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Re S (A Child) [2013] EW Misc 2 (CC)

Finding of Fact Hearing in Respect of a Number of Fractures Sustained by S aged 3 months

On 13 October 2011 S was taken to hospital by her parents with a swelling to her left knee. She presented with no bony injury and was discharged. Her parents returned with S on 22.10.11 with a swollen arm. An X ray showed a spiral fracture of the left humerus. In due course a consultant paediatric radiologist went on to identify fractures to the left upper arm, right lower arm, distal left femur, left and right tibia and two rib fractures. The parents agreed to section 20 accommodation on 27.10.11 and on 2.11.11 the local authority issued care proceedings.

The consultant paediatric radiologist was able to date the fractures as follows: The rib fractures occurred between 15th and 28th September 2011. The fractures to the right lower leg took place between 12th September and 10th October. The earliest date for the left femoral fracture was 30th September but it was most likely to have occurred between 10th and 13th October. The left tibia fracture was likely to have occurred between 3rd and 10th October and the likely time frame for the left humeral fracture was between 16th and 19th October. There was an additional right wrist fracture which was difficult to date.

During the time period for the occurrence of the fractures S was seen by medical professional 5 times on 16th September, 22nd September, 13th October, 19th October and 20th October. The first time a fracture was noticed was on 22nd October despite an X-ray having been taken of S's knee on 13th October.

S had been in the care of her parents and maternal grandmother when the fractures occurred. They could offer no explanation as to how the fractures may have happened. The local authority sought findings that the injuries had occurred non accidentally with the parents and grandmother as possible perpetrators.

The local authority relied upon the evidence of the consultant paediatric radiologist who acknowledged what whilst there could be a Vitamin D deficiency there was little, if any, supporting evidence of fractures being caused by lower than normal Vitamin D levels where there is no evidence of rickets. She acknowledged that this is a developing and controversial area of medicine. She also asserted that in her view there was no correlation between Vitamin D deficiency and fractures nor was there an increased propensity to fracture due to a Vitamin D deficiency.

The Court reminded itself of the guidance in  Re U: Re B (Serious injury: standard of proof) [2004] 2 FLR 263 and Re L [2011] EWCA Civ 1705 noting that where there is uncertainty in the medical and scientific evidence the Judge's appraisal and confidence in the parents is crucial.

The Court found that the medical evidence raised a substantial likelihood that the injuries were caused non accidentally and by force used by at least one of the adult members of the household. The Judge surveyed the 'wide canvas' of the case including the manner in which the parents gave their evidence. The Judge found that neither parent was seeking to cover up matters or to deal other than truthfully to the best of their ability. The Judge formed the view that the maternal grandmother was seeking to assist the Court in her evidence. The Judge considered that S was seen five times at medical appointments when she was said to be suffering from fractures and noted that at those appointments not only did they not reveal the fractures but nor did they raise any suspicion about the parents. The Judge formed the strong impression that the parents were careful, child focused parents who had demonstrated good quality parenting dealing with S's older sibling.

The Judge took into account the evidence of an endocrinologist who opined that the absence of radiologically identifiable rickets did not mean there were no rickets. He noted that there is no uniformity of Vitamin D testing and it is difficult to measure. S's Vitamin D levels were borderline on 2.11.11 and were never higher than insufficient. He was able to extrapolate that S's Vitamin D levels at birth were likely to have been markedly deficient having been Vitamin D deficient in utero. This could increase bone fragility and give rise to fractures at a lower force than would otherwise be the case.

Considering the totality of the evidence the Judge found the likely incidence of an increased vulnerability to fracture was the most likely cause of S's injuries. He found it was not possible to conclude at what point normal day to day handling crossed over to the point when S's vulnerable bone structure was compromised and exceeded. The Judge was satisfied that neither the mother, father, nor grandmother could be held responsible for causing the injuries. A revised care plan was approved for the rehabilitation of S to the care of her parents. 

Summary by Georgina Clark, barrister , Field Court Chambers



___________________


IN THE WATFORD COUNTY COURT 

Watford County Court,
Cassiobury House,
11-19 Station Road,
Watford,
Hertfordshire  WD17 1EZ.
20th March 2013

Before:

HIS HONOUR JUDGE WRIGHT

Between:

A local authority Applicants

and

(1) D

(2) N

(3) S

(4) S
(by her Children's Guardian) Respondents
____________________

MISS HELEN SOFFA (instructed by the local authority) appeared on behalf of the Applicants.
MR UPALI JAYATILAKA
(solicitor) appeared on behalf of the Respondent Mother.
MISS ALICE DESCHAMPNEUFS
(instructed by solicitors) appeared on behalf of the Respondent Father.
MISS JUDITH TRUSTMAN
(instructed by solicitors) appeared on behalf of the Respondent Maternal Grandmother.
MISS SORREL DIXON
appeared on behalf of the Children's Guardian.
____________________

Digital Tape Transcription by:
John Larking Verbatim Reporters
(Verbatim Reporters and Tape Transcribers)
Suite 91, Temple Chambers, 3-7 Temple Avenue
London   EC4Y 0HP.
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____________________

Words:   11,229 
Folios:   156 

(FULL) JUDGMENT
20th March 2013.
01. On 14 January 2013 I made orders and gave a foreshortened (primary) version of the judgment in this case which had run over a substantial period in 2012 and before, because having reserved judgment in what was on any view a difficult case, delays in preparing the judgment for administrative reasons and with difficulties over my own health meant the process became much longer than I would have wished.   Having reviewed the evidence in detail, and after considering the written submissions of all parties, I had reached a position where I had come to my conclusions on the issues of fact.  It was only fair, in my judgment, to communicate those to the parties as soon as possible with my reasons in a primary judgment with a fuller judgment to follow to bring the period of waiting for the result to an end for the family as well as for other parties.  The judgment that I gave that day is subsumed into this fuller judgment of the court.

02. In this case the local authority brings proceedings for Public Law orders relating to S, born on 18th July 2011.  This judgment relates to the fact finding hearing concerned with the causation of a number of bone fractures sustained by S at about the age of three months.  This hearing has run over a prolonged period of months in the course of 2012; in particular because it encountered difficulties in the procurement of the services of one of the experts necessary to address the issues in the case, and also because of practical difficulties in the hearing itself in adducing the important evidence of the children's grandmother from Sri Lanka.  The other parties to the case are S's parents, who are married.  Her mother is D, represented by Mr Jayatilaka.  S's father is represented by Miss Deschampneufs.  The maternal grandmother ('the grandmother') is also a party, as she was present in the family home at the material time, and has been represented by Miss Trustman.  The child appears by her children's guardian and has been represented by Miss Dixon.  The guardian also represented the other child of the family T, who was born on 14th February 2008.  While T was originally the subject of the local authority's applications at the outset when proceedings were issued on 27th October 2011, I made an order on 13th December 2011 returning him to the care of his parents and no continuing orders were made relating to him. 

03. The concerns of the local authority and the allegations raised against the family members arise from the appearance on X-ray scans first seen on 22nd October 2011 of a significant fracture to S's left upper arm.  This led to a referral by the consultant paediatrician from the local hospital to Social Services.  On 24th October 2011 a skeletal survey detected what appeared to be two left rib fractures.  The scans were sent for further expert review by Dr Karl Johnson, paediatric radiologist at the Birmingham Children's Hospital.  He confirmed the presence of the humeral fractures and rib fractures and, following further X-rays, identified what he thought was a healing fracture of the proximal left tibia.  He identified irregularity in the distal left femur in an earlier X-ray taken on 13th October 2011, but after further scans concluded that there was no fracture of the distal left femur.  However, in due course Dr Joanna Fairhurst, consultant paediatric radiologist, identified fractures to the left upper arm, right lower arm, distal left femur, left tibia, right tibia, and two rib fractures.  These are referred to in more detail in her evidence and indeed in the local authority's threshold document, and she has set out fully in her expert report to the court her opinion on the fractures she found, the dating of S's injuries, the mechanism of injury, possible explanations and her conclusions. 

04. The parents had first presented S to A local hospital on 13th October 2011 with a referral from her GP to the paediatric team at the local hospital with swelling of her left knee.  An X-ray was performed at the time along with other tests and appeared to present no bony injury and no metaphyseal infraction.  S was discharged and the parents reported that her knee improved.  However, on 22nd October 2011 the parents again presented S, this time with swelling to her left arm.  On examination by the doctor there was no active movement of that arm.  An X-ray showed a spiral fracture of the left humerus.  The parents were unable to offer any explanations and had not observed any accidental events that may explain these injuries.  The local authority took action on 26th October 2011 after the Consultant Paediatrician concluded that there must be a high level of suspicion in the absence of explanation of the injury to the left arm that the humeral and left rib fractures may have been sustained as a result of a non-accidental injury.  The local authority made an application for an Emergency Protection Order on 26th October 2011 in respect of both children, and on 27th October the parents agreed to Section 20 accommodation.  The local authority issued care proceedings on 2nd November 2011. 

05. The fact finding hearing began on 23rd March 2012, but on the second day of it, on 26th March, I adjourned the hearing having encountered significant problems on two fronts after hearing evidence from Dr Fairhurst, the health visitor, and the Consultant Paediatrician.  At that point a number of problems faced the court.  Firstly, it had become evident that the court required the assistance of an expert in paediatric bone disorders.  I gave a short judgment identifying the difficulties in which the paediatrician found himself in dealing with the analysis of Vitamin D deficiency/insufficiency which was outside his expertise and which presented a substantial difficulty in the case.  The question arose as to whether genetic abnormality of bones, metabolic bone disease or demineralisation of the bone caused by Vitamin D deficiency gave rise to an increased propensity to fracture.  The court had no expert views on these aspects or on a number of potential issues relating to bone metabolism.  I came to the conclusion that I was unable to determine the case without further specialist expert evidence.  Added to this was the unfortunate position of counsel for the grandmother, who was not present and who had sent a message to the court that her client's public funding certificate had been embargoed for the reasons and with the consequences set out in para. 5 of my judgment on 26th March 2012.  I therefore granted an adjournment so that a suitable expert could be instructed. 

06. There was then a further sharp issue over which expert should be instructed in this field which was not brought before the court until 24th May 2012.  I then ruled that Professor Nussey, an expert in the narrow and complex field of biochemical analysis coupled with endocrinology and with a particular expertise on questions of Vitamin D sufficiency/deficiency should be instructed to prepare a report by 29th June 2012.  Professor Nussey reported on 10th July but in time for the resumed hearing of the matter on 25th 26th and 27th July. 

07. Particular difficulties were encountered with receiving the evidence of the grandmother by Skype from Sri Lanka with the connection frequently being lost and with further doubts arising over the correctness of the interpretation of her evidence.  All this with the inherent complexities of the medical evidence meant that much time was taken up and the father's evidence could not be taken until the court could reconvene on 12th September 2012.  I adjourned the hearing with directions for written submissions but anticipated that the particular difficulties of the case, its subject matter and the possible issues arising over evidence, required a further hearing for the parties to address the court having exchanged their submissions.  This further hearing took place on 24th October 2012.

08. I go into detail on the background facts to this case which important in my consideration because they form part of the 'wide canvas' mentioned by the President Lady Butler-Sloss in the case of Re U (Serious injury: standard of proof) [2004] 2 FLR 63. 

09. The father had come to the UK in December 1999 as a student. He had known his wife (the mother) since 1990. She was born in 1979. Aged 20 in December 1999, she had married the father just before he came to England She joined him in this country in October 2003. The father completed a course in tourism management and completed a post-graduate degree in business management. At the time of these proceedings he was employed as a store manager. The mother also worked there.

10. The parents' first child T was born on 14th February 2008. After the birth it became apparent he had a medical problem with intestinal obstructions and severe constipation, requiring a good deal of medical attention and a surgical procedure at 3 weeks. He was diagnosed with Hirschsprung's disease, remaining under the care of a London hospital's surgical team with 6 monthly checks. The parents needed to be careful over his food, medicine and health.

11. When S was born on 18 July 2011, T was 3 years and 5 months old. His father described him as "very possessive" of his baby sister, trying to open her clenched fists to place toys in them, to straighten his 'folded' arms and play with her.  The Consultant Paediatrician, in his report of 5 March 2012, picks up on the record that T would become annoyed when S was unable to play with him, not understanding that it was not possible.  T was described as "very attached to his mother" becoming jealous when mother was with S.  He was described on examination as very active in clinic, playing with his sister and wanting to hold her. I return to consider T and his behaviour later in this judgment.

12. S's early developmental history, after her birth on 18 July 2011, was unremarkable at first sight: more would come to be known about her Vitamin D deficiency later, with ensuing events. She weighed 6lbs 15 ozs (3.15 kg) at birth and was born by emergency Caesarean section. She was between the 25th and 50th centiles for weight, and maintained the usual track after the usual loss of weight in the first week.  She was discharged from hospital on 25 July 2011. At one week she was seen by the Community Nurse and was reported to be "thriving, contented and settling well." When S was 10 days old, her maternal grandmother arrived from Sri Lanka to live with the family and to help mother look after the children.

13. On 3 August 2011, S and the mother were seen at home by the Community Nurse, and the record shows that the mother had no concerns. S had regained and passed her birth weight. Consistent with this, the father described a happy baby in the first two weeks of her life. This, unfortunately, was soon to change.

14. The father said in oral evidence that S developed a pattern of crying after 3 to 4 weeks old, particularly in the evenings. On 17 August 2011, S was taken to the clinic at 4 weeks old to be weighed. Her weight gain was recorded as normal. The father said in evidence that her crying was first mentioned then, although there is no entry about it in the record, but the following record in the GP Notes does suggest that the Health Visitor had "advised giving her Infacol" at this point, so it probably was raised then. On 19 August 2011, two days later, there is a record in the GP notes confirming a visit by the mother and father with S. She was seen by the GP. The report states that S:

'cried a lot last few weeks
More over last 2 weeks and then doesn't want to be fed
Tends to cry more in the evening…
Have used Infacol under advice from the H/V but no improvement yet.
Wanted a review   
(Under 'P') Discussed with Mum and Dad – possible colic – will continue with Infacol and see how she gets on over next week. If no better, to review or sooner at any time if concerns…'

The record confirms the father's account that they had been advised to use Infacol, had done so and that it was not working.  The advice to 'persist with Infacol' also bears out the father's account.  The mother, father and grandmother all said that Infacol did eventually help for a time before her crying became worse again.

15. On 16 September 2011, S was seen for her 6-week check.  This would have involved manipulation of the legs and arms, and the conducting of other tests. The record concludes with the GP's comment "All well. Lovely baby." The father recalled that S "cried throughout", crying as soon as the examination started although the doctor carried on. That aspect is not mentioned.

16. I record at this point in the narrative that an important incidental date occurred on 15 September 2011, namely the starting date when according to Dr Fairhurst, the first fracture may have occurred. Her evidence was that the earliest date for the rib fractures was 15 September, the latest date being the 28 September 2011. So the records engage even closer scrutiny.

17. On 22 September 2011, S is recorded as having the first of her immunisations at the Medical Centre. The Health Visitor produced her records in evidence and explained that on such an occasion, the parents would undress the child and lay her on the changing mat – or if the baby was being weighed, on the scales. As for that visit on the 22 September, the Health Visitor said that S was not distressed as far as she could recall.

18. The 30 September 2011 is the earliest date for the left femoral fracture, but Dr Fairhurst took the view that the most likely time of occurrence was between 10 October and the visit to the GP on 13 October.She also thought that the two leg fractures, i.e. the fractures to the right tibia and the proximal left tibia are likely to have occurred at the same time, and that that is the likely time-frame for them both.

19. After 22 September 2011, S was next seen at the GP surgery on the 13 October 2011. The GP's entry records "crying, excessive ? colic/reflux."  The record goes on:

'crying inconsolably for weeks –
Usually after feeds in the evening. Infacol was helping –
When they stopped giving her that the crying worsened.
Small vomits with it – usually just food coming up with burping…
Started bottle feeding 1/12 [one month] ago.
Yesterday, note that [baby] not happy straightening her left knee. No temperature.
(On examination) Crying ++. Apyrexial. Left knee is swollen, feels hot and tender. Erythematous [reddening on the skin].

S was referred to hospital as a paediatric emergency, the GP's impression being "?? septic arthritis."

20. At 6.20pm on 13 October 2011, S was brought to the local hospital, with the presenting complaint "swollen left knee – started yesterday." She was accompanied by both parents. The paediatric clinicians note records that "yesterday evening the parents noted [her] crying and unsettled, left leg persistently held in a flexed position."  On examination, the left knee was "warmer to touch than the right, with mild erythema and swelling over the knee".  I note the entry as follows:

'non-tender, baby permits passive manipulation. No local tenderness in leg or hip"

S was x-rayed, but nothing abnormal was observed.  She was described as remaining "settled in A&E, observations in normal range, apyrexial." She was discharged home, with instructions to the parents to phone on Monday [19th] to have her reviewed or returned if they were concerned, and to re-present her over the weekend if her temperature, swelling or redness of the leg increased, if she was unsettled or if her feeding reduced.  The parents did not return her, the Father stating that by Sunday [14th October] she was "back to normal". The Father said in evidence that when the hospital phoned on Monday morning, his wife told them that S was "fine".

21.  It is to be noted that at this time, 13 October 2011, the evidence is that S had already sustained factures of the left 8th and 9th rib and was likely to have sustained her left femoral fracture and fractures to the right and left tibia.

22. On Wednesday 19 October 2011, S was seen at the clinic to be weighed. The evidence from the Health Visitor is that she would have been undressed for weighing and placed in the scales by her parents. Nothing untoward is reported by the clinician who weighed her and the Health Visitor could not recall S as being unhappy.

23. On Thursday 20 October 2011 S was brought to the GP surgery by the parents and given her immunisation injections, in each thigh, by the Health Visitor.  Her evidence was that S was crying, being "fractious and miserable but not hugely distressed", happier lying down than being held.  The GP note for 20 October 2011 records "First meningitis vaccination.  Post-immunisation advice was given". The record shows "baby crying and unsettled today. Dad says that [she] has been miserable all day – no temperature". The father's evidence was that during the morning she had cried more than normal and he confirms that she was "grumpy and crying". After the immunisation, the parents were advised to give her Calpol. Father said that he was told it was likely that she would get a high temperature and her thighs might swell.  The parents did not mention the previous weekend's symptoms or the trip to the hospital on 13 October 2011.

24. What followed next led, eventually, to the diagnosis of a fracture in S's left upper arm.  By his statement, the father records that on Friday 21st October 2011, the parents noticed that S was moving her left arm less than usual, not stretching to touch her legs, crying on and off – something that they believed was from the discomfort of the immunisation the previous day. He stated that on the Saturday morning, at bath time, the grandmother noticed her left arm was swollen and tender and she cried when being dressed or undressed.  Since the medical centre was closed, they took S to the local hospital.

25. At hospital on Saturday 22 October 2011 at 15.30, the triage nurse noted the presenting complaint as "swelling to the left upper arm" and "since Thursday, increased crying".  At 17.10, the presenting complaint was noted as "swelling and pain in the left upper arm, since yesterday" [Friday] – those symptoms noted by the parents "yesterday" with swelling of the left arm and "crying ++" when she was moved. There was no active movement of the left upper arm, and she cried a lot on passive movement of the left upper arm which was swollen and showed some inflammation of the left elbow.

26. S was sent for x-ray, which revealed a spiral fracture of the left humerus.  At 18.45, the paediatric ST4 clinician noted the symptoms reported by the parents as 

"crying more since Thursday morning
Not moving her left arm – noticed yesterday
Today noticed swelling of left arm"

The history squares rather more comfortably with the account given by the father in his statement than in his oral evidence. It was noted that the parents were unsure how the fracture may have happened and there had been no recent accidents of falls. S had only been in the house with the parents, grandmother and T. Investigations were put in hand. At 22.30, a further medical clinician's note was written, although the authorship is not clear. The note records both mother and grandmother as being present. Earlier records that day mention mother and father being present. It also records the following:

"…Mother is not able to recall how the fracture might have occurred: S, she advises, was using her arm less and appeared irritable from Thursday a.m. on 19/10/11 [sic – 19/10 was a Wednesday] – then went with Mum to have immunisations Thursday 1pm, where she was placed on a couch and not, to mother's recollection, held tightly, then seemed intermittently in discomfort with on-going reluctance to use  her left arm as much as right, then today arm appeared swollen. Hence attendance at A&E."

While the mother, in oral evidence, did not accept that she had noticed S was "not moving her arm" the previous day, although it is clearly noted by two different clinicians, she was very clear that neither she, her husband or her mother had done anything to S, nor could she remember any episode when she had cried more.

27. The father's main recollection seemed to be that S was "very quiet" on the Friday, although he had told the police on 24 October 2011 she was "fine" on that day. At one point, he mentioned that they had thought it was due to her immunisation that she was not using her left hand. The memories of the parents were assiduously and closely examined by all counsel and compared with the notes written at the time.

28. As I identify the main points in the chronology, I note first that Dr Fairhurst regards the 16 October – 3 days after S was first seen and x-rayed at hospital – as the "earliest date" on which the fracture to the left humerus occurred, and thinks it probably would have occurred before the 19 October.  That theory has to overcome the difficulty that observations of S were made when she was seen at the clinic for weighing on the 19 October and for immunisations on 20 October, and the earliest reported symptom in the arm – not moving her arm – was on Thursday 20 October or Friday 21 October, which arguably places the timing of that fracture later than 19 October, as the Health Visitor and clinic staff could have been expected to notice or pick up symptoms and appearances that were (reportedly) evident to the parents on the Friday, and very apparent to the hospital doctors on Saturday 22 October 2011.

29. It is not only the appearance of symptoms, and the timing and description of them with a view to dating the occurrences, even approximately, that has raised a perplexing and indistinct picture with differences in the accounts, and nothing obvious or clear to work on.  The appearance and identification of the fractures themselves has only emerged after the examination of the x-rays by a number of clinicians. Paradoxically, the last fracture-type injury in time to occur (in all probability), the left humeral fracture, was the first to be identified on 22 October 2011. The x-ray of the left femur had been reported as showing no bony injury on 13 October 2011 and no obvious metaphyseal infraction.  On 22 October a skeletal survey was performed and reported on by Dr Steven Johnson, Consultant Radiologist.  He indicated that in addition to the spiral fracture of the upper left arm, healing fractures of the left anterior 8th and 9th ribs were noted, with the amount of callus "suggesting that these fractures are not acute". In his report of 25 October 2011 the Consultant Paediatrician confirms that ophthalmological testing showed no evidence ocular trauma with healthy discs and no retinal haemorrhages seen. Dr Johnson, however, reported "a number of equivocal appearances on radiographs with respect to the left distal femur and proximal left tibia" and suggested further films. In the absence of an explanation of the injury to S's left arm, the Consultant Paediatrician considered that there was a "high level of suspicion… that the humeral and rib fractures may have been sustained as a result of non-accidental injury".  In the light of this observation, the involvement of local Children's Services inevitably followed and the proceedings were commenced, as I have indicated in this judgment.

30. In reviewing the broad canvas of S's family, therefore, I have taken stock of the mother and father's background and employment and the unfortunate medical problems suffered by the couple's first child T with Hirschsprung's Disease and the particular care and attention that this child required.  I have noted the reported reactions of T to the birth of S.  I have considered S's early developmental history after her birth; also the arrival when S was about 10 days old of the maternal grandmother from Sri Lanka to help the mother look after the children.

31. To summarise further, I have noted the pattern of the family's care for the children and reviewed the detail of the entries in the GP records which record S's progress and visits with the record of her developing a tendency to cry a lot from 17th August 2011 and the advice that it was possibly colic; the parents' use of Infacol and S's response to that.  I have in particular noted the GP entry reports and the visits made by the parents for checks or routine appointments.  It is necessary to take account in combination with these reports of the dates provided by Dr Fairhurst for the occurrence of the various fractures to S, the clinicians' observations, also the X-ray and the report of nothing abnormal on 13 October 2011. I have noted the entries in the records for 19th October when S was seen at the clinic to be weighed and that 'Nothing untoward was reported' also the entry on 20th October when S was brought to the GP surgery and given her immunisation injections and reported as 'fractious and miserable but not hugely distressed.'  I have reviewed the symptoms then reported by the parents and their decision to take S back to the local hospital after seeing that her left arm was swollen and her reaction to being dressed or undressed.  The parents' observations are also a matter of record, as are the consultants' examination.  The X-ray revealed a spiral fracture of the left humerus.  It was also noted that the parents were unsure how it had happened and there had been no recent accidents or falls. 

32. My close examination of this material has focused on the parents' accounts as well as on the evidence they have subsequently given about what they saw.  What has emerged is that none of the adults present could provide any instance of anything done to S by themselves or the other adult members of the family, or which had befallen her, which would explain the fractures.  Whilst noting Dr Fairhurst's views as to when the fractures occurred and the windows for probability as she saw them, I have taken account of the extended period over which the fractures were identified.  I have examined the process by which the fractures were discovered and that it was not until the report of Dr Fairhurst, consultant paediatric radiologist, of 13th February 2012 that the full extent of the injuries alleged to have been sustained by S were revealed and her report included three new areas of injury not seen or confirmed by earlier reports.  The report presents what is effectively the high water mark of the extent of the injuries and the existence and extent of these injuries has not been challenged, although Miss Trustman urges the court in respect of the injuries only reported by Dr Fairhurst to approach the existence of such injuries with caution, particularly the torus fracture to the distal femur, since they were not identified by any other clinicians and their identification appears to rest on Dr Fairhurst's own expertise and experience as a consultant paediatric radiologist over 21 years.  I come to the conclusion that Dr Fairhurst's evidence as to the identification of the injuries is, taken as a whole, and in the light of all the evidence and my acceptance of Dr Fairhurst's evidence in her own field of specialism, reliable and acceptable. 

33. The injuries and range of dates are as follows.  Dr Fairhurst thinks that they may have been sustained as I set out in their approximately chronological order: 

1. Rib fractures to the antero-lateral aspects of the left 8th and 9th rib (15th-28th September 2011).

2. Right lower leg fracture, a metaphyseal fracture of the proximal right tibia (shin bone) (12th September-10th October 2011). 

3. Left leg thigh bone fracture, a torus fracture of the distal left femur (30th September-10th October 2011). 

4. Left lower leg fracture, a metaphyseal fracture of the left tibia (shin bone) (3rd-10th October 2011). 

5. Left upper arm fracture, a spiral fracture of the distal shaft of the left humerus (16th-19th October 2011).

6. Right wrist fracture, a metaphyseal (bucket-handle) fracture of the distal right radius (difficult to date). 

The fractures at 2, 3 and 6 above were only identified by Dr Fairhurst.  She took the view that the two left leg fractures (3 and 4) could have happened at the same time. 

34. Based primarily on the evidence of Dr Fairhurst, the local authority has levelled a broad spread of allegations against the three adults in the household at the material time – the mother, father and grandmother.  They are set out in a Scott Schedule dated 16th March 2012, which I will duly set out but for the record which I enumerate now before commenting on the parents' and grandmother's responses: 

1. The local authority alleges that the injuries were suffered by S and caused by an adult carer and they are non-accidental. 

2. The local authority alleges that the potential perpetrators of the multiple injuries to S are the mother, father and grandmother, who were the carers of the child. 

3. In relation to the spiral fracture of the distal shaft of the left humerus, the local authority allege that S's arm has been gripped and twisted by an adult carer; she would have shown immediate distress lasting 10-15 minutes; any regular carer would have noticed a change in her behaviour as a result of the fracture with discomfort which would last for up to a week.

4. Fractures of the antero-lateral aspects of the left 8th and 9th ribs were caused by (a) a direct blow or compressive forces applied to her chest by an adult carer, (b) she would have shown distress for 10-15 minutes and shown discomfort when her chest was moved such as when she was dressed and a regular carer would know this was as a result of these fractures with discomfort lasting for a week.

5. Torus fracture of the distal left femur caused by (a) her left leg being gripped and forcibly bent; (b) she would have shown distress for 15 minutes and would have shown discomfort when the leg was moved; discomfort would have lasted for several days.

6. Metaphyseal fracture of the proximal left tibia caused when (a) her left leg had been pulled and twisted by an adult carer; (b) any person present would be immediately aware she had suffered a significant injury with discomfort lasting several days.

7. Metaphyseal fracture of the proximal right tibia caused when (a)  her right leg had been pulled and twisted by an adult carer; (b) she would have shown distress for 10-15 minutes and would have shown discomfort when her leg was moved.

8. Metaphyseal bucket-handle fracture of the distal right radius caused when (a) her right wrist had been pulled and twisted by an adult carer; (b) any person present would be immediately aware she had suffered a significant injury. 

35. The local authority goes on to make the following allegations which I give as numbered in the Scott Schedule:

7. Injuries to S could not have been caused by a person rolling onto her.

8. S could not have been injured when in a bouncy chair from normal use.

9. On the balance of probability T could not have caused the injuries to S either by (a) jumping on the family bed whilst S was lying on it or (b) pulling her bouncy chair when she was in it.

10. A diagnosis of OI (osteogenesis imperfecta) is exceptionally unlikely. 

11. There is no radiological evidence that S suffers from rickets or any other vitamin deficiency.

12. None of the fractures could have occurred at birth.

13. S has suffered multiple fractures which have occurred on at least three separate occasions.

14. No plausible explanation has been offered for any of these injuries. 

15. On the balance of probability T could not have caused the injuries to S. 

16. Several of these fractures are highly specific for non-accidental causation by an adult.

17. The constellation of findings is highly indicative of non-accidental injury by an adult.

18. The mother and/or the father and/or the grandmother is the perpetrator of the injuries to S.

19. The parents/grandparent who did not inflict the injuries on each occasion to S failed to protect her.

20. One or both of the parents, and/or the grandmother knows what has happened to S on all the occasions she has suffered injury.

36. The responses of the parents and the cases which they have put before the court appear in summary form on the Scott Schedule.  The mother's tend to be shorter responses but amplify the general stance of the parents as well as the grandmother that while accepting that the fractures occurred and that they occurred while S was in their care they reject the allegations that they caused the injuries in a non-accidental way.  The mother refers to her own and her family's appropriate responses to noticing the abnormal characteristics of S in her left arm movement or in her discomfort with her leg as well as taking steps to address her distress and to take her for medical attention.  Her responses in the Schedule point out that the allegations are made on the presumption that S did not have any genetic abnormality or bone disease.  She refers to the times when S was seen by the health visitor when, despite the presence of fractures, nothing untoward was seen on – as she puts it – 25th July 2011, 3rd August 2011, 22nd September 2011, 19th October 2011 and 20th October 2011.  She refers to the fact that in relation to allegation 3, 4, 5 and 6 the mother had noticed the child's discomfort and taken S to the Medical Centre and then on to the Accident and Emergency Unit at the local hospital where S was examined by a paediatrician and X-rayed, following which she was told that everything was normal and she was discharged. 

37. The father's responses set out a general defence to each allegation setting a number of relevant points that formed part of his evidence.  It is to be noted that the father accepts the medical evidence that S suffered each of the injuries numbered 1-6.  He denies causing any of the injuries and in turn denies the specific causation of each injury.  He asserts that he had not witnessed the mother or grandmother behave in this way and did not believe they would have done so when he was not present.  As to the possible involvement of T, he asserts that he had not witnessed T twisting S's arm (or leg or wrists).  However, the father points out that there were times when S was sleeping in the bedroom; that T would leave the room where he was being supervised to get a toy or use the bathroom; and his case is that it is possible that he may have gone into the bedroom and caused S injury.  The father had not witnessed T hurting S nor does he believe he would harm her intentionally but believes he may not appreciate her fragility and may have caused harm accidentally.  The father accepts that only he, the mother and the grandmother were caring for S during this time.  He therefore accepts that these fractures would have occurred while S was in their joint care.  The father maintains that there could be some natural explanation for S's injuries.

38. Dealing with the fracture to the left humerus, the father's response was that he cannot say whether or not he was present when the fracture was sustained.  He states that S had a tendency to cry and this was discussed with medical professionals on more than one occasion.  S's crying was attributed to colic initially and latterly to her having received her vaccination on 20th October 2011.  The father states that S cried more than usual and that this was reported to medical professionals on 20th October 2011 and 22nd October 2011.  However, the medical professionals did not note any problems with S on 20th October 2011 despite Dr Fairhurst's dating of the fracture between 16th October 2011 and 19th October 2011.  S, it is stated, settled after being given Calpol following her vaccination on 20th October 2011.  However, she was very unsettled again by 22nd October 2011 and so the parents and grandmother took her to the A&E Department at the local hospital.  The father states that the fact that the parents and grandmother took S to A&E on 22nd October 2011 showed that they had noticed a change in her behaviour; they presented S to the local hospital having noticed a swelling to her left arm.  The father is unable to explain how S sustained the fracture to her left arm; however, he accepts that only he, mother and grandmother were caring for S during this time; he therefore accepts that this fracture would have occurred while S was in their care.  I do not propose to go through all the responses to the various fractures but what I have mentioned sets out much of the content and gist of the father's response and denials of the local authority's allegations.

39. The maternal grandmother's position can most usefully be seen as set out in her position statement of 12th March 2012.  Her case is that she came to the United Kingdom specifically to support her daughter and son-in-law with the day to day care of the children.  The family are very close and have a loving relationship.  The parents and the maternal grandmother, she asserts, would all take care of S and T throughout the day.  The maternal grandmother had not witnessed T intentionally being rough or boisterous towards S and had not witnessed him attempting to hold S or pick her up.  T would often watch attentively as the parents and grandmother would feed S and hold her.  S would often cry and it was initially believed that this was due to her suffering from colic.  It was the maternal grandmother's view that her daughter and son-in-law did not injure S.  The maternal grandmother also mentioned that she had cared for her own children, relatives and grandchildren and was capable of ensuring that children are properly and safely cared for.  The maternal grandmother denied harming S and did not accept that her daughter or son-in-law would not do the same.  The maternal grandmother had no concerns in relation to the parents' care for both S and T and would like S to be returned to her parents' care.

40. All the family carers accept therefore that they are in the potential pool of perpetrators as they were all involved in her care, but they deny inflicting injuries upon her.  My approach in law to this case has been assisted by the reference made by the advocates to a number of cases in their written submissions.  I summarise these as follows.  The burden of proof lies on the local authority and they have to satisfy the court on the balance of probabilities: see Re B (Care proceedings; standard of proof) [2008] UKHL 35.  I  have also noted the case of Re S-B (Children)(Care proceedings; standard of proof) [2009] UKSC 17 and particularly the passage in which their Lordships confirmed that the simple balance of probability test following the House of Lords decision in Re B (above) should be applied in finding that a person was the perpetrator of an injury, confirming the approach where the evidence falls short of that standard in North Yorkshire County Council v SA [2003] EWCA Civ 839 to the effect that an individual will be found to be a possible perpetrator if the evidence establishes a 'real possibility' that they caused the injury.  I have noted the reference to Lancashire County Council v B [2000] AC 147.  I have also noted in relation to the injuries that it is 'always open to a judge to rule that the cause of the injury remains unknown' and the case of Re R (Care proceedings: causation) [2011] EWHC 1715, a decision of Mr Justice Hedley.  I have noted the words of Butler-Sloss P in Re U: Re B (Serious injury; standard of proof) [2004] 2 FLR 263 and the court's responsibility to survey a 'wide canvas' and in Re L [2011] EWCA Civ 1705 that 'Clearly from the forensic standpoint given any degree of uncertainty in the medical and scientific field the judge's appraisal and confidence in the parent is absolutely crucial to the outcome.'  I have also noted the quotation offered by Miss Trustman from R v Harris and others [2005] EWCA Crim 1980 para. 135;

"There are areas of ignorance. It is very easy to try and fill those areas of ignorance with what we know but I think that it is very important to accept that we do not necessarily have a sufficient understanding to explain every case." 

I have also noted the guidance to be derived from Re U: Re B (above) given by Butler Sloss P at paragraph 23:

"In the brief summary of the submissions set out above there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following:

i. The cause of an injury or of 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 guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice;

v. The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts, or that scientific research will throw light into corners that are at present dark." 

41. I have heard the evidence of the experts as follows:

(1) Dr Fairhurst, consultant paediatric radiologist, and read her reports, notably that of 13th February 2012;

(2)  A Consultant Paediatrician and his report of 5th March 2012;

(3) I have heard the evidence of Professor Steven Nussey, Professor of Endocrinology, and read his reports of 10th and 22nd July 2012;

(4) I have heard the evidence of the mother; the father; and the grandmother, and read their statements filed in this case;

(5) I have heard the evidence of the health visitor. 

I have also had the benefit of the considerable amount of documentation in the bundles to which extensive reference has been made in the course of the evidence. 

42. The local authority place considerable weight on the evidence of Dr Fairhurst as to the interpretation and significance of the X-rays, the report of 13th February 2012 and the evidence as to the mechanism of injury in relation to spiral fractures, metaphyseal fractures, fractures of the antero-lateral aspects of the ribs and a torus fracture raise very serious implications for the family members.  A spiral fracture requires a force to cause a fracture in this way that is 'well beyond that used during normal day to day handling.'  Metaphyseal fractures result from pulling and twisting being applied to the limb.  She states that they do not occur accidentally and this type of fracture is highly indicative of non-accidental causation requiring a force well in excess of that used in normal day to day handling of an infant.  The fractures of the ribs require considerable force and well in excess of day to day handling or even rough play.  Torus fractures can result from a fall, from a direct blow, or from indirect forces applied to the limb when the leg is gripped and forcibly bent, a force well in excess of normal day to day handling of an infant. 

43. I have noted and examined the oral evidence of Dr Fairhurst.  At this point I identify the following features:

(1) that while there was a possibility that there could be a Vitamin D deficiency there is little, if any, supporting evidence at present for fractures occurring with lower than normal levels of Vitamin D but no radiological evidence of rickets;

(2) that there is no correlation between a Vitamin D deficiency and fractures, and a mechanism is required to cause a fracture;

(3) she did not accept that there was an increased propensity to fracture due to Vitamin D deficiency and maintained that a sub-optimal bone that is not manifesting itself as radiologically subnormal leaves itself at sufficient strength to resist fractures;

(4) S did not show radiological signs of rickets, but Dr Fairhurst stated that she did not know whether S may or may not have had a vitamin level low enough to manifest as rickets;

(5) there will inevitably be a stage in the bone changes resulting from insufficiency or deficiency of Vitamin D which will be present but not visible on X-ray, i.e. sub-optimal bones that have not yet developed radiological signs of rickets;

(6) I note that she was not in a position to give an expert opinion on metabolic bone disease which she identified as a very complex subject beyond the radiological aspect and that she would defer to a metabolic expert;

(7) she accepted that the lack of evidence for fractures occurring in patients with lower than normal levels of Vitamin D (who did not have radiological evidence of rickets) is the current state of research and acknowledged that there is a need for more study to be done; she further accepted that this is a developing and controversial area of medicine;

(8) I noted that it is accepted by all medical experts that it is unknown what level of force would be required to cause the injuries in a baby that had a Vitamin D deficiency or insufficiency; understandably it is not possible for experiments to be carried out. 

Thus the view of Dr Fairhurst, a considerably experienced and respected radiologist, is that all of the injuries would have required a force in excess of that used during normal day to day handling and that several of the fractures were highly specific for non-accidental causation of injuries.  She also offered the view that the fractures were likely to have occurred on three separate occasions; the constellation of injuries was in her opinion highly indicative of non-accidental injury. 

44. The Consultant Paediatrician, as the locum consultant paediatrician at the local NHS trust, described himself as a 'relatively recently qualified paediatric consultant.'  He arrived at the preliminary conclusion that the humeral and rib fractures must give rise to 'a high level of suspicion' for non-accidental injury.  In his second report after reviewing the outcome of the medical investigations after his original report he held to the view that there was a high suspicion for a non-accidental causation.  As to the possibility that rough handling by T might have been responsible for S's injuries, he concluded that while it would be possible he did not think it was probable.  If S were to be found responsible he offered the view that that would imply very poor supervision of T over a period of time.  I note his view that osteogenesis imperfecta was 'exceptionally unlikely.' 

45. I have given a relatively brief overview of the medical evidence adduced by the local authority, but, having reviewed the medical evidence so relied on, I have no difficulty in acknowledging that the inferences to be drawn from the medical expert evidence raise a substantial likelihood that the injuries were caused non-accidentally and by force used by at least one of the adult family members that was in excess of normal day to day handling, although expressing reservation as to what precisely that might mean, and that the evidence of Dr Fairhurst in particular deserves significant weight. 

46. In the course of surveying the 'wide canvas' of evidence I have reviewed the evidence of the mother, the father and the grandmother.  I noted in relation to the mother that she gave her evidence calmly, she was quietly spoken, she gave direct and straight answers, she was composed and it appeared that her answers came from her genuine recollection without her giving what might have been expected answers.  At times she appeared to have poor recollection, which to my mind was not surprising given the sort of detail that she was required to remember after some considerable time.  While I have taken account of inconsistencies with the records available, I did not form the view that her evidence was demonstrably or readily to be interpreted as that of someone seeking to mislead the court, cover her tracks or draw a veil of ignorance over matters about which she had some knowledge.  I have taken account of the fact that she gave her evidence through an interpreter while having at least a working grasp of English. 

47. I record in relation to the father that I found his evidence and his certain directness in quality with immediate and unhesitating answers suggested a genuine response.  He was earnest, straightforward and did not quibble with the questions although he did not always understand the question.  He appeared to be frank and open in his answers and not devious.  Again I did not get the impression that this was a man seeking to cover up matters or deal other than truthfully to the best of his ability with matters as he remembered them.  As with the mother, that did not mean that there were no instances when they were confused or mistaken.

48. As to the grandmother, she gave evidence by Skype from Sri Lanka and as I have earlier said her evidence was subject to unavoidable and unfortunate technical difficulties.  Her evidence was therefore protracted and interrupted and I note Miss Trustman's observation that her evidence lasted in Sri Lankan time from 4:05 pm to 8:20 pm, and I have no reason to doubt the accuracy of that record.  There were evident deficiencies in translation by the interpreter.  Notwithstanding that, I formed the impression that she was seeking to assist the court.  I noted from her evidence that she was concerned about and focused on the wellbeing of S.  It appears that she was the first to notice distress in S; that she appeared to advise that the parents attend a doctor for every aspect of S's wellbeing. 

49. I have examined the evidence as to the appearance of the symptoms of both the leg injury and the arm injury and noted the consistency of evidence that S was holding her leg differently before the hospital visit on 13th October 2011, and a consistency as to there being something wrong with S's arm which prompted the parents to seek medical attention.  The impression given by this family and the parents and grandmother in particular is that they were a normal family dealing with their second baby, which by all accounts up to 13th October and indeed to 22nd October appeared to be unexceptional.  However, I note the high level of engagement with the medical services throughout T's life and the attention and care that he needed and received, caused by his own particular medical condition.  I accept that the parents have displayed the same level of alertness for S as to her medical needs when they became aware that there was something wrong, as they saw it.  I have taken account of the occasions when S was seen by medical staff.  I note in particular the five times when she was seen at medical appointments when she was said to be suffering fractures.  It is remarkable that these – and in particular the hospital appointment of 13th October – did not reveal or suggest the presence of fractures, nor did they raise any element of suspicion about the parents.  On the contrary, the evidence appears to demonstrate that the parents had the wellbeing of S in mind and acted to seek medical attention.  I do not form the impression that they could be seen then or with hindsight can be seen now as a family seeking to hide their ill-treatment of S from the authorities. 

50. There are a number of other features of the evidence about the parents which I must take into account as part of the 'wide canvas' of evidence that I have surveyed.  There is no evidence of an incident of any kind suggestive or on which an inference could be drawn that either of the parents was responsible for an injury (other of course than the X-rays of the fractures).  There is no evidence of drugs or alcohol abuse, of anger or violent outbursts, of short temper, volatility, irritability or dysfunction.  All the adults appear to be normal hardworking people concerned for their children.  I take note also that the mother and father completed a parenting assessment.  The conclusions are positive.  I will quote only two passages, in order to convey the tone and broadly positive view that emerges from this report, at p. 3 and from the Conclusions at p. 16.  I note at p. 3 the following:

'Children's Services have only become involved with this family since 23rd October 2011 therefore there has been limited time to complete any thorough assessment with regards to this family.  A number of strengths however have been identified during this short involvement.  It is positive that Children's Services have no history of involvement with this family and furthermore the family have no history of involvement with the police.  It is further positive that the professionals involved with the family have reported no concerns regarding the children's wellbeing whilst in the care of their parents prior to S being admitted to a local hospital with a fracture to her left femur.' 

At para. 16 the following conclusion was offered, and the parents are referred to as N and D:

'Throughout the assessment period N and D were observed to provide a high level of emotional warmth, mental stimulation and basic care for S and T which they sustained throughout the contact sessions.  They were able to discuss and demonstrate that they were able to sustain routines for S during contact sessions and with T in the home.  At no point did I observe either child to be wary of their parents.  I never observed either parent react angrily towards each other or either child.  N and D are in a stable relationship and have known each other from childhood as they lived in the same village.  They both appear to value education and a need to promote this ethos with their children.  I considered that the family members have a very close bond and I did not observe any concerns regarding their attachment.  N and D appeared able to actively provide a high level of basic care for their children.'

51. I have considered the findings invited by the local authority as to the evidence of the family members, the inconsistencies, alleged inaccuracies and inferences that I am invited to draw from them. Ms Soffa has gone to considerable lengths and much detail to expose what are submitted as matters on which I should mistrust the evidence of the parents or confer on their evidence only little weight. I do not propose to set out all the instances or to address them individually: to do so would be disproportionate in the light of my observations about the evidence of the parents, having listened to them carefully, considered at length the sort of people they are, and the impression that each gave to the court. I have not found any instances that cannot be attributed to genuine mis-recollection especially given the distance in time over which they were attempting to deal with detailed events.  The strong impression given is that the parents and maternal grandmother are careful, child-focused and conscientious parents who have demonstrated the quality of the attention they have given to dealing with T's special health needs and to S as they have arisen.  Their care of the children has been observed as of high quality.  In my judgment their accounts do have a certain coherence and quality that would suggest that they have sought to do their best in bewildering circumstances.  While one might have looked for the possibility that in a moment of weakness or exasperation they might have snapped, or when the mother might have momentarily lost her self-control, particularly with a baby who cried persistently, that at least one fracture might have resulted, but for S to be shown with six sets of fractures, three constellations, requiring the sort of force and violence that Dr Fairhurst described, appears to be completely and demonstrably alien to the sort of people the parents and the grandmother appear to be.  Their evidence would have to be regarded as a tissue of lies and their manner of dealing with S would need to have been abusive, violent to the point of sadism, and the subject of a conspiracy of silence given the unlikelihood of such conduct being committed in secret or the strength of S's reaction passing unnoticed.  As it is, her persistent crying which may well have been her response to the injuries can be considered in the light of the reports of the parents about her crying and the possibility of their misinterpretation of her crying emerges as a very real consideration.  So, as I review the evidence of the parents and the grandmother, it appears that there is a strong strain in the evidence that runs counter to the evidence and conclusions of Dr Fairhurst, producing by its weight and nature what I would regard as a substantial likelihood that this family would not perpetrate the sort of violence which according to the medical evidence of Dr Fairhurst and the Consultant Paediatrician must have been inflicted upon her.  This produces a complex and difficult balance in assessing the likelihood of the infliction of the harm and the injuries as invited by the local authority. 

52. In surveying the 'wide canvas' further, I take into account the evidence of Professor Nussey because the manifest injuries do call for explanation.  At this point I summarise his evidence by identifying the following features:

 (1) Professor Nussey has a clear and far-reaching understanding of endocrinology and the systems involved with Vitamin D and bone mineralisation.  He has extensive experience and a mature knowledge of research done in this field.  He has been able to contribute vital knowledge and information towards understanding S's condition in August, September and October 2011.  I note his evidence as to the prevalence of Vitamin D deficiency, particularly in Asian sub-groups, and his view that the absence of radiological evidence does not mean that there is 'no rickets' i.e. there is a stage of rickets before it is identifiable radiologically.

(2) I note his evidence that there is no uniformity of Vitamin D testing in the United Kingdom and that Vitamin D is difficult to measure.

(3) It is not known why some patients with rickets become hypocalcaemic, one of the clinical pictures of rickets or Vitamin D deficiency, and why in some patients with rickets patients have fractures, some have two or three, others have none.

(4) He accepts that in relation to injuries such as these some force has to be applied.

(5) S's Vitamin D levels, which were on the borderline on 2nd November 2011, were never higher than insufficient.  It is reasonable to conclude that they were lower before then because she was breastfed.  Formula feeding for 8-9 weeks before the test would have provided some improvement but not enough, as breastfeeding would provide none.

(6) It is not possible to say what difference formula feeding might have provided because there is no baseline to measure from.

(7) It is safe to extrapolate from the mother's levels taken in May 2012 that Vitamin D levels would have been lower in pregnancy. 

(8) It is not unreasonable to assume that S's levels would have been at 21 nanomls per litre in pregnancy.

(9) He anticipated that S's level was 30-35 when she was born, not adequate and markedly deficient.

(10) His view was that it was likely that S was Vitamin D deficient in utero and in the early neonatal period.  I note his conclusion that although this did not render S more likely to injury, it might increase bone fragility and thus give rise to fractures at a lower force than would otherwise be the case.  If there is some innate contradiction in that sentence it appears that the latter part of that sentence represents the stronger conclusion.  But in clarification of this remark Professor Nussey said that it would be reasonable to use the words 'increased vulnerability to fracture' in relation to S. 

53. I found Professor Nussey to be highly knowledgeable in his field; careful; and able to consider and assist the court on all matters put to him.  He also is an expert of considerable renown.  I derive particular assistance from his evidence and the conclusion that S had a greater vulnerability to fracture, which he described as a reasonable conclusion, and at the times when they are likely to have occurred.  I draw the conclusion that it is reasonable in S's case to assume that a lesser degree of force would be required if her bones were sub-optimal as a result of Vitamin D deficiency, which I am satisfied on the evidence that S's bones probably were, viz., Vitamin D deficient.  I accept the submission that there is a lack of current research on the susceptibility to fracture in babies who are Vitamin D deficient.  The particular issue of Vitamin D deficiency/insufficiency presents as the current medical frontier and arguably an expanding and uncertain one. 

54. Considering all the evidence on the balance of probabilities I have come to the conclusion that the likely incidence of an increased vulnerability to fracture is the most likely cause of S's injuries.  It is not possible to know which incidents or movements caused or gave rise to force sufficient to bring about fractures.  It must also raise as a real possibility the potential explanation that T may have brought about one or more fractures, along with the possibility – less likely, in my view – that S may have been injured when the family slept together in one bed.  It is simply not possible to know where the boundary lies.  Nor is it possible to conclude at what point 'normal day to day handling' – a vague phrase at best, and which must include the use of reasonable force and pressure at times – crosses over to the point where S's vulnerable bone structure was compromised and exceeded.  But in the light of all that is known about the parents and from my impression of them in evidence balanced against all that is submitted and produced by the local authority it is not likely, in my judgment, that her injuries were caused by non-accidental force.  They are, in my survey of the evidence, more likely to have a genuinely accidental cause, but because of the evidence of Professor Nussey taken with the evidence of the parents and from the records available it is not possible to reach a view that is more than speculative as to the timing of the injuries.  I accept that given T's reported boisterousness a heightened level of supervision would have been needed but that could not have been known by any of the family members at the time the fractures were likely to have been caused. 

55. I am satisfied that neither the mother, the father, nor the grandmother can be held responsible for causing the injuries in a non-accidental or careless way and the court remains unable to find any one of them more likely than the others to have caused them.  I therefore come to the conclusion that the local authority has not discharged the burden of proof on the balance of probabilities.  I make this observation.  It was inevitable, that the local authority had to bring this case to court.  There can be no criticism that it has pursued these allegations as vigorously as it has, even if at the end of the day they have failed to satisfy me that the case is proved.    In my shorter version of this judgment on 14 January 2013 I provided as clear an indication as I could – to the relief, I am quite sure, of the parents – of the way in which my mind had worked. Now the Local authority has promptly and appropriately put into effect a revised Care Plan to give effect to the orders made that day. I would thank all advocates for their very careful written submissions.  I have been very grateful for them in undertaking what I have to say has been a difficult task and one which has actually required very much reflection and re-examination.

(Orders made included discharge of interim Care Order and approval of revised care plan for phased return of S to the care of her parents.)

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