Case No. EWFC-47

34.The medical evidence in the case is clear and unequivocal, namely that metaphyseal fractures such as this do not occur in normal or even over exuberant/rough handling. Someone who was responsible for causing the fracture must or ought to have been aware that they had mishandled O, even if they did not realise he had suffered a fracture. Therefore in most cases where a fracture is discovered the absence of a contemporaneous explanation or an inadequate explanation from a parent is very telling and suggests that they have behaved in a way they wish to conceal. This is not to reverse the burden of proof but simple common sense. Fractures do not happen in the ordinary course of events and in the case of a non-mobile baby somebody (in this case one of the parents) must have been aware of the event at the time.35.The strength and unequivocal nature of this medical evidence is such that, despite all the positive evidence that there is about the parents and indeed from them, because there is nothing in anything they have said to suggest that either of them is dishonest or has given inconsistent accounts to anyone, I am driven to the conclusion that that there must have been an event, in the care or one or other of the parents when O’s left leg was pulled and twisted so as to cause those fractures.36.The difficulty is that there is no context for this at all. The significance of the fractures was not appreciated for about eighteen months after O’s death so that the parents were not asked to consider possible explanations for them for a very long time indeed. Of course memorable events do stay in the mind, but a brief event causing a metaphyseal fracture which did not apparently lead to any worrying symptoms thereafter might not be a memorable event in the light of the terrible shock of O’s death very shortly afterwards. It is clear from Dr. Rylance’s evidence that what I am being asked to consider is a very brief, one off, event when excessive force was used, whether this was by someone pulling and twisting O’s leg by hand in a moment of frustration or by pulling O thoughtlessly or impatiently out of a chair or swing in a way that causing his foot to be bent and twisted.37.I make a finding that the fracture happened by the use of momentary excessive force but I cannot say any more about the circumstances save that the action would have caused O pain and distress. In particular I cannot say that the act came about through any hostility or anger directed at O.