Case No. EWFC-57

19.I have read and considered all the papers in the court bundle, which is 2687 pages long. I have also been provided with a separate bundle of medical research. I have also watched a number of videos and looked at a series of photographs. This hearing has been conducted on a ‘hybrid’ basis, with all of the professional witnesses appearing remotely, along with the parties. However, both the mother and the father attended in person to give their evidence. 20.The court approved the instruction of four experts. I intend to deal with their written evidence in summary first before considering the totality of the evidence, including their oral evidence, within my analysis and conclusions.21.Dr Oystein E. Olsen is a Paediatric Radiologist based at Great Ormond Street Hospital and he provided his first report on the 5th September 2022. His executive summary reads as follows; “1.1 As an experienced paediatric radiologist I have reviewed the available radiological examinations of B from the period 30 June 2022 to 17 July 2022. I have not assessed the brain.1.In my view, there is no radiological evidence of any underlying abnormality, including rickets.2.It is my opinion that three fractures are present, on the balance of probabilities:1.3.1 Left 4th rib—about 2 weeks to a month old on 30.06.2022; and1.3.2 Left 5th and 6th ribs—up to about 2 weeks old on 30.06.2022.1.4 It is my opinion that the fractures resulted from at least two separate applications of excessive force by external agency, and that no fracture has been satisfactorily explained.”22.Dr Olsen lists the imaging results that he was provided with in order to complete his report at para 4.1. Dr Olsen also notes that the treating clinicians, including Dr. J (whose second opinion had been sought), had reached slightly different conclusions as to the presence of possible fractures. 23.Dr J opined that there were ‘possible’ fractures of the 7th and 8th left ribs. Dr Olsen disagrees and considers that that which can be observed demonstrates ‘bulbous front ends.’ He goes on, “I therefore believe the alternative explanation is more likely, namely that infantile ribs display great variability at their metabolically active front ends. I am less certain in respect of the right 5th–7th ribs where the focal expansion is rather striking; but were there fractures, the fractures would have been fairly recent, so I emphasised the absence of healing-signs when concluding there is no fracture on the balance of probabilities. I cannot say where Dr Johnson’s ‘possible’ sits relative to the Court’s standard of proof, but I am certain that some expert radiologists would disagree with my conclusion.”24.Dr J also described an ‘irregularity’ in the right 6th- 8th ribs. However, Dr Olsen formed the view that, although there is a slight variation in the density of those ribs close to their articulation with the spine, no discontinuity is seen, no displacement, no callus, associated soft tissue swelling or hearing. On that basis, he concludes that there are no fractures to those ribs. 25.It is unfortunate that a CT scan was not undertaken of B’s chest, as this would have clarified the equivocal appearances of the left and right ribs. But is now too late, and Dr Olsen has rightly considered the questions put to him on the basis of the evidence available.26.Dr Olsen does not consider that the radiological imaging indicates any signs of bone fragility, but also rightly reminds the court that there is no unequivocal radiological evidence of rickets. He considered whether the bulbous rib ends might represent rachitic abnormality but concludes that he is not able to do so, based on the x-rays of the ribs alone, given that rickets is a disease which affects the whole skeleton. But he cannot exclude early rickets as being present. As commonly accepted by radiological experts, Dr Olsen also concedes that bones may be abnormally fragile without any radiological signs being present. 27.The advance state of healing seen in the 4th rib leads Dr Olsen to conclude that fracture is two weeks older than the others. None of the fractures date back to the birth in his view. The precise degree of force required to cause rib fractures is unknown, but such fractures do not occur spontaneously, and they are not self-inflicted. It is accepted that rib fractures are caused by the compression of the chest or a direct impact. It is generally accepted that the force required must go beyond that used by a reasonable carer in normal handling. 28.Professor Stephen Greene is a Consultant Paediatric Diabetologist and Endocrinologist. He has over forty years’ experience in clinical medicine and paediatrics. His first report is also dated the 5th September 2022. He notes that by the time that B was seven weeks of age, her weight had dropped from the 25th centile to below the 0.4th. A bone metabolism screen conducted on the 30th June also showed that B had a Vitamin D deficiency with compensated hyperparathyroidism. Because of this, the mother was also tested and she was also found to be deficient, with a level of 24 nmol/L.29.Professor Greene concludes that there was not specific cause for B’s failure to thrive and is most likely to have been related to poor nutritional intake. He summarises the current view of the Royal College of Paediatrics in relation to fractures in children, ·Abusive fractures are more common in children less than 18 months of age than in those older than 18 months ·Rib fractures in the absence of major trauma, birth injury or underlying bone disease have a high predictive value for abuse ·Multiple rib fractures are more commonly abusive than non-abusive ·Children with radiographically confirmed rickets have an increased risk of fracture, whereas children with simple Vitamin D deficiency are not at increased risk of fracture·Vitamin D insufficiency is common in young children with fractures but was not more common than in previously studied healthy children. Vitamin D insufficiency was not associated with multiple fractures or diagnosis of child abuse In summary, NAI in infants, especially if non-mobile, is a common cause of fractures. In such cases, the significance of abnormal measurement of bone biochemistry markers has been questioned for decades medically and legally. The weight of evidence currently supports the view that occult rib fractures in the absence of specific signs of clinical bone deformity and/or abnormal bone development, as seen classically in rickets, are most likely caused by inappropriate physical force.30.Overall, Professor Greene concluded in his first report that;“There are no symptoms or signs of any hormone or metabolic disturbance, other than the Vitamin D insufficiency, which I believe to be secondary to maternal Vitamin D deficiency and poor feeding intake in the neonatal period. There is no suggestion of any other syndrome or genetic disorder to account for the clinical picture of FTT (failure to thrive) and unexplained fractures.”31.In his conclusion, Professor Greene said, “On the basis of the radiology reports before me, there is no evidence of clinical rickets as defined by radiological examination. She does have Vitamin D insufficiency with secondary hyperparathyroidism, but normal phosphate and calcium. The radiological reports do not suggest abnormalities in bone density, but there is no measure of the ‘bone strength’ available in these circumstances. I believe it would be correct to say that, secondary to the low Vitamin D levels in mother and baby, homeostatic measures controlling bone architecture, with likely sub-optimal bone structure. There is no evidence in the literature to suggest that such bones fracture spontaneously, and a force is still required to cause such fractures.” However, he went on to say that he was unable to assist the court as to the degree of force required to produce such fractures, either in a healthy baby or a baby who was insufficient in Vitamin D. 32.Professor Greene was asked a number of supplemental questions, which he answered in an addendum report dated the 28th November. Within that report, he considered the conclusions of Dr Ward (of which, more in a moment) and the medical literature to which she had referred. It is fair to say that Professor Greene did not disagree with any of the additional material, but he did comment, “While only a very small number of cases presenting with fracture in infancy appear to have abnormal bones, it is difficult, however, to non-invasively assess bone strength and fragility. Contributors to bone fragility include abnormal bone architecture, low bone mass, abnormal collagen matrix and altered degree of bone mineralisation; too much mineral and the bone becomes brittle as in osteogenesis imperfecta; too little and the bone is insufficiently stiff to resist bending or compressive forces as in rickets. Conventional x-rays can capture gross architecture - bone size and shape - but are relatively insensitive in assessing bone mass, often regarded as a surrogate for bone strength.” 33.However, after consideration of the totality of the evidence, Professor Greene said that, on the balance of probabilities, despite the evidence in B of Vitamin D insufficiency secondary to dietary deficiency, there was no substantial evidence of abnormal bone structure that fits a recognised pattern of disease associated with occult fractures, without the application of inappropriate and unfitting force. 34.When asked about the degree of pain and distress that a child who sustained a rib fracture would be likely to experience, Professor Greene was clear that this can be variable and difficult for a parent to recognise, even with an ‘experienced eye.’ 35.Dr Ward is a Consultant Paediatrician of many years’ experience. She has, as would be expected, undertaken a comprehensive review of the evidence, including the medical records. Of note, are the following entries ·A told Dr. T upon admission to hospital on the1st July that she had first seen a dark patch to the right side of B’s jaw at 23.00hrs. ·In a subsequent conversation with Dr H, A said that she had noticed a black circle on B’s right jaw and had called 111 for advice. They advised to take B to hospital. ·Dr M, Consultant, reviewed B. She observed an ill defined green area over the right law line measuring 1.5cm by 0.6cm. It was long and did not appear to be circular. A subsequent review with Dr HL confirmed the presence of the bruise. 36.Dr Ward notes that it is common for infants to lose some weight in the early stages of life, but that it normally stops after about three or four days and most infants will have returned to their birth weight by three weeks of age. B’s weight fell well below the 0.4th centile and in doing so, it crossed more than two centiles. 37.The term “faltering weight” is now favoured to failure to thrive, in part to avoid parents of those children feeling at fault or criticised. Dr Ward is of the view that B’s faltering weight was most likely to be related to the mechanics of breastfeeding and inadequate intake of breast milk. She goes on, “Maternal vitamin D deficiency, faltering growth likely due to inadequate breast milk intake, exclusive breastfeeding and dark skin were all factors likely to contribute to low vitamin D levels, which in her case were on the threshold between vitamin D insufficiency and vitamin D deficiency.”38.Rickets refers to a failure of mineralisation of growing bone and cartilage and is the principal manifestation of vitamin D deficiency in infants and young people. Depending on the severity, the child may be asymptomatic or have varying degrees of pain and irritability, motor delays and poor growth. Quite properly, Dr Ward defers to Dr Olsen in terms of the radiological signs of rickets. 39.Dr Ward says, “Although there has been much debate on the issue of vitamin D sufficiency/insufficiency, there is no documented evidence on the force required to cause fractures in children with vitamin D sufficiency/insufficiency. There appears to be no increased risk of fracture unless there are changes of rickets on plain radiographs. It is highly unlikely that rib fractures would occur spontaneously and without force over and above that considered to be reasonable in a child of this age (see below).”40.B was of an age where one would not expect to see bruise as a result of accidental trauma. Bruising to the face is unusual. Dr Ward cannot identify any underlying medical explanation and concludes that it is most likely that the bruise to B’s cheek was caused by squeezing for forceful grasping of the cheek with the thumb on one side and the fingers on the other. One would not necessarily see bruising to both sides of the face in this scenario. 41.Rib fractures are painful at the time of injury, but that upset will resolve relatively quickly, making such fractures difficult to detect clinically. Dr Ward defers to the radiological evidence that B showed no signs of rickets. In an addendum report, Dr Ward considered that the most likely mechanism for fractures in infants of this age is usually compression, although a forceful impact may occasionally cause a rib fracture. 42.Mr Peter Revington is a Consultant Oral and Maxillofacial Surgeon. The issue to which his evidence relates is the presence of a soft tissue lesion that was observed on the gingiva of the right lower jaw on the 27th July 2022 (after B’s removal to foster care). When seen by treating doctors at the time, a provisional diagnosis was reached that the lesion was an Epstein’s Pearl, which are common in neo-nates and are caused by collections of keratin beneath the mucosal surface. However, that diagnosis could not be related in any way to the facial bruise that had been observed a month before. 43.The mother has filed three statements and was interviewed by the police once on the 2nd July. She is adamant that she has never harmed her baby, intentionally or otherwise. She loves her daughter and the parenting assessment undertaken of her demonstrates that she is well able to meet all her needs. Despite being a relatively new relationship, A is clear that B was a wanted baby, and that A and C were and are entirely committed to each other. 44.A says that 29th June was an entirely normal day. C left for work at about 11pm, and when she went to feed B, A noticed a dark mark to her cheek that had not been there when she had had her 8pm feed. She ‘phoned C, who advised that she call A&E. In fact, A called 111, but she got disconnected, and so she arranged for an uncle to take her and B to hospital. A has wondered whether the bruise might have been caused by the strap on the car seat that B used, but she cannot think of any other incident in which B’s face might have been bruised. A is equally clear that she has never injured B’s ribs. Nor is she directly aware of any incident in which B might have been accidentally injured. 45.The father was interviewed on the 1st July 2022 and has filed three statements. I note that he was not provided with the assistance of an interpreter for the police interview, whereas he has had an interpreter for these proceedings. The father has said that over the weekend that included the Queen’s Jubilee celebrations, the mother had gone to bed early as she was not feeling well. B was in her cot, but the parents had taken one side off, so that the cot could be placed directly next to the bed without impediment. A was in the other room sleeping when, whilst C was getting something from another room, he heard a noise from the main bedroom and B had rolled onto the carpeted floor. He picked her up immediately. He didn’t tell his wife what had happened until after his police interview. He can also recall one occasion when he rolled over onto B’s head when he was sleeping. He bathed B before he went to work on the 29th June, and he saw no mark to her.