A Local Authority v M & Others  (11 01 13)
Second fact-finding concerning injuries to a child who suffered from rickets as a result of Vitamin D deficiency. Medical expert evidence considered. Held that there was insufficient evidence to determine that the injuries to the child were non-accidental.
This was the second-fact-finding in this case before HHJ Hayward Smith QC. The case concerned three children. Following the first fact-finding hearing in November 2011, the judge had concluded that the middle child, M, had suffered a series of non-accidental fractures that had been caused by one of the parents and that the other parent was protecting the perpetrator of the injuries.
It was a significant feature of the case that M had, at the material time, suffered from rickets as a result of a vitamin D deficiency. Despite this, it had been the unanimous view of the medical witnesses at the first fact-finding that the injuries to M were non-accidental.
Subsequently, Theis J delivered her judgment in LB of Islington v Al Alas and Wray  EWHC 865 (Fam), a case which also concerned a child with rickets and suspected non-accidental injuries. Following this, the judge in the present case was persuaded that the parents in this case should be able to seek further opinions from Professor Nussey and Professor Barnes, both of whom had featured in the case before Theis J. Having considered their reports, HHJ Hayward Smith was persuaded to reopen the fact-finding in this case. This judgment arises from that fact-finding hearing.
The majority of the judgment contains a summary of the expert evidence. Essentially the judge was presented with conflicting evidence from the two key experts in the case, one of whom (Professor Barnes) was of the view, based on his own clinical experience, that children of M's age suffering from rickets can, and often do, sustain multiple fractures as a result of the disease and not as the result of a non-accidental injury. Professor Nussey agreed with this view. The other expert, Professor Bishop, gave evidence that multiple fractures were rare in cases of rickets and that it was likely therefore that in this case extraneous forces had been applied that had caused the fractures. His view was that there was a 75% chance that the injuries to M were non-accidental.
The nature of this case was such that, if the medical evidence did not point to the injuries being non-accidental, it would be inappropriate for the judge to find that they were non-accidental on the basis of his previous adverse findings against the parents.
At this hearing, in addition to the new evidence about the significance of the presence of multiple fractures, the judge also heard evidence, not available at the earlier hearing, that the parents would not necessarily have noticed all of the fractures when they were sustained, apart from the fractures to the humerus and the skull and the parents had responded appropriately to both of these incidents.
The parents had been unable to give explanations for the injuries. However, the judge did not regard this as probative of non-accidental injury given the lack of information as to how severe M's rickets had been prior to the successful treatment.
For these reasons, the judge concludes that there was insufficient evidence to determine that the injuries to M were non-accidental and therefore that the threshold for the purposes of section 31, Children Act, had not been crossed in this case.
Summary by Sally Gore, barrister, 14 Gray's Inn Square
IN THE PRINCIPAL REGISTRY
OF THE FAMILY DIVISION
First Avenue House
42-49 High Holborn, WC1
Friday, 11th January 2013
HIS HONOUR JUDGE HAYWARD SMITH QC
B E T W E E N :
A LOCAL AUTHORITY Applicant
- and -
M & Ors. Respondents
Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
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MR. J. TUGHAN appeared on behalf of the Applicant.
MISS M. JONES appeared on behalf of the Respondent Mother.
MR. M. WAN DAUD appeared on behalf of the Respondent Father.
MISS A. WEISZ appeared on behalf of the Guardian.
J U D G M E N T
(As approved by the Judge)
JUDGE HAYWARD SMITH QC:
1. This case concerns three children: A, who was born on 9th August 2008 and is now aged four; M, who was born on 4th August 2010 and is now aged two; and S, who was born on 14th May 2012 and is now nearly eight months old. S was added to the proceedings after his birth and after the proceedings had been running for some considerable time.
2. The matter came before me for a fact finding hearing as long ago as November 2011. On 30th November 2011, I gave a judgment in which I found that M had suffered a number of fractures at the hands of one or other of her parents and that the other parent was protecting the parent who had caused the injuries.
3. It is an unusual case because there is no dispute that, at all material times, M suffered from vitamin D deficiency causing brittle bones, a disease commonly known in children as rickets. Despite the presence of rickets, it was the unanimous view of all the distinguished medical practitioners who gave evidence at that hearing before me that the fractures were not caused by the disease but by the parents - one or other of them - treating the child with an unacceptable degree of violence. My detailed findings are set out in that judgment.
4. After I gave that judgment, a case with some similarity came before Mrs. Justice Theis. She gave a judgment on 19th April 2012, the neutral citation of which is  EWHC 865 (Fam). That case was fact specific, as is this case. Nevertheless, given the unusual nature of the case and apart from the fractures there being no other evidence of maltreatment of any of the children by the parents, I was persuaded to permit the mother and the father to seek further opinions from Professor Nussey and Professor Barnes, both of whom featured in the evidence before Mrs. Justice Theis. Having considered their reports which were obtained by the parents, I was persuaded to re-open the fact finding hearing. The Guardian supported that course.
5. In considering the matter afresh, I have been greatly assisted by the evidence of the following doctors all of whom are leading experts in their respective fields: Professor Gardner, who is now retired but is still visiting Professor of Paediatrics at Oxford University, formerly Professor of Paediatrics at University College London Medical School; Dr. Fairhurst, Consultant Paediatric Radiologist at Southampton General Hospital; Professor Bishop, Professor of Paediatric Bone Disease at the University of Sheffield which has an international reputation in the field of paediatric and adult bone disease and its treatment; and Dr. Halliday, Consultant Paediatric Radiologist at University Hospital Nottingham. All of those experts gave evidence before me in November 2011; all of them have had the opportunity to comment on the views of the two experts new to the case. They are: Professor Nussey, Consultant Endocrinologist and Professor of Endocrinology at St. Georges' Hospital Medical School in London; and Professor Barnes, Paediatric Radiologist and Neuroradiologist, Head of Paediatric Neuroradiology at the Lucille Packard Children's Hospital and Professor of Radiology at the Stamford School of Medicine in California.
6. Prior to this hearing all the medical experts had a meeting at which they discussed their views and a transcript of that meeting is helpfully available to me.
7. Vitamin D deficiency causes lack of calcium. The body compensates by taking calcium from the bones. The bones of a baby are growing. Professor Bishop told me that there comes a point where the bones become fragile through lack of calcium, but it is not easy to ascertain when that point is reached. The majority of children do not reach that point. There were no images of M's bones prior to 2nd January 2011 when treatment had been ongoing since 19th November 2010. We do not know how bad the condition was prior to 19th November 2010 or between 19th November 2010 and 2nd January 2011. Professor Bishop said that M's condition was not as bad as another child he had seen who suffered fractures and whose bones were so badly affected by rickets that they could hardly be seen on x-ray.
The Outline History
8. The chronology of events is set out in my earlier judgment, but, for the sake of convenience, I will set out again what appear to me to be the salient points arising from this hearing.
9. On 19th November 2010, M (then aged three months) suffered from convulsions and was taken to hospital by the parents. She was found to be suffering from vitamin D deficiency and treatment began for that deficiency. She was detained in hospital for two days and then returned home to her parents. No x-ray was taken, so the degree of weakness of the bones was not then known. It is undesirable to subject a young baby to radiation, although some doctors would have carried out a skeletal survey at that time. It may have helped the determination of this case considerably if that had been done. It is probable that it was not done for what was thought at the time to be good reason. On 30th November 2010, M was taken to hospital by her parents for a follow up appointment. Other such appointments occurred on 15th December 2010 when M was taken to hospital and, again, on 29th December 2010.
10. On 1st January 2011, the mother noticed that M's left arm was swollen. Again, M was taken to hospital and she was detained in hospital for five days. On the following day, 2nd January 2011, her arm was x-rayed. It was found that there was a fracture of the left humerus. There is an issue as to when that fracture was caused, but it was probably somewhere between 22nd December 2010 and 31st December 2010 or perhaps earlier but no later. Professor Barnes expressed particular caution about the dating of fractures and the timing of the injuries. The evidence suggests that, if the fracture could have been as late as 31st December 2010, the presentation at the hospital by the parents was prompt. Indeed, the parents went to the hospital after 11pm that night and therefore appear to have reacted with a degree of urgency which was appropriate. It is not suggested that the parents delayed or reacted inappropriately.
11. In addition, the x-ray of 2nd January 2011 revealed two fractures of the forearm, the radius and the ulna. Those fractures are likely to have been caused at the latest by 23rd December 2010 and at the earliest around 5th December 2010, although possibly some days earlier than that. There is an issue as to whether those fractures are indeed fractures or pseudo-fractures or Looser's zones. I will come to that issue later. After five days in hospital, M returned home with her parents.
12. On 11th January 2011, M was again taken to hospital for a check-up. On 13th January 2011, the mother noticed that the right side of M's head was soft. The child was, again, taken to hospital. On 14th January 2011, a full skeletal survey was done for the first time and that revealed a skull fracture as well as an old rib fracture in addition to the other fractures I have referred to. On 17th January 2011, further images were taken and from those images the skull fracture is said to have been caused some time after 10th January 2011. The fracture may well have occurred shortly before M was taken to hospital on 13th January 2011 and, again, there is no suggestion that the parents' presentation of M to hospital with the skull fracture was other than prompt.
13. After 2nd January 2011, the treatment for rickets was substantially increased. The rickets as seen on 2nd January 2011 from the imaging then taken is described as "severe". Between 2nd January 2011 and 17th January 2011, there was a striking improvement owing to the increased medication.
14. The issues explored at this hearing before me have included: the timing of the fractures, the causation of the fractures and the amount of force required to cause such a fracture, the perception of caring parents that something would have been wrong with the child, whether the radius and ulna were fractures or pseudo-fractures and whether the multiplicity of fractures is significant in a young child of M's age suffering from vitamin D deficiency.
The timing of the fractures
15. Dr. Fairhurst said that the left humerus was fractured between 22nd December 2010 and 31st December 2010. She based her opinion on the soft tissue swelling and the fracture. She put the time of the fractures of the radius and ulna between 5th December 2010 and 23rd December 2010. She put the time of the skull fracture as between 10th and 13th January 2011 when M was taken to hospital. She based that opinion on the imaging of 17th January 2011 and said that the fracture was no more than seven days old on that date. She put the timing of the rib fracture as between the end of November 2010 and 24th December 2010 on the basis that it was not less than three weeks old when seen on the imaging of 14th January 2011. She said there had to be some leeway in dating those fractures and that she had taken that into account when giving her evidence before me in November 2011. But, she said, on further consideration, she thought the earlier timing might be moved back a little but not the later timing. Dr. Fairhurst's evidence before me included the following:
"There has been quite a lot of discussion about the rate of healing when a child has rickets. There has to be some leeway in the dating of fractures in this context. We do not have research to base conclusions as to whether healing is delayed, but there may be some variation in the rate of healing as compared to normal bones. My own experience leads me to think that there would not be a huge delay. I do not think the timeframe would be excessively broad and I had built in some leeway in considering the dates when I gave evidence last time. The leeway applies particularly to the radius and the ulna. There is soft tissue swelling around the skull fracture and the humerus fracture and nothing to suggest that the healing rate has been affected by rickets."
She went on to say:
"I believe there were four applications of force to M. I have no doubt that the fractures of the humerus and the radius and ulna were at different times, two separate occasions: one for the humerus and one for the radius and ulna. There would be separate applications of force for the skull and the rib fractures. I have no doubt from the radiological perspective that these injuries occurred on different days. There is likely to be a delay in the healing process for rickets, but we do not know how much. It depends on the treatment that is given. It also depends on the type and level of treatment and that is what complicates the position in this case. M was treated for rickets on 19th November 2010, but, by 2nd January 2011, the rickets were still severe or florid. The healing process was more rapid after the dosage of medication was increased on 2nd January 2011. I would defer to metabolic bone experts on the rate of healing of children with rickets. I have limited experience in this area. I defer to Professor Bishop as to the rate of healing where there is Rickets and where it is treated and untreated.
"My stance has changed since the last hearing concerning the rib and the forearm fractures. It is more prudent to accept a wider time-frame from my previous view. We have very little literature to assist us in the timing of fractures and healing. It is a very uncertain area."
Dr. Fairhurst's evidence as to timing is subject to a number of unknown factors. She based her evidence on the images she had seen, but her conclusions depend to a substantial extent on the rate of healing of the fractures and the rate of healing is unclear.
16. Professor Nussey referred to experiments with animals. Rickets, he said, greatly delays the healing of fractures in animals. There is no data for the rate of healing in humans, but, in Professor Nussey's opinion, it is highly likely that the rate of healing of human bones is significantly delayed where rickets is present. The position is complicated by the fact that there was no skeletal survey on 19th November 2010. Although M was then given treatment for vitamin D deficiency, the rate of healing from then until the early part of January is unclear. The rickets were still severe on 2nd January 2011. The treatment was then increased and, as I have said, that led to a remarkable improvement.
17. Dr. Halliday agreed with Dr. Fairhurst on the issue of timing. She said that, although there must have been four separate applications of force to cause the fractures, there may have been only three occasions of force because the rib fracture could have occurred at the same time as those of the radius and ulna. Dr. Halliday referred to her own research on the dating of fractures. She said it was a very difficult area where there was substantial disagreement among experts. This was so even with normal bones. The degree of uncertainty is greater in cases of rickets.
18. Professor Barnes urged great caution on the issue of timing of the fractures. He said that the uncertainties in the area were compounded in this case by the three periods of:
(1) M's untreated rickets prior to 19th November 2010, although there is no evidence to suggest that there were any fractures prior to that date.
(2) M's partially treated rickets from 19th November 2010 to 2nd January 2011.
(3) The greatly increased treatment after 2nd January 2011, which led to a very substantial improvement.
19. From the evidence in relation to timing, it seems to me that I can draw the following firm conclusions:
(1) All the fractures occurred after 19th November 2010 when M was first taken to hospital.
(2) There were at least three or maybe four separate incidents causing fractures between about the end of November 2010 and 13th January 2011.
(3) Between the end of November 2010 and 13th January 2011, M was taken to hospital by the parents on 30th November, 15th December, 29th December, 1st January (when she was in hospital for five days) and was then taken in again on 11th January and 13th January.
(4) No fractures were noticed at the hospital until 2nd January 2011 after the parents had taken the child to hospital late the previous night.
(5) M's presentation by the parents at the hospital on 1st January 2011 with a swollen left arm and again on 13th January 2011 with a soft swelling to the head were appropriate and not delayed.
The causation of the fractures and the amount of force required
20. At the experts' meeting, they all agreed that there is no data on the minimum amount of force required to produce a fracture where rickets is present. That is, of course, consistent with the evidence I heard in November 2011. Some further evidential light was shed on this subject at this hearing. Professor Gardner said that the fracture of the humerus could have been caused by a parent grasping the arm in dressing and undressing the child because the bones were weakened by rickets. In relation to the skull fracture, the mother suggested that the pulling of too tight a garment over the baby's head might have caused the fracture. As at the last hearing, the garment was produced and examined, particularly by Professor Gardner. Professor Gardner examined the lack of elasticity of the neck of the garment and opined that M's head would be likely to have been larger than the neck of the garment. It may have required considerable force to put the garment onto the child. Professor Gardner thought that the skull fracture could have been caused by compression rather than an impact. He said that he could not rule out the possibility that the skull fracture had been caused by pulling that tight garment over the baby's head, although he thought it unlikely and he thought that an unexplained impact with the head was the most likely explanation for the fracture.
21. Professor Bishop agreed with Professor Gardner. He too could not rule out the garment as causing the fracture, but he thought it unlikely. Professor Garner told me that, in his opinion, any one of the fractures could have been caused by the presence of rickets rather than non-accidental injury. In reaching his conclusion that this was a case of non-accidental injury, he said that he was reliant on Professor Bishop's evidence that children with rickets do not sustain multiple fractures. In his evidence, he said to me:
"I agree that there is a paucity of published research in this area. There is very little evidence in the literature as to the number of fractures which might appear in a child with rickets. This is a difficult area. We must be careful against drawing the conclusion that this was not an accidental injury because of the number of fractures. All we have to go on is Professor Bishop's own experience of children with rickets not having numerous fractures. Taking any one of these fractures it could have been caused by the presence of rickets, but Professor Bishop's experience that multiple fractures do not occur in this way persuades me that this is a case of non-accidental injury."
22. Professor Gardner also re-visited the issue of whether the parents would have known that M suffered from brittle bones prior to 4th January 2011. He pointed out that, although M was correctly treated for vitamin D deficiency from 19th November 2010, there is no note in the medical records of a diagnosis of rickets until 4th January 2011. He said it was reasonable to assume from the state of the notes that the parents were not told about the diagnosis of rickets until a note was made of it on 4th January 2011. If that be right, it casts doubt on my finding at paragraph 34.10 of my earlier judgment that both parents knew at the time the fractures were caused that the child's bones might be weak. They must certainly have known that when the skull fracture was caused, but not necessarily (if Professor Gardner is right) when the earlier fractures were caused.
23. Dr. Fairhurst told me that in the context of a child of M's age suffering from rickets she would not be surprised that the child sustained a fracture of the humerus stemming from the disease, or a rib fracture, or indeed fractures in the forearm if the fractures of the radius and ulna were pseudo-fractures or Looser's zones. She was, however, particularly concerned about the skull fracture and she said:
"I cannot find any reference in the literature to skull fractures being suffered by children who have rickets. Rickets makes the skull soft and less liable to fracture and, therefore, I do not accept that rickets can be responsible for the skull fracture."
24. Professor Nussey disagreed. He said that skull fractures had been reported in cases of rickets, although they are unusual. All the doctors agreed that there is no knowledge of the minimum force required to cause a fracture in a child suffering from rickets. In this case there is no evidence as to how serious the condition was when the treatment began on 19th November 2010, but it was still severe at the beginning of January 2011. Dr. Fairhurst said that, if only negligible force is required to cause such fractures, one would expect every child with rickets to have multiple injuries.
25. Professor Barnes said that the fracture of the humerus is of "low specificity for child abuse". The same is true of the radius and ulna if they are pseudo-fractures. There was only one rib fractured and that, too, he said, is of low specificity for abuse. Professor Barnes was more concerned about the skull fracture. He thought there may be diastasis or growing or widening of the fracture and wondered whether there had been two incidents involving the skull. The other radiologists strongly disagreed. Professor Barnes said, however, that the degree of force to cause a skull fracture is unknown and it could have been caused by compression. He said that he could not say whether the skull fracture was caused by the rickets or was an event caused by non-accidental injury. The skull fracture was accompanied by soft tissue swelling which may be caused by impact or it may be caused by the fracture itself. It would be wrong to infer that soft tissue swelling is evidence of impact. Although M had been receiving a substantial amount of treatment by the time the skull was fractured, the evidence is that bones can fracture even after the healing process has started.
The perception of caring parents that something would have been very wrong with the child
26. There is no dispute that the parents took M to hospital immediately after the humerus was fractured. They went to hospital after 11pm on 1st January 2011, even though they were due to attend hospital at a prior arranged appointment the next morning, the 2nd January 2011. There is also no dispute that they took M to hospital immediately after the skull was fractured. The evidence as to timing of each of those fractures is consistent with prompt attendance or delayed attendance. Delay is, however, not suggested. In relation to each fracture, the parents realised something was badly wrong with the child and they reacted appropriately.
27. As to the rib fracture and the forearm fractures, Professor Gardner said in his evidence to me:
"I am not convinced that a child crying with a broken arm would necessarily be very obvious to a parent. I hesitate to sign up to the view that any normal carer would have been bound to notice that something was wrong. As far as the humerus was concerned, it was obvious and they duly took the child to hospital; likewise the skull. The rib fracture, too, might be missed by a carer. The mother says that the child was constipated for a week prior to 1st January 2011 and young babies can be difficult, they can cry and they cannot tell you what the problem is."
28. Dr. Fairhurst, in relation to the parents' perception and the amount of pain exhibited by the child, said:
"My experience of that is not as great as a paediatrician or as a doctor in an emergency department, but, as far as the forearm was concerned, I would expect any carer to be aware of significant injury. The response of a baby would be more varied than usual and it would be more difficult to identify the cause of distress."
As to the rib fracture she said:
"It would be painful when it occurred and I would expect the parent to be aware that something was wrong. I would expect the parent to know that the child was grizzly and uncomfortable, but not necessarily to realise that there was a rib fracture."
She then said in relation to the issue of pain and the perception of the parents that she did not disagree with what Professor Gardner had said and she said:
"A regular carer may not realise that the discomfort being suffered by the child related to the fracture of a bone."
29. On this issue, Professor Bishop said of the forearm:
"At the time of the fracture it would have been painful. Afterwards it would be tender to the touch or to movement, but not to the same extent as the humerus. The bony fragments would be able to move against each other and that would have been quite painful."
As to the rib he said:
"That may well not have been apparent to a carer because ribs splint one another and hold the bony fragments more or less in place. Therefore, it is unlikely to have been immediately apparent when touched or moved. A parent may put the child's discomfort down to being grumpy for other reasons."
As to the forearm he added this when the passage from Professor Gardner's evidence [which I have referred to at paragraph 27 above] was put him:
"I would agree with what Professor Gardner said, save for forearm. Dressing and undressing would mean manipulating the forearm and I would be very surprised if that went undetected."
30. The issue of pain noticeable to a parent from the two fractures of the forearm would depend upon whether those fractures were true fractures or pseudo-fractures. At the last fact finding hearing, the evidence proceeded on the basis that it was agreed that they were true fractures. Dr. Fairhurst initially thought that they were pseudo-fractures or Looser's zones, meaning incomplete stress fractures sometimes seen in patients with rickets. When Dr. Fairhurst formed that initial view, she had not seen the images taken in late January 2011. When she saw those images, her view changed owing the presence of healing of the bone - a periosteal reaction. The periosteal reaction convinced her that these were indeed true fractures. Professor Barnes, however, says that periosteal reaction occurs in healing rickets and is not necessarily an indication of a true fracture. He is of the view that the images of the radius or the ulna may have been of psuedo-fractures and not true fractures and that Dr. Fairhurst's initial impression was correct. In that case the parents would have been unlikely to notice anything wrong with the child or that the arm was fractured.
31. Mr. Tughan, counsel for the Local Authority, cross examined Professor Barnes vigorously and suggested to him that he was outside the main stream of medical opinion in much of his evidence. Mr. Tughan pointed out that, in the record of the experts' meeting, Professor Barnes appeared to have agreed that the forearm fractures were genuine fractures. The relevant passage reads as follows:
Dr. Halliday: "I said that Dr. Barnes referred to the ulna and radial injuries as psuedo-fractures or Looser's zones and I said for reasons set out in my first report, I consider these to be true fractures because there is deformity, they go all the way across the bone and they are healing with sub-periosteal new bone."
Professor Barnes: "I don't disagree with that."
Mr. Tughan would have me interpret that passage as Professor Barnes agreeing that these fractures are true fractures and not psuedo-fractures. It is not clear from that passage precisely what Professor Barnes was agreeing with. It may be that he was agreeing to the fact that there was sub-periosteal new bone - in other words, that there was new growth of the bone - but not agreeing that they were psuedo-fractures and cross examination did not clarify precisely what Professor Barnes was agreeing with. Professor Barnes' evidence to me was that he thought they may be psuedo-fractures.
32. Mr. Wan Daud, counsel on behalf of the father, pointed out that there is text book reference to periosteal reaction in healing rickets.
Is the multiplicity of fractures significant?
33. As the evidence developed this issue appeared to me to lie at the heart of this case. Professor Gardner went so far as to say that Professor Bishop's experience in this area led him to conclude that this is a case of non-accidental injury. There is no doubt that Professor Bishop is a very distinguished expert in this field. He was described by one of the experts as knowing more about this field than anyone else in Europe. Professor Bishop said during the course of his evidence:
"In Sheffield we see approximately 500 children in any one year. The majority will have conditions leading to bone fragility, the majority being osteogenesis imperfecta [which is not rickets]. I have been involved in this area since 1987 with babies, including premature babies, and older children since mid-1990s. I have seen cases of rickets and the number reaches three figures. [He did not go further as to what he meant by three figures, but it is clearly a large number of children].
"Of the children that I have seen with rickets, as far infants are concerned and indeed older children, I have only had three or four with fractures and only one had multiple fractures. The children, in my experience, with multiple fractures are mobile and not as young as M who would have been immobile, but in one case a child was so ill that the bones could hardly be seen on x-ray and there were multiple fractures; and in that child, indeed, the rib cage had fallen in, it was very severe de-mineralisation of the bones."
That evidence reflected what he had said at the experts' meeting. The transcript of what he then said reads as follows:
"My concern remains that I have seen a number of cases of rickets which are more severe than this where there has only been one fracture. I have not seen any other child in my own clinical experience with this number of fractures with rickets or, alternatively, in the literature with a description of this number of fractures in the presence of clinically apparent rickets. So to me, this is a disproportionate number of fractures and it was actually the reason that I agreed to take this case on in the first place because it was unusual and because I was expecting, when I reviewed the child clinically, to find evidence of some other underlying bone disease that would provide an explanation for the fractures not the rickets."
Professor Barnes then asked the question whether that reflected Professor Bishop's experience in relation to children under the age of six and Professor Bishop said:
"Yes, certainly, it does reflect my experience that it is unusual to see this number of fractures in an infant with vitamin D deficiency, rickets, at this age and that is an experience that goes back over quite a large number of years. Before I did bone disease I did a lot of neonatology for ten years and we did see from time to time infants in the premature baby unit who had fractures as well, although the aetiology there is quite different. But this is a stand out from my perspective over that long period of time."
Professor Barnes then asked him whether his experience had reached the literature and Professor Bishop answered:
"No, it has not reached the literature because, as I say, it is a scattered experience over a long period of time and I have not kept the case notes of each individual child seen over that period so it is a cumulative experience. I have talked as well with a number of colleagues about what their experience has been and the general agreement, I have to say, is that one fracture is not unusual in rickets, occasionally two, but, you know, more than that, four, no, we don't see that."
He then said in further evidence:
"Even with that child that I referred to with very severe rickets, there were only three or four fractures. The majority of rickets cases don't have a single fracture. Given the likelihood of multiple fractures in the context of rickets, it is more likely in this case that there has been a use of excessive extraneous force."
He went on to say:
"There is no objective measure of force required to produce fractures. In normal children, multiple fractures would indicate abuse. Multiple fractures in rickets is not borne out on the evidence of my experience, but there is very little published evidence in relation to children under six months. We x-ray babies all the time. If rickets was responsible for a lot of fractures we would be seeing multiple fractures in children with rickets and we just don't see them. In some parts of the world many children have rickets and there are no reports of multiple fractures. A fracture, and certainly multiple fractures, is uncommon in rickets."
That is strong evidence from a distinguished source and I take it very seriously, as indeed I did at the last hearing.
34. There is no objective research and no literature to assist much in this field. Professor Nussey told me that animal research indicates that rickets in animals greatly reduces the force required to break bones and all the doctors agree that that is likely to be so in humans. Reference was made at this hearing, as at the last hearing, to the Chapman study, but it is of limited value because of the limited number of children involved. Professor Nussey's written report includes the following passages:
"The question as to whether the presence of several fractures rather than one is an indicator of abuse rather than general bone fragility is impossible to answer in the absence of any objective measure of the change in the tensile strength of bone in rickets. Skull fractures are said to be unusual in rickets, but they have been reported."
Professor Nussey said that he deferred to Professor Bishop's experience in this area, but I did not take him to be wholly jettisoning his own evidence.
35. Professor Barnes had much greater direct experience in this area than Professor Nussey. In his hospital he treats approximately twelve children a year who have rickets, but in addition cases are referred to him and his unit from across the United States and he has seen a total of about thirty-six cases a year since 2008. He is compiling a database of such cases. Most of the children referred to him have fractures; that is usually why they are referred to him, as he put it, to sort out which are the cases of non-accidental injury and which are not. He has a particular interest in children under the age of six months. Most of them referred to him that he sees have multiple fractures, but by no means were all of them caused non-accidentally.
36. Professor Barnes' experience of children with rickets having multiple fractures differs from that of Professor Bishop. The reason for the difference in their experience is unclear, but it has been suggested that more x-rays are taken in the United States and so more fractures come to light. In the United States most cases of rickets are referred to major centres, whereas in the United Kingdom they tend to be dealt with locally.
37. I therefore have a direct conflict between the experience of two distinguished experts, Professor Bishop and Professor Barnes. Professor Nussey agrees with Professor Barnes. Mr. Tughan has tried hard to persuade me to reject the evidence of Professor Barnes and to prefer the evidence of Professor Bishop. Mr. Tughan suggested that there were a number of reasons why I should reject Professor Barnes' opinion and his experience. First, his evidence that the radius and ulna might be psuedo-fractures appears, said Mr. Tughan, to contradict what Professor Barnes said in the experts' meeting. I have referred above to the exchange that took place at that meeting. Second, he says that Professor Barnes' opinion about the skull fracture being a growing diastased fracture which may have been caused by two incidents is strongly refuted by the other experts and Professor Barnes appeared to agree with that at the experts' meeting. In his written report, Professor Barnes refers to the skull fracture as being diastased. In the meeting, Professor Barnes said:
"I am not saying that it is definitely a growing fracture, but it is diastatic."
Dr. Fairhurst answered:
"I would fundamentally disagree about the possibility of this being a growing fracture."
Dr. Halliday said:
"I entirely agree with that, this looks like a fracture. It has soft tissue swelling over it. Sometimes fractures are difficult to diagnose, but the presence of so-called soft tissue swelling over the fracture indicates that it is a fracture and that it has happened relatively recently. It just looks like a fracture."
Professor Barnes answered:
"I don't disagree with those comments, but I'll tell you the evidence base for the soft tissue findings with a fracture. The margins of the fracture, some of the margins to me look irregular and tapered. I don't think that imaging really gets us into the greater possibilities of what really happened here and once again these types of fractures have been reported in Rickets, whether it is accidental or non-accidental, and so we have to continue to remember that we have these obvious imaging findings of Rickets."
Mr. Tughan suggested that, when Professor Barnes said that he does not disagree with the comments made by Dr. Halliday, he is there reversing his opinion about the fracture. I do not read it like that. Dr. Halliday described what she had seen and Professor Barnes said he did not disagree, but he went on to qualify what he was saying and what Dr. Halliday was saying. I do not accept that Professor Barnes has given two different views, one in the meeting and one in his report and to me.
38. Mr. Tughan suggests that Professor Barnes is trying to achieve the impossible, a gold standard of certainty based on scientific research which is not available and may never be available. Indeed, Professor Barnes said in his evidence:
"There is no evidence-based data for us to apply. Often what we do in medicine in the United States has no scientific basis and this is carrying over into the justice system and radiologists tend to apply non-scientific criteria to the timing of fractures with no scientific basis."
Mr. Tughan suggests that Professor Barnes is outside the mainstream of medical opinion.
39. I heard Professor Barnes give evidence. I saw him being subjected to vigorous cross examination. Mr. Tughan's submissions appear to me to boil down to this question: Can I properly reject Professor Barnes' evidence that, in his experience, a child of M's age suffering from rickets can sustain and often do sustain multiple fractures that stem from the disease and not child abuse? Professor Barnes tells me that that is his experience. If I were to find that he was wrong about that, I would in effect be finding that he is not telling me the truth about his experience. There can be no fudge about this. It would be illogical for me to say that his evidence about his own experience was honest, but wrong. I cannot and do not find that he is wrong or that he has tried to mislead me, but, of course, I do accept that he differs from Professor Bishop who was also an impressive witness.
40. I found all the medical experts in this case impressive. They all did their best to give me an unbiased balanced account of their opinions, all of which were based on very considerable experience. Although Professor Barnes differed from Professor Bishop in this important aspect of the case, I did not gain the impression that Professor Barnes was mis-stating his experience or that he was doing anything other than stating his honest, unbiased opinion. Professor Barnes was clearly unbiased. He was clearly not trying to help the parents because it was Professor Barnes alone amongst the experts who suggested that there might have been two events leading to the skull fracture because he thought there might have been two separate fractures.
41. All experts agree that there has been little research into the nature of the issues in this case. Rickets has been curable since the 1920s and there has, therefore, been no pressing need for such research. All experts agree that the issues in this case should be approached with caution and that there were many unknown factors including the amount of force required to cause a fracture. Professor Bishop said that he could not be sure to the criminal standard of proof that this was a case of non-accidental injury. He put the balance of probability at about 75%. Both Professor Nussey and Professor Barnes say that there is insufficient evidence to say whether or not non-accidental injury has occurred in this case and that the evidence is consistent with innocent parents.
42. At this hearing I have heard evidence from the medical experts and no other evidence. The parents have not given evidence again. I bear in mind my findings adverse to the parents in my earlier judgment; I will not repeat them here. Those findings were consistent with my then findings of non-accidental injury, but they were not probative of non-accidental injury. If the medical evidence itself does not persuade me of non-accidental injury, it would be wrong in the context of this case to make a finding of non-accidental injury based on my previous adverse findings about the parents. Indeed, Mr. Tughan agrees with that approach as I would expect. On the other side of the equation there are positive features about the parents as I found in my last judgment. Apart from the fractures, there is no other evidence of child abuse. The children have been living apart from the parents for a very long time now, before and since the last hearing, but the parents have been having visiting contact to the children for eleven hours a week. The quality of contact has been described by the Local Authority and the Guardian in glowing terms such as "very positive", "impeccable", "way above the norm". I congratulate the parents for that.
43. At the last hearing the medical evidence pointed inexorably to the findings I made. This hearing has been very different. I am now doubtful whether the parents would necessarily have noticed any of the fractures, apart from the humerus and the skull to both of which they reacted appropriately. I have conflicting evidence as to the relevance of multiplicity of fractures. I bear in mind that the parents have given no explanation for the injuries apart from a tight garment pulled over the head and a possible knock on the head in the car, but - given the nature of the rickets, the uncertainty of how bad it was prior to 2nd January and the lack of knowledge of how much force would be required to break a bone - it would, in my view, be wrong to draw the inference that a lack of explanation from the parents indicates non-accidental injury. For all those reasons, I am not persuaded on the balance of probability that the parents did cause these injuries to M. I do not find, therefore, that the section 31 significant harm threshold has been crossed.
44. I add one final word about the medical evidence. I have great respect for all the experts in this case. They are all very impressive. I would not wish to be taken as criticising any of them or rejecting the expertise of any of them. This case involves areas of scientific uncertainty where there has been a paucity of research for reasons I understand. Medical experience differs and caution is required, as indeed all the doctors involved accept.