C (a child), Re [2016] EWFC B110 (20 May 2016)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © C was born in late 2014. This court is involved with his life because on the evening of Sunday 29 November 2015, when he was 11 months old, his mother and grandmother took him to the Accident and Emergency Department of a local hospital after they noticed a swelling to the right side of his head. On examination by the medical staff he was found to have a complex fracture of the right parietal bone of his skull and underlying subdural bleeding. The local authority alleges that the injuries sustained by C are likely to have been caused by a non-accidental impact with an unyielding surface. The local authority threshold document alleges that C was in the care of one or other or both of his parents between 19 and 29 November 2015 during which period he suffered the fracture. The Family C is the first child of the mother and the father who have been in a relationship for 5 or so years although they have known one another since they were 16 years old. They are now 29 and 28 years old respectively. C is a wanted and much loved child of these parents and belongs to a large family who have assisted in his upbringing. The parents have been on the local authority housing waiting list for some time and, when C sustained the fracture, they divided their time between the homes of the two sets of grandparents. Typically C lived with his parents at the home of the maternal grandparents between Monday and Thursday of each week where C's uncles also lived. Then, between Friday and Sunday of each week, C and his parents would stay at the home of the paternal grandmother and her husband (to whom I shall refer as "the paternal grandparents" although her husband is in fact a step-grandfather). No lack of respect is intended to those referred to in this way. C is indeed very fortunate to have two sets of grandparents who dote on him. But in addition to welcoming him into their homes and providing practical help when necessary, I am satisfied having heard from them that they were able to stand back and allow the parents to take the leading role in C's upbringing. The further impression I have is that the maternal grandparents welcomed the father to their home and the paternal grandparents welcomed the mother into theirs. In each case they were able to see the positive qualities brought to the relationship by these two parents. Pursuant to directions given on 23 December 2015 a chartered psychologist provided cognitive assessment reports in relation to both parents. He described the mother as having global intellectual functioning within the mid-average range with a full scale IQ score of 94 at the 34th percentile. The father has diagnoses of autism and dyslexia and was described by the psychologist as having global intellectual functioning at a low level within the borderline learning difficulties range and with a full-scale IQ of 72 at the 3rd percentile. He made a number of recommendations to accommodate the father's difficulties in court including the use of short sentences, the avoidance of unusual words, the provision of an advocate, additional time to process information and frequent rest breaks, about every 50 minutes if possible. At the invitation of Miss Scriven QC, we had breaks about every 30 minutes during the father's evidence but were able to have longer periods of evidence at other times as I was told that the father preferred to make progress with the case. His advocate sat by his side as he gave evidence. The Proceedings The local authority applied for a care order on 14 December 2015. The parents provided their consent for C to be accommodated while the application was filed and the case listed to consider the making of an interim care order. In the application, it was stated that C may have sustained two previous head injuries, but it was subsequently accepted that this was an error. At one stage there was also a suggestion that C might have had rib fractures, but this too has been discounted. Accordingly the only injury of relevance is the skull fracture. Neither parent opposed the making of an interim care order when the matter came before a Recorder on 23 December 2015, and C has remained in foster care with contact for the parents 3 times a week and each set of grandparents once a week. Directions were given by the Recorder for relevant medical and other evidence to be obtained. This is a case in which C had not come to the attention of the local authority until 29 November 2015. When examined in hospital, he was considered to be well cared for, as was the impression gained by others who had seen him while in the care of his parents. This is a classic single issue case in which, if I conclude that the local authority fails to make out its allegation that one or other of the parents is responsible for C's fractured skull, the proceedings would end and he could immediately return to his parents. For that reason, the case was listed for a fact finding hearing before me. While the medical evidence continued to be gathered, it was unclear whether any other family member should become an intervener for the purposes of the fact finding hearing. The issue ought to have been considered on 8 April 2016 but that hearing was vacated in error and I was only able to consider the issue at the pre-hearing review on 22 April. Miss Meachin told me that the local authority advanced its case on the basis that, should I find C's skull fracture to have been non-accidental, it restricted the potential pool of perpetrators to the parents only. However Miss Sparrow explained that the mother's case was that she believed C to have a medical condition pre-disposing him to fracture more easily but, should that not be the case, the paternal grandparents could not be excluded from the pool of perpetrators as they had sole care of C between 11am and 1pm on Saturday 28 November. It should be noted that the mother did not, at that or any other stage, assert in a positive fashion that the paternal grandparents had harmed C, but there was clearly some uncertainty about how the case might develop. It was therefore desirable that any person who could fall within the pool of possible perpetrators should be a party. Accordingly the paternal grandparents became the 4 th and 5 th respondents and I am most grateful for the speed with which their solicitors and counsel acquainted themselves with the facts of this complex case so as to represent them in the hearing, and for the paternal grandparents' sacrifice of their holiday to be present in court. At the end of the evidence all parties accepted that no evidential basis existed for the continued inclusion of the paternal grandparents within the pool of perpetrators if I determine that C's skull fracture was sustained other than accidentally. Accordingly I discharged them from further involvement in the proceedings. On Friday 13 May, following the conclusion of the evidence and the positive assessment of the maternal grandparents, C moved to their home. The medical evidence was delayed by a misunderstanding on the part of Dr A's administrative assistant and for samples to be taken from C for genetic testing. As a result, the final medical evidence was received in the week preceding this hearing and it proved impossible to convene an experts' meeting. This was unfortunate but the sensible cooperation of counsel resulted in the provision to each medical witness of notes of the evidence which had been given by the doctors who had gone before. I have heard oral evidence from the following; Dr A, Consultant in Genetics; Dr B, Consultant Paedatrician; Mr C, Consultant Paediatric Neurosurgeon; Dr D, Consultant Paediatric Radiologist; C's foster carer; Both parents; Both maternal grandparents; Both paternal grandparents. The Law The principles I must apply were conveniently summarised in a passage of the judgment of Baker J in Re JS (A Minor) [2012] EWHC 1370 Fam ; [36] In determining the issues at this fact finding hearing I apply the following principles. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them. [37] Secondly, the standard of proof is the balance of probabilities ( Re B [2008] UKHL 35 ). If the local authority proves on the balance of probabilities that J has sustained non-accidental injuries inflicted by one of his parents, this court will treat that fact as established and all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that J was injured by one of his parents, the court will disregard the allegation completely. As Lord Hoffmann observed in Re B : "If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1." [38] Third, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12 : "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation." [39] Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558 , [2004] 2 FLR 838 at 33: "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and 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." [40] Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam) ; [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts. [41] Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S [2009] EWHC 2115 Fam ). [42] Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346 ). [43] Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720 ). [44] Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam : "There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities." The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child. [45] Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849 . In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children ) [2009] 2 FLR 668 , Re SB (Children) [2010] 1 FLR 1161 ). All of the above principles appear to me to have relevance to this case. But I should particularly bear in mind the fact that the science relating to brain injuries is a developing area. And the burden of proof must not shift onto the parents to prove an alternative cause for the injury. Moses LJ said in the case of Henderson (supra) at paragraph [1]; "Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown". That passage serves as a useful reminder that, in order to satisfy the threshold, the local authority must establish that the conduct fell below that to be expected of a reasonable parent. C's Early History The parents had wanted a baby for some time but the mother had difficulties in conceiving. Ultimately the news that she was pregnant was warmly welcomed by them and the wider family. C was born prematurely at 38 weeks and 3 days gestation by a forceps delivery at hospital. It was a somewhat traumatic birth in that the mother also suffered with pre-eclampsia. C was very ill and required admission to the high dependency unit to be treated for sepsis. It was feared that he might not live. At birth he weighed 3.005 kilograms and had a head circumference of 35.5cm. The mother remained in the maternity ward recovering from the birth. With the father's assistance she was able to visit C in a wheelchair but the parents could not cuddle or interact normally with him as he was in a ventilator. It transpired that C had a perforated bowel. He was transferred to the neonatal intensive care unit of another hospital at the end of December where he was operated on the following day and a stoma bag was fitted. Eventually he was well enough to be discharged home in mid-January. The parents were unhappy about their experiences at the hospital where C was born but were very complimentary about the care C received at the hospital to which he was moved. They were able to stay at that hospital in self-contained accommodation close to C with the benefit of their own kitchen and bathroom, and they were both taught how to change his stoma bag, a skill they learned sufficiently well to manage without assistance on their return home. I have been showed an album of photographs with a commentary on C's treatment in this early stage which was begun by the hospital staff and continued by the mother. The mother explained that she decided to continue the album to help C understand later in life why he has a large scar on his stomach. It is clear to me having seen the album and having heard all of the evidence in the case that C required better than average care to deal with his medical problems, and that he received such care. The combination of C's health problems in the neonatal stage and the mother's own medical problems raised some questions about her ability to bond with C, and these were explored by Miss Meachin in the light of a comment noted by the social worker following C's admission to hospital on 29 November 2015. I have also read descriptions in the health visitor's statement of a warm and loving relationship between mother and child observed on a number of visits to the family home. On the evidence before me, I could not find that the bond between the mother and C was other than satisfactory. Initially following C's discharge, the stoma bag had to be changed 2 or 3 times per day due to a leak of fluid around the scar. The parents coped well with these duties and the records of the health visitor provide a very positive image of the way in which they rose to a difficult challenge. A stoma nurse was available to assist, especially in the early days, but the frequency with which the bag had to be changed reduced with time. In due course C's condition had improved sufficiently to enable the removal of his stoma bag. He returned to hospital in early June 2015 for this operation and returned home in the same month. When C was discharged from hospital in mid January 2015, he and the parents initially lived with the maternal grandparents. A single home made it easier to manage the many home visits by professionals assisting with C's care in the early period. But over the months leading up to 29 November, the pattern altered so that the arrangement involving Monday to Friday at the home of the maternal grandparents and the weekend at the home of the paternal grandparents became established. I do not consider it necessary to establish the timing or pace of the transition. Having heard evidence from the parents and grandparents, it is clear that the majority of C's care was undertaken by the mother. When the parents and C were based at the maternal grandparents' home, the father's habit was to return to his parents' home for much of the day. He explained to me that he felt more comfortable using the shower and toilet at his own home, which I found entirely credible in view of his autistic characteristics, and because he had animals at home. I found nothing sinister in his routine and I do not consider that the mother resented his absence. The presence of the stoma bag on his stomach seems to have had the consequence that C was late in learning to crawl. The family said that he began to crawl in October at the age of about 10 months and almost immediately after began to "cruise" along furniture, that is take steps while also holding onto the furniture. He has only been able to take independent steps in the last few weeks. As a consequence, in November 2015 he was liable to fall if he was cruising in this way but did not have a sufficient grip on the furniture. From the time of his birth C was seen to have some unusual or "dysmorphic" features. The hospital at which he was born noted frontal bossing with long fingers and toes. A doctor at the hospital to which he later moved noted downslanting palpebral fissures, low nasal bridge and a small pinched nose, his ears were low and posteriorly rotated, he had long fingers. She referred the case to the Regional Clinical Genetics Service but there seems to have been a delay in progressing the referral. When contact was made with the mother in May 2015 she did not take up an appointment as the operation for the removal of the stoma bag was imminent. C was seen by a Consultant Community Paediatrician in September when his dysmorphic features were noted so the case was referred again to the Genetics Service who seem not to have received it, and he was otherwise considered to be developing in an age appropriate manner. The evidence I have heard does not establish a connection between C's dysmorphic features and his poor physical health at birth. The following information about C's weight, head circumference and height are taken from the medical records and the Red Book. I am grateful to Mr Messling for his industry in producing the readings in tabular form, and the accuracy of the tables has been accepted by all parties. Weight Age Weight Centile Birth 3.0005kg 34 days 3.20kg Btwn 0.4th & 2nd 5 wks 6 days 3.26kg Just below 0.4th 6 wks 5 days 3.60kg Btwn 0.4th & 2nd 7 wks 5 days 3.80kg Btwn 0.4th & 2nd 9 weeks 4.26kg Btwn 0.4th & 2nd 9 weeks + 4.64kg Btwn 2nd & 9th 11 weeks 5.14kg 9th 13 weeks 5.92kg Btwn 25th & 50th 17 weeks 7.08kg Above 50th 39 weeks nearly 10kg Betwn 75th & 91st 41 weeks 10.78kg Btwn 91st & 98th c49 weeks 12.40kg Btwn 98th & 99.6th Head Circumference Age HC Centile Birth 35.5cm 34 days 38cm Btwn 50th & 75th 9 weeks 41cm 91st 38/39 weeks 49cm >99.6th c49 weeks 51.6cm Above 99.6th Height Age Height Centile 34 days 54cm Btwn 25th & 50th 17 weeks 63cm 25th 41 weeks 76cm 91st c11 months 77cm 79cm 80.5cm 91st 98th 99.6th 14 months 87cm 99.6th ( way above this centile) The italicised figures have been extrapolated from the surrounding data and are accepted as reasonable. At the end of November 2015, he was likely to have been in the region of 80cm in height (2 feet 7½ inches). The shaded areas show the measurements when C sustained the skull fracture. There are a number of conclusions which flow from these measurements; i) Once the stoma bag was removed, C's growth was exceptional. He was an unwell baby at birth, was held back for a while by his gastro-intestinal problems but later thrived in the care of his family. ii) At the end of November 2015 he was both tall (upper 90s in the centile charts) and heavy (between 98 and 99.6 centile). iii) But he also had an abnormally large head for his size. At 51.6 cms, the measurement was above the top line on the centile charts for his age, and would have been large for a 2 year old. The Events Leading up to C's Admission to Hospital The evidence of Dr D points to the fracture to C's skull having been caused during the period between 19 and 29 November, so I will concentrate on that 10 day period. In reality, it is likely to have been sustained towards the end of it. By late November 2015 the pattern of the parents and C dividing their time between the homes of the maternal and paternal grandparents was well established. Up to Friday 27 November nothing exceptional has been reported which could explain the fracture to C's skull and he is said to have been his normal happy self. It is likely that he came into contact with other family members during these 10 days but nothing of relevance has been reported prior to lunchtime on that Friday in the police investigation or in the evidence collected for these proceedings which could explain the fracture. On Friday 27 November, C was at home with the mother and maternal grandmother. As usual, the father returned to his parents' home during the morning. An uncle may have been at home, but would have been asleep during the daytime as he worked at nights; in any event there is no evidence that he was involved in C's care at any time when the fracture could have been caused so he is of no relevance to the case. The mother and grandmother have given evidence of an incident which happened around lunchtime on the Friday. The mother described how C was cruising along a coffee table when he caught his foot and fell backwards. He tried unsuccessfully to reach out and save himself and his head hit the hard laminate floor making a loud noise described as a "thwack". The mother went immediately to C, picked him up and comforted him as he cried. I shall return in due course to the duration of C's crying. The mother said that she applied a cold compress or wipe and gave him a drink, but there appeared to be no injury. C soon regained his composure and was soon afterwards his normal self, playing happily. Both mother and grandmother kept an eye on C for the remainder of the day in case he reacted adversely to the fall, but he did not. It has been important to examine this incident in detail as it is the only event said by the family to explain the skull fracture, and I shall refer to it as the "Friday fall". The local authority does not dispute the evidence of the mother and grandmother that C sustained the Friday fall and I am also satisfied that it occurred; the issue is whether it is a possible cause of the fracture. While examining the detail of the incident it is also important to bear in mind the evidence of Mr C that it is extremely difficult for witnesses to recall the precise details of an incident such as this which happened in an instant, and that common sense observation accords with experience of cases such as this when they come before the courts. The mother drove herself and C to the paternal grandparents' home later that afternoon and mentioned to them and to the father the fact that C had had a fall, but he seemed well to everyone who saw him, including the maternal grandfather who was in the car during part of that journey. During the Friday afternoon the father was a rear seat passenger in a car belonging to his friend when it was involved in a road traffic accident. He suffered a whiplash injury and developed worsening symptoms of back and neck pain during that evening. On Saturday 28 November the father's back and neck pain was troubling him more so the parents went to the local hospital between about 11am and 1pm, leaving C in the care of the paternal grandparents. He slept for much of the time but woke, had a bottle and did not seem unwell. As stated above, there is no evidence to suggest that C was injured during this period when the paternal grandparents had sole charge of him and they can be excluded from the pool of potential perpetrators. Otherwise the parents were alone with C on the Saturday afternoon while the paternal grandparents went shopping, but they do not report anything happening during that time, nor do the grandparents report anything unusual about C or the parents on their return. The parents and C used one of the bedrooms at the paternal grandparents' home. They spent Friday and Saturday nights there as was their normal routine. On Sunday 29 November C remained with the parents while the paternal grandparents visited paternal grandmother's mother and again the parents do not report anything happening during that time. The grandparents say there was nothing unusual on their return. The mother says that she and C went back to her family home in order to collect a present she had left behind and they entered the house briefly to do so. Sunday lunch was normally eaten at about 3pm and, on this day, C was asleep while the adults ate. He woke and ate some lunch after which, at about 4.30pm, the mother happened to run her fingers through his hair. The photographs show C's head to have had a reasonable covering of hair at the time. The mother felt what has been described as a soft, boggy area above C's right ear which she immediately brought to the paternal grandmother's notice. They both considered it to be of concern and decided that it deserved medical attention. The parents and paternal grandparents all describe C as behaving entirely normally. As C had been under the care of a neonatal intensive care unit, the parents decided to phone that hospital to inquire whether he should be taken back there. The mother telephoned the maternal grandmother to ask for the number. The hospital advised her to take C to the local A & E department. Therefore the mother and paternal grandmother took C to the A & E department of their local hospital. The family were asked why it was the grandmother and not the father who accompanied the mother. I found to be credible their replies that the grandmother has some informal medical knowledge as a result of her employment, that the father would have had some difficulties in understanding medical language and might have become agitated if, as transpired, there was a long wait at the hospital. The time at which the family arrived at the hospital is unclear. The paternal grandmother told me it was about 7pm or shortly before. The first time noted in the hospital records is 1935 and the initial assessment noted by the Paediatric Staff Nurse at 2140 states: "they noticed swelling to his RT side of his head. I stated has he fell over mum says yes he is always falling over, no vomiting". The same Nurse noted a boggy swelling measuring 7cm by 5cm. The notes refer to "no history of trauma". A CT scan performed shortly before midnight on 29 November revealed a complex fracture of the right parietal bone. There was overlying soft tissue swelling. There was no intracranial haemorrhage and no bruising. In general terms C was perceived to have no pain and he seemed to be well. In view of the unexplained head injury he was admitted under the care of one of the hospital Doctors and a referral was made to social care. An MRI scan confirmed the presence of a subdural haematoma underlying the fracture. Dr D confirmed the presence of multiple Wormian bones in the skull. When one of the hospital Doctors saw the parents on 30 November the mother gave a history which appears in the hospital notes of C having "a fall on Thursday/ Friday at her mum's place; walking along the coffee table in the living room, caught his foot and fell backwards, landed on his head with stretched arms. Cried straightaway, no swelling noticed, well since, no vomiting, not unsettled". This was the first explanation provided by the family following C's admission to hospital of any incident which might explain a skull fracture. The parents were arrested and questioned under caution by the police on 1 December 2015. The police took witness statements from the maternal grandparents on the same day and all four of the grandparents were interviewed under caution on 4 th December. They all consented to be interviewed without a solicitor because, as they put it in oral evidence, they felt that they had nothing to hide. The Evidence from the Family I heard evidence from both parents and all four grandparents. There was no challenge at all in relation to the evidence of the paternal grandfather. The mother was C's main carer and she seems to have been entirely happy with that role. My impression of her evidence confirmed that of the health visitor about a good attachment with C in spite of his early difficulties. Although she has clearly been distressed at being separated from her child, the mother established a good relationship with the foster carer, so demonstrating a child focussed approach to a very difficult situation. I found the mother to have given straightforward answers to questions in evidence and to have been doing her best to give the court truthful evidence. I find that she has strong maternal qualities, but not only towards C. She clearly has a happy and fulfilling relationship with the father, but I have the impression that it also involves an element of those maternal qualities on her side. She has clearly helped him greatly in addressing his autistic features, for example in giving him the confidence to go shopping. I am satisfied about her protective instincts when it comes to C, and that she would put him first. I had some limited information about the father in the report of the psychologist but there is more to consider. His mother explained that the local education authority neglected his education in spite of the fact that he was in receipt of a Statement of Special Educational Needs with the result that he did not attend school after the age of 10. He has very limited skills in reading and writing. In 2007 and 2008 he was cautioned and convicted for possession of cannabis and also cautioned in 2004 for taking a motor vehicle without the consent of the owner. An issue arose in the evidence about his medication, and I am satisfied that his mother, who has taken responsibility for that aspect of his life, gave me accurate information. As a teenager he was prescribed Ritalin, probably at a time when that drug was fashionable as a "cure" for a variety of problems seen in young people and in 2007 he was prescribed Risperdal. Otherwise his medication has involved medication for arthritis, or for pain relief on occasions such as 28 November when he suffered the whiplash injury. I am satisfied that neither of the occasions when he came into contact with the police nor his medication are of relevance to the issues in this case. The father's autistic features were obvious when he gave evidence. His testimony could be described as unrestrained, guileless and disarmingly frank, but none the worse for those qualities. On occasions it was necessary to bear in mind his idiosyncratic use of language; for instance he referred to C "screaming", by which I am satisfied he meant a noise of excitement rather than pain or distress. It was also clear to me that the paternal grandmother continues to have a strong protective instinct in relation to her son. This was evident in her management of the father's medication and in accompanying the mother and C to hospital on the evening of 29 November. In her evidence the paternal grandmother expressed the view that it would not be possible for her son to tell lies. I would not feel able to make this finding since there is a danger of a parent being blind to the human frailties of his or her child, but also because the issue of determining credibility is ultimately a matter for the court. However I am able to place weight on the paternal grandmother's assessment of her son when she said that the father would have presented as agitated if anything untoward had happened to C when the parents were alone with him. I have heard no evidence to indicate that either parent has a propensity for violence or loss of control. So far as the four grandparents are concerned, I can deal with my assessment of them as a group. I am satisfied that they are all entirely respectable people who were truthful in the evidence they gave. They have welcomed C to their homes and obviously dote on him and wish to support him and the parents in his upbringing. The collective view of the parents and grandparents when C was found to have a swelling to his head was that this was probably connected to the health problems from which he suffered following birth and/or to the dysmorphic features. In my judgment this view was entirely understandable, and that they would be worried about an underlying health problem rather than an incident two days earlier from which he apparently recovered after a short while. The grandparents all saw a good deal of C in the days leading up to his admission to hospital on 29 November. They all report that he appeared well to them and he seemed no different to normal. The local authority does not suggest that the grandparents are untruthful about this aspect of the case and I have independently reached the view that this is evidence I can accept. The Medical Evidence Dr A in his first report of 7.3.16 advised further investigations in relation to C, particularly having regard to his dysmorphic features and the presence of Wormian bones. Therefore C, the parents and the foster carer were seen by Dr A on 15.3.16 as a result of which a second report was provided on 22.4.16. The investigations have excluded Osteogenesis Imperfecta. Dr A did find two variants, one of which was of no relevance. The other relates to the LRP4 gene which is associated with a condition called Scleriosteosis 2. It is a rare condition largely, but not uniquely, found in the Afrikaner population of South Africa and Dr A thought it possible that C may show early manifestations of the condition. For this reason, he raised the possibility of testing both parents to ascertain whether either of them has the gene variant. I have considered and reject testing of the parents for the purposes of this case. If C has Scleriosteosis 2, the consequence of the condition, as is suggested by its name, is increased bone density, and therefore the tendency to fracture should be less, not more. This conclusion should not affect any decision to undertake tests for the purposes of C's general welfare, should that be considered to be desirable. Further to Dr A's conclusions relating to Osteogenesis Imperfecta and Scleriosteosis 2, the evidence overall suggests that C does not have a pre-disposition to fracture more easily than other children. He has not suffered any other fracture so far as is known, and those children whose bones do fracture more easily tend to break weight-bearing limbs rather than the skull. Dr D confirmed that the radiography showed nothing unusual by way of bone density although he conceded that a reduction of 30% in density is required before it is visible on x-rays. I accept Dr D's opinion that C does not have a pre-disposition to fracture more easily since, if he did, fractures are likely to have occurred during the routine events such as manipulating him to dress or undress him, or from the many falls which the family say he had in the period leading up to 29 November. But Dr A was in no doubt that C does have dysmorphic features which were evident from photographs, his own examination and from the various references in medical records. Dr D said that the presence of multiple Wormian bones adds to the overall picture. Another aspect taken into account by Dr A was the evidence of the foster carer, about an incident in early April when C's finger nail lifted and then came away without him appearing to cry or show distress. Normal experience would suggest that this would be very painful and Dr B described it as "wince making". I did not consider it necessary to adjourn the proceedings to allow further investigations for any other genetic condition. If C does have a syndromic diagnosis, and Drs A, D and B considered it likely that he does, there is no specific diagnosis to be investigated other than Scleriosteosis 2 which I have rejected as of no relevance to the facts of the case; it would be akin to looking for the proverbial needle in a haystack. Dr A said that C may be unique in the condition he has. Dr B accepted that, should he have a genetic condition, it may affect the way in which he reacts to pain, and there is support for that proposition in the evidence of the foster carer. In his written report Dr D said from his clinical experience and the medical literature that low level falls are unlikely to cause a skull fracture. He indicated that an infant (under the age of one year) is more likely to sustain a greater injury than a toddler (1 to 4 years). Fractures cannot be aged from the radiological evidence and the usual response would be crying or screaming lasting for several minutes. Dr D was aware of the explanation of the Friday fall for the skull fracture, which he thought unlikely, but something he could not exclude. While Dr D's written evidence suggested that the fact C sustained a complex fracture could be taken as evidence of the severity of the impact, his oral evidence was that little relevance should be given to this feature of the case. I propose to take that course notwithstanding the observations of Dr B that a complex fracture indicates a greater degree of force in view of Dr D's area of expertise in radiography. In his oral evidence Dr D accepted that C was taller and heavier than most children of his age, so any fall would mean that the force of the impact would be greater, as would be the risk of fracture. He remained of the view that the Friday fall was an unlikely cause but not impossible. He used a figure of 1% likelihood for a fall of about 1 metre to cause a skull fracture, but it is common ground that I should be cautious about the percentages used by Dr D in his oral evidence since they are based on research bearing many caveats. In the final analysis he accepted that it was my role to determine whether the local authority had established the fact they sought to prove. He used the word "plausible" for the Friday fall to have caused the fracture, by which I understood him to mean "possible". He agreed that there is no minimum height required for a fall to cause a fracture. If the Friday fall is excluded as the cause of the fracture, he explained that the alternatives would be either deliberate infliction of an injury, maybe in a momentary loss of control, or another accidental event not recounted by any of C's carers. Dr D said that the subdural bleeding was found at the fracture site and was therefore of no consequence to determining whether C had sustained a non-accidental injury. Mr C was also of the opinion that it is extremely uncommon for falls from a walking toddler height to cause skull fractures and he has experience of a case which involved a fall from a low height onto the edge of a hearth so that a focal point was likely to be an additional feature to increase the force of the impact. Dr B was of a similar view that a focal point would materially increase the prospects of a low fall causing a fracture. I have no reliable evidence that the Friday fall involved a focal point. The fall was onto the laminate floor, which was a hard surface, but the mother and grandmother do not describe anything on the floor where C fell. Nor would the small ridge shown in the photographs, where there is some damage to the surface, materially affect the impact of the fall. As part of the dysmorphic features, C has been described as having a flattened skull but the evidence does not demonstrate that the impact, which Dr D thought to have occurred at what was taken in the evidence as point B on the CT scan, that is where the lines of the fracture converged, would have provided a focal point. The absence of a focal point is but one of the factors to be taken into account. Mr C said that swelling can develop very quickly or can ooze gradually over days. Generally he would anticipate discomfort for 24 to 48 hours, but acknowledged that there is variability in relation to the reactions of children. Dr B sat in court to hear some of Dr A's evidence. He immediately referred to C's dysmorphic features when he came to give evidence and properly acknowledged that he should have dealt with the consequences in his report. Discussion I have noted the various pieces of evidence demonstrating the good care which these parents provided to the son who they both obviously loved very much. But I also have to bear in mind the fact that, sadly, children are sometimes harmed in a momentary loss of control by a parent who has otherwise provided love and high quality care. The starting point is the unchallenged evidence that (i) C sustained a skull fracture with underlying subdural bleeding, and (ii) those injuries are consistent with an impact of the head against a hard surface or the impact of a hard object against the head. There is nothing in the morphology of the fracture to indicate which is the more likely. There are no other injuries such as bruising elsewhere on C's body, or any other fractures, and no history of neglect, all of which are features seen in other cases to be supportive of a finding of inflicted injury. Equally the local authority does not challenge the evidence of the mother and grandmother that C fell backwards on 27 November and hit his head on the laminate floor of the maternal grandparents' home. I was left in no doubt by the evidence that this event occurred. It is a common feature to the testimony of the expert medical witnesses that no particular degree of force is known to cause a skull fracture in infants. For obvious reasons experimentation on live babies is not possible and the experiments carried out on cadavers in mortuaries may not be representative of the consequences for live babies. Outcomes in any event are known to be variable and logic confirms that babies are vulnerable since their neck muscles and saving mechanisms are not fully developed. Dr D summarised many of the academic papers relating to this area in his report and I was supplied with them by counsel. I do not intend to repeat his summary in this judgment, but the literature does accentuate the lack of clarity about the height of fall and force required to cause a fracture. For example, Greenes and Schutzman, drawing on a relatively large cohort of children who had suffered isolated skull fractures and were managed at Boston Children's Hospital, identified a number who had fallen from a low height (less than 1 metre). The same point can be made in relation to a paper to which Dr D contributed, all of which serves to stress the fact that, while a fall from a low height may be statistically unlikely, it can occur. The result is that the court must survey a broad canvas, including the medical and other evidence, and a rigorous assessment of the testimony of the parents and other carers is of the utmost importance. As Bracewell J said in Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200 at [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." While statistically a fall from C's height of 80 cms may be unlikely to cause a skull fracture, there are a number of factors involved in the Friday fall affecting the possibility that it caused the fracture; i) C was under 1 year old, and the evidence suggests that infants of this age are more vulnerable than older toddlers. ii) His saving mechanisms were relatively undeveloped (which may explain the factor at (i) above). iii) He fell backwards so would have had less opportunity to put his arms out to save himself than if he had fallen forwards. Dr D said that skull fractures are more often seen at the rear, probably for this reason. It is impossible to be sure which part of C's anatomy impacted with the floor, but the sound which the mother and grandmother describe is consistent with his head rather than any other part of his anatomy. iv) He was very tall for his age. At the start of October 2015, his measurement was at the 91 st centile and by March 2016 he was at the 99.6 th centile so is likely to have been between these points when he fell. v) He was heavy for his age, between the 98 th and 99.6 th centile. vi) Even for a tall boy, C's head size was very large, above the upper line on the centile charts which is marked at 99.6. If the mass was greater than average, it is logical to conclude that the force of impact may also have been greater. The measurements show that C was the size of an average 2 year old, but without the balance or saving mechanisms of a child of that age. The local authority pointed to some other features which they say I should take into account in determining the possibility of the Friday fall causing the fracture. The first was that it was described by the mother and grandmother as relatively unimportant. It is right that it was not mentioned until the mother told one of the hospital Doctors about it on the morning of 30 November after discovery of the fracture (or erroneously more than one fracture and other injuries), but in my judgment this is explained by the common view of the family that the swelling was likely to be connected with his neonatal problems. Both the mother and grandmother describe a relatively brief period of crying by C. In her police interview on 1 st December, the mother said the crying lasted less than a minute while the maternal grandmother said in her witness statement of the same date that he cried for a matter of seconds. In each case, a longer duration of crying was given in the oral evidence. I bear in mind that experience shows that estimates of time and distance can be notoriously unreliable, but I conclude that C cried for a brief period, and probably not much more than a minute, if at all. The opinion of Dr B was that he would expect a child who had sustained a skull fracture such as this to cry for at least 10-15 minutes, and in any event for at least 5 minutes. But Dr D pointed to the paper by Farrell at al (Paediatrics, 2012, e128-133) to the effect that 9% of children do not cry after limb fractures, so the range of reactions is both surprising and significant. The experts, particularly Drs A and B, speculated on the possibility that C may have a different or higher pain threshold. This is not established as a fact in the case, but there is some support for the proposition to be found in the evidence of the foster carer. She described how C seemed not to cry when he first lived with her but made an angry, frustrated noise when he hurt himself. There may be crying for various reasons; pain, frustration or anger, so it is impossible to be sure why C made this noise which the foster carer found unusual. The injury to C's finger nail is one which, as Dr B confirmed, would normally be painful but he did not cry. This raises the realistic possibility that C has a different pain threshold to other children, and this should be factored into the assessment of the evidence that C did not cry for long following the Friday fall. In my judgment it means that I should not exclude the Friday fall as the cause of the skull fracture because he did not cry for long. The local authority also questioned whether it would have taken in excess of 48 hours for the mother to notice the swelling to C's head if it resulted from the Friday fall. I consider that the following points need to be weighed in the balance in relation to this issue: i) The swollen area was beneath C's hair. ii) It was about 5mm so not very deep. iii) Dr D accepted it is entirely possible that it would not be noticed for several days and Dr B had no difficulty in accepting that it might not be seen for a day or two if the hair was not brushed or washed in the intervening period. iv) I accept the evidence of the mother that she last bathed C and washed his hair on the Thursday evening. There are other inconsistencies in the accounts of the mother and grandmother, for example whether the mother applied a compress or wet wipe and whether it was on the Saturday or Sunday when the mother returned to her parents' home to collect something she had left behind, and for what purpose. I consider these matters to be of no probative value, and are to be expected when two people are independently recalling the same event or events. The essence of the local authority case is that the Friday fall does not explain the skull fracture and therefore there must be another event about which the court has not been informed. Dr D's opinion was that, if the Friday fall is excluded, there are two alternatives, either another accidental event or the deliberate infliction of injury which he explained might be a momentary loss of control. I have carefully examined the evidence for material to support the alternative hypotheses involving another event about which the court has not been told. On the evidence of the medical experts, it is more likely to have been at the end of the potential 10 day period given by Dr D for the fracture to have been caused and for this reason the evidence has concentrated on the weekend of 27 to 29 November. It is correct to note that between the Friday fall and Sunday afternoon when the boggy swelling was identified, there were four occasions when the parents were alone with C; that is overnight on Friday and Saturday nights (although on each of these occasions the paternal grandparents were in close proximity as I understand their house to be of relatively modest size), on Saturday afternoon when the paternal grandparents went shopping and Sunday lunchtime when they visited paternal grandmother's mother. There is in my judgment no piece of evidence which satisfactorily supports the hypothesis of another event about which the court has not been told. Moreover I find the evidence of the parents and grandparents to be credible about C's presentation over the weekend when they all said that he appeared to be his normal self. Miss Meachin raised the duration of C's sleep in the early afternoon of Sunday 29 th as a possible indicator of a traumatic event having occurred during the paternal grandparents' absence, but I cannot identify it as being of an unusual length, or that he behaved any differently when he woke. I accept the evidence of the paternal grandmother that the father is likely to have been agitated if anything untoward had happened to C while she and her husband were out of the house. Of all the people who have given evidence she knows the father best and is able to explain how he behaves in various situations. I adopt the submission of Miss McGrath QC that he is "an open book". Conclusion Taking all of the evidence together I do not find on the balance of probabilities that the local authority has proved that C sustained the skull fracture by a non-accidental impact caused by one of his parents. Since the threshold for the making of orders under s.31 of the 1989 Act has not been established it follows that the application must be dismissed. Nothing contained in this judgment should be viewed as a criticism of the local authority in making the application, or of the medical experts. The local authority was faced with a child with a serious injury, and at the outset the injuries were thought to have been even more grave. While I have concentrated on the fact finding aspect of the case, I applaud the decision to place C back with his family during the course of the hearing. I benefited from medical experts of the highest calibre whose evidence was at all times scrupulously fair. I also benefited from advocacy of the highest standards during the hearing for which I also express my appreciation. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII