A London Borough v M 
Fact-finding hearing in care proceedings relating to a child, with a Vitamin D deficiency and rickets, who suffered 17 fractures. Application for care order dismissed.
Finding of fact hearing in relation to 17 fractures found to a child, Z. Other than the fractures, no child protection concerns had existed. The fractures were identified in October 2011. The medical evidence concluded that the fractures had occurred on at least two separate occasions. Investigations had established that the child was suffering from vitamin D deficiency and rickets. The mother and possibly other members of the extended family also suffered from vitamin D deficiency. All of the experts accepted that Z's bones were likely to be more fragile than a normal child, but the precise strength of the bone could not be known and there was a disagreement between the experts as to the degree of force necessary to cause the fractures. The issue was whether or not the deficiency and rickets explained the multiple fractures.
The court was not able to find, on the balance of probabilities, that any of the fractures sustained by Z occurred as a result of non-accidental injury. This was notwithstanding the father's dishonesty in previous proceedings. There was a substantial divergence in the views of the experts. The court considered the judgment of Theis J in Islington v Al Alas and Wray  EWHC 865 (Fam). In the light of the totality of the evidence in the case, including the entirely appropriate care Z received from his parents up until his admission to hospital, their appropriate behaviour when he was in hospital and the positive observations of contact, it was not possible to make findings as to how Z sustained his injuries.
The application for care orders was dismissed and Z was returned to his parents' care.
Summary by Jacqui Thomas, 37 Park Square
IN THE PRINCIPAL REGISTRY
OF THE FAMILY DIVISION
First Avenue House
42-49 High Holborn, WC1
Friday, 4th May 2012
DISTRICT JUDGE MACGREGOR
B E T W E E N :
A LONDON BOROUGH Applicant
- and -
Transcribed by BEVERLEY F. NUNNERY & CO
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MISS C. BUDDEN (instructed by Legal Services, A London Borough) appeared on behalf of the Applicant.
MS. K. BRANIGAN QC and MS. A. GRIEF (instructed by Goodman Ray) appeared on behalf of the Respondent Mother.
MR. A. OLLENNU (instructed by Grazing Hill Law Partners) appeared on behalf of the Respondent Father.
MS. E. DRIVER (instructed by Charles Allotey & Co) appeared on the child by his Children's Guardian.
J U D G M E N T
(As approved by the Judge)
DISTRICT JUDGE MACGREGOR:
1. This judgment is being given at the end of a 10-day hearing which has been concerned with the events which led up to the child's ("Z") admission to hospital on 2nd October 2011. Before I commence my judgment I wish to record my gratitude to all counsel for their careful and detailed closing submissions, all of which I have taken into consideration in coming to my decision. If I do not refer to all of the authorities quoted, or to all of the medical research papers referred to, it is not because I have not taken them into consideration but simply out of a desire to limit the length of this judgment.
2. As part of my preparation for this hearing I read all of the documentation contained within the bundles prepared by the local authority. The conclusions I have reached in this judgment have of course been based upon all of the written material as well as importantly the oral evidence I heard from both the expert and professional witnesses and most importantly the evidence of Z's parents.
3. The written material comes from a number of sources and includes as well as the various statements of the parties and the expert medical reports, the medical records of the mother, father and Z. There is also documentation relating to two earlier sets of court proceedings: the first conducted in Scotland relates to the father's oldest daughter, while the second relates to private law proceedings relating to the father's daughters R and L, which I dealt with in 2008/2009. The bundles also contain material supplied by the police with regard to their involvement with the family in the context of Z's injuries as well as much earlier involvement during the father's previous relationships. In additional to all of this I have seen some delightful photographs of Z which his parents asked me to look at.
4. During an earlier stage of these proceedings I was made aware of the fact that Mrs Justice Theis was involved in another case relating to a child who suffered from vitamin D deficiency and rickets and who had died as a result of the injuries he sustained. Mrs. Justice Theis handed down judgment in that case on 19th April 2012 shortly before this hearing commenced. The case LB of Islington v Al Alas and Wray is reported at  EWHC 865 (Fam). In reading that judgment, I have, however, been cautious as to extrapolating from any findings made by Mrs. Justice Theis, for although there are many features common to both cases, in that both the child in Re Alas & Wray and the child I am concerned with suffered from rickets, Mrs. Justice Theis herself properly emphasised, by reference to the case of Henderson v R  EWCA Crim 1269, the need for caution when she stated at paragraph 6 of her judgment:
"By their very nature cases such as this are very fact specific and great caution should be adopted in using any conclusions I reach to support any wider views outside the very specific facts of this case".
I have kept I hope that important statement at the forefront of my mind coming to my decision on the facts of this case.
5. I propose before setting out my reasoned judgment to adopt the somewhat unusual course of giving my conclusions as to my findings of facts. The reason for doing this is that I am aware that the parents had anticipated I would be giving judgment at 10.30 am this morning, which unfortunately proved not to be possible. The anxiety and stress they have felt during this hearing has inevitably been increased by this further wait and although I am aware that in announcing my final decision I might make it difficult for the parties to concentrate fully on the detail of this judgment, I hope that everyone, especially the parents, will bear with me.
6. I therefore now state that having taken into consideration all of the relevant matters, both in terms of the written and oral evidence, that I am not able to find, on the balance of probabilities, that any of the fractures sustained by Z occurred as a result of non accidental injury.
7. The Child
Z was born on 23rd April 2011. He is the son of A and M whom I shall refer to throughout this judgment, as the "mother" and the "father". He is the mother's only child and the youngest of the father's four children.
6. The Application
The Local Authority ("LA") issued its application under s. 31 of the Children Act on 12th October 2011 at the Inner London Family Proceedings Court. Shortly thereafter it was transferred to this court and allocated to me for a case management conference on 20th October. The day after that Z was discharged from hospital and placed with a foster carer under an interim care order. On 22nd December 2011 he went to live with his paternal aunt, where he currently remains. This placement was also under the auspices of an interim care order. This hearing, which commenced on the 16th April 2012, some 6 months after the application was issued was originally listed to take place in February, however a combination of difficulties with expert witnesses and an inadequate time estimate meant the matter could not go ahead.
7. Background to the application.
The parents who are first cousins originate from Algeria. The father, who is now 39, came to this country when he was either 19 or 20 years of age. The mother came in 2010, shortly after her marriage to the father, which took place in June 2010. The mother became pregnant almost immediately, giving birth to Z at the Chelsea & Westminster Hospital on 23rd April 2011.
8. There was at the outset of these proceedings some issue as to whether Z's birth was one where the delivery had been assisted by forceps. It is now, however, clear, from the hospital notes, that the only assistance required at the birth was by way of ventouse/kiwi cup. Other than this, and the fact that it took some time for Z to be persuaded to latch on to the breast, it appears from the notes that his birth, in medical terms, was uneventful and the mother and Z were discharged from hospital after three days, when she and the father took their son home to the property they rent in Hackney. I should just say that the parents chose this hospital rather than one in Hackney because for reasons I will explain below the mother was spending weekend's with the father's sister who lives in Fulham and they thought the facilities at Chelsea and Westminster might be better.
9. In any event, as soon as the mother and Z returned home, they registered with the local postnatal services, and I have seen from the health visitor and GP notes that the family were seen regularly. From the note I have at I/211it appears that they were seen on average about once a fortnight until 16th August 2011. These notes indicate nothing of concern and refer to Z as a child who was well cared for by his parents.
10. On 23rd September 2011, which was a Friday, Z and the mother attended Dr.B, the family's GP. This was a double appointment for both the mother and child. The note relating to Z is at I/222, which states as follows:
"For one month the mother says he grunts after washing him for a few minutes and then stop, otherwise breathing is okay. Feeds well, though for the last few days he feeds less time on the breast. No temperature, stools okay, not in pain, no vomiting, no rashes, temperature 37.3 (i.e. normal), chest, no respiratory distress, chest clear, abdomen soft, alert, curious. Review on Monday. Red flags covered by accident and emergency. Not sure of what is going on".
11. Although the mother disputes some of what is recorded in that she says that she told the GP that Z had been grunting only for one day rather than a month, and also that Z had been vomiting and had a temperature, it appears, from the GP's note, that she observed nothing untoward during her examination, which was conducted after Z's Babygro was removed but with his nappy was left on. In particular there is no indication from the notes that any bruising or other marks were observed, or that Z had suffered any type of injury.
12. According to the parents' evidence, Z was fine after this visit and so he was not taken back to the GP for the review on 26th September. He was not then seen by any other health professional until his parents took him to the Homerton Hospital at 6.00 am on 2nd October. The parents' account, in summary, of the events leading up to that admission is that at about 9 o'clock in the evening, shortly before Z was due to have his last feed before being put to bed, the mother and Z were in the sitting room while the father was in another room. The mother needed to go to the lavatory so she got up, leaving Z on the sofa with a pillow between him and the edge of the sofa, but when she returned a few moments later she found Z lying on his side on the floor. He was not crying and when the father, who by then had come into the room, held him, the parents could see no marks or bruises or swelling. After this, the child did not in any way appear distressed. He was fed with a little bit of porridge, he was just starting on solids at that stage, and then taken into the bedroom and breastfed by his mother, who then put him down in his cot. The mother and the father then had a meal at about 10 o'clock and then went to bed, the mother sleeping in the room with Z and the father in a separate room; apparently he snores excessively and did not wish to disturb the mother and Z.
13. At about 1 o'clock, Z was breastfed again, with the mother lifting him from his cot and lying him down next to her so that she could feed him on the bed. She had no recollection of changing Z's nappy at this stage; she said he showed no distress and she did not notice anything untoward. He next woke up at 4 o'clock for a feed. Again, she lifted him from his cot and laid him by her side on the bed to breastfeed him. This time when she touched his leg he gave a cry of pain, and she then noticed that his left leg was swollen: the Babygro he was sleeping in did not cover either his arms or legs so she was able to see his legs. Alarmed she called the father in, who confirmed the swelling. In his oral evidence the father said he realised that the leg might well be broken and there is no doubt that both parents appreciated that Z needed to go to hospital. M then changed and dressed Z and the family set off for the Homerton. They flagged down a minicab but, for whatever reason, the driver was not prepared to take them and they had to use public transport, arriving at the Homerton at about 6.00am.
14. From the notes at I/233-235, it appears that Dr. Powell and his registrar were the first to see Z at about eight minutes past six. The notes record that Z's temperature was normal (37.4) and that he appeared well but state that he was "uncomfortable when the hip/upper thigh is touched". The note further states: "the abdomen was soft" and under the section headed "skin" it says: "no rash, no scars, bruises noted". There is then a sketch of the child's lower half, with a note that, "The area at the hip/thigh is mildly swollen with no obvious haematoma". Z was then seen at 8.00 am by Dr. Anpanantha, the paediatric registrar. At I/231 -232 she recorded that when she questioned the parents, they replied: "He sometimes bruises on his chest. Dad accidentally holds him tight". Dr. Anpanantha then examined Z, noting the swollen area around his mid thigh but no other swelling. She also noted two marks, which she referred to as bruises, one below the right nipple, measuring 1.5 centimetres by 0.5 centimetres, and the other on the back, below the shoulder blade, measuring 1 centimetre by 1 centimetre. The presence of these bruises and Dr. Anpanantha's note of the parents' comments, are disputed by the parents.
15. In her oral evidence, Dr. Anpanantha accepted, having seen a recent photograph of Z's back, that the mark, which she recorded as a bruise could well have been a birthmark. She was, however, clear that she had noted another mark on the chest and also that the parents had made the comments about bruising to which I have referred as she had put those remarks in speech quotation marks to indicate that these were the actual words used, although she could not now recall whether both parents had made the remarks or only one of them and if so which one.
16. The initial x-ray undertaken at the Homerton Hospital revealed that Z had sustained a fracture to his left femur and so it was then arranged for him to be transferred to the Royal London Hospital for further treatment. The notes from the Royal London Hospital, at I/26 indicate that on his arrival there he was placed in gallows traction, while there is also a note at I/132 which states no one at the Royal London Hospital observed any bruises.
17. On 4th October 2011 a full skeletal survey was undertaken which revealed the following:
a) Oblique fracture of the proximal third of the left femur.
b) Right parietal skull fracture.
c) Incomplete fracture of the distal right ulna.
d) Incomplete fracture of the distal right tibia.
e) Incomplete fracture of the distal right fibula.
f) Incomplete fractures of the base of the right metatarsal.
g) Incomplete fractures of the heads of the right, second and third metatarsals.
h) Spiral fracture of the proximal left tibia.
i) Angulated fracture of the left scapula.
j) Fractures of the left lateral seventh, eighth and ninth ribs.
k) Fractures of the right lateral seventh, eighth, ninth and tenth ribs.
18. In total there was evidence that Z had sustained 17 fractures, which included, in layman's terms a fracture to the right side of his skull and fractures to his right arm, leg and foot, his left upper and lower leg and both sides of his ribs. Only the rib fractures showed any signs of healing which indicated these were the likely to be the oldest, but beyond this it was impossible to differentiate the timing of the others, thus, in so far as dating is concerned, all that can be said is that the fractures occurred on at least two occasions.
19. Further investigations were undertaken, both radiological and biochemical, which indicated that Z was vitamin D deficient and had rickets. There was also evidence that the mother and possibly other members of the extended family, also suffered from vitamin D deficiency. It is accepted by all of the experts instructed in this case that Z's bones are, as a result, likely to be more fragile than a normal child. The issue is whether this of itself provides an explanation for the multiple fractures sustained by this child at the tender age of five months.
20. The Law.
Miss Budden, who acts on behalf of the local authority, has prepared a schedule of findings sought by the local authority. Paragraph 20 states:
"The presence of multiple fractures of different ages at different sites without full explanation makes it more likely than not that Z has sustained non accidental injury".
21. There is no doubt that if I make such a finding, the threshold test under s. 31(2) of the Children Act will be met on the basis that Z has clearly suffered significant physical harm as a result of the actions of one or both of his parents. Miss Budden made it clear in her closing submissions that as both of the parents cared for Z at the relevant time the local authority did not feel it possible to suggest that one parent was more likely than the other to have caused the injuries. Moreover although Z has had contact with other members of the wider family, he has never been cared for alone by anyone other than his parents, and so it is not suggested that anyone other than the parents could be responsible for any harm that he has suffered.
22. Both the mother and the father, who are separately represented in these proceedings, deny that they have caused the injuries and state that they have no reason to believe that the other has. Ms. Driver, who represents Z through his Guardian, Fatiha Adul, highlighted in her closing submissions the conflicts in the expert evidence as well as the conflicts as between the parents and the medical witnesses of fact. She did not, however, make definitive submissions as to a finding of non accidental injury, although the inference to be drawn from her submissions is that there is sufficient evidence before the court which would allow such findings to be made.
23. It is accepted by all parties that the burden of proof is on the local authority and it is they who must satisfy the court that on the balance of probabilities the injuries sustained by Z were caused by a non accidental mechanism and that one or other of the parents was the perpetrator. The standard of proof is the ordinary civil standard in accordance with the principles laid down in Re B: Care proceedings (standard of proof)  UKHL 35.
24. In a case such as this which involves disputed medical evidence I acknowledge the guidance set out in Re U: Re B (Serious Injury: Standard of Proof)  EWCA Civ 567;  2 FLR 263, where Butler Sloss P, stated at paragraph 23:
"(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.
(ii) Recurrence is not in itself probative.
(iii)Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of a natural cause.
(iv) The court must always be on its guard against the over-dogmatic expert, the expert whose reputation is at stake or the expert who has developed a scientific prejudice.
(n) The judge in care proceedings must never forget that today's
medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are presently dark".
25. I have also borne in mind that in coming to my decision I should not limit myself to the expert material but as noted in paragraph 26 of Re U I must " survey the wide canvass of evidence available". As Mr. Justice Ryder said in Re A County Council v A Mother & Ors.  EWHC 144:  2 FLR 129 at paragraph 44:
"A factual decision must be based on all available material, that is to say, be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be. Investigations of fact should have regard to the wide context of social, emotional, ethical and moral factors".
26. I also remind myself as Mrs Justice Theis did in paragraph 10 of her judgment in Re RW that is always open to a judge to rule that "the cause of an injury remains unknown". This does not, in my view, involve the court washing its hands of the matter but reinforces that, as with any subject of endeavour, there are at any given time limits to our understanding. As Mr. Justice Hedley said in Re R (Care Proceedings: Causation)  EWCH 1715, at paragraph 19:
"In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither a professional nor forensic failure, it simply recognises that we have much to learn, and it also recognises that it is dangerous and wrong to infer non accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are forcefully and wonderfully made".
27. In this respect it is clear that as more research is done, the knowledge of clinicians expands and the court should therefore guard against the understandable desire to achieve a certain outcome. In paragraph 13 of Re Al-Alas & Wray Mrs Justice Theis referred to the important comments of Professor Luthert in R v Harris  EWCA Crim 198 paragraph 135 where he is quoted as stating:
"There are areas of ignorance. It is very easy to try and fill those areas of ignorance with what we know but I think it is very important to accept that we do not necessarily have sufficient understanding to explain every case".
28. Finally, I remind myself that in assessing the credibility of the parents in relation to the facts, I must bear in mind the guidelines set out in the R v Lucas 73 Cr. App. R.159, where Lord Lane LCJ, stated:
"The jury should in appropriate cases be reminded that sometimes people lie, for example, in an attempt to bolster up a just cause or out of shame or out of a wish to conceal disgraceful behaviour from their family".
Such an observation is perhaps particularly pertinent in the case of the father, who has not only convictions for dishonesty but has been shown in previous proceedings, relating to his older children to have lied to the court.
29. The Family Background.
As I indicated above, the parents both originate from Algeria. The father, who is now 39, has been in this country for 20 years. His parents still live in Algeria but he has a brother, N, and a sister, H (Z's current carer), who live in this country. He has three other children: his first child, M was born on 10th April 2000. The father and M's mother, BG underwent an Islamic marriage in June 1998 but were never married under the law of the United Kingdom. M and her mother now live in Scotland, BG having taken the child to Scotland shortly after her birth. The father has not seen her since, although I am told there is some indirect contact via Skype and letters. In 2002 there were proceedings between the father and BG in the Sheriff's Court in Greenock as the father was seeking contact to his daughter. The papers filed within those proceedings are at F52 - 98 and a copy of the Sheriff's judgment and his findings are at F78 - 96. It is clear from the judgment that although the Sheriff felt unable to order direct contact as between M and her father he did form a good impression of him and he sated at F84 that he found the father "to be a credible and reliable witness". He found, in particular, that the father had never threatened to remove M to Algeria, the reason given by BG for her leaving London and taking M to Scotland without the father's knowledge. He also found that the father had never been violent to BG and that he had never used a false name or behaved in a fraudulent manner (see F82, findings No. 62, 68 and 72).
30. In so far as the latter point is concerned BG made specific allegations that the father had used the names of PDS and AN in order to obtain State benefits. The father denied this and said it was a figment of her imagination. From the documents I have it appears that the Sheriff heard oral evidence from BG, the father, as well as five witnesses called on the father's behalf. Those witnesses included the father's brother, his father and his then wife, FF: I am told the father's sister did not give evidence. It is now clear from the police disclosure in section H that the father did used a number of aliases, including the name of PS and that in 2002 he was convicted of Benefit fraud, which went back over a period from 1998. It is therefore clear, as the father now admits that he lied to the Sheriff's Court about these matters, explaining that he did so as he wished to se his daughter.
31. In 2008 the father became involved in litigation once again, this time in relation to his two daughters, R who was born on 8th April 2006 and L who was born on 19th January 2008. Those proceedings came before me on a fact-finding hearing in July 2009, and a copy of my judgment is at C33-52. FF who is the mother of R and L is the same person who gave evidence on the father's behalf in the Scottish proceedings. In the proceedings before me she made a number of allegations against the father (see paragraphs 9 to 10 of my judgment). The allegations were very serious and included allegations of violence and rape by the father against FF as well as allegations that the father had been violent to R and his stepdaughter Y. I heard the oral evidence of the father and FF and other family witnesses. In the context of this case the following paragraphs of my judgment are relevant.
"I am acutely aware that in this case I have only a partial picture and I am very much dependent on the material that has been made available to me by the parties".
"In so far as the husband's case is concerned, similarly, I cannot be sure that I have a full record of his criminal convictions, nor do I have any information about court proceedings in Scotland. Similarly, although reference has been made to the husband's medical difficulties, I have no medical report".
I concluded at paragraph 94 that although I could not make any findings
against the father "I did not find either the husband or the wife a particularly convincing witness".
32. In so far as that hearing is concerned, it is now clear that the father was not honest in his evidence before me, for example, he said at paragraph 29 of his affidavit dated the 11th July 2008 that he had never been accused of handling or holding false documents. This was in fact completely untrue, as was the father's evidence to me that he had never seen a psychiatrist (see paragraph 58 of my judgment), which also illustrates that the father was reluctant to provide a full picture of the extent of his medical problems.
33. Even after the conclusion of that hearing the father continued to mislead the court in that he filed a medical report by a private general practitioner, Dr. El-Borai (C63 – 65) , which suggested that other than problems of eyesight the father had few current or historic problems. Dr. El-Borai had not been provided with the medical records which have now been disclosed and which are indicative of a much more complex picture. The medical records at I/247- 371 date from 1998, when the father first registered with a general practitioner as an asylum seeker. They have not been put in the bundle in chronological order which has made it difficult to obtain a general narrative with regard to the father's medical health. It is, however, interesting to note that the letter to the GP at I/37, dated March 1998 is from BG, the mother of the father's oldest daughter, who describes herself simply as a friend of the father.
34. It is clear from these records that the father suffers from a number of physical disabilities, most notably severe short-sightedness. There are also references to him suffering from leg and back pain as well as asthma. In addition he has been classified as being obese and suffering from severe insomnia. As well as physical difficulties, there are references to the father showing disinhibited behaviour, taking his clothes off in public and I note in this regard that the father has four convictions in 1997 for indecency which allege he was masturbating naked at a window. The records also refer to him suffering from depression and anxiety, and there are many references to the possibility that he may have mental health problems which may be linked to a fall he apparently suffered at the age of four.
35. As indicated above in the 2008 proceedings the father denied ever having seen a psychiatrist: in fact he was assessed twice in 2006 by Dr Awena Saunders, a consultant psychiatrist at St Barts. He was seen first on 31.10.2006 when his brother was present; the second time on 16.11.2006 he was seen at home when his wife FF was present. The reports of these visits are at F352 and F330-31respectively and although the family paints a picture of very curious behaviour Dr. Saunders concluded that the father's difficulties were primarily physical.
36. For the purposes of these proceedings the father was seen by Dr. McCulloch, a Neuropsychologist: her report dated the 28th March 2012 is at E324 - 342. It concludes that the father did not have any obvious problems in relation to language function but that his attention and working memory processes were in the low average range. Dr. McCulloch apparently had access to the father's medical records for the purposes of her report and in addition she conducted a series of cognitive tests as well as interviewing the father with the assistance of an interpreter. As far as I can gather from the report, she did not have sight of any court papers and it appears to me that whatever the original reasons for the instruction her report is concerned primarily as to whether the father had a proper understanding of the legal proceedings and thus had capacity within the terms of the Mental Capacity Act 2005. The range of the report is therefore somewhat narrow and does not provide me with a great deal of assistance.
37. The father has stated that at times he has suffered from depression, while the mother has made reference to the fact that he can become very loud when he becomes anxious. Other than this, however, both have denied any mental health issues or inappropriate behaviour. Of course I might have hoped that the father's medical records would have provided greater clarity. As stated above I have not been able to extract much of a coherent narrative from the records. Further I note that most of the assessments were prepared either on the basis of providing evidence in relation to the father's applications for asylum/ British citizenship, or his eligibility for various welfare benefits. In this respect, while I do not ignore what is said by the various family members about his so called difficulties, I feel I must treat some of their remarks with caution and guard against drawing inferences from their comments.
38. It is also clearly important in so far as the father is concerned that I should balance much of this very negative information about him, with regard to his past with the fact that since my judgment in 2009 he has been having contact with R and L without any concerns being raised by FF their mother, or indeed any outside agency. Indeed a position statement prepared on her behalf for a hearing in June 2011- see J6 -J7 refers to contact going well and states that she and the father were able to meet at handovers and discuss matters concerning the children without any problem. It is recorded that she was happy for contact to continue and was agreeable to the father being responsible for taking and collecting the children from school. The only problem referred to related to the father's remarriage and the birth of Z as FF stated she was not happy about the girls being brought into contact with their stepmother or their half sibling. Indeed it was as a result of this and in order to ensure that the father's staying contact continued that the mother moved out of the family home in Hackney at weekends and went to stay with the father's sister in Fulham.
39. As to the mother there is nothing to suggest that there is anything untoward in her background, although, of course, the court has no means of assessing her life prior to her coming to the UK in 2010. As I indicated above, she and the father are first cousins, her father being the brother of the husband's mother. As I understand it, the two families live in Algeria about 30 minutes apart by car. Not withstanding this she has no recollection of meeting the father before he left for the United Kingdom, although in reality she would only have been about 10 at the time.
40. Further, although the families are said to be close in that she said that the father's father visited her family relatively frequently, it would appear that her family was told nothing about the father's difficulties or his involvement with the police before they married. As far as I know, all of the mother's family remain in Algeria and it appears they have never visited this country. The mother said she first applied for a visa to come to the UK in 2008 but her application was refused. The mother is as I understand it an educated woman and is an engineer by training, although at the time she and the father began corresponding and became involved she was working in IT in the Syrian Embassy in Algeria. She has not, however, worked since she came to this country. It is now clear from her medical records that she was suffering from vitamin D deficiency when she became pregnant with Z, although this was of course not recognised until much later and it also seems likely that both the maternal and paternal families suffer from such difficulties.
41. Medical Evidence
As I indicated above after Z was born and he and the mother were discharged from hospital he was seen regularly both at home and at the baby clinic by the Health Visitor and the GP. Not only was nothing untoward noted but what was seen was entirely positive in that Z was observed to be a happy, healthy child who was properly bonded to both of his parents. The mother reported that he had suffered from colic but no other concerns were noted until his attendance at Dr B's surgery on 23rd September. The note of this attendance is at I/420 and Dr. B's statement is at C226. There are two disputes of facts as between the mother and Dr. B with regard to the GP's notes. The first is concerning the duration of the "grunting"; Dr. B records the mother saying one month, while she says she informed the doctor it was only one day. The other conflict is that the mother says that she told Dr. B that Z had a temperature and had been vomiting while Dr. B records that the mother denied that the child had a temperature or had been vomiting. It is accepted that Dr. B examined Z with only his nappy on and that she observed no marks or bruises.
42. The next clinical observation occurred when Z was admitted to the Homerton Hospital and was seen by Dr. Powell and his registrar at 6.08am on 2.10.2012. I have already referred to Dr. Powell's observations at paragraph 14 above. Dr. Anpanantha then saw Z at 8 am when once again there is a dispute of fact not only as to what she says she saw but also as to what she says the parents said. Dr. Anpanantha's records that she saw two bruises, although it is now accepted that the one on Z's back is likely to be a birthmark as there is a photograph of it long after this date. The other mark which was also recorded as a bruise was on his chest below the nipple. Dr. Anpanantha says she asked the parents about "the bruises" and she recorded the response being given that the father accidentally held Z tight and this resulted in bruising.
43. Z was then transferred from the Homerton Hospital to the Royal London Hospital at about midday there are nursing notes and clinical observations of him from 2 o'clock onwards. The notes of the observations of Z at the Royal London Hospital record him having "no bruises or redness to his skin". Z remained at the Royal London Hospital until 21.10.2011 when he was placed with foster carers. The notes and staff observations indicate that during this period both parents behaved entirely appropriately.
44. The initial X Ray at the Homerton revealed the fracture of the femur and it was only after a full skeletal survey was undertaken on the 3rd October that that the full extent of Z's fractures became known. At the same time it was noted that there were unusual features with regard to the appearance of the bones which might indicate the existence of rickets. Dr. K McDonald and Dr. R. Jalan paediatric radiologists at the Royal London Hospital refer to their being "evidence of reduced bone density and splaying and fraying of the metaphysis particularly at both ankles and wrists" and they concluded at I/245 that "there was radiological evidence to suggest an underlying diagnosis of rickets".
45. Z was also subjected to various biomedical tests and was assessed by Dr. Rosser, a consultant clinical geneticist at Great Ormond Street Hospital. Her report at E 2629 concluded that Z was not suffering "from any underlying metabolic condition or a condition such as one of the forms of osteogenesis imperfecta". Further testing was undertaken by Dr. Gissen, a consultant paediatric metabolic physician at Great Ormond Street Hospital and Z was also seen by Dr. Allgrove, consultant paediatric endocrinologist at the Royal London Hospital, on 6th October. Both Dr Allgrove and Dr Gissen whose reports are at E17-24 and E32 -39 respectively were initially involved with Z as treating clinicians however both were subsequently instructed as experts in this case and gave evidence before me.
46. The results of the biomedical tests confirmed that Z was vitamin D deficient and had rickets. Dr. Gissen also stated, at E39, that it was likely that the mother was vitamin D deficient herself and that Z had vitamin D deficiency in utero. No other evidence was found of an underlying metabolic disease.
47. Once this diagnosis had been confirmed Z was given vitamin D and calcium supplements and his vitamin D levels returned to normal after two and a half months. He has suffered no further fractures or injuries since the date of his admission to hospital on 2.10.2011 and he remains currently well and is meeting all of his developmental milestones.
48. Expert Reports/ Evidence
In addition to reports from Dr Allgrove and Dr. Gissen, whom as I say were treating clinicians the following experts were also instructed: Dr. Katherine Sloper, consultant paediatrician at the Ealing Hospital whose reports are at E50-75; E343-E 353 and E363 -366; Professor S. Nussey Professorial endocrinologist and consultant endocrinologist at St. George's Hospital, Tooting whose report is at E76-E 279 and Dr. Karl Johnson, consultant paediatric radiologist at the Birmingham Children's Hospital, whose report is at E280 -E289. All of the experts gave oral evidence before me and all save for Dr. Sloper, took part in an experts' meeting via telephone on 22nd February 2012, the transcript of which is E295 to E322. Z's solicitor has also provided at E 354 –E662 a number of schedules of areas of agreement and disagreement based upon the experts' meeting.
49. It appears from these schedules that there was common ground that Z had sustained the 17 fractures which I have referred to in paragraph 17 above and which are set out at E282 in Dr. Johnson's report. It was agreed that the rib fractures were older than the other fractures as they were the only fractures that showed evident of periosteal healing. As to dating it was accepted that the majority of the fractures were likely to have occurred within seven days of the skeletal survey undertaken on the 4th October 2011 with a window of some five to eleven days being agreed based upon the possibility of delayed healing response due to the existence of rickets. The rib fractures were dated as between one to three weeks prior to the x-ray with an outside limit of three to five weeks. It was agreed, therefore, the fractures must have occurred on at least two occasions. It is possible therefore that the rib fractures had occurred prior to Z being taken to see Dr B on the 23rd. September
50. It was agreed that Z had clinical presentation of a child with rickets, that is to say, he presented radiologically and biochemically as a child who had vitamin D deficiency and had reduced density and radiological changes in his bones. There was an issue as to whether the degree of loss of bone density noted could properly be described as osteopenia. There was also no agreement that Z had congenital rickets, that is to say, that he was born with rickets, although it was agreed that he almost certainly had low vitamin D levels at birth. It was accepted that the existence of rickets can increase bone fragility, thus increasing the propensity to fracture, however it was acknowledged that it was not possible to establish from radiological evidence, or biomedical evidence, the degree of fragility. Dr. Allgrove while accepting that Z had a loss of bone density and therefore that that there would be some increase in the bone's propensity to fracture did not accept that Z's bones were so fragile that this in itself could explain the number and extent of the injuries.
51. All of the experts at the meeting accepted that a fall from the sofa as described by the mother and the father could have caused the skull fracture or the femoral fracture, or indeed a combination of the two. Further it was agreed that Z's presentation at the Homerton Hospital on 2nd October was consistent with such a fracture occurring in the manner described by the parents.
52. Dr. Johnson, Dr. Gissen and Professor Nussey agreed that they were not able, on the basis of the medical nature of the other injuries to assist the court as to whether these injuries occurred due to an assault or because Z had been handled inappropriately or in a heavy-handed way. It was their view that as the strength of the bone could not be known, it was not possible to know the degree of force which might be required to cause any of the injuries. Dr. Allgrove, while accepting that Z had rickets, did not accept that the rickets was severe or florid and thus did not accept that Z's bones were very fragile. Further, he did not accept that even if Z had fragile bones, normal handling could result in the multiple fractures that Z had sustained.
53. As I indicated above, Dr. Sloper did not attend the experts' meeting, although in her first addendum report she deals with the experts' reports filed after her initial report and also comments upon the experts' meeting. I have to say I found it extremely difficult to follow the format of this addendum report and I was not clear from the number of comments made within that report exactly what Dr. Sloper's views were at this stage. This was not helped by the fact that although there is a transcript of the experts' meeting at E294 – 323 it proved very difficult to condense the views of the experts into a coherent schedule of areas of agreement/disagreement and in the end a whole series of documents were produced see E 354 – 362 which often appeared to me at least to record contradictory positions. The lack of clarity in Dr Sloper's subsequent reports may to that extent be understandable.
54. Expert Oral Evidence.
Dr. Johnson stated that from a radiological point of view Z had what he termed "textbook rickets", that is to say, he had reduced bone density, with fraying of the metaphysis particularly at both the wrists and the ankles. He indicated that he did not think it was possible, and was not aware, of any radiological grading system in so far as rickets was concerned. He accepted that fractures of bones in children under the age of six months were rare and that some of the fractures sustained by Z, in particular the fracture of the scapula, were very rare both in children with normal bones and children with rachitic bones.
55. Dr. Johnson acknowledged that the reduced bone density, which he accepted could fit within the definition of osteopenia, would lead to Z's bones being more fragile, although he was not able to assess, from a radiological point of view, Zs bone strength or fragility. He was therefore not able to say whether the fractures sustained by Z had been caused by normal handling, or abnormal handling, or inflicted injury, or a combination of all of the above, and he accepted that all of the fractures, save the skull fracture and the scapula fracture, could have been caused by mechanisms such as nappy changing or putting on clothes, such as a babygrow. In so far as the fractures of the skull, the scapula and the femur, he accepted that multiple forces would have had to apply but he could not say what the degree of force required was.
56. Dr. Gissen said that the phrase "text book rickets" as used by Dr. Johnson in a radiological context was equally applicable from a biochemical point of view. He also accepted that it was not possible from the biochemical evidence to assess the strength of the bone and he like Dr Johnson accepted that he could not therefore say what force was required to fracture the bones or whether the fractures were due to normal handling or non accidental trauma.
57. Professor Nussey was of the view that Z had all the signs of vitamin D deficiency, rickets and osteopenia. It was his view that Z most likely suffered from vitamin D deficiency at birth. He referred to the fact that in the last trimester the mother would not have been able to create any of her own vitamin D and that as Z had been more or less exclusively breastfed, he would have not received vitamin D from milk. He thought therefore that Z's bones would have been more fragile and that it was possible that the fractures could have been caused by normal handling as he like Dr Gissen and Dr Johnson believed it was impossible to know what degree of force would be required.
58. Dr. Sloper similarly did not dispute the clinical presentation of Z a child with rickets, but it was her view that the number of fractures sustained was extremely unusual even with a child with rickets. She was also concerned that other than the explanation given by the parents which she accepted could explain the fractured femur, the parents had not recorded any other memorable incident which could have resulted in the other fractures. She also thought it unusual that they had not observed the child displaying any discomfort or distress when being changed or when having his clothes put on. It was also her paediatric opinion that the fall from the sofa would have caused Z distress and she queried the parents' evidence that Z did not shown any distress until his 4.00 am feed, some several hours later.
59. Dr. Sloper was also concerned at the presence of the bruise referred to by Dr. Anpanantha, and she said that this fact alone led her to believe that non accidental injury was more possible. She appeared to approach the issue of bone fragility in a different way to Dr Gissen, Dr Johnson and Professor Nussey concluding "As we don't know the degree of fragility, we can't exclude non accidental injury just because of this", and she went on to say, "I am not saying that it cannot be accidental, just that I have shifted slightly over the balance". This shift appeared to be based on Dr Anpanantha's observation of a bruise which she said "would move me a bit more to saying that some of these could be non accidental rather than accidental". Of course I appreciate the difficulty experts have in expressing opinions on these complex matters however I must confess I found Dr Sloper's approach to be not always based upon the degree of intellectual rigour I might have hoped.
60. Dr. Allgrove's evidence differed from Dr Gissen, Dr Johnson and Professor Nussey in that although he accepted that Z had rickets, it was his view that this was not as severe rickets as other children that he had observed and he placed Z on a mild to moderate scale from a radiological point of view. Further although he accepted that Z was likely to have low bone density he was reluctant to accept a diagnosis of osteopenia. Dr Allgrove was of the opinion that as Z did not have particularly severe rickets it was reasonable to assume that although his bones were likely to be more fragile than a child who was not rachitic they were not likely to be so fragile that normal handling would cause the extensive fractures sustained by Z. In his view, it was a matter of both commonsense and logic that children who have severe rickets were more likely to have more fragile bones and, therefore, that for such children less force would be required to cause fractures and that, conversely the force required for children who had only mild rickets would differ only marginally from that required to injure children who did not suffer from rickets. He accepted that specific research had not been done to see if there was a correlation between the severity of rickets and the propensity to fracture but he thought it was reasonable to conclude this. Further, although he accepted that none of the fractures sustained by Z were pathognomonic of non accidental injury, he was clear that a number of the fractures, and in particular the rib fractures, had a high association with non accidental injury. It was also his view that the high number of fractures and the rarity of the fracture sites, such as the fracture of the scapula, made it more likely than not that the fractures sustained by Z were caused by non accidental injury.
61. Factual Disputes.
Firstly, in relation to Dr. B, the issue is whether the mother said that Z had been "grunting", as it is described, for one month or one day or whether she reported him as having a temperature or vomiting. The date of 23rd September has taken on some significance, firstly because it was the last time Z was seen prior to being taken to hospital and also because it is possible as I stated above that Z had already sustained the fractures to his ribs; Professor Nussey suggested that the description of "grunting" might have indicated that Z was finding breathing painful, as indeed he would if he had sustained fractures to his ribs. I did not require Dr. B to give oral evidence before me, as it seemed likely that, as with Dr. Anpanantha, she would have no specific independent memory of the consultation between the mother and herself. It is accepted that the mother attended Dr. B by herself and also that at that time and even as of today, her English was not good. It is also accepted that at the appointment the mother herself was not feeling well as she had as stated above booked a double appointment for herself and Z.
62. It seems to me that a combination of all of these factors mean that I cannot rule out the possibility that either Dr. B was indeed mistaken or misunderstood what the mother was saying, or that the mother, with her uncertain grasp of English at that time, used the wrong words or the wrong terminology. I am therefore not able to say in relation to the record on 23rd September 2011 that Dr. B's record of that day is entirely accurate.
63. In so far as the second matter is concerned, that is to say, the dispute of fact between the parents and Dr. Anpanantha, having heard Dr. Anpanantha's evidence, the evidence of the mother and the father, it seems to me that although it is right to record that no bruise was seen by any of the staff at the Royal London Hospital, it would be difficult for me to hold that Dr. Anpanantha could be completely mistaken as to the sight of a mark under the child's nipple. In that respect it is right to record that no one at the Royal London Hospital, for example, noted the mark on the back of Z's skin, although that mark is still evident today, it being accepted that is a birthmark.
64. I therefore find as a fact that there was a mark present at the time Dr. Anpanantha examined Z at 8 o'clock on the morning of 2nd October. It was obviously a small mark, one centimetre by 0.5cm. It may well have been a small bruise, but I am not able to go on to make such a finding. It is clear that the mark either faded very rapidly or was not thought of as significant in any way by the nursing staff at the Royal London Hospital. Further, it is clear that Dr. Anpanantha herself did not think it was of enormous significance at the time, although it is right to record at this stage she was not aware that Z had sustained fractured ribs.
65. In so far as her discussion with the parents is concerned, Dr. Anpanantha was clear that she had recorded accurately the parents' comments and, indeed, as I have referred to above, she put their comments in speech marks. Her notes, she said, were made either contemporaneously or shortly after the parents had been assessed by her.
66. It is odd of course, that this conversation occurred before she had actually seen any bruises and that when she did note their presence Dr. Anpanantha asked no further questions of the parents with regard to them. However it seems unlikely that she could have misunderstood what the parents were saying to such an extent, especially when what they are alleged to have said is recorded in direct quotation marks. The parents do not suggest they made any comment whatsoever in so far as bruising is concerned, however in my view, it is more likely than not that the parents did indeed make some comment in relation to bruising in response to a question asked of them by Dr. Anpanantha, and I find that Dr. Anpanantha did indeed record what they said accurately.
67. The Evidence of the Parents.
Much has been made, understandably, of the fact, as I have referred to above, that the father has been dishonest and has lied to the court in relation to proceedings concerning his older children. It also may be said that there remains much uncertainty in relation to his physical and mental health. Both Miss Budden and Ms. Driver on behalf of Z ask me to treat the father as an inherently unreliable witness. Clearly, the father's previous dishonesty is an important fact and one that I as a judge cannot possibly ignore. This, of course, is especially significant in a case where the parents are unable to provide any explanation with regard to their child's injuries other than the fall from the sofa, an event which all of the experts agree cannot explain the large number of fractures sustained by Z, it having been accepted that the injuries were sustained on at least two occasions.
68. Neither parent suggested that other than in the early hours of the 2nd October Z had ever displayed any significant distress or discomfort when he was handled, although the mother did mention his "grunting" to Dr B on the 23rd September. All of the experts agreed that it was surprising that Z did not exhibit any distress at any time of the fall or at other times, and both Dr. Allgrove and Dr. Sloper made the point that even children with very fragile bones, such as children who suffer from osteogenesis imperfecta, suffer from pain when they sustain fractures.
69. Any assessment of the father must take into consideration his previous untruthfulness, although of course I remind myself that I must consider the possible reasons behind this dishonesty as per the direction in Lucas. That having been said and making what I hope are proper allowances with respect to the difficulty inherent in giving evidence through an interpreter, it is fair to say that I still found the father to be a less than satisfactory witness. This may be partly due, as Dr. Gissen said to the fact that the father is a very poor historian and has a tendency to wish to give rather complicated answers which are only tangentially connected to the question asked. I suspect, however, it is perhaps somewhat more complex than this, as I believe this father finds it relatively easy to justify his dishonest behaviour when it suits his purpose.
70. It is of course important to record the positive aspects of the father as well as the negative. In this respect I note that not withstanding the serious allegations made by the father's first wife FF, she has made no further complaint about the father's behaviour in relation to her or, importantly, in relation his care of their children, which has included periods of staying contact when the father has had sole care of them. Further the notes and observations of the father at the hospital show him to be a loving and caring father to Z. This is reinforced by the extensive contact notes I have read, which show him to be a thoughtful and supportive partner to the mother.
71. Although the mother has been in this country for a much shorter period than the father and also gave her evidence through an interpreter she appeared to me to give her evidence in a much more coherent and lucid fashion. It was also evident that she experienced genuine distress when contemplating the injuries that her son had sustained. I accept that there were inconsistencies in her evidence and, as I indicated above, I believe both her and the father's recollection in relation to what was said to Dr. Anpanantha was incorrect. The statement that the father "sometimes holds Z too tightly and causes bruising" is of course worrying although it does not suggest a parent who is setting out to deliberately harm their child. It is possible that their continuing failure to acknowledge that they may have said something like this to Dr Anpanantha is based upon a reluctance to contemplate that they may well have hurt their child, even if this was done accidentally. However, their lack of candour inevitably arouses suspicion.
72. It is also perhaps surprising that neither of the parents felt able to acknowledge that a combination of the father's apparent multiple disabilities and the mother's own tiredness and pain resulting from her unrecognised vitamin D deficiency might lead to stressful situations especially when caring for a very young baby. However the picture presented by the mother was that of an idyllic home life without problem, which would seem to me to be neither accurate nor realistic.
73. There is also the fact that as Z's main carer she failed to notice any distress or pain until it appeared that his leg was quite markedly swollen. Against these concerns I have undisputed evidence of the mother behaving as a conscientious parent both prior to Z's admission to hospital and thereafter. As noted above Z's medical notes indicate that he attended all post natal appointments. The health visitor and GP records describe him not only as a well cared for child but also as a child who was securely attached to his parents. While in hospital the nursing staff observed that the mother was totally committed to Z's welfare. Further as Ms. Branigan notes all the contact records show the mother as someone who is both sensitive and caring and who is closely attuned to her child's needs.
74. It is clearly important, therefore, that I put all of the above factors in the balance in coming to my conclusion as to whether the local authority have made out their case against the parents. Although the medical evidence in this case is not unanimous, it is clear that all the experts accept that even when children have rickets, fractures are rare. I accept, in so far as the research papers are concerned, that although some of the samples are, as Professor Nussey noted, self selecting, and that few, if any, of the children who were part of such research underwent full skeletal surveys, it is clear from the research that has been done and also from the expert evidence I heard that the number of fractures sustained by Z is rare, even within that group of children who suffer from rickets.
75. I also accept that as a matter of logic, it may well be as Dr Allgrove suggests there is a correlation between the fragility of a child's bones and the severity of the rickets. The difficulty I have, however, with Dr. Allgrove's evidence is whether it is right to extrapolate from this general proposition and go on to make a specific finding as to the degree of force required to cause the fractures sustained by Z, that is to say to find that the force required was excessive and beyond normal, or somewhat heavy-handed handling.
76. This in effect was the essence of the dispute between Dr Allgrove and Dr Johnson, Dr Gissen and Professor Nussey: whether it is possible to grade the degree of rickets and thus assess with a reasonable degree of certainty the fragility of the bone and thus the force required to fracture the bone. Dr. Allgrove believed it was possible. He referred to research reported in a paper by Thatcher et al in the Journal of Tropical Paediatrics at volume 46, June 2000, at 132 as well as his own extensive and systematic review of children with vitamin D deficiency as discussed in a paper by Ladhani Allgrove and others entitled Presentation of vitamin D deficiency which is at E130-133. Dr. Allgrove is as I have stated above a paediatric endocrinologist at the Royal London Hospital and he sees children who are in an ethnic group where vitamin D deficiency and rickets is certainly likely to be more prevalent than in the general population thus his expertise is based not simply upon research but also upon his own clinical observations.
77. Dr. Johnson also has considerable clinical expertise, in that he works at the Birmingham Children Hospital, an area, again, where the ethnic makeup of the population is likely to show children who are more likely than the general population to suffer from vitamin D deficiency and rickets. Dr. Johnson said in evidence that he was not aware of a grading system in relation rickets and as far as he was aware no such system was used in the United Kingdom. The Thatcher paper is an American study which was not, unfortunately, put to Dr Johnson, however as Ms. Branigan pointed out in her closing submission, the paper simply concludes by saying that such a grading may prove a useful tool in the future and does not provide evidence as to its systematic use.
78. Professor Nussey accepted that as with normal children there was what he termed a "step ladder effect" or a hierarchy with regard to the amount of force that might be required to break various bones, and he therefore accepted that as a matter of logic, a similar hierarchy may relate to children with rickets. However, he did not feel able to go beyond such a statement to extrapolate in relation to the injuries sustained by Z. It is also right to note that in any event Professor Nussey did not share Dr. Allgrove's view that the nature of Z's rickets could be placed within a range of mild to moderate.
79. As Ms. Branigan says, Z suffered at least two incidents of trauma and possibly as many as seven, none of which, if excessive force was used, left Z with any marks or bruising other than the small bruise on the chest seen by Dr. Anpanantha. This would mean that I would have to find that either or both of the parents had used excessive force on such occasions and that each was aware that the other had used such force and had failed to protect Z.
80. In this case, although it was put to both of the parents that they were not providing the full picture with regard to Z's attendance at the GP on 23rd September, or his hospitalisation on the 2nd, it was not suggested to either that they had deliberately caused harm to their son. I am, of course, aware that in the absence of any event or particular mechanism it is difficult to suggest how any of these fractures occurred. Nevertheless, it seemed to me that it was a valid point that at no time was a specific allegation of deliberate harm put to either of the parents.
81. That having been said, there is no doubt that the number of fractures that Z sustained and the lack of explanation provided by the parents raises a high index of suspicion. The expert evidence, although not unanimous in relation to causation clearly suggest that the occurrence of such a large number of fractures is rare indeed. It is suggested in this case, in particular on behalf of the mother, that Dr. Allgrove's evidence was given in such a dogmatic fashion that I should disregard it. I believe in this case that the experts, while giving differing views have based their opinions on genuine differences, and certainly it is my view that all came to this court with a genuine desire to assist.
82. There was, however, a clear conflict and although that in its self does not mean I cannot prefer the evidence of one expert to the views expressed by the others, it should in my view lead the court to be cautious. As I indicated above neither Dr Johnson, Dr Gissen, nor Professor Nussey felt able to express a view as to the degree of force that might be required to cause the fractures sustained by Z in the light of the accepted fragility of his bones and as such they did not feel able to state that it was more likely than not that the fractures were caused non accidentally. Dr Sloper appeared to take the view that as it was not possible to state what force was required it was also not possible to rule out the fact that excessive force was used. She also thought the presence of the bruise was on Z's chest could tip the balance i.e. allow the court to find that on a balance of probabilities the injuries were non accidental. With respect to Dr Sloper this appears to me a reversal of the burden of proof in that it requires the parents to prove that they did not use excessive force.
83. Dr Allgrove's opinions were clearly based on his own clinical observations and deserve respect, however it seems to me that his view as to the degree of force required is based on guesswork, albeit highly educated guess work. Further for the reasons stated by Butler-Sloss P in Re U: Re B and Ryder J in Re A the court should not base its conclusions on medical evidence alone, however eminent. In this case there is important evidence of Z being a much loved and wanted child who appeared from the medical records available to be cared for entirely appropriately by his parents up to the point when he was admitted to hospital. This picture was amplified by the parents' behaviour in hospital and during the observations of them during contact. Taking all of these factors into consideration, that is to say the divergent views of the medical experts, and the very positive evidence of the parents' care of Z, I have not found it possible to make any findings as to how Z sustained his injuries. In the light of this the local authority has not satisfied me to the appropriate standard that is to say on the balance of probabilities, that these injuries were caused either by both or one of the parents using excessive force. It follows therefore that I do not find the threshold criteria met.
84. As Mr. Justice Hedley said in Re R, there are cases where the court must ultimately conclude that there is an unknown aetiology and that such a conclusion does not represent a failure of the court or, indeed, a forensic failure. Such a conclusion simply recognises that there are limits to the current state of our knowledge. It is clear from the comments made by Mrs. Justice Theis in the case of Al-Alas & Wray that further research is needed in this very important area, and I hope that as well as alerting mothers to be of the dangers of vitamin D deficiency that such research will be done.
85. In concluding my judgment, I would wish to add that while I in no way minimise the heartache that the parents have suffered in having their child removed from their care, and indeed the distress that they must have suffered during these proceedings, especially at a time when the mother became pregnant with their second child, I do not believe that this local authority can or should be criticised in bringing these proceedings. As I have indicated, given the circumstances of this case, it seemed to be inevitable that any local authority would have to undertake a thorough investigation of all of the relevant facts and that it was appropriate that such an investigation was undertaken within court proceedings and at the court's direction.
86. I would also wish to record that in presenting the evidence before the court, it is my view that the local authority has done its utmost to present a fair picture to the court and I note that in all of the evidence presented by the social workers, they have been scrupulous to note every positive in respect of the parents while at the same time properly raising their concerns. I hope, therefore, that the parents will in future feel able to understand the difficult task that the local authority had and that they will take the view that Social Services are not their enemy but appreciate the support that they may be able to give, and I hope, therefore, that despite all that has happened, they will not in the future resist seeking help from the local authority if they need it.
87. All that remains is for me to dismiss the local authority's application, which means, of course, that Z can return to the care of his parents.