – that C was not distressed, that on examination he found nothing abnormal, that he had not caused the fracture – was continued consistently in his written statement of 13th November and in his oral evidence. In his written statement he says again
'2.15 I do not recall C as crying persistently throughout the consultation, however, and if this had been the case then I expect that I would have recalled this and/or recorded this in the notes…'
He then goes on to describe his examination of C:
'2.17 My examination of C required removal of C's garments and nappy. I then undertook a visual inspection to confirm any visible abnormality, which I did not detect. Such visible abnormalities could include additional creasing to the baby's skin around the hip area as a result of dislocation. In addition, I checked for any apparent discrepancy between the two legs and hips.
'2.18 I then undertook two separate tests, known as the Barlow's test and the Ortolani test…
'2.21 I do not recall C having shown any sign of additional discomfort during my examination.
'2.22 At the conclusion of my physical examination of C, I indicated to the parents that I could detect nothing untoward.'
- If C did not sustain the femoral fracture during Dr Y's examination but at some point before that examination, the question then arises whether he should have noticed that C had a broken leg. On that issue Dr Y was very clear. He said he was 'confident' he was not examining a child with a broken leg. If C had already sustained a displaced fracture then it would have been visible and there would have been clinical signs. Not only that, if she had already sustained a femoral fracture she would have screamed substantially if he had pushed down on her femur. There were no such signs. As he said repeatedly, 'If there had been a fracture I would have seen it'.
- Dr Y made the point that he sees a lot of patients each year. He now found it difficult to recall all of the detail of this consultation. Indeed, he said that he had found it difficult to recall the detail even when first seen by the police on 24th August even though that was only four weeks after the examination.
27th July to 8th August
- It is unnecessary to examine this period in close detail given the unchallenged medical evidence that the window for causation of the femoral fracture is 20th to 27th July. This period is most noticeable for the frequency with which the children were seen by professionals and the complete absence of any concern about C's presentation.
- The social worker, Ms L, made a home visit on 27th July. She did not see any problems with either child. Her note of that visit records:
'Home visit as agreed with [the parents] last week. The twins appeared well and content. C has had a further dose of oral thrush and was seen by the GP last week and prescribed Nystatin. C was also seen by doctors at the hospital yesterday (Sunday 26.07.09) and was prescribed Calpol and Infancol for wind. The mother had been concerned that C may have a throat infection.'
Neither parent had expressed concerns about Dr Y's examination of C.
- Detective Constables F and G also visited on 27th July. They went to see the parents to discuss the bruising. Neither parent mentioned their concerns about Dr Y's examination of C. The police officers saw nothing untoward during their visit.
- Ms L visited again on 29th July. So, too, did the Health Visitor, Ms K. Ms K saw both children stripped. She weighed them. She saw nothing untoward. The mother did not report any concerns, either about the children or about Dr Y's handling of C on 26th July. Ms K had no concerns about either child.
- On 4th August the twins were seen by a specialist paediatric dietician, Ms J. They had been referred to her because of possible dairy intolerance. Ms J did not carry out a physical assessment of the children. She does not note any concerns about the presentation of either child at the time of this consultation.
- On 5th August the children were again seen by Ms K. GM was also present. The twins were stripped and weighed. Their height was measured. In order to measure their height Ms K had had to straighten their legs. The mother says that when she did so C screamed. Ms K said this did not accord with her recollection. She did not note anything untoward, though she says that C was 'a little unsettled during the visit' compared with D. The mother reported that C was not settled. Her primary concern was about feeding problems and possible milk intolerance. Ms K did not notice any swelling to C's right leg.
- On 6th August the children were seen by Dr X, a locum Consultant Paediatrician, having been referred by their GP for allergy tests. Dr X weighed the children and examined them. On examination C was found to have 'mild sebborrheic dermatitis and mild intertrigo and eczema in the groin'. She was also found to have mild thrush. Dr X noted that C 'does cry a lot'. Apart from that, Dr X noted nothing of any concern. On 25th August Dr X made a note of a telephone conversation with Detective Constable G in which she wrote:
'Called G – mentioned I had no concerns on 6.8.09 re trauma or injury – but does not exclude fact that could have had fracture of leg but callus not yet obvious. Was no obvious bruising.'
- Ms L made a further visit to the parents' home on 7th August. The mother's diary reads: 'Ms L came round pm to talk about CPC meeting next week. Told not going any further, other than regular visits from Ms K.'
9th and 10th August
- On the evening of 9th August the mother noticed that C's right leg was swollen. She pointed it out to PG. PG felt the leg. The swelling was hard. C was not distressed when her leg was touched. She did not have a temperature. They decided that the mother would telephone the Health Visitor the next morning. A somewhat different account is given by the father and PG. They both claim that PG had advised that C should be taken to hospital straight away but that the mother was resistant, preferring to speak to Ms K first. I don't accept that evidence. Neither of them had said this to the police. I am satisfied they said this in order to put the mother in a bad light.
- Throughout her various statements and interviews the mother has maintained that C's right leg has often appeared to be swollen; that she had a tendency to keep it bent; that she would cry when her leg was moved, especially when her nappy or clothing were changed. This has been going on almost since birth. It is clear that what she noticed on 9th August was something different.
- The mother telephoned Ms K's office the next morning. Ms K didn't arrived at the flat at around 6.00pm. Both parents were there and both maternal grandparents. Ms K checked C over. She found that C's right leg was 'very swollen'. It was 'blatantly obvious' that there was something wrong. Ms K was visibly surprised to learn from counsel that the window for the femoral fracture was 20th to 27th July and that the fracture had been sustained before her visits on 29th July and 5th August.
- Ms K said that she asked each of the adults in turn whether they knew what had happened. When she asked GF he 'went quite pale'. When she asked GM she said 'I don't know, I don't know'. Ms K said that 'she was just sort of looking around as if not quite sure what was going on'. She seemed more agitated than her husband. Ms K advised that C should be seen by the doctor that evening. She made an appointment with Dr W. The mother was very distressed and crying. The rest of the family were quite quiet. No-one asked her what she thought might be wrong with C's leg.
- Ms K first gave evidence during the second week of this hearing. At that time her account of what took place at the flat on the evening of 10th August was not disputed. It came as a surprise, therefore, to hear a different account from GF and GM when they gave their evidence. GF said that Ms K had told him she thought the swelling might be a tumour. GM said she heard Ms K say something like 'I hope it's not a tumour'. GF had not put this to Ms K in cross-examination. Neither GF nor GM mentioned this during their police interviews.
- On 19th October Ms K was recalled to give evidence on this discreet issue. When Miss Isaacs told Ms K what GF and GM had said, the look of utter amazement on her face was plain for all to see. She was adamant that on 10th August there had been no mention of the word 'tumour'. She said the word 'tumour' did not leave her lips. GM challenged her about this. She said 'You are incorrect and you know you are incorrect.'
- I find it difficult to conceive that GF and GM could have misinterpreted or misheard what was being said to them. Either they are telling the truth or they know that they are not telling the truth. I am satisfied it is the latter.
The fracture to C's right femur – the medical evidence
- Ms K arranged for an urgent appointment with Dr W. The mother and GF took C to the surgery. Dr W saw C at around 7.00pm that evening. The mother explained that C's right thigh appeared swollen. Dr W said that C did not look in any more distress than when she had seen her previously. The mother had taken C's clothes off. Dr W palpated C's thigh. C did not cry. However, she could see that there was a discrepancy between C's right thigh and her left thigh. It was very obvious. She advised that C be taken to the hospital.
- The father and GF took C to the hospital. They were joined by PG. Once again C was seen by Dr R. Dr R noted the history given to her:
'dad finished work sun eve – gave her a bath. Mum noticed thigh bigger than other thigh, hasn't been crying…No episodes of crying/crying out abnormally since discharge [on 20th July]. No accidents/trauma…[paternal] gms noticed swelling before just after [discharge] from hospital. Was brought to hospital w/c by mum + dad + auntie + checked over + felt she was ok noticed thrush on throat…'
- On examination Dr R noted that there was no bruising and no overlying skin changes but that there was swelling of the right thigh which felt firm. She arranged for an X-ray to be taken. The X-ray confirmed the fracture.
- C was seen the next day by Dr U, a Consultant Paediatrician. In her report, Dr U notes that when she first met the mother she had
'reported that since C was born she had not been able to straighten her right leg. She had been concerned about C's hip and knee movement. The right leg had appeared bigger than the left and had gradually increased in size. Mum had taken C to the out of hours GP service…on 26 July 2009, because C was constantly upset and appeared to be screaming when her leg was moved. Initially [the mother] reported that C was more upset on that day and could not be calmed and that was why she took her to [hospital] , but then on reflection she felt she was no more upset than previously on that particular day.'
- Dr U said that the mother had been distressed as she gave her account. She observed the mother to be a concerned mother who had good interaction with her babies. She saw nothing that concerned her in the mother's handling of the twins. It seemed to her that the mother 'adored these two children'. Whilst the children were in hospital the mother had visited whenever she could and had been 'fully engaged'.
- In contrast, Dr U has expressed some concerns about the father. The minutes of a Strategy Meeting held on 12th August record that
'Dr U thinks that [the father] is "peculiar", [the mother] shows her concern and all he does is talk on his mobile phone and says you are all covering your back because of baby 'P'. [The father] does not appear to be concerned although [the mother] and maternal and paternal grandparents are "beside themselves".'
Dr U said she noticed that the father did not make eye contact. He had even taken a phone call during a meeting with her. She agreed that in light of the children's earlier admission to hospital she could understand why the father may have found it difficult.
- C is the older of the two twins by a few minutes. It was a difficult and painful birth. In her police interview the mother said that C 'got stuck when she was being delivered…They had to pull her out'. At one stage the parents suggested that the femoral fracture could be a birth injury. The expert radiological evidence is that evidence of callus formation shown on the X-ray of 10th August compared with the absence of callus formation on the earlier X-ray of 20th July is proof positive that this could not be a birth injury. Both parents now accept this.
- The parents have also suggested that C may be suffering from osteogenesis imperfecta. The radiological evidence does not support this. Evidence has also been obtained from Professor Nicholas Bishop, Professor of Paediatric Bone disease at the University of Sheffield. Professor Bishop concludes that neither child has convincing evidence of osteogenesis imperfecta or any other bone disorder. The parents now accept this.
- The evidence of Dr Chapman and Dr Sprigg, is that the X-ray images suggest that the femoral fracture must have occurred sometime between 13th and 27th July 2009. That is not disputed.
- In his first report, Dr Chapman says that 'The fracture does not suggest non-accidental injury rather than an accident, but I would expect a carer to have knowledge of how and when such a significant injury was sustained'. Dr Sprigg agrees.
- The X-rays only take one so far in determining precisely when and how the fracture occurred. It is at that point that evidence other than radiological evidence becomes acutely important. As Dr Sprigg put it, a 'good story' is needed in order to be able to say whether the injury was caused accidentally or non-accidentally. Dr Sidebotham used the expression 'memorable event'. In this case, finding a 'good story' or 'memorable event' that is both consistent and coherent is profoundly difficult.
Radiological evidence – general issues
- Dr Chapman's involvement began when the hospital sought his opinion on the X-rays. He offers the following opinion on the possible mechanisms for such an injury:
'The fracture would have been sustained as a result of a levering (bending) force applied across the middle of the thigh. It could have resulted from a fall from a height (although falls at this age tend to cause injuries to the upper part of the body as infants are 'top heavy'). It could have resulted when a carer yanked on her leg to break a fall when she was falling. As a non-accidental injury it could have resulted if the leg was used as a handle and/or the leg being quickly moved against the inertia of the child's body, e.g. a very rough nappy change.'
Dr Sprigg agrees.
- As for the amount of force required to cause such a fracture, Dr Chapman made the point that the femur is the thickest bone in the body. To fracture the femur would require a level of force that goes beyond that which would be used in normal handling of an infant. As Dr Sprigg put it, it is a level of force such that if a bystander saw what was happening she would say, 'stop that, you are going to hurt that baby.'
- The issue of C's presentation after the injury is of particular significance in this case. If one accepts that the window for causation is 20th to 27th July it is a mystery why the fracture was not noticed until 10th August particularly since during that same period C was seen (though not always examined) by a variety of different professionals on 21st, 22nd, 26th 27th and 29th July and on 4th, 5th 6th and 7th August. It is a remarkable feature of this case that none of the professionals who saw C on those dates observed anything untoward. It is also remarkable that the fracture apparently occurred during a period when the parents' care of the children was under constant supervision. In her police interview the mother said 'To be honest I don't think I've ever been in the room with the girls on my own since we took them out of hospital.'
- Both experts were asked for their opinion on C's likely presentation at the time of the fracture and in the days immediately following. Although there is no significant difference between them on this issue, given its particular importance in this case it is appropriate to set out in full what each of them has to say.
- In his first report (and repeated in his police statement) Dr Chapman says:
'I would expect C to have screamed when the fracture was sustained and for that initial distress to have lasted some minutes (rather than hours). However, for several days after the initial event I would expect her to have a floppy leg and for movements, e.g. during bathing and dressing, to cause renewed distress. The leg would have been swollen (because of bleeding into the soft tissues of the thigh) for at least several days. Many childhood fractures are not associated with bruising. This is not an injury that could have gone unnoticed by her usual carers. When she was left alone, she might have seemed normal. Some children with a femoral fracture hold the leg in a frog-leg position.'
- Dr Chapman said that he would expect the maximum pain to have been experienced at the time of the fracture. The fracture would begin to heal at around a week following the injury. When the fracture begins to heal and callus forms, movement of the fracture site becomes more limited and therefore less painful. Dr Chapman would therefore have expected C to experience pain on handling (for example, on changing her nappy or dressing her) for around seven days after the incident which caused the fracture.
- On this same issue, Dr Sprigg says that
'The fracture would be immediately painful and cause a change in her symptoms at the time of injury, irrespective of whether or not she had an underlying bone disorder.
'A baby may be irritable because they have a fracture or alternatively a baby may be irritable for other reasons and this might provoke a carer to handle her with inappropriate force resulting in a grab and yank injury to the leg causing a subsequent fracture. Medically I cannot disentangle the two.
'What I would be looking for was a sudden change in her symptoms from being a relatively normal or irritable baby to a baby who was crying in severe pain at the time of the fracture to the femur….
'The symptoms from a fracture will persist for several days after the injury and gradually reduce with time. I would expect an infant to be in pain on movement with a displaced fracture for up to about a week after injury.
'The symptoms of fracture (pain/screaming/intense crying) would be evident to the person with the infant at the time of the injury. They would recognise that they had hurt the infant and caused pain even if they did not realise they had broken a limb.
To a non-perpetrator the symptoms may be less specific, but they would recognise the infant was in pain on moving a limb, for example on bathing and dressing and that the baby was not moving the fractured segment of the limb as much as normal for a few days after the injury. In a baby the limb may appear limp or floppy. It may be reluctant to kick the leg around as much as the other limb during a nappy change or bathing.'
- There is one issue upon which there is a divergence of opinion between Dr Sprigg and Dr Chapman. Dr Sprigg's oral evidence was to the effect that although the skeletal survey undertaken on 20th July shows no evidence of callus formation and therefore provides no evidence of a healing fracture, this does not rule out the possibility that there may have been a hairline (undisplaced) fracture present at that time. So far as that possibility is concerned, it is clear that the skeletal survey is less than optimal because C's nappy had not been removed thus creating artefact over the femurs. In his report, Dr Sprigg says
'I do not think that it is possible using radiology to confirm whether or not there [was a femoral fracture] present on 20.07.09. I would not exclude this, but I cannot confirm it radiologically. There was no clinical concern re the femur at that time that was noted by the paediatricians.'
- Given that last point and the fact that the X-ray of the 10th August clearly shows a displaced fracture, on Dr Sprigg's evidence it would appear that it is possible either that there has been a single event which caused the displaced fracture or two events, the first causing a hairline fracture and the second causing displacement.
- Dr Chapman disagrees. He said that all of the femoral fractures he sees at the time of X-ray are displaced fractures. He has no personal experience of an undisplaced femoral fracture subsequently becoming displaced. For that to happen it would be necessary for the initial fracture to have extended right across the width of the femur. Dr Chapman could accept the possibility of a femoral fracture which is minimally displaced but in which the displacement increases as a result of further movement of the fracture site. However, he has difficulty with the concept of a relatively asymptomatic hairline fracture of the femur. Had the fracture been even partially displaced on 20th July then, notwithstanding that C still had her nappy on, he would have expected the fracture to be visible on the X-ray. Dr Chapman's very firm opinion is that C's right femur had not been fractured at the time of the first X-ray on 20th July.
- One of the reasons why Dr Chapman arrives at this conclusion is because it is likely that, unless splinted, even an undisplaced fracture would become displaced within a very short space of time as a result of the contraction of the muscles on either side of the femur. This is an issue dealt with in the joint report signed Dr Chapman and Dr Sprigg following an experts' meeting:
'We further agree that if a recent fracture had been present on 20.07.09 then it is likely to have been displaced, due to the action of the muscles pulling bones apart, above and below the unstable fracture site. Hence any recent fracture would have been detectable by displacement, despite the nappy.'
- As I have already noted, one of the mysteries of this case is the fact that the children were seen by professionals so frequently and yet it was not until 10th August that the femoral fracture was found. Dr Chapman said he could think of 'countless instances' of fractures not being noticed in Accident & Emergency Departments, though they tended to be less serious fractures. C's was a serious fracture.
Radiological evidence – the first skeletal survey
- Both Dr Chapman and Dr Sprigg unhesitatingly dismiss the possibility of the fracture occurring as a result of rough handling during the skeletal survey. Dr Chapman has worked in the radiology department at the Birmingham Children's Hospital for 25 years. The department undertakes around 55,000 X-rays each year. He has no experience of a radiographer ever having caused a fracture. He is not surprised that C became increasingly upset or that GF found the experience upsetting. That is quite normal. Undertaking a skeletal survey is a long process and children do become increasingly fractious. Dr Sprigg's experience is the same. His department undertakes around 40,000 X-rays per year. He has never known a child sustain a fracture when being manoeuvred for X-rays.
Expert medical evidence – the Barlow and Ortolani tests
- Dr W carried out the Barlow and Ortolani tests on 17th July as part of the standard six-week check. There is nothing in her notes to indicate that anything untoward occurred during the course of that examination. It is clear from the medical evidence that these tests rarely lead to a fracture and even when they do there is usually some underlying condition predisposing to fractures such as osteogenesis imperfecta.
- As a consultant paediatrician of some twenty years standing, Dr Sidebotham has carried out in excess of 1,000 such tests. He is not aware of any child having suffered either a fracture or any other injury during the process. If carried out correctly, he is doubtful that these tests will of themselves cause injury. Although it is 'not unusual to hear a faint higher pitched click as this test is done' this is 'a normal finding which is of no significance'. He described this as similar to 'cracking one's knuckles'.
- Dr Sidebotham describes how the Barlow and Ortolani tests should be carried out:
'15.17 To carry out these tests, the infant's hips and knees are flexed to 90º and the examiners (sic) hand is placed over the thigh with the thumb over the medial (inside) proximal (closest to the hip) end of the thigh, and the fingers stretching down the outside of the thigh to rest over the hip joint. For the Ortolani test, the thigh is abducted (pulled outwards) and gently forwards. If the hip is dislocated, a clunk can be felt and sometimes heard as the hip moves into the joint. It is not unusual to hear a faint higher pitched click as this test is done and this is a normal finding which is of no significance. For the Barlow test, the thigh is held at 90º and gently pushed backwards and slightly in. In an unstable hip, the joint may be pushed out of the socket and the subsequent Ortolani test will detect its subsequent relocation.'
'15.18 …Whilst it is not unusual for a baby to cry during the examination, these tests do not require any degree of force, and any significant resistance would alert the examiner to the fact that something was wrong. In my opinion, if an examination had led to a fracture, the examining doctor would have been aware that something had happened.'
- More importantly, Dr Sidebotham makes the point that given the frequency with which these two tests are carried out it is quite remarkable that there is no history of them leading to fractures or other injuries:
'15.20 The Ortolani and Barlow tests have been in use as the standard approach to screening for developmental dysplasia of the hips since at least the 1960s. As they are carried out both in the neonatal period and at the six week check, at least 1.5 million tests are performed every year in England and Wales alone. Given the importance of these tests, it is therefore striking that there have only been two published papers linking the clinical tests with fractures of the femur. Both have only described this in association with known or presumed bone disease, and one of the papers has to be read with caution, given the previous criticisms of its lead author and the quality of the information given in the paper itself. Thus, at most, one must conclude that a fractured femur is an extremely rare complication of clinical examination of the hip and is likely to only occur in the presence of demonstrable bone disease.'
He says that the forces involved in these tests 'would be less likely to result in a mid-shaft fracture of the femur, than a fracture of the proximal third of the femur'.
- Dr Sidebotham was asked whether the loud 'crack' heard by the family during Dr Y's examination could have been the sound of bone moving against bone. He thought that the movement of the two sides of the fracture site against each other would be far less audible than a 'crack' sound.
- Using a mannequin provided by Dr Sidebotham, Dr Y demonstrated the technique he uses to carry out the Barlow and Ortolani tests. Dr Sidebotham said that although Dr Y's technique was 'slightly different' from his own it was nonetheless 'an acceptable technique'. However, later he said that Dr Y's technique 'fell below the gold standard' and would lead to more of a leverage force across the thigh than by using the technique which he himself uses.
- Dr Sidebotham comes to a very clear conclusion about the likelihood of Dr Y having caused the femoral fracture whilst carrying out these tests. He says
'15.22 I am convinced however that, had the fracture occurred as a result of this examination, C would have screamed inconsolably and it would have been obvious at the time that something was wrong.
'15.23 In light of the published medical evidence, my own experience in examining infants' hips, and my understanding of the biomechanics involved, it is my opinion that it is extremely unlikely that Dr Y's examination of the hips was the cause of C's femoral fracture. Whilst I cannot completely rule it out, and particularly bearing in mind the discrepancies between the doctor and the family members, I believe the weight of evidence effectively excludes this possibility.'
- Dr Chapman and Dr Sprigg take a similar view. Dr Chapman made the point that all newborn babies have their hips examined, often by an inexperienced junior doctor. If there were any history of these routine tests leading to femoral fractures then he would expect it to be well-described in the literature. Although Dr Sprigg agreed, he conceded that if sufficient force were used whilst carrying out these tests he could see how such a fracture could occur.
- If the femoral fracture had been sustained in the period from 20th July to 26th July (i.e. before Dr Y examined C) then Dr Chapman would have expected Dr Y to have noticed. He was clear that undertaking the Barlow and Ortolani tests in these circumstances would undoubtedly have caused C distress, though if the fracture had occurred at the beginning of this period then the impact may have been less than had the fracture been sustained on, say, 25th July. However, no matter when within that period the fracture had been sustained Dr Chapman's opinion was that it could not have been a 'symptom-free procedure'. Dr Sprigg agreed. He said that at six days post trauma the femur would not have been sufficiently stable to withstand the Ortolani procedure. He would expect the child to scream very loudly.
The law
Standard of proof
- The burden of proof rests upon the local authority. The standard of proof is the civil standard; that is the balance of probability. In Re B (Children)(Fc) [2008] UKHL 35. Baroness Hale said that she would
'70. …announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies
- It was also made clear in Re B that with respect to any fact alleged by the local authority the court is not entitled to come to the conclusion that, on the one hand, the local authority has failed to establish that fact on the balance of probability but that, on the other hand, the court cannot discount completely the possibility that the circumstances may be as alleged by the local authority. As Lord Hoffman put it
'2. If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.'
Identifying the perpetrator
- With respect to any injuries conceded to be, or found by the court to be, non-accidental injuries the burden again falls upon the local authority to prove on the balance of probabilities who inflicted that injury. If the local authority is unable to establish who the perpetrator is, the court must consider who falls within the pool of possible perpetrators. On that issue the approach of the court should be as set out by Butler-Sloss P. in North Yorkshire County Council v SA [2003] EWCA Civ 839:
'26. if there is not sufficient evidence to [identify the perpetrator or perpetrators] the court has to apply the test set out by Lord Nicholls of Birkenhead as to whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused the injury to the child. For this purpose, real possibility and likelihood can be treated as the same test I would therefore formulate the test set out by Lord Nicholls of Birkenhead as, 'Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?'.
- Further guidance has been given by the Supreme Court. In Re S-B Children [2009] UKSC 17, in giving the judgment of the court, Baroness Hale said
'34. The first question listed in the statement of facts and issues is whether it is now settled law that the test to be applied to the identification of perpetrators is the balance of probabilities. The parties are agreed that it is and they are right…the same approach is to be applied to the identification of perpetrators as to any other factual issue in the case…
'35. Of course, it may be difficult for the judge to decide, even on the balance of probabilities, who has caused the harm to the child. There is no obligation to do so. As we have already seen, unlike a finding of harm, it is not a necessary ingredient of the threshold criteria. As Lord Justice Wall put it in Re D (Care Proceedings: Preliminary Hearings) [2009] EWCA Civ 472, [2009] 2 FLR 668, at para 12, judges should not strain to identify the perpetrator as a result of the decision in Re B:
"If an individual perpetrator can be properly identified on the balance of probabilities, then . . . it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification."
'39. The second and third questions in the statement of facts and issues ask whether judges should refrain from seeking to identify perpetrators at all if they are unable to do so on the civil standard and whether they should now be discouraged from expressing a view on the comparative likelihood as between possible perpetrators...'
Her Ladyship answered 'yes' to both these questions.
Assessing the medical evidence
- In evaluating the expert evidence the court must beware of the over-dogmatic expert. In Re U (Serious Injury: Standard of Proof): Re B [2004] 2 FLR 263, Dame Elizabeth Butler-Sloss P said that
'[23] there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following…
(iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.'
(v) The judge in care proceedings must never to forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.'
Evaluating the totality of the evidence
- Over a period of 14 days I heard evidence from 19 witnesses, including the parents and other family members. The documentary and photographic evidence runs to in excess of 1,700 pages. What should be the court's approach to the evaluation of such a large volume of evidence, some of which is manifestly contradictory? In Re T (Abuse: Standard of Proof) [2004] 2 FLR 838, at para [33] Butler-Sloss P made the point that evidence
'cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.'
- In this case there is a large measure of agreement between the medical experts so far as concerns the femoral fracture. And yet that evidence is only part of the evidence in the case. In Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200, Bracewell J made the point that
'[24] Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened.'
- It is also appropriate to remind myself of the point made by Charles J in A County Council v K, D and L [2005] 1 FLR 851 that
'[28] in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 203. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B .'
Discussion
- This is a finding of fact hearing and not a threshold hearing. My task is to consider (i) whether any of the alleged injuries is a non-accidental injury, (ii) if so, to identify the perpetrator if possible and if not possible then (iii) to identify the pool of possible perpetrators, and (iv) if I should find that any of the injuries is a non-accidental injury, to go on to consider whether it can properly be said that any of the adult family members has failed to protect the children.
- Miss Isaacs submits that I should also make an assessment of future risk. I disagree. The assessment of risk is more appropriate for determination at a threshold hearing when the court is required to consider whether the child concerned 'is suffering or is likely to suffer, significant harm' (s.31(2)(a)) or at the welfare hearing when the court is required to consider 'any harm which he has suffered or is at risk of suffering' (s.1(3)(e)).
- Before I review the evidence it is important to acknowledge that in weighing the evidence the court must consider the positives as well as the negatives so far as these parents are concerned. The evidence contains some glowing references to the mother's care of these children. Dr U referred to her as 'adoring the twins'. Ms L described her as 'a gentle caring attentive mum'. Ms K observed that she 'had bonded well with the twins and was an excellent mother'. Though not couched in such glowing terms, the evidence also contains some positive comments about the father's parenting.
The general bruising
- I stated earlier that the window for the general bruising is 14th to 17th July. Miss Isaacs submits that the window can be narrowed to the period between 10.00pm on 15th July and 15.59pm on 16th July. That presupposes that PG is telling the truth when she says that there were no marks on the children when they were changed shortly before they left her house on the evening of 15th July. Can I accept PG's evidence on this issue?
- At the beginning of this hearing it appeared that both parents, and both families, were presenting a united front: the bruising was caused by the car seat belts; the alleged bite mark is not a bite mark but another bruise caused by the seat belts; the femoral fracture was caused by Dr Y. The longer the hearing continued the more fault lines began to appear between the two families. Neither family holds the other in high regard. GF and GM did not consider the father to be a suitable partner for their daughter. PG thought there was a risk of her son being scapegoated by the mother's family. I have no doubt that these fault lines have had some influence on their evidence. Their evidence needs to be scrutinised with care.
- With that caveat in mind, although I have concerns about some of PG's evidence, in particular with respect to her response to the text messages sent to her on 22nd July, I accept her evidence about the state of the twins when they left her home on 15th July. I am satisfied they did not then have any visible marks.
- What, then, is the time when the window should be considered closed? I have concern about parts of GF's evidence, not least with respect to some of the events that occurred after the children were discharged from hospital on 20th July. However, both he and the mother are clear that it was when they bathed the children on the morning of 16th July that they first noticed these marks. That was sometime around 10.30 or perhaps slightly later. I accept their evidence on that point.
- For the purposes of determining how these marks were caused I take the window to be from 10.00pm on 15th July to 11.00am on 16th July. During that period the only people to have contact with the children were the parents and GF.
- The parents' explanation for the general bruising is that it was caused by the children's car seat belts. They have given that explanation consistently since the time of the children's six week check on 17th July. That explanation is premised on an assertion that the seat belts were too tight. It is accepted by the mother that on 14th July GM told her that she thought the seat belts needed to be loosened. The mother says she did not know how to loosen them. The father accepts that he loosened the seat belts the next day. There is no issue on that point. I accept their evidence.
- Miss Isaacs makes the point that it is surprising that the seat belts caused these marks after they had been loosened; one would have thought that the marks would have occurred before the seat belts had been loosened. Against that it has to be said that we do not know how tight the belts were before they were loosened, how much they were loosened or whether they were still too tight even after they had been loosened. Miss Isaacs also submits that if the seat belts were too tight it is surprising that they had not caused similar marks before 16th July and also surprising that the parents considered it safe to continue to use them after the children had been discharged from hospital on 20th July.
- The inadequacy of the police photographs means that the body charts are particularly important in this case. So far as D is concerned, it is clear from the body chart that the bruising to her chest is in the area over which the seat belts passed. D sustained only one bruise to any other part of her body and that was to the back of her left forearm. So far as C is concerned, she sustained fewer bruises to her chest but more bruises to her arms and also a bruise to her left hand. According to the body chart the bruising to C's chest is similar in size and shape to the bruising to D's chest. The bruising to her right upper arm and her left lower arm are similar in size and shape to the bruising on her chest.
- The fact that child car seats, properly adjusted, do not normally cause marks to a child does not mean that it is not possible for that to happen if they are too tight. It was on just that basis that both Dr S and Dr T were prepared to accept the parents' explanation. Dr Sidebotham said that the parents' explanation for the bruising to the children's chests was 'tellingly consistent' with the location of the marks.
- The bruising to the children's arms is more problematic. It is clear that on 17th July both Dr S and Dr T were minded to accept that the bruising to the arms could have been caused by the seatbelts. Dr Sidebotham was less persuaded. However, it is important to note what Dr Sidebotham actually said. D sustained one bruise to her arm. In his written report Dr Sidebotham adopts what might be called the normal paediatric default position that in the absence of a plausible explanation it must be considered to be a non-accidental injury. So far as concerns the bruising to C's arms he adopts the same position, though in her case with rather less conviction given the absence of photographic evidence of all but one of those bruises. However, in his oral evidence Dr Sidebotham said that he had not seriously considered the possibility that the children's arms may have been restrained inside the seatbelts. If that were the case then he would be 'more open' to the idea that the seatbelts had caused the bruising to the arms, particularly those to C's upper arm.
- The bruising to the palmar side of C's right forearm is almost identical in both size and location to the bruise on D's left forearm. It would in my judgment be an unlikely coincidence that two such small children would suffer non-accidental bruising at about the same time, in about the same place and of about the same size.
- That leaves the bruising to C's left hand. The bruises were very small – a 5mm bruise on her left ring finger by the knuckle and a 1 cm bruise on the ulna surface of her hand. On any view of matters this is extremely minor bruising. Dr Sidebotham notes that this bruising 'is in an unusual position'. He is clearly disadvantaged in offering an opinion as to the likely cause of this bruising because of the absence of any photographic record. He says that this bruising 'could have been caused non-accidentally or accidentally'.
- The evidence from the parents is that after their 00.45am feed on the morning of 16th July the children would not settle. The father dressed them and took them out. The mother thought he had taken them out in the car. In fact he had taken them out in their buggy. The car seats are also used as part of the buggy. When he returned the children were both asleep. He did not disturb them by removing them from their car seats. Instead, he left them strapped in their car seats. He put the car seats by his bed. That is where the mother found them when the children woke for their next feed at around 5.00am. She found them still strapped in. This means that the children had been strapped in their car seats for around three hours. I accept the parents' evidence about the events of the early hours of 16th July.
Conclusion: the general bruising
- There is in my judgment an obvious disadvantage to parents in an approach which requires that they provide an explanation for even the smallest bruise failing which there will be an automatic presumption that that bruise must have been an inflicted injury. Such an approach subtly changes the burden of proof and puts the onus on the parents to provide a credible explanation. As a matter of law, it is not for the parents to disprove the suggestion that the general bruising is non-accidental but for the local authority to prove that it is.
- Apart from the bruising to C's left hand, the parents have given an explanation for the bruising. Their explanation finds some support in the medical evidence, at least so far as concerns the bruising to the children's chests. The medical evidence also allows for the possibility that the bruising to their arms was also caused by the seat belts. So far as concerns the bruising to the children's chests and arms the local authority has failed to satisfy me to the requisite standard that that bruising is non-accidental. As for the bruising to C's left hand, it is very minor. The fact that the parents are unable to provide an explanation does not of itself justify a finding that that bruising is non-accidental. The local authority has failed to satisfy me that it is non-accidental.
The alleged bite mark
- The alleged bite mark on C's abdomen is more problematic. Mr Pressdee submits that I must 'weigh in the balance the sheer improbability of that allegation. For a parent or relative biting a baby must be at the outer reaches of the improbable'. At the human level I understand why he makes that submission. Dr Sidebotham described a bite mark as 'an extremely malicious act'. However, forensically, there is no necessary connection between seriousness and probability. As Baroness Hale said in Re B (Children)(Fc) [2008] UKHL 35 para 72,
'Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as the body with its throat cut and no weapon to hand, where it is not at all improbable'
- The first health professional to see the mark on the abdomen was Dr W. Dr W was asked what she had considered to be the cause of this injury. She said that the mark to the abdomen 'fitted' the mark of the seatbelt of the baby carrier C was in. She considered the possibility of a blood clotting disorder. She did not say she had considered the possibility that it may have been a bite mark.
- Dr R saw C later that same day. Her first impression was that this was a bite mark. That is what she wrote in her notes, though at the Strategy Meeting on 20th July 2009 it is minuted that Dr R told the meeting that this mark 'gave concerns as it was unexplained rather than an obvious non-accidental injury'. In her letters to Children's Services dated 23rd July she did not refer to a bite mark.
- Dr S also saw C on 17th July. He saw her in the car seat. He notes that this mark 'looks consistent with a bite mark but I could not exclude the less likely possibility of bruising related to the buckle.' Later still, Dr T also saw the bruising. She said 'I could not say that the bruising on abdomen was bite as now it is very feint and no teeth marks'.
- No-one who examined C saw any teeth marks or any abrasion of the skin. The belief that this may have been a bite mark is wholly reliant upon the shape of the bruising which is consistent with dental arches.
- I have already reviewed the expert evidence of Dr Z. He is absolutely sure ('10 out of 10') that this is a human bite mark. I referred earlier to the guidance given in Re U (Serious Injury: Standard of Proof); Re B [2004] 2 FLR 263 concerning the need to beware of the over-dogmatic expert. That guidance is relevant in this case.
- Although Dr Z expressed himself so confidently, his oral evidence jarred with the guidance given on websites for which he has some responsibility. The classification of a mark as a definite bite mark is appropriate where the pattern illustrates at least some features of dental arches 'and human teeth in proper arrangement so that it is recognizable as an impression of the human dentition'. [emphasis supplied] I am surprised and concerned that Dr Z did not see fit to set this out in full in his written report. The abbreviated extract provided in his written report is, in my judgment, misleading. When the full text is considered it is clear that it was wholly inappropriate for Dr Z to express such confidence in his assessment that this mark was a bite mark. On the basis of the colour photographs it is impossible to say that the mark shows features of 'human teeth in proper arrangement so that it is recognizable as an impression of the human dentition'. Only in the inverted images is Dr Z able to say that he can see teeth marks. None of the doctors who examined C say that they observed any such thing. In my judgment it would be surprising if a forensic odontologist viewing poor quality photographs was able to detect with such absolute confidence marks which others could not see with the naked eye with the child right in front of them.
- Dr Sidebotham is a very experienced consultant paediatrician. He is highly regarded within his profession and also by judges in this area before whom he has regularly appeared as an expert witness over a number of years. He said that he found it 'very difficult' to describe the marks on the abdomen as anything other than a bite mark. He is not persuaded that the car seat belts provide a plausible explanation. He makes the point that one would expect any mark caused by the buckle to be central whereas this mark is clearly some distance off-centre and much closer to her right flank. Even if the bruise were central, in his opinion it would not match the shape of the buckle.
- Dr Z agreed that it was possible that the bruising identified by him as a bite and the central area of redness could, in fact, be two separate marks with two different causes. More particularly, he agreed that the car seat buckle could have caused the mark which appears inside the two semi-circular arches of bruising. Dr Z gave evidence some days after Dr Sidebotham. This point had not been put to Dr Sidebotham.
- Although the mark to the abdomen is to the right of centre, the mother explained this by saying that C preferred to lie on her left with her right flank projecting forwards. Even in her car seat she would wriggle herself into that position. She has produced a photograph of C asleep in her car seat and lying on her left. Dr Sidebotham accepted that even very young babies 'wriggle a lot'.
- The mother said that when she first noticed this mark on 16th July she saw the red mark on the abdomen but did not see the semi-circular bruising around it. She did not notice the bruising until she was with Dr W the next day. GF said that when he saw the marks on 16th July the mark on the abdomen 'was the most noticeable'.
- The parents deny deliberately causing this injury whether by biting C or in any other way. It was clear from the mother's evidence that she could not conceive the possibility that anyone would do such a thing to one of her children.
- Of the doctors who examined C in real time, only Dr R excludes the possibility of this mark having been caused by the car seat. All of the doctors are agreed that there were no teeth marks or abrasions. Dr Z and Dr Sidebotham both express the opinion that this is a bite mark. Both of them rely upon the photographic evidence even though both acknowledge it is not of good quality.
Conclusion: the alleged bite mark
- I have expressed concerns about Dr Z's evidence, in particular because of his over-dogmatic approach. In arriving at its conclusions the court must have regard to the totality of the evidence. I have given this matter anxious consideration. As with the general bruising, the parents have consistently explained the bruising to the abdomen as having been caused by the car seat belts. Dr Sidebotham did not accept that explanation. Although he said that he agreed with Dr Z 'that these marks have the characteristics of, and could only have been caused by, a human bite' he was not in court to hear Dr Z's evidence and was unaware of the suggestion put to Dr Z (and accepted by the court) that he had been over-dogmatic in his view. I do not know how, if at all, that may have impacted upon Dr Sidebotham's own evidence.
- I accept the possibility that both the bruising to the abdomen and the red mark within it may have been caused by the car seat belt buckle. As Dr R told the Strategy Meeting on 20th July, 'this mark gave concerns as it was unexplained rather than an obvious non accidental injury. It is possible that it may have been caused by the car seat…' In light of the entirety of the evidence the local authority has not satisfied me on the balance of probability that the marks on C's abdomen are the result of non-accidental injury.
The femoral fracture
- I turn finally to the most difficult aspect of this case and that relates to the causation of the femoral fracture. It was a serious injury. The radiological evidence is that this was a displaced, angular fracture which would have required considerable force (well beyond that used in normal handling) and caused considerable pain. But how was it caused and who did it? Mr Storey submitted that this is a 'case of mysteries'. Miss Isaacs submitted that it is a case of secrets, lies and collusion. So far as the femoral fracture is concerned, they are both correct.
- In the light of the radiological evidence it is indeed a mystery why the fracture was not noticed by any health professional until 10th August. As Dr Sidebotham put it, 'wherever you plant the flag some professional has missed it'.
- I noted earlier that even before the 20th July (the beginning of the window for this injury) the parents and their family had noticed that C was more unsettled than D. She would often draw her right leg up to her tummy and appear to be in pain. This was diagnosed as colic, possibly caused by milk intolerance. It is well-documented that the mother had raised this with health professionals prior to 20th July. It is also the case that prior to the start of this window the parents had concerns about C's hips. This, too, had been drawn to the attention of Dr W and at some point (at the latest on 17th July) she had arranged for C to undergo a hip scan. In light of this, when evaluating the evidence it is important to bear in mind that prior to the 20th July the parents and other members of their family had experienced C as a child who was often unsettled, who cried rather a lot, who sometimes seemed to be in pain and whose hips occasionally clicked.
- As I review the evidence it is also appropriate to remember what Dr Chapman and Dr Sprigg said are the key signs that could be expected following such a fracture. They are that
(a) the child would have screamed when the fracture was sustained;
(b) the screaming would have lasted for some minutes;
(c) for several days the child would have been distressed on movement of her leg (e.g. during dressing, changing her nappy or bathing);
(d) for several days after the fracture she would have a floppy leg;
(e) her leg would have been swollen.
In my experience that advice is standard advice routinely given by paediatric radiologists in cases such as this.
- In his oral evidence Dr Sprigg accepted a suggestion that the injury may have been the result of two separate events, one causing a hairline fracture and the other causing displacement of that fracture. Dr Chapman did not accept that hypothesis. Apart from Dr Sprigg there is no other evidence that suggests that the 'two separate incidents' hypothesis as a real possibility. It is no more than speculation. I find that this fracture was caused by a single event.
- The evidence suggests that there are four possible accounts for this fracture. First, that it was caused during the carrying out of the skeletal survey on 20th July. Second, that it was caused by some undisclosed event whilst C was in the care of her maternal grandparents during the evening of 20th/21st July. Third, that it was caused by some undisclosed event during the evening of the 21st/22nd July at some point prior to the text messages sent by the father to PG. Fourth, that it was caused by Dr Y during the course of his examination of C on 26th July.
The skeletal survey
- GF is the only witness who was present when the skeletal survey was undertaken. He describes C as being upset. There is some evidence that when she left hospital there was a change in her behaviour. I accept the evidence on both of these points.
- Against that, GF does not suggest that C screamed during this process. There is no suggestion that the staff were concerned about C's cries. GF made no complaint about the way the skeletal survey was undertaken. No-one suggests that when C left hospital she had either a floppy leg or swelling in the area of the fracture site. The hospital records suggest there were no concerns about the presentation of either child at the time they were discharged. Both Dr Chapman and Dr Sprigg have never encountered a child sustaining a fracture during a skeletal survey.
- I exclude the possibility of the femoral fracture having been sustained as a result of rough handling during the skeletal survey.
20th-21st July
- C was in the care of her parents (supervised by maternal grandparents) for no more than two hours immediately following discharge from hospital. GF and GM then took the twins to their own home. They returned them at 10.30am the next day. I have accepted the mother's evidence that there was a change in C's presentation after she left hospital. She had no time to come to that conclusion on 20th July. She would not have been in a position to notice this until some time after the children were returned to her care on 21st July.
- I have considered the grandparents' evidence about why they insisted that the children spend the night of 20th July at their house. Even if one accepts that they are telling the truth and that it was reasonable for them to want to return to their own home, there remain concerns about the manner in which their decision was enforced. It was clear to them that the mother was deeply unhappy about what was being proposed. Although she and her parents sought to downplay the seriousness of the argument that took place, I am satisfied it was a serious and heated argument. The grandparents were intent on forcing their decision on the parents. They could have been in no doubt that the parents profoundly disagreed with what was being proposed. They gave them no choice.
- The grandparents' evidence about what happened whilst the children were in their care that night is also unsatisfactory. Having spent an exhausting few days at the hospital it is clear that the grandparents had a very disturbed night with the twins on the 20th July. The children were up and down all night. I doubt whether either grandparent got much sleep. Yet again the grandparents sought to downplay events. GM said that the children had been 'a handful'. I am satisfied that that is an understatement.
- GF and GM both deny that anything untoward happened that night whilst the children were in their care. I find their evidence generally to be lacking in candour. On one issue (their suggestion that Ms K referred to a 'tumour') I have found them to have been deliberately untruthful. It would be unwise to take at face value their assertion that nothing happened to the twins that night.
- On the other side of the scales there is the fact that when the children were returned to their parents on 21st July there is no suggestion that C's leg was either swollen or floppy. Although the mother increasingly noticed that C seemed more unsettled since coming out of hospital she does not describe anything that was significantly different about C's presentation. There is evidence that C cried out when her leg was moved, though there is also evidence that that had happened before her first admission to hospital. The point must also be made that if professionals were capable of missing the signs of a fracture then how much more so parents, particularly parents of a child who has a history of being frequently unsettled and upset?
- I am unable to rule out the possibility that the femoral fracture was sustained whilst in the care of the maternal grandparents on the night of 20th July. It is a real possibility. If it did happen during that period then as no explanation has been offered it must be considered as a non-accidental injury.
Tuesday evening 21st July
- About the events of this evening it is difficult to know who is telling the truth, who is telling lies and who simply has an unreliable memory. The mother says it had been agreed in advance that GG would be the supervisor that night. GG says it was a spur of the moment decision. The mother said there was a baby listening monitor in the attic bedroom. GG says there was not. PA confirms that there was one there then next evening. I have come to the conclusion that so far as concerns the events of that night the mother's evidence is unreliable but not deliberately untruthful.
- The issues surrounding the text messages are particularly intriguing. The father says that the content of his text messages is true. GG says that in so far as they relate to her, they are untrue. The father says that GG was there when he sent the texts. GG says that she was not. In his texts the father describes C's presentation in terms that resonate with the advice given by Dr Chapman and Dr Sprigg. He says that C screamed every time she was moved and that she seemed not to be moving her right leg. He clearly thought he ought to call the doctor. Dr Sidebotham said that the content of those texts 'matches what I would expect to see in a child soon after sustaining such a fracture'. GG says that when she got up to supervise a feed in the early hours of the morning, C seemed perfectly normal. The father says that GG cuddled C to settle her. GG says that she didn't handle either of the children whilst she was at the flat that night. In my judgment, these differences cannot be accounted for by memory lapses. Either the father or GG is being untruthful.
- I accept that these texts were sent during the course of that evening. The meaning of some of them is not entirely clear. The first explanation of the meaning of these texts comes in the father's final witness statement. After referring to C screaming, the text sent at 04.14 says that the mother 'says she has been like it eva since [GF] brought her bk'. In his witness statement he says
'The next feed was around 4am and [GG] assisted. C was crying and I woke [the mother] up. She said that she had been like that since she came home from [GF's] and [GM's] home. She was not particularly concerned.'
The mother has no recollection of that conversation. The father said he had tried to wake her up but it may be that she was still half-asleep. I do not accept his evidence on this point.
- The text sent at 04.26 says 'Dnt tel [the mother] bt it looks as if Cs nt movin her right leg as much'. Does this suggest that he had something to hide? In his witness statement he explains this by saying
'I did not want my Mum telling [the mother] that I was texting her about C's leg. I had spoken to [the mother] already about this and she may have been annoyed that I text my Mum for her view.'
Again, I do not accept his explanation.
- Leaving aside those parts of the texts whose meaning is unclear, there remains a more important question: is the factual content of the texts true? If true, the texts may be an indicator that father had himself injured C that evening. Alternatively, they may be an indicator that he noticed something wrong with C and panicked, uncertain what had happened. Either way, why would he mention GG if she had not been there at the time?
- On the other side of the coin, why would GG lie about the accuracy of the texts? There is nothing in them that casts her in a bad light or raises suspicions about her. The suggestion that she had been cuddling C to try to get her settled is what one would expect any caring great grandmother to do.
- GF, GM and GG have each filed a response to the local authority's schedule of findings. GF drafted all of them. During this hearing GM and GG have elected not to cross-examine any witnesses but to leave the presentation of their case to GF. The maternal family is a very close family. I noted earlier that the mother is particularly close to GF. Miss Isaacs suggests that the maternal family has been collusive. I accept that submission.
- I find it extraordinary that a great grandmother should spend an entire evening supervising the care of two six week old babies yet not give either of them a cuddle at some point. That runs counter to my experience of the way grandmothers normally behave. I do not accept that GG did not handle the children that evening. I do not speculate about what her motive may have been for not telling me the truth but I have come to the conclusion that the content of the text messages is broadly accurate (though I am less convinced by the father's after-the-event explanation of them). I find that GG has been untruthful.
- It is clearly a matter of concern that the father did not seek medical assistance if he believed it was needed. That was a breach of the Working Agreement. It is a concern that he never disclosed these text messages at any point during the investigations undertaken by Children's Services and by the police. However, none of this points inevitably to the conclusion that he harmed C that evening.
- I go back again to the five 'signs' set out by Dr Chapman and Dr Sprigg. Although according to the text messages C was screaming 'real tears', there is nothing about her presentation later that day that points to a fracture having occurred. If something untoward had happened to C during the preceding twelve hours one would have expected that when the mother fed, changed and bathed the children at 06.45am that morning and on other occasions throughout the day, movements that would have caused acute pain, she would have noticed swelling and a floppy leg. She says she did not notice these signs.
- Later that day the mother took C to see Dr W. Although Dr W only examined C's upper body it is clear from the expert medical evidence that had the fracture been sustained within 48 hours prior to that consultation it would have been surprising had Dr W not noticed that she was seeing a child with a fractured leg. She did not notice.
- I am unable to rule out the possibility that something happened to C in the hours prior to the series of text messages which began at 04.14am on 22nd July. This, too, is a real possibility.
26th July – Dr Y's examination
- The expert radiological evidence is that the femoral fracture must have been caused at some point between 20th and 27th July. Unless the fracture was caused in the hours after Dr Y's examination it must follow that either he caused that injury or that he failed to notice that he was examining a child with a fractured femur. There is no evidence of any untoward event occurring in the hours after that examination.
- Although Dr Sidebotham considered it unlikely that Dr Y's examination had caused the fracture he said that he could not 'completely rule it out, and particularly bearing in mind the discrepancies between the doctor and the family members…' Dr Sprigg conceded that if sufficient force were used whilst carrying out the tests then he could see how such a fracture could occur.
- Dr Y's account of this examination differs from the account given by the parents and PA in a number of important particulars. He does not remember C crying. He does not remember her screaming in pain. He does not remember hearing a loud click or crack. He told the police that C 'was in good spirits'. He did not see any swelling. She was moving all her limbs. He said he was 'confident' that he was not examining a child with a broken leg – 'If there had been a fracture I would have seen it'. Dr Chapman said he would consider it to be 'incomprehensible' if Dr Y had failed to notice that C had a fractured femur.
- I have expressed concerns about the reliability of some of the parents' evidence. Although I have noted that PA must be wrong in her timings of events on the afternoon of 22nd July, in all other respects I find her to be a reliable and truthful witness. I accept the evidence of family members concerning the examination by Dr Y. I am satisfied that they did hear a loud crack in response to which C 'screamed' or 'yelped'. I find that their account of the consultation with Dr Y is broadly accurate.
- It does not inevitably follow from that finding that I must conclude that Dr Y caused the fracture. PG told the police and confirmed in her oral evidence that on the morning of 26th July she had noticed that C's leg seemed to be 'slightly more enlarged than it was previously'. She told the police that C was 'crying more than normal'. In her telephone conversation with Dr V on 26th July the mother said that C 'just keeps screaming basically' and that 'she doesn't like having her nappy put on at all'. All of this is consistent with the fracture having occurred before the meeting with Dr Y. The 'scream' heard by the parents and PA is as consistent with the Barlow and Ortolani tests being undertaken on a child with a fractured femur as with the fracture having been sustained in the course of those tests being undertaken.
- C's presentation after 26th July is inconsistent with the five 'signs' given by Dr Chapman and Dr Sprigg. If the fracture was caused on 26th July then C would have been in pain (diminishing pain) for the next seven days, there would have been swelling and her leg would have been floppy. All of this ought to have been obvious to a health professional examining C at any point during the next seven days. C was examined by the Health Visitor, Ms K, on 29th July (three days after the event). C was stripped and weighed. No abnormality was detected. During the seven days following Dr Y's examination C was cared for by her parents under the supervision of the maternal grandparents and paternal grandmother. The maternal grandparents had C overnight with them on 31st July. None of them says that they witnessed any of the 'signs' identified by Dr Chapman and Dr Sprigg. Even more remarkably, on 5th August the children were again seen by Ms K. This time not only were they weighed, their height was measured too. This involved straightening their legs. Ms K noticed nothing wrong, not even any sign of the swelling that was drawn to her attention five days later. On 6th August the children were seen by a consultant paediatrician, Dr X. She, too, saw the children undressed. She, too, noticed nothing abnormal.
- I have come to the conclusion that I cannot exclude the possibility that the fracture occurred during the course of Dr Y's examination on 26th July. This, too, is a real possibility.
Conclusions: the femoral fracture
- I am unable to exclude the possibility that the femoral fracture was sustained either whilst in the care of the maternal grandparents on the night of 20th/21st July or whilst in the care of the parents and GG at some point between 10.30am on 21st July and 4.00am on 22nd July. Both are real possibilities. In my judgment the evidence does not permit the court to say it is more likely that the fracture was sustained within one of these time periods than the other. The most that can be said on the evidence is that the fracture could have been sustained at any point between the children's discharge from hospital on 20th July and the sending of the text messages in the early hours of 22nd July. That still leaves open the question of whether I can be confident that it is more likely than not that the fracture was caused by an event that occurred during that period and not as a result of the examination by Dr Y on 26th July.
- In his closing written submissions on behalf of the father, Mr Pressdee submitted that
'103. The conclusion in respect of the femoral fracture is that there can be no clear conclusion. All the possibilities, as noted above, have difficulties, and in those circumstances it is hard to see how a positive finding as to when and how it was caused can possibly be made. Its causation is the biggest mystery in this case of mysteries.'
That raises an interesting question about the approach of the court in the event that I were to conclude that the fracture could have been the result of a non-accidental injury sustained between 20th and 22nd July or as a result of an accidental injury resulting from the negligence of Dr Y on 26th July.
- The radiological evidence that the fracture must have been sustained at some point between 20th and 27th July is not disputed. As for how it happened, Dr Sprigg said that he would look for 'a good story'; Dr Sidebotham said that he would look for 'a memorable event'. The only 'good story' or 'memorable event' in this case is the examination by Dr Y.
- The radiological evidence as to the 'signs' of such a fracture has been as confidently stated in this case as in other similar cases I have dealt with, yet on the basis of the evidence in this case it is not possible, by reference to those 'signs', to reach a firm conclusion as to the point during the period 20th July to 27th July when this fracture was sustained. That could be because those who know what really happened have not told the truth. I have found that some members of the family to have been untruthful and all but PA to have been lacking in candour. Yet even the fact that family members have been less than frank does not account for the fact that these children were presented to professionals so frequently during the period 20th July to 10th August and yet until 10th August not one of them noticed that there was anything wrong.
- It could be that what has hitherto been so confidently stated by paediatric radiologists as near-certainty is, in reality, much less certain. As I noted earlier, in Re U (Serious Injury: Standard of Proof); Re B [2004] 2 FLR 263 at para [23] Butler-Sloss P made the point that 'The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts'. Dr Chapman's evidence (contained both in his report and in his police statement) is expressed in very confident terms. He said 'I would expect her to have a floppy leg'. At no time does any witness refer to C having a 'floppy leg'. He says that 'The leg would have been swollen…for at least several days'. No professional observed a swollen leg until 10th August. Though PG noticed that C's right leg was 'a bit more swollen than it normally was' on 26th July she had not noticed it the previous evening and it had not been noticed by Dr Y on the 26th or by Ms K on 29th July and 5th August. He said that 'This is not an injury that could have gone unnoticed by her usual carers'. If that is so then it must surely follow that neither could it have gone unnoticed by health and social work professionals; yet no professional noticed it until 10th August.
- Both Dr Chapman and Dr Sprigg agree that movement of the leg would be painful until callus had begun to form and that that would have been around seven days after the fracture. Both agree that undertaking the Barlow and Ortolani tests during that period would have caused obvious pain. In the light of that evidence, had the fracture occurred in the period 20th to 22nd July then Dr Y should have noticed it on 26th July. He didn't. Had the fracture occurred on 26th July then one would have expected Ms K to have noticed when she weighed C on 29th July. She didn't. As a matter of fairness to parents and children, it may be that these radiological 'certainties' need in future to be expressed with a greater degree of circumspection.
- Mr Pressdee submits that in light of the guidance given by Lord Hoffman in Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR at para [2], if the court should find that the likelihood of Dr Y causing the femoral fracture is no greater and no less than the likelihood of the injury having been inflicted by a family member then the local authority has not discharged its burden of proof, a value of 0 is returned and the femoral fracture must in law be treated as not having been inflicted by a family member. On behalf of the children, Mr MacDonald agrees with that reasoning.
- My task is to decide whether I am satisfied, on the balance of probability, that the femoral fracture is a non-accidental injury. If the injury was sustained during the period 20th to 22nd July then, on the basis of my findings, plainly it must be a non-accidental injury. However, if it occurred on 26th July then it is equally plain that the injury is an accidental injury sustained as a result of the negligence of Dr Y in the carrying out of the Barlow and Ortolani tests.
- I have found the possibility of the injury having been sustained in the period 20th to 22nd July to be a real possibility. I have found the possibility of the injury having been sustained on 26th July also to be a real possibility. I have come to the conclusion that the possibility that the injury was sustained in the period 20th to 22nd July is no more and no less likely than the possibility that it was sustained on 26th In other words, I find that the fracture is as likely to have an accidental (negligent) cause as a non-accidental (inflicted) cause. That means that as a matter of law the local authority has not satisfied me on the balance of probability that the injury is a non-accidental, inflicted, injury.
Conclusion
- The local authority has not satisfied me on the balance of probabilities that any of the injuries sustained by the children were non-accidental, inflicted, injuries. The proceedings will therefore be dismissed.
Photographs
- I referred earlier to concerns about the quality of the photographs taken on 18th July 2009. Because the need for the photographs arose late on a Friday afternoon the hospital's own medical photography service was not available. The hospital notes contain an entry timed at 16.30 on 17th July which reads
'need med. Photography – tried and no answer therefore social services contacted to acquire photographs through the police'.
- It is unclear at what time on 18th July the photographs were taken though there is a note in the hospital records timed at 10.00am which reads 'await medical photography' and a note in the police records timed at 14.15pm on 18th July which says that 'SOCO has attended and taken photos of bruises'. The best that can be said, therefore, is that the photographs were taken at some point between those two times. The identity of the officer who took the photographs is identified only by number (SOCO 4468).
- The minutes of the Strategy Meeting held on 20th July record that
'The hospital wanted to take photo's (sic) of the injuries before they faded. This was done on Saturday morning, some of the bruises had then faded. Photo's (sic) were also taken by the scene of crime police.'
This minute gives the impression that medical photographs were taken in addition to the police photographs. I have been assured that no medical photographs were taken.
- In accordance with good practice, at the time of her examination of the twins Dr R noted on body charts the marks she observed on each of the twins. With respect to nine of those marks Dr Sidebotham says in his written report 'I cannot confidently identify these on any of the photographs'. In his oral evidence he said that the photographs were 'reasonable but not the quality I would like to see'.
- In April 2006 the Royal College of Paediatrics and Child Health ('the RCPCH') published a 'Child Protection Companion'. Section 11 of that guidance deals with photography. The following passages from that guidance are of particular relevance so far as concerns the photographs in this case:
11.1 Practice
It is good practice to photograph any visible finding in suspected child abuse or neglect. This can be undertaken by
(a) Medical photographer.
(b) Police photographer.
(c) Doctor who is seeing the child.
(d) Other designated professional working as part of investigation team.
(a) and (b) are the preferred options.
11.2 Photography may be used to record:
(a) Injuries e.g. bruises, burns, lacerations…
11.3 Uses of photographs
11.3.1 Document any visible findings
11.6 Digital photography
11.6.1 Advantages
(a) …
(b) There is no processing of films required and hence no delay. The image is available when the report is written and immediate viewing or image is available so that the doctor can ensure the desired image has been captured…
11.6.3 General points
(a) The doctor is responsible to the court for identifying the image and for accuracy of representation…
11.9 Tips for photographing children
11.9.8 Doctor must show police or medical photographer what to photograph.
This last point is similar to the advice given in the British Association of Forensic Odontologists Bitemark Analysis Guidelines which states that
'The actual photographic procedures should be performed by the forensic dentist or under the odontologist's direction to insure accurate and complete documentation of the bite site.'
- What the RCPCH guidance does not say is how quickly photographs should be taken. In this case, even on admission to hospital on 17th July the bruises were fading. It is clearly important that photographs of bruising should be taken as soon as is reasonably possible and in the particular circumstances of this case that meant that they needed to be taken very quickly indeed. That did not happen.
- That is not the only concern about the photographs in this case. Had the RCPCH guidance been followed I would have expected, firstly, that all of the injuries would have been identifiable on the photographs (or at least identifiable to a medical expert witness such as Dr Sidebotham) and, secondly, that there would be a note in the hospital records to show the date and time when the photographs were taken and identifying the medical professional present when the photographs were taken.
- If all of this sounds like a counsel of perfection one needs only to consider the consequences for this family of the medical evidence about bruising: the parents were immediately placed under a cloud of suspicion, the police were informed, Children's Services were contacted and the parents and members of their family were required to sign a written agreement providing for round the clock supervision of the parents' care of the children as a condition of the children being returned home.
- In my judgment the requirement for good quality medical photographs, taken as soon as possible after the alleged injuries have been identified, is not a counsel of perfection. On the contrary, such photographs form a key part of the evidence in a case such as this. They can have a significant influence upon the findings made by the court and, therefore, ultimately, on the future of that particular child.
- The local authority has filed a document called 'Proposed Guidelines for Medical Photography for Suspected Non Accidental Injury of Children'. Those guidelines were produced by a small group which included Dr Sidebotham and Dr U. The guidelines are dated July 2010 so post-date the events with which I am concerned. Although I commend the members of the working group for producing these guidelines, in my judgment, and in the light of the observations made in this section of my judgment, they do not go far enough. For example, they do not underline the importance of photographs being taken as quickly as possible once the need for photographs has been identified. I invite the working group to reconsider the guidelines.
Postscript
- These are difficult times for those working in the Family Courts. There is uncertainty as about the future of many solicitors firms providing family law services (see Law Society of England and Wales v Legal Services Commission and Others [2010] EWHC 2550 (Admin)). In that case the court acknowledged experienced solicitors working in this field to be a band of 'skilled and dedicated lawyers working for little reward'. Since that judgment was handed down the government has announced plans for a substantial reduction in the legal aid budget which will have a particular impact on the Family Bar.
- In Re J (Care Proceedings: Injuries) Hogg J described the case before her as a 'complex case concerning a very young child involving complicated issues of fact and medical evidence' in which she had 'had the advantage of the involvement of experienced counsel, solicitors and guardian'. She expressed the opinion that
[127] The use of experienced advocates in complex care proceedings is essential. All parties are entitled to high quality legal representation, particularly parents were there is a serious challenge to the medical experts' evidence or other complicated issues of fact. This case is a prime example.
- In my judgment, the case before me is another 'prime example'. The quality of legal representation has been of a high standard. It is no exaggeration to say that but for the skilled way in which this case was prepared and presented the outcome of this hearing could have been very different with profound consequences for the future direction of the lives of these two children. The stakes for these children and these parents were very high indeed. So far as concerns public law Children Act proceedings, the need for parents and children to have the benefit of skilled and experienced legal representation at all stages of the process is, in my judgment, obvious and fundamental.
