Case No. NG21C00169

that no-one is allowed to litigate afresh issues that have already been determined. It would also chime with the alternative rule for inquisitorial proceedings proposed by Diplock LJ referred to above. 44.This interpretation would have the advantage of ensuring that family law is not seen as a rogue castaway marooned on a desert island conducting itself without regard to the norms of the rest of the legal universe. It would help to promote a perception that family law is part of, and not separate from, the general law. It would meet the criticism of Sir James Munby P in Kerman v Akhmedova [2018] EWCA Civ 307 at [21]: ‘“It is now eleven years since I observed in A v A [2007] EWHC 99 (Fam), [2007] 2 FLR 467, paras 19, 21 (though, of course, at the time I was a mere puisne), that “the [Family Division cannot] simply ride roughshod over established principle” and that “the relevant legal principles which have to be applied are precisely the same in this division as in the other two divisions.” In Richardson v Richardson [2011] EWCA Civ 79, [2011] 2 FLR 244, para 53, we said that, “The Family Division is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply.” And in Prest v Petrodel Resources Ltd and others [2013] UKSC 34, [2013] 2 AC 415, para 37, Lord Sumption JSC observed that “Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different.”’45.For my part looking at the matter from first principles I cannot see any reason why the general substantive law of res judicata should not apply to children’s cases. The policy reasons for having this rule of law were stated by Lord Wilberforce in The Ampthill Peerage Case [1977] AC 547 at 569: "English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved."46.I can see no good reason why this universal rule of high public importance should not apply equally in a case concerned with a child’s non-financial welfare. The rule would certainly apply in a children’s case about maintenance, notwithstanding that the court’s function in such a case is inquisitorial. Thus, in the (inquisitorial) children’s case of N v N (Child Maintenance) [2015] EWHC 514 (Fam) Bodey J at [27] accepted that the doctrine of res judicata (issue estoppel) applied, fully analysed the case-law, and cautioned against a too liberal recognition of an exception on the ground of injustice, saying:‘The court has to guard very carefully indeed against using “justice” as a “get out of jail free card” in this sphere. Res judicata is a concept carefully honed over many years, based on the Latin maxims: Nemo debet bis vexari pro una et eadem causa and Interest rei publicae ut finis sit litium, “no-one should be vexed twice in the same matter and there should be finality in litigation”. It applies if all the conditions for it are in place and one cannot contemplate some airy-fairy discretion to dis-apply it. The assertion and exercise of such a general discretion would lead to uncertainty and forensic chaos, together with much unnecessary expense.’47.The rule would also unquestionably apply in civil proceedings where a child made a claim for damages. Why should it not apply in non-financial welfare proceedings concerning a child? To say that the latter proceedings would be inquisitorial and the former adversarial seems to me to be a distinction without a real difference, for the reasons I have given above.48.It seems to me, where, as Lord Bridge has explained, the rule is of such “fundamental importance” in all fields of litigation, there would have to be extremely good reasons, based on very clear words in the governing statute, for a court to decide that it did not apply in a particular field. If this rule of fundamental importance applies across the board, in public and private law, in civil and criminal law, in divorce and financial remedy law, and in child maintenance law, what possible justification is there for a non-financial child welfare case to stand as a lonely exception? It is not as if, to use Lord Carnwath’s language, the rule is explicitly “excluded by the particular statutory scheme”. I cannot see anything in the Children Act 1989 that excludes the operation of the rule.49.I naturally accept that Jackson LJ’s test is binding on me. I completely agree that there should be a Stage 1 form of permission filter. I completely agree that on a rehearing application mere hope and speculation will never be enough to gain permission. I am merely suggesting an interpretative reconciliation between the solid grounds test and the general law such that solid grounds will normally only be demonstrated where either the fraud exception, or the special circumstances exception, is satisfied. This case 50.The application as originally pleaded does not come anywhere near meeting the standard of ‘solid grounds for believing that the original decision required revisiting’. Nothing in the application as pleaded identified any special circumstances where it could be said that new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before. On the contrary, as originally formulated the only ground advanced was the mother’s belief that the fracture was caused by an incorrectly performed skeletal survey. Yet, this aspect had been the subject of a specific finding by the Recorder. At [21] he wrote:“On behalf of the NHS Trust, Mr Roche called the two radiographic department staff who carried out the skeletal survey on C: VW, Paediatric Radiographer, and AS, Senior Radiographer, and also CW, Staff Nurse. Between them, in their written statements and their oral evidence, they gave an account of an x-ray session which was difficult and stressful, because, despite previous sedation, C woke up and cried, and, although she was comforted, Father was angry and disruptive, swearing and trying to stop the process. They explained how the process of the skeletal survey was routinely carried out, demonstrating with a doll, and denied that anything out of the ordinary had been done to C. They specifically denied that any pressure had been applied to C’s chest. In cross-examination they rejected suggestions that the rib fracture might have been I accidentally caused during the skeletal survey.”And at [28]: The suggestion has been advanced that C’s chest might have been compressed to restrain her during the skeletal survey and so her rib might have been accidentally broken. The necessary mechanism might have been present if that had happened, but there is no evidence at all that it did happen. None of the witnesses says that somebody pressed down hard on C’s chest. The techniques for carrying out a skeletal survey, which were explained and demonstrated in Court, do not involve the application of any pressure at all to the child’s chest. If Grandmother, a solicitor, or Father, who had promised to protect C, or Mother, had seen excessive force applied, one or all of them would have made an immediate complaint to the Hospital. But they did not. 51.This is a finding of primary fact, which would be virtually unassailable on an appeal, and a fortiori, is unassailable on an application for a rehearing. A mere belief that the Recorder has erred in assessing this evidence comes nowhere close to meeting the standard of new evidence that is needed in order to open the door to a rehearing.52.In fairness, Mr Larizadeh QC did not pursue this argument in his submissions. He accepts that on the evidence before the Recorder these findings could not be impeached. Rather, he concentrated on OI, as I will explain. Bruises 53.So far as the bruises are concerned, the Recorder’s findings were:“32. I have anxiously considered the bruising. I was dubious about the expert witnesses’ conf‌ident statements that bruising could only be caused by the application of more force than would be applied in the course of handling and moving a child. In particular I was unsure that Dr W had any research basis for his assertions about the degree of force required to cause bruises of the kind suffered by C. However, there is no evidence to contradict what Dr W says. His invitation to anybody who doubts him to try causing a bruise to himself may appear to be a trivial or facile answer, but it is a good way of demonstrating something which cannot be explained in words. 33. C suffered bruises which may well have occurred at the same time, on both sides of the lower part of her face. This was not over the jawbone or the cheekbone. Considerable force must have been required to cause these bruises. There is no way in which that could conceivably happen accidentally. In particular, holding the face to insert eye-drops, or to assist a doctor’s examination, or bumping against Father’s chest, or scratching with the baby’s fingernails, or any other suggestion for an accidental cause must be rejected. None of them would involve the application of sufficient force to cause bruising. Pinching with the thumb and foref‌inger of an adult hand would be one way of doing it. Since no accidental cause can be conceived of, on the balance of probabilities I conclude that the bruises to both checks were non-accidental.”54.Again, these are primary findings of fact. Mr Larizadeh QC accepts that on the evidence before the Recorder those facts as found are unassailable. 55.I have explained above that nothing whatever was said about the bruises in the application as originally pleaded. The first emergence of what I will call the bruises ground was in the same position statement for the hearing on 6 October 2021, where it was said:“49 No consideration or reference has been made to the possibility that the bruising seen in C was the result of a number of persons handling her face over a short period of time: 31.12.15 (Dr T), 04.01.16 nurses, 08.01.16 (operative procedure) in addition to being handled by the mother, the step father and MGM when winding C after feeding. The possibility of compound bruising occurring at a sensitive site and scratches over sites already made sensitive by some bruising does not appear to have been explored. This would appear to fit well with a bruise that visibly grew larger over from the 8 to 9 January 2016. 50. The proposition that C still had left and right bruises and scratches from before the 4.1.16 was potentially inconsistent with C not having any residual marks or bruises from her rib being fractured by a two-handed squeezing mechanism before the 4.01.16. 51. NICE guidelines (last revised in March 2016) in relation to dating of bruising from colour are very clear, and cites the systematic review carried out by Maguire et al, 2005: “A bruise cannot accurately be aged from clinical assessment in vivo or on a photograph. At this point in time the practice of estimating the age of a bruise from its colour has no scientific basis and should be avoided in child protection proceedings” 52. It does not appear the NICE Guidelines or the Maguire paper was before the court. 53. Finally, in relation to bruising, I note that the platelets reading for C was 579 on the 5.1.16 and 771 on the 10 January 2016, where the normal range is 150-450. In his report, Dr W states at paragraph 104, that an “elevated platelet count can cause abnormal bleeding or bruising”, but then does not go on to consider how this may have been applicable in C’s case in particular given the increase in the levels from 5-10 January. At paragraph 131 of his report he simply states it is a common finding in babies with infection and it “cannot cause easy or abnormal bruising”. He does not however state in terms that C’s bruising was either “easy” or “abnormal”. By the time of the 10 January reading, C had been treated with antibiotics at least since the procedure on the 4.1.16. For her to be still suffering from the effects of infection by the 10.01.16 with no medical staff making reference to this, seems a little strange. The issue of the raised platelets at the material time is therefore unresolved.” 56.The bruises ground therefore was that the Recorder made his decision without the benefit of evidence about:i)The number of people who had handled C;ii) The inaptness of dating a bruise by its colour; andiii)The possibility that the elevated platelet count had led to easy bruising.57.Mr Larizadeh QC’s written and oral submissions elaborated these three elements. I cannot accept that there had been any material reliance on the old heresy that bruises can be accurately dated by reference to their colour. That canard had been shot down years before and it is inconceivable that any material reliance was placed on it either by Dr W or the court.58.The elevated platelet count was a known fact at the time and Dr W specifically noted that “an elevated platelet count can cause abnormal bleeding or bruising”. The Recorder no doubt took that into account as part of the whole sea of evidence but decided nonetheless that the bruises had been non-accidentally inflicted. 59.I am not satisfied that in relation to the bruises ground there are solid grounds for believing that the earlier findings require revisiting. On the contrary, I see the submissions made in this regard as being no more than mere hope and speculation. I agree fully with the written submissions of Ms Ballard for Dr JT. Dr JT would be subjected to considerable injustice were the bruises ground allowed to proceed. 60.In relation to the bruises the stage one leave test is failed whether I apply the general law test of special circumstances or a more liberal interpretation of ‘solid grounds’. The rib fracture 61.The mother’s case on the rib fracture as elaborated in the skeleton, supplemental skeleton, and oral submissions of her counsel may be summarised as follows:i)Having regard to the histopathological tests recorded in the Raynor paper:‘ …it is difficult to see how Recorder Reading could have come to the conclusion that given evidence of early callus formation seen on the scan of 26.01.16, the fracture was likely caused within the 11 days prior to the skeletal scan on the 11 January 2016, as opined by Dr S. If that were the case then by the 26.01.16 what would be seen would not be early callus formation but callus bridging the fracture site and remodelling of the primary callus. Indeed, if the fracture was as early as the 31.12.15, what may have been seen on the 26.01.16 was formation of lamellar bone. Instead, what was identified by Dr W as “early callus” is seen between 0-14 days in histopathology, which comfortably dates back to the fracture having occurred on the 11.01.16.’This again repeats, albeit with an appearance of medical support, the mother’s oft-expressed belief that the fracture occurred at the survey. ii)It is possible that C suffers from OI. As she displayed no clinical signs of this condition then, under the standards applicable in 2016 she was rightly not tested for the condition. But standards have changed, as a result of research. 62.In my judgment the mother’s grounds concerning the rib fracture are convincingly rebutted by Mr Cleary’s extremely well-written skeleton for the LA. In it he makes the following points:i)The 2018 Raynor paper did not advance new scientific evidence about the dating of fractures. Rather, the fractures analysed in that paper were aged histologically using the technique explained of Klotzbach et al in their 2003 paper, supplemented by methods derived from three research papers published in 1994, 1995 and 2009. Thus, the Raynor paper was based on research that should have been well-known in 2016.ii)The Raynor paper advanced a specialist histopathological evaluation of the fractures under study. It did not purport to provide an analysis of how fractures would appear in a radiological examination. This is particularly relevant given that the specialist histopathological evaluation could only be performed on a dead child, because deep samples were taken from the bones. No such histopathological examination could have been undertaken then of C’s bones. The paper cannot cast doubt on the conclusions drawn by the experts and the court at the hearing from the available radiological evidence. iii)However, the paper is noteworthy in that it refers to a study in which 95% of posterior rib fractures in the sample group were found to have occurred through ‘non-accidental’ means.iv)There is nothing in the Raynor paper that provides the solid grounds for believing that the findings need to be revisited.v)Similarly, the review conducted by the Hospital in 2018 referred to at [4] above does not provide the necessary solid grounds. The letter states that the review team would have expected the court to have ‘considered’ tests for a metabolic bone disease. But the issue of a metabolic bone disease was specifically addressed in the evidence of Dr W. Dr W set out the considerations in respect of a metabolic bone disease and concluded:“C’s x-rays are reported to show normal bones with no evidence of inherited or metabolic bone disease. She does not have a history of other previous or subsequent fractures and I have not been provided with a history of a close relative with an inherited disorder causing easy or abnormal fracturing of bones. C’s metabolic blood tests included a bone profile that showed normal calcium, phosphate and alkaline phosphatase levels. The normal alkaline phosphatase level excludes Ricketts as a possible cause of her fractures and this conclusion is supported by the finding of a normal vitamin D level. All this information makes it highly unlikely that C has an acquired or inherited disorder that caused or contributed to her clavicle and rib fractures. ”Therefore, the issue of a metabolic bone disease was properly considered in the proceedings. The evidence before the court was that it was highly unlikely. The mother did not seek to challenge this evidence. 63.Mr Cleary submits, and in this regard is supported by counsel for the interveners, that there is no fresh evidence which supplies the necessary solid grounds for believing that the finding should be revisited. No additional facts have emerged which entirely change this aspect of the case and which could not with reasonable diligence have been ascertained before.64.The Recorder’s primary finding that the rib fracture was not caused at the skeletal survey is, in my judgment, unassailable. The finding was made after the Recorder heard, and assessed the veracity of, the oral evidence of the actors. The Raynor paper does not provide any grounds, let alone solid grounds, to lead to a belief that the forensic process in relation to that issue should be allowed to be re-run 5 years after the event when memories will no doubt have seriously faded. If that were allowed to happen it would amount to the relevant actors being grossly twice vexed.65.There is no care order in respect of C. Her grandmother, as special guardian, has enhanced parental responsibility under sec 14C(1)(b) of the Children Act 1989. It would have been possible for the special guardian to have arranged for tests to be performed on C to determine if she in fact suffers from OI. This was not done. Instead, the mother has applied, as stated above, for a paediatrician to undertake a comprehensive examination of C and to opine as to the cause of the relevant injuries and, inferentially, whether that cause was OI. This course, which one might describe as being Micawberish - hoping that something will turn up - simply cannot fit with either the general law, or even a most liberal interpretation of Jackson LJ’s solid grounds test. Under the general law the applicant seeking to relitigate an issue decided adversely first time round has to demonstrate special circumstances, and those special circumstances will be, as Lord Cairns said, where additional facts have emerged which entirely change the aspect of the case about the rib-fracture and which could not with reasonable diligence have been ascertained before. To make an application without such evidence in the hope that the court will authorise expert evidence which may, or may not, turn something up which casts doubt on the original findings is completely the wrong way of formulating a challenge. The very process adopted of itself demonstrates that the applicant does not have any solid grounds.66.An additional factor in determining whether the case should be allowed to pass through the stage 1 filter is the objective of the applicant. In this case the applicant is not seeking to disturb the special guardianship order. At its highest, the mother’s objective is to obtain a finding which in effect exonerates her so that she can unassailably argue that her contact to her daughter should be unsupervised and over-night. I have to say that this ‘pool’ finding against the mother over 5 years ago is unlikely to be of any great weight in the implausible event that the mother were to start fresh private law proceedings against her own mother for enlarged contact. The relationship between the mother and her own mother is entirely felicitous. I can see why the mother wants from a moral viewpoint to expunge the stigma of the adverse finding, but this would not in my judgment be a good reason to undo the finality of these long closed proceedings.67.Let us imagine that the mother had another child. Would the pool finding be relevant in any future proceedings by a local authority against the mother in respect of that child? For the reasons stated above, the pool finding cannot of itself found a prediction of likelihood of future harm to that child by the mother. It can, apparently, act as a makeweight with other evidence, although I have to say that I cannot understand why the dissenting reasoning of Lord Wilson (supported by Lord Sumption) in Re J (Children) (Care Proceedings: Threshold Criteria)at [80] is not correct:“…if, for the purpose of the requisite foundation, X’s consignment to a pool has a value of zero on its own, it can, for this purpose, have no greater value in company.”This scenario is so conjectural as to be irrelevant to my decision. However, were it to eventuate it is my opinion that the pool-finding is now so remote, and its evidential value so minimal, that it should be excluded from consideration in any future proceedings concerning a different child.68.Nor is the change in medical practice, whereby testing for OI would now be more readily done, a solid ground for allowing a rehearing. In 2016 testing would only be done if a child were presenting clinical signs of the condition. Now, testing would be done, it would seem, based on mere suspicion. In medicine, standards are changing continuously. Yesterday’s standard practices can become tomorrow’s heresies. The spurious aging of bruises technique is a classic example. The court cannot contemplate cases being reopened years after closure in reliance on such changes unless the previous practice is now shown to be not merely arguably unsafe, but completely and categorically wrong.69.I am not satisfied that in relation to the rib fracture there are solid grounds for believing that the earlier findings require revisiting. On the contrary, I see the submissions made in this regard as being no more than mere hope and speculation. There would be considerable injustice to Dr JT and to the staff of the Hospital Trust were the rib fracture ground to be allowed to proceed. 70.In my judgment in relation to the rib fracture the stage one leave test is failed whether I apply the general law test of special circumstances or a more liberal interpretation of ‘solid grounds’.71.For these reasons the mother’s application is dismissed._________________________________