RL v Nottinghamshire CC

I have before me an application by RL (“the mother”) dated 10 August 2021. It seeks:

5½ years ago, when C was only 6 months old, the Recorder found on the balance of probability that a bruise to her right cheek, a bruise to her left cheek and a fracture to the 7^th posterior left rib were inflicted non-accidentally either by the mother or by the child’s stepfather DS.

The finding was therefore a “pool finding”. Neither the mother nor DS was individually found on the balance of probability to have inflicted any injury. Had such a finding been made the law would treat it as a certainty: see Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11 at [2] per Lord Hoffmann. But a mere pool finding carries with it no such weight. It cannot, of itself, found a prediction of likelihood of future harm to another child by either the mother or DS: In re J (Children) (Care Proceedings: Threshold Criteria) [2013] 1 AC 680.

The application for a rehearing asserts the mother’s belief that the fracture was caused during the skeletal survey which took place on 11 January 2016. It claims that the survey was carried out in breach of guidelines laid down in 2009 and 2012. The application was silent about the possibility of the fracture being a consequence of osteogenesis imperfecta (“OI”) and said nothing at all about the bruises.

OI was mentioned for the first time in a position statement of the mother’s counsel, Mr Bailey, dated 6 October 2021. He referred to a letter sent on 27 November 2018 to the maternal grandmother, the child’s special guardian, from the divisional director at Nottingham University Hospitals. The letter stated that, following a complaint by the mother, the hospital had commissioned an external review of children with rib fractures. It went on to say:

The possibility that C suffered from OI is now the main ground relied on by the mother although such ground has never been formally incorporated into the application by an amendment. I have treated the application as having been amended to incorporate it. In my opinion in any future case an application of this nature should be formally amended to include any later ground that is relied on.

C was born on 6 December 2015 without complications. The mother took the child home on 8 December 2015. There were no reports of any cause for concern about C from midwives or health visitors.

On 31 December 2015, the mother and DS took the child to see the GP, Dr JT, the fourth intervener, at his surgery because of what appeared to be an eye infection with a discharge which was making it difficult for the child to open her left eye. Dr JT examined the child, prescribed some eye drops, and told the mother and DS to return if the child did not improve.

On 4 January 2016, the mother and DS took the child back to the Dr JT’s surgery because her eye appeared have worsened. Another GP in the surgery arranged for the child to be admitted to hospital for investigation of the eye infection. The child was admitted to Queens Medical Centre Hospital, which is part of Nottingham University Hospitals NHS Trust (“the Trust”), the third intervener.

At the hospital on 8 January 2016, an operation was carried out to remove a cyst from the child’s left eye.

On 9 January 2016, the mother and DS were preparing to take the child home when a nurse noticed a bruise on the child’s left cheek. It was reported to Dr DW, a consultant paediatrician, who asked the mother and DS whether they had an explanation for the bruising. It was recorded in Dr DW’s written report dated 14 January 2016 that the response of the mother and DS was that the bruise had been present since the child’s admission to hospital. The child remained in hospital overnight.

On 10 January 2016, Dr DW carried out a child protection medical examination of the child. He identified a bruise on the right cheek about 0.5 cm in diameter with a skin abrasion overlying it and a further bruise on the left cheek which had expanded from 1 cm to 1.5 cm since the previous day. There were no other marks or injuries to any other part of the child’s body.

A skeletal survey was carried out on the morning of 11 January 2016. The survey revealed one injury, a healing fractured collar bone, which appeared to have occurred at, or soon after, the child’s birth.

On 12 January 2016, the child was discharged from hospital to the care of the mother and DS with the involvement of the maternal grandmother subject to an agreement that the child would not be left alone with any one of them.

A further chest X-ray was performed on the child on 26 January 2016. This revealed a healing fracture of the posterior left 7^th rib.

A multi-agency meeting was held on 27 January 2016. The mother raised the question of whether the rib fracture might have been caused by coughing when the child suffered from bronchiolitis or whether it might have occurred during the skeletal survey on 11 January 2016.

On 1 February 2016, Nottinghamshire CC (“the LA”) instituted care proceedings in respect of the child. The LA sought findings that the following non-accidental injuries had been caused to the child by the mother, DS, and the maternal grandmother:

A bruise to the right cheek 0.5cm in diameter, with horizontal skin abrasion overlying it;

A bruise to the left cheek 1.5cm in diameter;

A fracture to the 7^th (neck of) posterior left rib inflicted between 31 December 2015 and 11 January 2016; and

A fracture to the right clavicle on an unknown date nearer to birth.

The fact-finding hearing took place over four days before the Recorder from 13 June 2016 to 17 June 2017. The Recorder handed down a written judgment on 17 June 2016. The Recorder made findings that either the mother or DS had caused, non-accidentally:

A bruise to the right cheek 0.5cm in diameter, with horizontal skin abrasion overlying it;

A bruise to the left cheek 1.5cm in diameter; and

A fracture to the 7^th (neck of) posterior left rib between 31 December 2015 and 11 January 2016.

No findings were made in respect of the causation of the injury set out at paragraph 17 (iv), or as to the failure to protect allegation. Nor were any findings made against the maternal grandmother. She was exonerated.

Neither the mother nor DS has ever made an application for permission to appeal the Recorder’s findings. I was told by the maternal grandmother that the mother was advised by her then counsel that there were no grounds for seeking permission to appeal.

On 26 June 2016, an IRH took place before Her Honour Judge Clark. At that hearing, a special guardianship order was made in respect of the child in favour of the maternal grandmother. That order effectively concluded the care proceedings (although no order has ever been made specifically dealing with the application for a care order).

The special guardianship order remains in force. I am told that the child is well-settled with the maternal grandmother. I understand that the mother and DS, who are no longer in a relationship, both spend time with the child on a regular basis. That contact is supervised by the maternal grandmother.

On 10 August 2021, the mother made the re-hearing application which is now before me.

His Honour Judge Reece has given directions to prepare for this hearing:

On 7 October 2021 he granted permission to DS and the maternal grandmother to intervene in the proceedings, made further case-management orders, and listed the application for further directions on 21 February 2022.

On 1 November 2021 he granted permission to Dr JT to intervene and gave the necessary consequential directions.

On 24 November 2021 he directed that his order of 7 October 2021 and the mother’s application dated 10 August 2021 be disclosed to the solicitors representing the Trust.

On 21 December 2021, the mother made an application for the instruction as a SJE of a consultant paediatrician, Dr Patrick Cartlidge, to consider the bundles prepared for the fact-finding hearing and the current proceedings and to provide a report addressing:

the possible cause(s) of the relevant injuries;

the likely timing of each injury;

what, if any, symptoms would have been apparent to a carer who had been present at the time(s) of the causative event(s);

what, if any, would be apparent to a carer who had not witnessed the causative event(s);

whether he recommended an opinion from an expert from another discipline to assist with addressing the foregoing questions; and

setting out an overview of the relevant medical research and literature.

On 10 January 2021, an order was made permitting the Trust to intervene in the proceedings.

Under the general law the mother’s application would face being barred by issue estoppel, a sub-set of the doctrine of res judicata (the other sub-set is estoppel per rem judicatam). The doctrine is a rule of substantive law, and not merely a procedural rule: Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 at [25] per Lord Sumption. In my opinion this distinction is of some importance as a number of the family cases to which I refer below incorrectly assume that the doctrine is merely a rule of procedure.

The essential features of issue estoppel are that the issue is the same in the second proceedings, and that the parties (or their privies) are identical. See, for example, the recent decision of the Court of Appeal in Allsop v Banner Jones Ltd (t/a Banner Jones Solicitors) & Anor [2021] EWCA Civ 7 at [44(iv)(c)] per Marcus Smith J. If the issue is the same, and the parties are the same, then, subject to limited exceptions, the applicant is barred from relitigating the issue.

The rule has been described by Lord Wilberforce as one of “high public importance”. Lord Bridge of Harwich has described it as being of “fundamental importance”. Lord Carnwath has described it as a “principle of general public concern.” Such is its importance that it applies across the board, in both criminal and civil proceedings. In the civil sphere it applies in both private and public law proceedings. As will be seen, it applies in divorce, financial remedy and child maintenance proceedings. In Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 Lord Bridge stated at p289:

However, 25 years ago in Re B (Children Act Proceedings: Issue Estoppel) [1997] Fam 117 at 127, Hale J held that the strict doctrine of issue estoppel can rarely, if ever, apply in children's cases. That case was not in fact directly about issue estoppel because the parties were not the same in both sets of proceedings. The subsequent proceedings had a different mother and different children. The actual question was whether the father was bound by a finding of sexual abuse in relation to other children made in the earlier proceedings. The previous finding was plainly admissible; the real question was the weight that should be given to it and how much further evidence, if any, should be allowed in relation to forensic examination of those events. The case was thus concerned with a rule of evidence (admissibility of the prior judgment) and procedural case management powers (the extent of further evidence about those events). In terms of ratio decidendi it had nothing to do with the rule of substantive law expressed in the doctrine of res judicata.

Nonetheless, Hale J commented extensively on the place of the doctrine in children’s cases. She cited (at 127) B v Derbyshire County Council [1992] 1 FLR 538 where Sir Stephen Brown P stated at 545:

Although there were cases pulling in the opposite direction (e.g. Re S, S and A (Care Proceedings: Issue Estoppel) [1995] 2 FLR 244, 248 per Wilson J) Hale J was persuaded that the doctrine had no place in children’s cases because of the inquisitorial nature of the proceedings, citing (at 126) the well-known decision of Thoday v. Thoday [1964] P 181 where Diplock LJ stated at 197:

Nonetheless, in reliance on this passage, Hale J held (at 127) that:

Although Hale J maintained that the doctrine of res judicata should not apply to children’s cases, she accepted that instances where a rehearing would be allowed would be rare, citing (at 124) Re S (Discharge of Care Order) [1995] 2 FLR 639 where Waite LJ stated at 646:

In my respectful opinion the inquisitorial nature of a proceeding is not a good reason to disapply this rule of fundamental importance.

Thoday was a divorce case, and from the very inception of judicial divorce in 1858 the process was mandated by the terms of the statute to be inquisitorial: see sections 29 and 30 of the Matrimonial Causes Act 1857. But that did not mean that the general law concept of estoppel was cast aside in such inquisitorial proceedings. On the contrary, the rule was rigorously applied. An early example was Finney v Finney (1868) LR 1 P & D 483 where a wife had petitioned for judicial separation on the ground of cruelty. The charges were defended by the husband. The court found that they were not proved and dismissed the petition. The wife then set up the same charges of cruelty coupled with adultery in a subsequent petition for dissolution. The Judge Ordinary, Sir James Wilde (later Lord Penzance) held that she was estopped from doing so. He stated:

I would also venture the respectful opinion that, so far as Diplock LJ’s doubts are concerned, there would be no substantive difference between an estoppel preventing an issue from being re-litigated in adversarial proceedings and an alternative rule for inquisitorial proceedings preventing a previously decided issue from being re-litigated. It is true that the former is a rule of substantive law (although, as I have stated, Diplock LJ treats it as a rule of procedure) while the inquisitorial alternative would be an unyielding procedural rule based on the principle that a rehearing would be an abuse of process as explained by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 541. But the effect of the two rules would be exactly the same.

In Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 the Court of Appeal was principally concerned with the procedural question of how in continuing proceedings a challenge to a finding of fact might be made. Could it only be by way of appeal? Or could an application be made to the court of first instance? Jackson LJ held that the latter course was permissible. He held at [30] that on such an application to the court of first instance the principles in Re B:

At [40] Jackson LJ placed reliance on what he saw as the fundamental change in the statutory landscape wrought by the creation of the Family Court and the enactment (by s.17 of, and Schedule 10 to, the Crime and Courts Act 2013) of s. 31F(6) Matrimonial and Family Proceedings Act 1984. This empowers the new Family Court to vary, suspend, rescind or revive any order made by it. But this provision did no more than to give the Family Court effectively the same power in relation to its orders as the County Court (where most care proceedings were heard up to 2014) had possessed since 1846: see section 89 of the County Court Act 1846 and CB v EB [2020] EWFC 72 at [34]. This long-standing procedural power to set aside a judgment and order a new trial did not give the County Court judge a carte blanche; on the contrary, the power had to be exercised in accordance with the existing law: Brown v Dean [1910] AC 373, HL per Lord Loreburn LC at 375.

Jackson LJ’s conclusion was that a challenge at first instance was permissible, albeit that it should be subject to a form of permission filter. This would be the first of three stages, where the court considers whether it will permit any reconsideration of the earlier finding: [49]. At [50(3)] he set out the test for permission:

In my opinion this test, when correctly understood, is not (or should not be) materially different to that obtaining under the general law. It is important to understand that under the general law, notwithstanding a bar of issue estoppel, a party can exceptionally challenge an anterior judgment in fresh proceedings at first instance in certain clearly defined circumstances. The exceptions exist because the overriding consideration is that the application of an estoppel must be to work justice and not injustice. This salutary principle derives from Carl Zeiss Stiftung v. Rayner and Keeler Limited (No.2) [1967] 1 AC 853 where Lord Upjohn stated at p.947:

The authorities identify two types of case where justice provides an exception to an estoppel preventing re-litigation of the same issue between the same parties:

First, and obviously, an anterior judgment can be challenged on the grounds that it was fraudulently obtained: Takhar v. Gracefield Developments Limited [2019] UKSC 13, [2020] AC 450.

Second, an anterior judgment can be challenged on the ground that new facts have emerged which strongly throw into doubt the correctness of the original decision. In Arnold v National Westminster Bank Plc [1991] 2 AC 93 at 109 Lord Keith of Kinkel stated:

It therefore seems to me that Jackson LJ’s test of “there must be solid grounds for believing that the earlier findings require revisiting”, ought to be interpreted conformably with these exceptions if a divergence from the general law is to be averted. This would mean that “solid grounds” would normally only be capable of being shown in special circumstances where new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before. Such an interpretation would also be consistent with the powerful reasoning of Waite LJ referred to above where he said that the court will in the “general run of children’s cases” rigorously ensure 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.

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]:

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:

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 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.

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.

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.

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:

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.

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.

So far as the bruises are concerned, the Recorder’s findings were:

Again, these are primary findings of fact. Mr Larizadeh QC accepts that on the evidence before the Recorder those facts as found are unassailable.

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:

The bruises ground therefore was that the Recorder made his decision without the benefit of evidence about:

The number of people who had handled C;

The inaptness of dating a bruise by its colour; and

The possibility that the elevated platelet count had led to easy bruising.

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.

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.

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.

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 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:

Having regard to the histopathological tests recorded in the Raynor paper:

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.

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:

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.

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.

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.

There is nothing in the Raynor paper that provides the solid grounds for believing that the findings need to be revisited.

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:

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.

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.

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.

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.

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:

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.

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.

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’.

For these reasons the mother’s application is dismissed.