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Injuries to Infant with Bone Disorder: latest deliberations of the High Court

Zimran Samuel, barrister of 42 Bedford Row, comments on Mr Justice Peter Jackson’s recent judgment concerning an infant with vitamin D deficiency induced rickets who had suffered multiple fractures.

Zimran Samuel, barrister, 42 Bedford Row

Zimran Samuel, barrister, 42 Bedford Row

In Cumbria County Council v Q (Injuries to Infant with Bone Disorder) [2015] EWFC 59 Mr Justice Peter Jackson heard evidence over a 7 day final hearing in a case involving an infant with vitamin D deficiency induced rickets who had suffered multiple fractures, including a skull fracture.

The case, which attracted coverage in the mainstream media, concerned two boys H (aged 5) and O (aged 1).  From the outset of the final hearing it was agreed between the parties with the judge's approval that both children should live with their paternal grandparents under the auspices of a special guardianship order.

The live issue for the judge was one of causation arising from injuries sustained by O. O was brought to hospital at the age of 5 months with a fractured skull and three older fractures. The account given was that he had fallen off a sofa. The medical opinion before the court was that this would be a highly unlikely explanation for the skull fracture but for the fact that O may have been suffering from vitamin D deficiency rickets at the time, leading to his bones being more susceptible to fracture.

In summary O sustained the following injuries:

(1) A right linear parietal skull fracture

(2) Associated overlying bruising and soft tissue swelling

(3) A subdural collection in the same area

(4) A transverse fracture of the left distal radius (above the wrist)

(5) Fractures to the 7th and 8th left lateral ribs

(6) A 4mm by 5mm bruise on the low extremity of the anterior surface of the right thigh just above the knee.

The judge noted that in contrast to H, O was not an easy baby. He had feeding difficulties and episodes of choking which led to admissions to hospital.

The local authority contended that the evidence overall supported the conclusion that the injuries to O were inflicted by the mother, by her partner Mr H, or by both of them. The mother and Mr H denied that they knowingly caused any injury to O, but said that if the injuries were inflicted, the other must have been responsible. The children's birth father took a neutral position on this point, as did the children's Guardian.

Mr Justice Jackson considered oral and written evidence from several family members. In addition to nine medical professionals, the judge considered extensive expert medical evidence from several professionals  including:

Metabolic abnormality
Examining the metabolic abnormality, the judge noted the abnormal findings within O's skeletal survey which was characterised by osteopenia, splaying and cupping of the ends of the bones and sclerotic metaphyseal lines. 

In relation to the features that suggest partially treated rickets the judge observed:

a. Vitamin D is responsible and necessary for stimulating the placental transfer of calcium and phosphorous to the foetus in order to increase healthy bone formation and stimulate growth. About 80% of the transfer occurs in the third trimester. Following birth, the child becomes entirely dependent on other sources of vitamin D primarily through exposure to sunlight and diet. O was a child who had difficulty feeding from birth. Further support for O having rickets arose from the fact that the mother had recently been diagnosed with vitamin D deficiency during her current pregnancy and, on this occasion, in line with national guidelines, had been prescribed a vitamin D supplement. Despite the 2010 Guidelines from the Royal College of Obstetricians and Gynaecologists, the mother was not provided with a vitamin D supplement when pregnant with O.

b. The radiographs from December 2014 and those from April 2015 (which showed an improvement in the abnormal appearances) were more consistent with a diagnosis of healing rickets than a genetic condition such as a bone dysplasia.

Jackson J concluded that it was likely that O was suffering from a metabolic bone disorder at the time he sustained the fractures to his skull, ribs and radius. It was not possible to be sure of a diagnosis, but on the balance of probabilities it was likely that he was suffering from partially treated vitamin D deficiency rickets. When making this finding the judge noted:

c. A diagnosis of osteogenesis imperfecta had been discounted.

d. The biochemical findings were non-specific in formulating a specific diagnosis.

e. The normal vitamin D test results might be explained if there was a period of adequate vitamin D intake prior to admission on 3rd December.

f. The clinical findings were also non-specific but would support a diagnosis of rickets potentially associated with a past history of intrauterine or subsequent vitamin D deficiency.

g. There was no inherent or underlying haematological disorder present that would dispose O to spontaneous bleeding or bruising or to excessive bleeding or bruising following trauma.

h. None of the presenting injuries were likely to be birth related.

Bone strength
Jackson J found that it was likely that the metabolic bone disorder would have reduced generally the tensile strength of O's bones and predisposed him to fracture more easily following trauma. Jackson J stated (para 56.11 - 56.14):

"(11) The exact forces required to break a bone in a child with normal bones are not known. Opinions based on experience of the population as a whole conclude that significant force outside that found in normal handling and childhood mishaps is required. These broad assumptions cannot be applied in the case of a child with a bone disorder.

(12) It is not possible to quantify the degree by which the tensile strength of O's bones would have been reduced. The radiographs from December 2014 provide a snapshot of the appearances of the bones at that point. It is not possible to say whether at an earlier date the appearances would have been even more marked and the tensile strength of the bones even further reduced, though the trajectory of improvement seen in the May radiographs allows for this possibility.

(13) Notwithstanding the presence of a metabolic bone disorder, some external force would have been required in order to cause the fractures. They would not have occurred spontaneously.

(14) On a spectrum ranging from a child of normal skeletal strength to a child with a severe skeletal fragility, O is likely to have fallen somewhere in the middle. An event which caused him to sustain a fracture would have been a memorable incident of some sort."

Approach to fact-finding
After carefully examining the likely mechanism and possible timing of the injuries, it was clear that the medical evidence alone did not mandate any particular conclusion. In a child with normal bone strength, injuries of this kind would be highly unlikely to arise accidentally. The presence of the bone abnormality limited the conclusions that the court could draw from the nature of the injuries. The court however went on to consider other evidence including lies and inconsistencies in the evidence of the mother and Mr H.

In doing so the court underlined the approach to fact-finding set out in the judgment of Mr Justice Baker in Devon County Council v EB and WD and ED, JD and TD [2013] EWHC 968 (Fam) at paragraphs 53 to 64. The burden of proof remains upon the local authority and the standard of proof is the balance of probability.

In this case, where the mother had admitted to telling a number of lies, Jackson J reminded  himself of the guidance in R v Lucas [1981] QB 720, [1981] 73 Cr App R 159. People tell lies for many reasons. The fact that they lie about one thing does not mean that they must be lying about everything. The court must take care when drawing inferences and must consider why a particular lie was told.

Having considered all the evidence, medical and non-medical, Jackson J reached the following conclusions in relation to O's injuries (para 75.1- 75.3):

"(1) This is an exceptional case. In a child with a normal metabolism the almost inevitable conclusion would be that these fractures, and in particular the broken ribs and wrist, would be likely to be the result of violence or at least of rough handling. Likewise, it would normally be extremely unlikely that such serious injuries as a skull fracture and a subdural haemorrhage would result from such a low fall. Taken together, the medical picture would point strongly to inflicted injury.

(2) However, the fact that O was probably suffering from rickets means that conclusions that might have been drawn in a normal case would be unreliable and unsafe in this case.

(3) None of the injuries is of the kind that is particularly suggestive of inflicted injury."

Whilst noting the volatility within the mother's relationship with Mr H, the judge found that they were not colluding to conceal occasions when they knew injuries were inflicted.

Specific injuries
With regard to the specific injuries the judge found (para 75.10):

"I cannot identify with certainty when and how the fractures to the wrist and ribs were caused. I cannot exclude the possibility that they were caused by violent or rough handling, but I do not think it probable. Given O's particular vulnerability and very young age I consider it more likely, indeed probable, that these injuries were caused in another way. They may have been sustained on one of the occasions suggested by the mother and Mr H, or on a similar unrecorded occasion. To take an example, it is entirely possible that some or all of these fractures occurred when H fell on top of O. It is also entirely possible that the rib fractures were caused by Mr H in the stress at the moment when he was trying to prevent O from choking. All these were occasions when O was in real distress. Given his likely bone condition, injuries may have occurred without carers realising.

It is less probable that the fracture to the arm occurred as a result of a medical procedure, but it cannot absolutely be discounted.

The only candidates for the causation of the head injury are the described fall from the sofa, or an undisclosed accident, negligent or otherwise, or a concealed assault. I cannot exclude the second and third possibilities, but taking account of all the evidence I find that on the balance of probabilities the injury occurred in the manner described by Mr H.

There is no basis upon which I can find that the small bruise to O's knee was an inflicted injury. Although Dr Ward was suspicious, she in the end had to concede that her suspicion was purely speculative."

In conclusion, Jackson J found that the local authority had not proved its case that O's injuries were inflicted injuries.  He did however approve the local authority's decision to put the matter fully before the court.

There is no research on the level of force needed for an infant with O's diagnosis to sustain fractures. The judgment of Jackson J draws attention to the complexities and uncertainties within those cases in which children with bone disorders are suspected of being subjected to non-accidental injuries. In this case other welfare issues prevented the court from sanctioning the children's return to their mother. However, there will no doubt be cases in which children with a diagnosis of rickets have been removed from their parents in the context of suspicious fractures. The medical evidence in this uncertain field will be crucial to the determination of the welfare outcome in those exceptional cases.