IQ Legal TrainingBerkeley Lifford Hall Accountancy Services

Home > Judgments > 2012 archive

McC (A Child) (No 2) [2012] EWCA Civ 166

Mother’s application for permission to appeal judgment on the basis of judge’s approach to the issue of low vitamin D levels and increased vulnerability to fractures in infant bones.

In the substantive application for permission and appeal, the mother relied on research showing a connection between low Vitamin D levels and an increased vulnerability to fracture in infant bones, arguing that the trial judge had not taken this issue sufficiently into account and that further expert evidence was necessary.

Thorpe LJ, in giving the judgment of the court, emphasised the strength and depth of the medical evidence that was available to the trial judge at the fact-finding hearing and the fact that the specialisation of paediatric radiology is particularly small. The experts had considered the issue and had been unanimously of the opinion that Vitamin D deficiency was not a factor. In light of that, it was unsurprising that this issue was not pursued at trial nor dealt with by the trial judge in his judgment.

Thorpe LJ, with the agreement of Rimer and Smith LJJ, refused permission to appeal and to extend time. The parents had been properly represented in trial, had been engaged in the gathering of expert evidence and had had the opportunity to seek further expert instruction at that stage. The child's life had moved on since and the application was too late and inadequately meritorious to risk disrupting her potential adoptive placement.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers  


Case No: B4/2011/2705
Neutral Citation Number: [2012] EWCA Civ 166

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 19th January 2012


- - - - - - - - - - - - - - - - - - - - -


- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Ms Obi Exekpazu (instructed by Messrs Brendan Fleming) appeared on behalf of the Applicant mother.

Mrs Jo Delahunty QC (instructed by Wokingham Borough Council) appeared on behalf of the Respondent local authority.

The Second Respondent father did not appear and was not represented.

The Third Respondent, the child via her Children's Guardian, did not appear and was not represented.
- - - - - - - - - - - - - - - - - - - - -

(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:
1. In giving a brief judgment refusing the application for permission to adduce fresh evidence, I explained the bare background of the public law proceedings in relation to the applicant's first born child.  I have referred to the success achieved by the applicant on 8 December before McFarlane LJ when he ordered this further hearing today on notice to the local authority.  We have obtained this morning a transcript of his judgment of the 8 December and paragraph 18 of that judgment explains succinctly the basis upon which he made the order which he did.  He said:

"The applicant, Ms G, has marshalled a very substantial body of research material to support her contention that there is a connection between low Vitamin D levels and an increased vulnerability in fracturing in infant bones. This, coupled with the familial history referred to, supports her submission that this aspect of the case was insufficiently investigated and as a result the judicial evaluation of the evidence before him by Judge McIntyre was inevitably flawed. That is in essence her case before me today."

2. It is indeed the case which remains for our consideration and it is supported in a skeleton argument which was prepared at a time when the applicant was a litigant in person.  It is a very impressive document.  It runs to 21 pages and the points that she raises particularly, the points that are medical and scientific in their origin, are very clearly and skilfully set out.  In particular at page 14 of her skeleton she submits:

"When the Vitamin D deficiency is taken into account there appears a lacuna in the evidence which requires an Independent second opinion. The Judge should have further explored the significance of the Vitamin D deficiency rather than accept the conclusion that a severe Vitamin D deficiency is of no significance to bone density and required force to cause a fracture.  The Judge was further wrong to conclude that the injuries were non-accidental when he did not have the benefit of any conclusive evidence that the explanations given by [the father] were inaccurate, other than the misleading opinion of Dr Kenny, and the uninformed opinion of Dr Somers.  Testing of bone density and propensity to easy fracturing would have resulted in the evidence of [the father] being reliable and therefore the injuries being accidental."

3. It is important to emphasise the strength and depth of the medical evidence that was available to HHJ McIntyre at the trial of the preliminary issue.  He had the evidence of Dr Robertson, who was the radiologist who had made the original X ray examination.  He had the evidence of Dr Boden, who was the treating consultant paediatrician.  He had the evidence of Dr Mann, another consultant paediatrician to whom Dr Boden had referred for a second opinion. He had the evidence of Dr Somers, who was the consultant paediatric radiologist.  The specialisation of paediatric radiology is particularly small and there are probably not more than three or four experts in this jurisdiction in practice at any one time.  And finally he had the evidence of Dr Kenny, who was the paediatric expert of ultimate referral.  She was jointly instructed.  She was the lead paediatrician for child protection issues at Great Ormond Street Hospital.

4. The issue of vitamin D insufficiency and its relevance to the crucial question to be tried out by the judge first emerged from tests and analysis conducted by Dr Boden and the subject of his report of the 27 May 2010.  At that stage the sample when analysed revealed a significant insufficiency and it was that which he almost immediately sought to treat by prescribed drugs.  He also almost immediately sought the second opinion of Dr Mann.  Complaint is made that this significant finding was not sufficiently considered and factored in by later experts or the consideration of other experts at later times, but I think it is important to lay stress on Dr Mann's response to the referral.  He said in his report of 15 September 2010:

"In conclusion I don't feel that the low 25 hydroxy vitamin D level is of significance.  Nutritional rickets does not occur in this country in Caucasian infants of 2 to 3 months of age where there are no risk features.  Low vitamin D levels are quite commonly found without features of rickets.  As mentioned above samples of vitamin D levels do need to be protected from light as the vitamin D levels drop quite rapidly with exposure to sunlight.  The sample size for vitamin D levels were also small, so accurate measurement was not possible."

5. Dr Somers in his report of the 22 August dealt with these medical issues conclusively towards the close of his report.  In paragraphs 103-104 he dealt with the general background relating to vitamin D insufficiency and rickets.  In 105 he said:

"I can state with great confidence that Alyssa does not have any radiological signs of rickets and therefore that condition cannot explain her injuries.  There is no evidence that reduction in vitamin D level, which is common during the winter in Northern latitudes because of reduced exposure to the sun, leads to an increased tendency to fracture, in the absence of radiological evidence of rickets."

He continued:

"106. Some authors (e.g. Keller & Barnes) have attempted to explain characteristic fractures of non-accidental injury by a putative link to maternal vitamin D insufficiency. The commentary by Slovis & Chapman highlights the lack of supporting evidence coupled with a startling misinterpretation of the x-ray findings to support this theory.

107. At the present state of knowledge, using this theory to explain fractures considered characteristic of non-accidental injury, as being due to undiagnosed vitamin D insufficiency/deficiency, in the presence of normal bones (i.e. no rickets), is unsupported by evidence and is reminiscent of the now discredited theory of Temporary Brittle Bone Disease.  Indeed the author of that theory has recently made attempts to resurrect it under the banner of Vitamin D insufficiency/deficiency."

At the trial, then, the medical unanimity on the point was conclusive and it is not surprising that the judge did not deal with the issue, which by then had ceased to be an issue if it ever were one, in the course of his judgment. 

6. There are many reasons why I would refuse permission in this case.  I mention in passing the historic nature of a two-stage process of trial which was in all respects Article 6 compliant.  The parents were represented.  They were engaged in the collection of expert evidence.  They had all their rights to deploy the material which they seek to deploy only in this court.  The child and the life of the child has moved on.  The consequences of allowing any successful outcome in this court would be devastating for the prospective adopters, the applicants in the adoption, which would then have a vicarious impact on the child.

7. This application is in all senses too late and it is supported by quite insufficient material to suggest that it would have any prospect of success.  I would refuse the applications for extension of time and I would refuse the applications for permission.

Lord Justice Rimer:
8. I agree.

Dame Janet Smith:
9. I also agree.

Order: Application refused