Blackpool Borough Council v Langley and Ors (No.2) (Re-opening of Findings)

In this matter I am once again concerned with the welfare of RR, born in 2014, and now aged 11 years old. R is represented in these proceedings by Mr Peter Rothery of counsel through her Children’s Guardian, Peter Morey. The mother of R is Laura Langley (Footnote: ¹) (hereafter “the mother”) born in July 1986. She is represented in these proceedings by Mr Nicholas Stonor of King’s Counsel and Mr Richard Hunt of counsel. R’s father is MR, born on the 28 November 1983. He is represented by Miss Julia Cheetham of King’s Counsel and Miss Joanna Moody of counsel. R is the subject of a care order in favour of Blackpool Borough Council, represented by Miss Susan Grocott of King’s Counsel and Miss Heather Hobson of counsel.

The parents had another child, Edith, born on 30 September 2020. Sadly, Edith died on 20 November 2020. This matter comes before the court following the successful application by the mother to re-open findings of fact regarding the death of Edith made by this court in a judgment handed down on 25 April 2023. There followed criminal proceedings against the mother in which, ultimately, the Crown offered no evidence in light of conflicting expert medical opinions. Accordingly, the mother was acquitted of Edith’s murder at the direction of the court.

As noted by Professor Mangham during his oral evidence, given the circumstances by which this court comes to reopen its findings, there has been in this case a perhaps unprecedented level of expert discussion and analysis of a number of areas of controversy concerning the significance of bone fractures in infants. These include the question of whether bone fragility can present without any physiological signs beyond the presence of a significant number of fractures, whether minute lesions in metaphyses comprise small fractures or are lesions consequent upon remodelling in response to ‘micro injury’ or metabolic bone disease and whether cardiopulmonary resuscitation (hereafter “CPR”) can cause posterior rib fractures. I have had the benefit of the following expert medical evidence under Part 25 of the FPR 2010:

By my order of 10 October 2025, and by consent, I directed that the scope of the re-opening would encompass a reconsideration of the finding that the mother inflicted non-accidental injury to Edith on two occasions and caused her death. In CTD (A Child: Rehearing) [2020] EWCA Civ 1316, [2020] 4 WLR 140, Jackson LJ stated that in some cases where the court decides to reopen findings it may need to rehear all aspects of the evidence, but in other cases only a particular aspect will need to be reheard while leaving the rest of the evidence undisturbed. In this case, and again by consent, the court has left undisturbed the lay evidence taken at the original hearing and heard oral expert evidence as to the nature, extent and causation of Edith’s injuries and death. I have had the benefit of transcripts of the evidence heard by this court at the first hearing.

The court heard oral evidence from Professor McCarthy, Professor Freemont, Dr Leadbeatter, Dr Armour, Professor Cohen and Professor Mangham. Dr Marnerides was not available to give oral evidence and to be cross-examined and I bear that in mind when assessing his evidence.

As a result of criticisms levelled at his evidence by Keehan J in London Borough of Hammersmith and Fulham v The Mother and Father [2024] EWHC 2200 (Fam), [2025] 1 FLR 762, Professor Mangham referred himself to the GMC. He informed this court that he anticipates that further pathologist’s opinions will be commissioned as part of that process. Following his self-referral, Professor Mangham was made the subject of an interim order, prohibiting him from acting as an expert witness. He was ultimately able to give oral evidence at this hearing following an appeal of the interim order to the High Court that was unopposed by the GMC. I am deciding this case on the evidence before me in these proceedings. At this hearing, I found Professor Mangham’s evidence to be careful, considered and analytically rigorous. It was corroborated in very large part by the expert evidence given in this case by Dr Armour, Dr Marnerides and Dr Leadbeatter.

Finally in respect of evidence, the court has had the benefit of additional statements of evidence not available to it in 2023. These comprise statements from Dr C, consultant in anaesthesia and intensive care medicine, Dr R, consultant paediatrician, Sister M and Paediatric Staff Nurse V, each of whom was present during attempts to resuscitate Edith on her arrival at hospital. No party in this case seeks a finding that the multiple rib fractures sustained by Edith were deliberately caused by the paramedics or the medical staff who attempted to resuscitate her. However, the mother does assert that Edith’s ribs may have been fractured not just by CPR administered by her, but by the proper use of CPR by paramedics or medical staff.

At the conclusion of the hearing I reserved judgment. I now set out my decision and my reasons for it. Given the nature and extent of the disputed issues on the medical evidence, I regret that this judgment is longer than is ordinarily desirable. In particular, the significance of the features identified by Professor Mangham as fractures but disputed by Professor Freemont, Professor McCarthy and Professor Cohen would ordinarily be of little consequence in the context of the very large number of undisputed fractures to Edith. However, the nature of those features takes on a high level of significance in circumstances where, if fractures, they represent an earlier incident of trauma to Edith relevant to the ultimate question of whether Edith has suffered non-accidental injury.

It is trite law that the court does not decide cases only on the expert medical evidence. In reaching its conclusions, the court must consider all of the evidence in the case including, importantly, the evidence of the parents. As made clear by Peter Jackson LJ in Re B (A Child)(Adequacy of Reasons) [2022] EWCA Civ 407, [2022] 4 WLR 42, however, it is not necessary to recite each and every piece of evidence heard.

The parents met in 2013. R was born on 23 November 2014. Following the breakdown of the parents’ relationship, the father made an application for a child arrangements order in respect of R. The family were not previously known to children’s services, the police or the safeguarding departments of education and health services. I acknowledge at the outset, what Mr Stonor and Mr Hunt refer to as the “wide canvas evidence” comprising positive aspects of the mother’s parenting. Whilst the parents reconciled for a brief period, during which period Edith was conceived, the parents’ relationship again ended prior to Edith’s birth. In her oral evidence, the mother conceded that the relationship between the parents had been problematic.

Following her birth on 30 September 2020, Edith was admitted to the Special Care Baby Unit (SCBU) for presumed sepsis. Antibiotics were administered and she was discharged to the care of her mother on the 2 October 2020. As the mother is HIV positive, and as a precautionary measure, Edith was also prescribed a two week course of the antiretroviral medication Zivodine. (Footnote: ²)

Within Edith’s delivery notes, it is recorded that when asked about her alcohol consumption, the mother stated that she never drinks alcohol. The delivery of the placenta was recorded as complete and no comment made on its size or appearance. No low birth weight alert is recorded in respect of Edith. The customised centile chart records Edith as weighing 2660g at delivery, above the 10^th centile.

The mother and Edith were seen at home by the Health Visitor on the 13 October and 13 November 2020, as well as by her community midwife and the general practitioner for her six week development check. All professional observations were positive and no concerns were identified. The Health Visitor, whose evidence was not challenged, recorded on 13 October 2020 that the mother demonstrated lots of warmth towards Edith, which warmth was reciprocated by Edith. On 13 November 2020, Edith was seen by the Health Visitor to be clean and appropriately dressed and no concerns were identified when she was undressed and weighed. She was noted to smile responsively to the mother. The Health Visitor stated that:

“During my brief involvement with the Langley family, my records confirm that Laura engaged fully with the Health Visiting service. Edith completed all universal health checks, and her growth was within normal milestones. She attended a developmental check with her GP at 6 weeks of age, which was satisfactory.”

A similar picture is presented in respect of R. At a Strategy Meeting held on 20 November 2020, the Deputy Head and Safeguarding Lead at R’s school reported that R had excellent attendance, and raised no concerns in school. On days when R cried, the mother called the school to check on her. The mother had attended a virtual parents evening in November 2020 at which R’s performance at school was noted to be excellent.

The mother did request advice regarding some problems she was having with R, reporting that she had become very clingy towards her, particularly after having contact with her father. The report of the Deputy Head and Safeguarding Lead at R’s school noted at the Strategy Meeting that R had been clingy for a period, which was considered not to be unusual following the birth of a sibling. The mother was given advice in this regard. Analysis of the mother’s phone shows that on 13 October 2020 she had been undertaking searches with respect to separation anxiety. During cross-examination by Mr Rothery, the mother confirmed that R neverleft her side. The mother also confirmed she had given Edith the nickname “Needy Edy” as Edith did not like to be put down, just wanted to be held and was up “all day and all night”. The mother said that this made completing domestic chores very difficult.

The written evidence from members of the mother’s family and from friends was not challenged by the local authority. The tenor of that evidence is that the mother was seen to be a caring and loving mother whose children always presented as well cared for and who were clearly securely attached to her. None had concerns in respect of the children. When cross-examined by Mr Rothery the mother conceded that she had never expected to be a single mother and that she had wanted the perfect family life. The mother further conceded that, whilst she had a very good level of support, she had been scared by the prospect of, and was anxious about looking after two children.

In her first statement, the mother contended that she was never intoxicated and that alcohol did not affect her care of the children (as I have noted, the mother told the maternity staff delivering Edith that she never drank alcohol). In her oral evidence she denied that she had a problem with alcohol but accepted during cross-examination by Mr Rothery that on the night Edith died she had drunk “more that I should have done”, the mother admitting that she had that evening consumed two bottles of wine.

On 23 October 2020, the mother became significantly inebriated with her friend, ET whilst having care of the children. Following that episode, ET messaged the mother saying “I have not been drunk in a long time! I didn’t have any tea so just ended up smashed”. The mother replied “Don’t be daft. I defo wont be drinking that much again y Edith is so young. It killed me!! xx”. In his statement, which was not challenged, the father states that the mother would go from happy to moody quickly when in drink, but was never violent. The father also recalled receiving calls from the mother when in drink asking him if he thought she was a bad mother.

In the weeks leading up to 20 November 2020 (during which period the country was again in lockdown due to the Covid-19 pandemic), the mother was having to deal with both R being clingy and the fact that Edith would not settle to sleep for more than a few hours at a time, in the manner related by the mother during cross-examination by Mr Rothery. On 28 October 2020, the mother had a WhatsApp exchange with a person identified as “H” as follows:

The messages recorded on the mother’s phone during November 2020 show that she continued to be under pressure caring for both children. On 16 November 2020, the mother texted ‘Kaitlen’, stating that she had told R that R’s birthday was cancelled and that she, the mother, was “exhausted” and had not “got any strength left”. During cross-examination, the mother confirmed that Edith was not a good sleeper generally, rising hourly and “up and down all day and all night”, and that this took a toll on her as a carer. The mother confirmed that Edith was particularly fussy during the day on 19 November 2020.

On 19 November 2020, the mother replied to a WhatsApp message from a friend stating that Edith “wouldn’t let me put her down all day”. At 1404hrs she sent a Facebook Messenger message to GK stating “She’s good, driving me mad today wont be put down!!!xx”. On the afternoon of 19 November 2020, the mother left Edith with her sister for twenty minutes to try and get her down. In her second police interview the mother described Edith as having been “particularly bad” on 19 November 2020:

“…that was a particularly bad day especially for me to leave her with J for half an hour not even that, 20 minutes, but I’m, I know by going off myself if you know what I mean like normally I’m always like this, this is what babies are like you know you’re fine, you get on with it, which is what I did with R. So, just by my actions I’m thinking she must have been particularly not wanting to be put down…and stuff because I couldn’t physically do anything.”

And:

“Just because R’s dad wasn’t involved with R and stupid me fell for it again, cos I wanted the perfect family, I wanted two children, but I wanted them to have the same dad so fell for his lies again anyway. And I have just, I was, I felt fed up because I’m doing all the hard work with the girls, bringing them up, and I’m exhausted and tired and he just rocked up for half an hour on Saturday and was like ah yeah, I just thought you never bought so much as a dummy, it was just, so it was more just frustrating that erm you know once again I was doing it all on my own. Erm, so I think it was just one of them days where I was just exhausted.”

In her first police interview, the mother stated she purchased a bottle of wine at about 6.00pm to 6.30pm on the evening of 19 November 2020 and that she finished the first bottle of wine at about 8.30pm or 9.00pm. The mother then cast around for someone to bring her more alcohol. At 2128hrs the mother sent a picture of Edith to a friend titled “Little bitch” with a ‘love heart eyes’ emoji. At 2128hrs, the mother messaged her brother in law, SH, saying “Hard day…kids r twats…need a beer/wine can you help xx”. At 2132hrs the mother had a text exchange with another friend which makes clear she had requested they assist by collecting alcohol, the mother stating “Yes wanted u to bring me beer” and “Hate not being able to go to the shop!!!”. At 2140hrs the mother asked a friend who is taxi driver, MF, to bring her another bottle of wine, the mother asking MF at 2147hrs to “Hurry lol I’m spitting feathers”. Between 2158hrs and 2201hrs, the mother also made three phone calls to the father.

MF arrived at the mother’s property with the wine at about 2213hrs. In his statement, MF stated that the mother “appeared her usual bubbly self and was happy to see me” and that “I had no concerns about her demeanour whilst I was there and no concerns regarding the baby”. He also stated that Edith was in a bouncy chair asleep and woke twice whilst he was at the property.

As I have noted, when cross-examined by Mr Rothery the mother conceded she had drunk nearly two bottles of wine and “that night I was stressed and I drank more than I should have done”. The mother was also prescribed, and taking, Citalopram for anxiety. When cross-examined by Ms Grocott and asked to explain her drinking on 19 November 2020, despite her resolution after on 23 October 2020 not to drink again whilst Edith was so young, the mother stated, candidly, that “I must have been tired, exhausted and like most people who say they will never do it again, I did.”

Between 2305hrs and 2309hrs, the mother made six telephone calls to NM, each of which was either missed or not answered. At 2306hrs, the mother texted a person called J saying “I’m bad”. At 2309hrs, the mother texted her friend ET and asked her to come over. In her first police interview, the mother said this was because she had “had a stressful bad day and I fancy some adult company”. The text exchange between the two women prior to ET arriving at the mother’s property was as follows (at 2315hrs the mother also texted J, stating “Fuck”):

During her examination in chief, the mother explained these text messages as her being “tired, exhausted, I felt drained and I think lonely.” When questioned by Mr Rothery, the mother said the texts indicated her finding it difficult to adjust to caring for two children, and that she was tired, stressed and worried, in particular worrying constantly that she would not be good enough as a mother. The mother agreed with Mr Rothery that she was putting pressure on herself. Reflecting on the texts, the mother said “I was feeling guilty for feeling lonely and stressed because they were all I ever wanted and more” and that she was “feeling it was difficult, feeling they were difficult to manage and I felt bad for feeling that way.”

ET attended the mother’s property at 2342hrs on 19 November 2020. Immediately before the conclusion of the text exchange with ET, the mother had also sent a Facebook Messenger message to a friend, GK, asking if her friend, SK, was up. The mother commenced calling SK at 2340hrs on 19 November 2020 and at 2341hrs sent a message to GK saying “Tell her to answer xx”. The mother made seven calls to SK between 2340hrs and 2355hrs.

In her statement, ET (who has previously suffered a stroke which she states also affects her memory) stated that at the point she arrived shortly after 2342hrs on 19 November 2020 she had had five or six cans of lager. In her first statement the mother relates that she contacted ET as she was feeling upset and lonely but that when ET came round “I noticed that ET was intoxicated and not up to much heart to heart talking”. ET recalls Edith being asleep in a baby rocker and not waking. She recalls the mother drinking alcohol. In her statement, ET says:

“Laura was upset and crying. She said she wanted to be a good mum but was struggling with living in her own and having a baby and adapting to being a new mum. She appeared lonely and wanted adult company. She said she was tired.”

After ET left, which the mother put at about 12.30am to 1.00am, the mother told the police that she lay on the sofa with Edith. In addition to calling SK again at 0034hrs on 20 November 2020, the mother made calls to others, including to the father at 0040hrs, 0042hrs and 0045hrs and tried to contact DB at 0043hrs by Facebook Messenger. The last call to SK was made at 0055hrs. The calls were answered but the duration of the calls were short and it is not clear whether this is because the calls were going to voicemail or were answered and declined. The final text messages sent by the mother prior to the 999 call at 0354hrs on 20 November 2020 were sent at 0056hrs and 0057hrs on 20 November 2020 to SK which read, “Need u [SK] … answer xx” and “Girls need you XX”. The mother stated in cross-examination that these latter messages were intended to convey the general point that the children needed to see SK more often, rather than that the girls needed her at that particular point for a specific reason, an explanation undermined by the fact that the mother was pressing SK to answer at nearly 1.00am in the morning.

The analysis of device events on the mother’s phone shows that the display was on and off until 0115hrs, after which there were no device events until 0354hrs. At 0354 hours on the 20 November 2020 the mother called the North West Ambulance Service and reported that Edith, who was then 51 days of age, was not breathing.

The transcript of the 999 call shows that the operator initially misheard when the mother replied “2 months” for Edith’s age, but when the operator says “16 months”, the mother corrects her and again says “2”. The operator thereafter advised the mother to undertake CPR using the heel of the hand on the breast bone. The mother did not acknowledge this instruction but later confirmed to the operator that she was undertaking compressions. The mother was instructed to undertake the compressions “hard and fast 30 times” between breaths and the mother at one point confirmed that she had completed 30 compressions. The mother performed CPR until the paramedics arrived some four minutes later, whereupon Edith was taken to hospital in cardiac arrest. As noted by Dr Armour, there were no signs of life in Edith at the scene and no signs of life were elicited subsequently at the hospital. Edith’s acidotic blood test results upon arrival at hospital are consistent with this.

Sister M confirms that upon Edith’s arrival in the emergency department paramedics had been performing CPR for 20 minutes and she took over CPR from the paramedics before handing over to a doctor. Paediatric Staff Nurse V also performed chest compressions on Edith. Sister M states that she performed CPR in accordance with Resuscitation Council guidelines and training. She states that she is fully trained in CPR, including compression techniques for a child of Edith’s age, comprising the “two thumb” method and the “two finger” technique. Nurse V is unable to remember which technique she adopted in respect of Edith. Dr R, consultant paediatrician, confirmed that Edith was the subject of CPR in the ambulance for 20 minutes before reaching the emergency department.

Dr R relates in his statement that the “two thumb” method of CPR was used on Edith in circumstances where it was performed in line with the APLS paediatric life support guidelines. This involved using both hands, holding Edith around the abdomen or chest and using the thumbs to press down. CPR was stopped at 0443hrs, 30 minutes after Edith’s arrival at hospital. None of these witnesses were required to attend for cross-examination and their evidence is unchallenged. Very sadly, Edith was pronounced dead at 0443hrs on 20 November 2020.

At hospital on 20 November 2020, the mother gave an account to DI Ashcroft and DS Tricket. The mother stated that Edith had been on the beanbag. She made no mention of overlay or of a fear that she had been overly robust in giving CPR to Edith. The mother is recorded by the officers as stating as follows:

“She explained that she had placed Edith on a beanbag cushion to go to sleep, subsequently found her not to be breathing, shook Edith, took Edith into the kitchen and placed her on the floor, administered CPR to Edith who had some sick around her mouth, and called the ambulance.”

The mother told a number of other witnesses that Edith was on the beanbag when she found her not breathing on 20 November 2020. The paramedic, Dale Anderton, recalled the mother telling him that Edith was lying on the beanbag when she went outside for a cigarette and that she found her not breathing when she returned inside the house. Mr Anderton’s statement was not challenged. The mother also told DC Topping, PC Ghigi and PC Tidmass that Edith had been on the beanbag when the mother had found her not breathing. PC Tidmass heard the mother say at one point “Is it my fault? I shouldn’t have had the wine.”

PC Vicky Rose also attended at the hospital, where she spoke to R. The following record of the conversation with R is set out in PC Rose’s statement:

“R told me that she had been asleep in her bed. She has woken up and wanted a cuddle off mummy…She found mummy asleep on the sofa and mummy’s head was on the side of Edith face. R told me she tried to wake mummy up but couldn’t as she was really tired…R then said mummy has woken up after a while and taken her back upstairs to tuck her in bed into her own bed. She has placed baby lying down on the sofa while she did this. R went on to tell me that my mummy went back downstairs she heard mummy shouting Edith, Edith, Edith over and over again she was crying and really upset. I asked R if she saw baby asleep on the beanbag at any point. Replied by saying “no Edith was asleep on the beanbag when I was asleep”.

R was the subject of an ABE interview undertaken a day later on 21 November 2020. She was five years old at the time of the interview. She gave the following account to officers:

“RR: I was really tired.

DC JOHNSON: Okay. So, when you woke up, what happened next?

RR: I had my breakfast.

MS HUGHES: R, when you woke up, where did you go?

RR: Downstairs.

DC JOHNSON: Okay. R, where was mummy when you went downstairs?

RR: She was on, lying on the couch.

DC JOHNSON: Mummy was lying on the couch. Okay. And, R, where was Edith when you woke up?

RR: Mummy was lying on her head.

DC JOHNSON: Mummy was lying on her head. Okay. R, what did you do?

RR: I was speaking to mummy and she wasn't really talking to me, and we had our - and mummy took me back up and she said, "Edith, Edith, Edith" and came back downstairs.

DC JOHNSON: R, when you came down and mummy was on the sofa with Edith, what was Edith doing?

RR: She was sleeping and mummy was lying on her head.

DC JOHNSON: R, what part of mummy was lying on Edith's head?

RR: Her belly was lying on her, on her head.

DC JOHNSON: Her belly was lying on her head. Okay. And, R, tell me, what did you say to mummy?

RR: Got up.

DC JOHNSON: Okay, and did, when you were talking to mummy, R, did mummy wake up?

RR: Yeah, and she'd gone back to sleep again straightaway.

DC JOHNSON: Straightaway. Okay. R, what did you do next?

RR: I just keep on saying, "Mummy" but she still didn't answer me, and she woke up and when she brings me upstairs to bed and she said, "Edith, Edith."

DC JOHNSON: R, when mummy took you back up to bed, where was Edith?

RR: She was lying on the couch.

DC JOHNSON: Okay, and when mummy took you back upstairs, where upstairs did mummy take you?

RR: In my bedroom, back to bed.

DC JOHNSON: Okay. And, R, you told me that you could hear something, you could hear mummy say something. Tell me, what did mummy say?

RR: She said, "Edith" three times.”

And later:

“DC JOHNSON: Okay. R, do you know - I'm thinking about what way Edith was lying.

MS HUGHES: What position was Edith in?

RR: Just lying, just on her back, straight.

MS HUGHES: On her back, straight.

DC JOHNSON: Okay. Okay, so, R, you told me when you first woke up you went downstairs and you saw mummy and Edith on the sofa, and you described mummy's belly lying on Edith's face. R, what position was Edith in when you first came down the stairs?

RR: She was lying down like on her side kind of, like straight, and kind of on her side.

DC JOHNSON: Straight, kind of on her side. Okay. Thank you. And where was Edith's face when she was lying on the sofa?

RR: It was facing that way.

DC JOHNSON: Okay. And where was mummy's belly when you came down the stairs and you saw mummy on the sofa with Edith?

RR: Facing that way.

DC JOHNSON: R, when you were trying to wake mummy up and you said you were talking to mummy, did you - did you do anything else to wake, to try and wake mummy up?

RR: No.

DC JOHNSON: R, could you see anything else in the room where mummy and Edith were?

RR: They was just lying on the couch, asleep.”

In her police interview on 2 December 2020, the mother stated that there were occasions on which she would “doze” on the sofa with Edith during the afternoon, telling the police that “Sometimes if I had stuff to do I’d get her to sleep [like] that and then try and put her on her beanbag or in the chair and some days I would fall asleep with her”.

The mother was clear however, that there had never been any issues with Edith arising out of this. With respect to the question of overlay, on the evening of 19 and 20 November 2020, the mother stated as follows in her first interview:

“DC2682 Okay when you woke up Laura did you …can you remember any part of you body being on…

LL No

DC2682 …Edith.

LL No

DC2682 No.

LL I think that’d been the first thing that I’d have noticed. She was just next to me.

DC2682 And at that point when you’ve woken up and she’s next to you, did you look at her then.

LL This is the thing I’m fighting myself with because when I got up, obviously Edith was here so I kinda scooped her up and put her on the couch…but I was talking to R…and took her back up, and then when I come back down I only kind of glanced she’s still asleep on the couch…and went to the bottle and that. So I’d like to say she was 100% okay, that I’d have noticed. But on the other hand, she did have the blanket over her and just looked asleep.

In addition stating she had picked Edith up before tending to R and had seen Edith’s face, the mother had also made clear to the police that the main light in the living room was on when she was woken by R, and that the room was “bright”.

The mother stated that after she was woken by R she took R back upstairs, came back downstairs and saw Edith, who she thought was asleep, prepared a bottle for Edith and had a cigarette outside. In her interview the mother considered that these activities took her between 15 and 20 minutes. When she came back into the sitting room to tend to Edith, in her first interview the mother told the police that:

“When I went to pick her up she was floppy, her head floppy and she was quite good, she held her own head up…and she was really floppy and she was a funny colour. So that’s when I started shouting her, Edith…shouting at, she didn’t come around and then I was listening and tryina move her, and just wasn’t responding…I obviously couldn’t see her chest moving or…unresponsive, and I remember her being lay on the floor and listening to her mouth to see if anything was coming out. I remember doing that twice…in between as well. But yeah it was her floppiness and colour I noticed straight away.”

As I have noted, R heard her mother shouting Edith’s name. The mother described undertaking CPR for a “minute or two” before the ambulance arrived. During her first interview, the following exchanges took place between the mother and the officers on the subject of CPR, the mother’s knowledge of how to undertake it and the amount of force she used:

“DC1020 Right so what did you do with Edith then at that point?

LL I had her in my hands and I dialled 999 and that’s when I put her on the kitchen floor to try and…resuscitate her…that all seems like a blur.

DC1020 Why did you do that?

LL Do, try and CPR?

DC1020 I apologise, no, why did you put her on the kitchen floor?

LL Because I had hold of her and I was tryina use the phone and I also wanted to lie her flat and try and, try CPR on her…cos I knew she wasn’t breathing and by her colour she was floppy.

DC1020 Okay, my understanding is that you’ve…taken instructions from the phone operator.

LL Yeah I’ve already, yeah.

DC1020 …about what to do and you’ve done your best. So describe what you did when you did the CPR?

LL A couple of breaths. I tried to remember from obviously I worked at the hospital for 8 years and last year I did the, sorry, is the St John’s Ambulance or is it the British Red Cross. A first aid course as well. And I just remember doing the small compressions and a couple of breaths, and tilting her head back to do the breaths…that’s when she was really floppy, and when I did the compressions a bit of sick came out, and the ambulance was on the phone, and R had come back down cos obviously she had heard me, and I don’t know what amount of time passed. It could…have been a minute, or it could have been an hour, I don’t know. The ambulance came and took over.

DC1020 Okay so you’ve described doing small compressions.

LL Yeah

DC1020 How did you do that?

LL Just with 2 fingers I think.

DC1020 Okay how much force did you use to do that?

LL Not a lot, I knew I should have done more but I couldn’t. And I remember doing it on the training and you’re supposed to use quite a lot of force, but she was just so small…so I don’t think I used as much force as I should have done.

DC1020 The training that you’re talking about, was there any training in relation to doing CPR on a youngster.

LL Not much I don’t think, I think it was just briefly mentioned y’know general knowledge, just us your fingers obviously like the palms of your hands on tiny baby. But it wasn’t based around children or anything…it was….that was just a little thing said in passing I think.”

When asked by the interviewing officers whether she could explain the rib fractures that had been discovered on Edith following her death, the mother replied as follows:

“Only through CPR, but I don’t think I have done it hard enough, and I’d have felt if she’d broke a rib.”

During cross-examination by Miss Grocott, the mother confirmed that in her first interview she did not believe she could have injured Edith by her position on the sofa on 19 November 2020. A police statement from a friend of the mother’s, who can only be identified from the statement as KM due to redaction but whose evidence has not been challenged, recalls the mother coming to see her on 15 December 2020 to ask her to attend Edith’s funeral. She relates as follows in her statement:

“I did ask her what happened and all she said was ‘I just don’t know what happened’. She just said Edith had fallen asleep and it was natural causes. Edith had fallen asleep and died of cot death, she’d just not woken up. Then the PM results had established she’d got broken ribs and Laura said it was CPR. I questioned her and said maybe she’d fallen asleep and Laura said, ‘no, I don’t think so’.”

A post mortem whole body CT scan was undertaken in respect of Edith on 23 November 2020. Dr Caren Landes reported on the images in her role as a Consultant Paediatric Radiologist at Alder Hey Children’s NHS Foundation Trust. Dr Landes confirmed that Edith had 12 pairs of thoracic ribs. She considered that the ribs themselves appear normal but identified a large number of rib fractures. Dr Landes identified fractures at the anterior (front) aspects of the right 2^nd, 5^th, 6^th, and 7^th ribs and the anterior aspects of the left 5^th and 7^th ribs, at the anterolateral (front and outer) aspects of the right 3^rd, 4^th, 5^th, 6^th and 7^th ribs and the anterolateral aspects of the left 2^nd, 3^rd, 4^th, 5^th and 6^th and posterior (rear) fractures at the costovertebral junctions (the junction between the ribs and the spine at the back of the chest) of the right 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th ribs. Dr Landes considered that there was no evidence of new bone formation at any of the fracture sites.

A post mortem skeletal survey was undertaken on 24 November 2020. Dr Landes identified angulation at the anterolateral aspects of the right 3^rd, 4^th, 5^th and 6^th ribs and at the anterolateral aspect of the left 4^th, 5^th and 6^th ribs, in keeping with rib fractures. Dr Landes considered the apparent discrepancy in the number of rib fractures seen on skeletal survey and CT scan was explained by the difference in the imaging modalities. She again stated that there was no evidence of new bone formation at these sites to suggest fracture healing. Dr Landes considered that the radiographic bone density in Edith appeared normal, with no features to suggest an underlying skeletal dysplasia or metabolic abnormality of the bones.

A post mortem on Edith took place on 25 November 2020. The post mortem was undertaken by Dr Armour, Home Office Forensic Pathologist, and Dr Hurrell, Consultant Paediatric Pathologist. Dr Armour and Dr Hurrell saw no evidence of increased bone fragility macroscopically when handling the rib cage. Dr Hurrell saw no evidence in the tissues of any connective tissue disorder. Following the initial post mortem, a report was requested by Dr Armour and Dr Hurrell from Professor Mangham in his capacity as an expert consultant histopathologist and osteoarticular pathologist.

In his report for the original post mortem process dated 23 December 2021 (which predated the publication of the research paper by Love et al that I will come to), Professor Mangham concluded that Edith exhibited seventeen anterior rib fractures, two lateral rib fractures and sixteen posterior rib fractures. He noted that many of the anterior rib fractures were complete fractures. Most of the posterior rib fractures were complete or almost complete. With respect to the timing of those fractures, Professor Mangham considered that all, save those to the right 9^th and left 3^rd posterior ribs and the right 10^th anterior rib, had occurred between one and four hours prior to death.

Professor Mangham noted in particular that, in relation to what he considered to be the more recent fractures, most showed significant, but not extensive, haemorrhage and the features of early / limited zonal osteocyte necrosis, with none of the recent fractures showing fibrin formation in associated haematoma or a mesenchymal reaction. With respect to what Professor Mangham identified as fractures to the right 9^th and left 3^rd posterior ribs and the right 10^th anterior rib, he considered that they occurred between two and four days prior to death. Professor Mangham considered that Edith’s bones appeared normal. He further opined that the rib fractures would have been caused by a compressive force and gave a differential diagnosis of non-accidental chest compression and chest compression due to co-sleeping.

Whilst concluding that some, but not all, of the anterior rib fractures could have been caused by CPR, or that pre-existing fractures could have been exacerbated by CPR, Professor Mangham opined that CPR could not account for the constellation of fractures seen in Edith, citing the following reasons:

In the final post mortem report, dated 7 February 2022, Dr Armour concluded that the fractures exhibited by Edith were best explained by an excessive squeezing or compressive type force applied around Edith’s chest. Dr Armour considered that it would be difficult to conclude that overlaying could result in the multiplicity and distribution of recent rib fractures seen in Edith. Certifying the cause of Edith’s death as “1a. Compressive Chest Trauma”, Dr Armour articulated her conclusions in detail as follows:

“It is my opinion that considering possible overlaying as the cause of death in this case and also causing the recent rib fractures very difficult to sustain considering the multiplicity and distribution of the recent rib fractures in this case. As already stated fractures of the first ribs, alone are associated with significant trauma and as overlaying tends to produce a gentle occlusive type force it would be difficult to conclude that overlaying resulted in the multiplicity and distribution of the recent fractures in this case. In addition, clearly there has been a previous episode of chest trauma 2 to 4 days prior to death and it is also my opinion that these three older rib fractures would be inconsistent with the previous non-fatal episode of overlaying.

In addition to the rib fractures the autopsy identified a significant bruise to the subcutaneous tissue of the chest. This was identified to the right side of the chest, centred 6cm below the lateral third the first right rib and overlaying right ribs 4, 5 and 6 and measuring 3 x 2.5cm. This in my opinion represents blunt trauma and perhaps may be associated with the bleeding end of the rib fractures. To the right pleural cavity there was a bruise 7 x 2 cm just lateral to the vertebral column posteriorly at the costovertebral junction extending from right ribs 1-9. This in my opinion was due to the bleeding ends of the posterior rib fractures. As no bruising was identified to the skin of the chest, this in my opinion would be supportive of excessive squeezing or compressive type force being applied around the chest of the baby.”

Following receipt of the final post mortem report, the mother was re-arrested on 9 March 2022 on suspicion of the murder of Edith and reinterviewed. In the context of the account given by R to PC Rose on 20 November 2020, and in her ABE interview on 21 November 2021, the following exchange took place:

In her second interview, the mother continued to assert that she had moved Edith after R had woken her. The mother reconfirmed in interview that it was only after she had come back from dealing with R and the other matters in the kitchen and outside that she noticed that Edith had “gone a funny colour” and that Edith was “floppy”. Some aspects of the mother’s account, however, shifted.

In her first interview, the mother had clearly stated that she had seen Edith’s face whilst moving Edith after R had woken her, in an environment that was “bright” by reason of the living room light being on. In her second interview, the mother claimed not to remember having done so. However, in her first statement in these proceedings the mother stated that she had “glanced” at Edith at this point.

During the course of her second interview, the mother was again asked about CPR. She was reminded that she had stated in her first interview that she used two fingers to perform CPR. In response, however, the mother stated “I think I did, but then I don’t remember, I don’t know”, now asserting she could not remember physically performing CPR. It is clear from the transcript of the second interview that a statement that the mother might have instead used the palm of her hand was introduced by her solicitor, and not the mother herself, to which suggestion the mother replied “Definitely while I was panicking, yeah, why what difference does that make.” With respect to the amount of force she used, in her first interview the mother had been clear she did not think she had done CPR hard enough and that she would have felt if she’d broken a rib in Edith. In her first statement in these proceedings the mother contends that:

“Whilst I can’t remember, and I don’t know how much force I use (sic), I think. I would have followed this advice in the situation I was in, despite the training I have had. Whilst I did have training in CPR it was not based around children / babies, it was material just in passing”.

On 23 June 2022 the mother sent a Facebook Messenger message to JE in response to being asked what had happened to Edith. It misrepresents the cause of death given in the post mortem report and also minimises significantly the mother’s level of alcohol consumption on 20 November 2020:

“Autopsy said no cause of death, so SIDS (cot death) final inquest in August. I constantly feel sick not knowing!! I had a couple of glasses of wine and was tired so I think it was my fault xx.”

By the time the matter came before this court in 2023, the mother was stating that she did not have a “very good” recollection of events after ET left on 20 November 2020 and no real recollection at all as to the events that followed. In examination in chief, the mother stated that “I remember R shouting at me at the doorway and that is when I jumped up with a start and that is when I moved Edith”. She stated she had no memory of how she undertook CPR on Edith or of the instructions she was given by the emergency operator. When cross-examined by Mr Rothery, the mother ascribed this to shock and stress and conceded that her consumption of alcohol may have played a part.

Following the finding of fact hearing in March 2023, I handed down judgment on 25 April 2023 setting out the following findings of fact and my reasons for making those findings on the balance of probabilities:

Following the conclusion of the finding of fact hearing, the criminal proceedings were listed for trial in October 2023. Professor McCarthy and Professor Cohen were instructed by the defence and provided reports. The criminal trial commenced but was adjourned following the prosecution evidence of Professor Mangham and Dr Armour. On 24 September 2024, an experts meeting was arranged by the police between Professor McCarthy, Professor Mangham and Professor Saggar. This court has a copy of the transcript of that meeting. A witness statement was obtained from Professor Freemont dated 7 November 2024. On 13 November 2024, the Senior Crown Prosecutor wrote to the Court Manager at Preston Crown Court indicating that, in light of conflicting expert opinions, the Crown had decided not to proceed with the counts on the indictment. At Preston Crown Court on 18 November 2024, the Crown offered no evidence and the mother’s acquittal was directed.

On 14 February 2025, I decided that the “stage one” test for re-opening the findings of fact made by this court was met. A meeting took place on 21 May 2025 between the experts from the family proceedings and the criminal proceedings, save for Professors Cohen and Saggar, and a joint viewing of the histological slides took place on 3 July 2025, at which Professors Mangham, McCarthy, Cohen and Freemont and Drs Armour, Marnerides and Leadbeatter were in attendance. On 10 October 2025, I decided that the “stage two” test for re-opening the findings of fact was met and gave directions towards this hearing. As I noted during the course of Mr Stonor’s closing submissions, a key factor in the court’s decision to permit its findings to be re-opened was the expert opinions provided for the criminal proceedings by Professor McCarthy and Professor Cohen for the defence and Professor Freemont for the Crown.

Whilst in respect of the mother, the social worker and the Children’s Guardian, the parties invite the court to rely on the transcripts of evidence from the original hearing, the court heard oral expert evidence both at the original hearing and at this hearing. Where I identify the expert evidence as having been heard at the original hearing or at this hearing, I am not thereby privileging earlier evidence over later evidence.

At the original hearing, the court heard evidence from Professor Mangham, Dr Armour and Dr Leadbeatter and had the benefit of the unchallenged evidence of Dr Marnerides. At the subsequent criminal trial, the Crown Court had available to it evidence from Professor Saggar, Professor Mangham, Dr Armour, Professor McCarthy and Professor Freemont. For this hearing, by an order dated 14 February 2025, I gave permission pursuant to FPR 2010 Part 25 for the instruction of Professors Mangham, McCarthy, Freemont and Cohen, and Drs Armour, Marnerides, Hurrell, Saggar and Leadbeatter in these proceedings. The court directed that each of the experts be provided with the evidence given during the earlier family and criminal hearings and a copy of the judgment of this court handed down in March 2023. The court therefore has had the following expert evidence before it:

The parties and the court owe a debt of gratitude for the hard work of Mr Rothery, and his instructing solicitor Ms Alison Bone, for marshalling the expert evidence in this case. Mr Rothery’s chairing of the experts meetings on 21 May 2025 and 3 July 2025 was a model of controlled and impartial moderation that greatly assisted the court by clarifying and further illuminating the complex medical issues arising in this case. In consequence, I have had the benefit of the following:

The expert evidence divides, broadly, into the opinions expressed by Professor Mangham, Dr Armour and Dr Marnerides on one side and the opinions expressed by Professor McCarthy, Professor Cohen and Professor Freemont on the other, although Professor Freemont differs in his conclusions from Professor McCarthy and Professor Cohen in several respects. Dr Leadbeatter gave balanced, considered and closely reasoned evidence that further illuminated both sides of the debate.

I deal in detail with the relevant medical issues raised by the expert evidence later in this judgment. It is however useful at this stage to identify and summarise the key areas of agreement and the key areas of contention in the expert medical evidence. The key areas of agreement in respect of the experts are as follows:

The four key areas of contention in the medical evidence in respect of Edith, as they bear on the overall question of the nature and extent, date and causation of Edith’s fractures and the cause of Edith’s death, are as follows:

It is important to be clear as to the task of the court when conducting the substantive hearing that follows from a court granting permission to a party to re-open findings of fact. That task was set out in clear terms by the Court of Appeal in Re CTD (A child: Rehearing) [2020] EWCA Civ 1316, [2020] 4 WLR 140, in which Peter Jackson LJ stated:

“[8] The third stage is the rehearing itself. At this stage the issues are determined afresh on the basis of the whole of the evidence. The description of the event as a rehearing rather than a review is deliberate: once a decision has been taken to reopen the case the court approaches the task of fact-finding in the conventional way and reaches its own conclusions. It does not give presumptive weight to the earlier findings, as that would risk depriving the exercise of its fundamental purpose of doing justice and achieving the right outcome for the child. The burden of proof remains throughout on a party seeking findings of fact to prove them to the civil standard in the normal way. The court assesses the evidence on its merits, without privileging earlier evidence over later evidence, oral evidence over written evidence, or contentious evidence over uncontentious evidence. At all events, a rehearing is quite distinct from an appeal, in which findings stand unless they are shown to be wrong.

.../

[12] In my view the concepts of ‘a starting point’, ‘strong’ evidence, ‘making the running’ and ‘an evidential burden’ which have ebbed and flowed in the distinguished judgments that developed the ground rules in this area, can now be laid aside as adding nothing and as being a possible source of misunderstanding. Of course the product of the rehearing will be that the earlier finding should or should not to be changed, but it is only in that very limited sense that the original finding is the starting point. Likewise, the original evidence was clearly strong enough to justify the original findings, but to describe evidence as strong before it is reconsidered is to beg the question that has to be decided. Lastly, concepts of ‘making the running’ and of an ‘evidential burden’ apply at the first stage (when securing a rehearing) and may do at the second stage (when persuading the court that a particular issue needs to be revisited). By the time of the rehearing itself the applicant will already have made the running by successfully adducing evidence to persuade the court to carry out an appropriate kind of rehearing and there is no need for further safeguards against unwarranted challenges to settled findings.

[13] Accordingly, the simple position is that when it carries out a rehearing the court looks at all the evidence afresh and reaches its own conclusions, requiring the party seeking the relevant findings to prove them to the civil standard in the normal way. The practical arrangements for the hearing may well be influenced by what occurred in the earlier proceedings, but insofar as the concepts mentioned in the previous paragraph might suggest that a rehearing is in principle a different process to an ordinary factfinding hearing, that would be wrong...”

In looking at all the evidence afresh and reaching my conclusions, the well established legal principles applicable to a finding of fact hearing will apply. They can be summarised as follows:

On the particular facts of this case, certain of these fundamental principles require some further elucidation having regard to the issues this court is required to determine.

With respect to the burden and standard of proof, in this case and properly, Mr Stonor and Mr Hunt on behalf of the mother, have explored with the medical witnesses the possibilities I have referred to in the body of this judgment with respect to Edith’s cause of death, in particular the possibility that her injuries resulted from CPR. The court is required to consider the possibilities put to the experts and other witnesses on behalf of the mother. That, however, does not reverse the burden of proof. The burden of proof remains at all times on the local authority. When the court is considering the possibilities advanced on behalf of the mother, it does so not in order to determine whether the mother has proved any proposition, but rather in order to determine whether the local authority’s case is undermined by those possibilities to the extent that it is not able to meet the burden that at all times remains upon it.

With respect to the question of inherent improbability, in this case the inherent improbability of a mother squeezing her own infant child’s chest to the point of causing multiple, displaced and ultimately fatal rib fractures, it is important to recall the observations of Peter Jackson J (as he then was) in Re BR (Proof of Facts) [2015] EWFC 41 at [7] as follows:

“Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:

‘Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.’

I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.”

As with many cases of child death that come before the court, there are no independent witnesses. Only the mother, R and Edith were present at the time Edith died. In the circumstances, the court is required also to consider so called circumstantial evidence (i.e. circumstances which, although not directly establishing the existence of the facts the local authority seeks to prove, render those facts probable by reason of their connection with or relation to them). In Re A (Children)(Care Proceedings) [2018] EWCA Civ 1718, [2018] 4 WLR 117 Lady Justice King cited the following passage from the judgment of Lord Justice Toulson (as he then was) in Nullity Deceased v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 dealing with the proper approach to circumstantial evidence:

“[34] A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Ltd v UPS Ltd [2007] 1 WLR 1325 , paras 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination ‘leading to no more than a conclusion regarding the least unlikely cause of loss’, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise.”

With respect to the presence or absence of any risk factors for abuse in the family home and the presence or absence of protective factors in that environment, the observations of Peter Jackson J (as he then was) in Re BR (Proof of Fact) are of assistance in elucidating the significance of these circumstances in the task before the court:

“[19] In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts.”

Finally, the court should arrive at its conclusion by considering whether, on an overall assessment of the evidence the case for believing that the suggested event has happened is more compelling than the case for not reaching that belief, which is not necessarily the same as believing positively that it did not happen. Overall, when determining whether or not the case has been proved to the requisite standard, the court must stand back from the case to consider the whole picture and ask itself the ultimate question of whether that which is alleged is more likely than not to be true (see Re A (Children)(Care Proceedings)).

As the Court of Appeal cautioned in Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567, [2005] Fam 134, the court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice. The following principles governing expert evidence are relevant in this case:

An expert can rely on research to inform his or her opinion, as each expert has done in this case. Published scientific works are admissible at common law as evidence of the public facts stated in them. This common law rule is preserved by the Civil Evidence Act 1995 s.7(2)(a). By long established practice (see Collier v Simpson (1831) 5 C&P 73) research evidence is admitted through the expert witness and not by quotation to the court. This permits the expert’s evidence to be evaluated by reference to the scientific work in question, and to be considered by the court in testing the accuracy or reliability of the expert’s evidence. However, the court ought not to use scientific material independently of the expert evidence as to do so runs the risk of blurring the boundaries between medical and forensic expertise (see Re D and A (Fact Finding: Research Literature) [2024] EWCA Civ 663, [2025] 1 WLR 1383).

In December 2011 the Experts Committee of the FJC issued Guidelines for the Instruction of Medical Experts from Overseas in Family Cases. In this case, those guidelines are of limited application in circumstances where Professor McCarthy has given expert evidence in these proceedings by reason of his being an expert instructed in the criminal proceedings, rather than having been instructed as an appropriate expert in the family proceedings from the outset.

I am satisfied that the local authority has proved, on the balance of probabilities, the following facts on the evidence now before the court:

The parties have provided the court with comprehensive written and oral submissions, for which the court is grateful. I mean no disrespect to the industry of leading and junior counsel by not lengthening this already lengthy judgment with a detailed recitation of those comprehensive and erudite submissions.

In summary, on behalf of the local authority Miss Grocott and Miss Hobson submit that the court should affirm its original findings. On behalf of the mother, Mr Stonor and Mr Hunt submit that having regard in particular to the evidence of Professor Freemont, Professor McCarthy and Professor Cohen, the court cannot be satisfied that the local authority has made out the findings it seeks on the balance of probabilities and that the court should, accordingly, abjure the findings it made in April 2023 and discharge the care order in respect of R. Miss Cheetham and Miss Moody on behalf of the father submit that the court should affirm its previous findings. On behalf of the Children’s Guardian, Mr Rothery also submits that the court should affirm its original findings. I will address their individual submissions in more detail below where necessary.

The local authority, the father and the Children’s Guardian each invite the court to expressly repudiate the approach taken in these proceedings by Professor Freemont, Professor McCarthy and Professor Cohen, the experts instructed originally in the criminal proceedings. Specifically, they invite the court to deprecate what Miss Cheetham and Miss Moody submit have been the “extraordinary approaches employed by Professors McCarthy, Freemont and Cohen in their analysis of the evidence, their willingness to step outside not only their fields but the medical evidence into conjecture.” I will deal with these criticisms when I come to analyse the expert evidence. However, three propositions of general application when assessing the expert evidence fall to be made at the outset.

First, it is important to recognise that experts may legitimately arrive at different opinions. This is a consequence of the self-correcting nature of scientific enquiry as new research is undertaken and new results emerge from the process of experimentation, description and comparison. The scope for different expert opinions will be particularly wide where the expert discipline is one in which experimentation is difficult, if not impossible, and which therefore relies on description, comparison and interpretation of features as part of a necessarily subjective exercise based on experience. In this case, the majority of differences of expert opinion rest on interpretation of microscopic details on histology slides. As noted by Professor Freemont, it is not unusual for even very experienced histopathologists to occasionally differ in their interpretations of tissue changes, stemming from their personal experiences and leading them to weight the same findings differently, particularly so where the changes in question are at the metaphysis. Experts are entitled to disagree and, where they do, it is for the court to determine which expert evidence it prefers.

Second, when an expert provides evidence to the court that relies on scientific research, it is important that the expert demonstrates a proper understanding of the scientific method (namely, the need for an iterative process, empirical evidence, reproducibility, objectivity, scepticism, parsimony and neutrality), avoids logical fallacies (for example, circular reasoning), and recognises basic physical laws (such as cause preceding effect). It does not assist the court for an expert to present opinions based on assumption or conjecture divorced from the established facts. It does not assist the court for an expert to introduce speculative, unevidenced or untested hypotheses drawn from disparate sources only tangentially related to the issues. It does not assist the court for the expert to elevate to foundational status scientific papers that have not been peer reviewed, or that evidence inadequate, incomplete or debunked methodology or that are directed at an issue removed from that under consideration by the court.

Third, it is not the function of this court to decide ongoing medical or scientific debates or controversies. This court is concerned with the narrower task of determining what weight it can give the expert evidence it has heard when determining the findings sought in the case before it. On the facts of this case, the court has been required to consider a number of areas of medical controversy. However, my conclusions on those matters go only to determining the weight I can give to the expert evidence, as one element of the evidence before the court. My conclusions do not act to determine generally the medical and scientific debates and controversies that were apparent during the hearing.

Those general points made, I turn first to set out my analysis and conclusions in respect of the medical evidence in this case. In starting from this point I make clear that I do not accord the medical evidence priority in my overall analysis.

None of the experts, save for Professor McCarthy, considered that Edith demonstrated evidence, physiologically, pathologically or genetically, of a condition that would predispose her to fractures. I am satisfied on the balance of probabilities that Edith did not have bone fragility sufficient to predispose her to fractures.

Edith was bottle fed with a standard baby formula that is fortified with vitamin D. Dr Landes considered that the radiographic bone density in Edith appeared normal, with no features to suggest an underlying skeletal dysplasia or metabolic abnormality of the bones. Dr Armour and Dr Hurrell saw no evidence of increased bone fragility macroscopically when handling the rib cage during the autopsy. Professor Saggar was not able to identify any evidence of a genetic syndrome or similar condition from Edith’s medical notes history suggestive of a genetic cause for her fractures and death. Professor Saggar found no clinical or genetic evidence of osteogenesis imperfecta or other genetic bone fragility disorder. Professor Mangham identified no evidence of bone pathology, he considering that Edith’s bones appeared normal. In his oral evidence, Professor Mangham stated that it is a fundamental principle of pathology “going all the way back to Virchow” (Footnote: ³) that genetic and metabolic diseases manifest at the tissue level, and that there was no evidence of a metabolic disease in the tissues examined histologically.

Dr Marnerides concurred with Dr Armour that a detailed post mortem examination, with extensive ancillary investigation, did not identify any morphological or laboratory evidence of a specific natural disease process, congenital or acquired which would account for Edith’s death or which could have contributed to Edith’s death. Dr Leadbeatter agreed there was no evidence of increased bone fragility on radiology or histology. Whilst Professor Freemont identified 15% reduced bone mass focally, he found no cortical perforation and recorded that the total bone mass approached normal. He was satisfied that this would not have affected Edith’s ribs to a degree sufficient to account for the fractures. Whilst I had significant reservations about her evidence, I also note that Professor Cohen noted no evidence of increased bone fragility in Edith.

In the circumstances, the sole proponent of bone fragility in Edith was Professor McCarthy. I regret that I am unable to attach any weight to Professor McCarthy’s evidence on this issue. Rather, I was left with grave concerns regarding the credibility of his evidence.

In his first report prepared for the defence in the criminal proceedings, Professor McCarthy opined that osteogenesis imperfecta and vitamin D deficiency had not been properly tested for in Edith and thus, “there is no way to be sure that this baby did not have genetically fragile bones”. One month later on 23 October 2023, and without the testing that Professor McCarthy had implied was necessary having been completed, he provided an addendum report in which he opined that Edith had Type I osteogenesis imperfecta and rickets and that (emphasis added):

“The combination of osteogenesis imperfecta and rickets would mean that Baby Langley had extremely fragile bones which could break as easily as eggshells.”

Professor McCarthy’s opinion that Edith had “extremely fragile bones which could break as easily as eggshells” appears to have been derived from his view that (a) Edith demonstrated blue sclerae prior to her death, meaning genetic testing should have been undertaken to rule out osteogenesis imperfecta; (b) that vitamin D had not been the subject of sufficient testing and the features identified by Professor Mangham as fractures to the right 9^th posterior rib, left 3^rd posterior rib and right 10^th anterior rib were “remodelling changes highly suggestive that baby Langley had rickets”; (c) by reason of the mother’s HIV status, Edith had been exposed to antiretroviral medication in utero and subsequent to birth; and (d) that Edith “had a low birth weight and a history of respiratory distress indicating that her development was sub-optimal”. There are manifest difficulties with Professor McCarthy’s evidence on each of these matters.

Osteogenesis Imperfecta Type 1

Professor McCarthy diagnosed Edith with blue sclerae from photocopies of two photographs taken with a mobile phone. There are no details of the lighting conditions in which the photographs were taken or whether a flash was used. From this material, in his second report he draws the following conclusion (emphasis added):

“I have examined photographs of Baby Langley before she passed away. Clearly she has blue sclera (whites of her eyes). (See Figures 1 and 2 at the end). This indicates that she had type 1 osteogenesis imperfecta. A genetic study should have been performed to confirm this. This is explains why she suffered so many rib fractures. I am indeed surprised that not all of her ribs were fractured. Given this extreme skeletal fragility, the locations of the fractures and the proposed mechanism have no relevance as to particular mechanism.”

In addition to concluding from non-medical photography that Edith had osteogenesis imperfecta, Professor McCarthy’s second report failed to provide the complete evidential picture.

In his first report, Professor McCarthy cited Pepin M. and Byers P., What Every Clinical Geneticist Should Know About Testing for Osteogenesis Imperfecta in Suspected Child Abuse Cases American Journal of Medical Genetics Part C (Seminars in Medical Genetics) 2015; 169c: 307-313. In that paper, Pepin and Byers state that although some children with osteogenesis imperfecta type 1 are identified by blue sclera at birth, the majority are born fracture-free with a normal exam and, in the absence of a family history, bluish sclera may be considered a normal age-related variant commonly found until 6–9 months.

Professor McCarthy did not draw the attention of the court to that information in either his first report or his second report, despite Edith being only 2 months old at the time of her death, with no family history of osteogenesis imperfecta and no note in her Health Visitor or medical records of her ever having exhibited blue sclera. Professor McCarthy’s response in his third report to the results of genetic testing performed by Professor Saggar indicates that he was aware of the position set out by Pepin and Byers:

“While it is true that some normal babies may have a bluish hew (sic) to their sclerae and that this may be amplified by a flash photo, the fact that the sclerae do appear blue in a baby with brittle bones must be strongly considered as evidence of an underlying bone disorder.”

A further difficulty was Professor McCarthy’s dismissive approach to any countervailing evidence tending to refute osteogenesis imperfecta in Edith. Dr Armour carried out a visual inspection of Edith’s eyes at post mortem by reference to a calibrated colour chart. Dr Armour considered Edith’s sclerae to be normal. The autopsy medical photographs in the bundle confirm the sclerae of Edith’s eyes were white. Professor McCarthy was dismissive of this evidence. When challenged in cross-examination on his use of photocopies of photographs taken on a mobile phone to diagnose blue sclera, in contrast to Dr Armour’s use of calibrated colour scales at post mortem that revealed no such feature, Professor McCarthy responded “I really don’t care what Dr Armour’s analysis was.”

A further example of Professor McCarthy’s dismissive attitude to expert evidence that did not fit his firmly expressed opinion that Edith had “brittle bones” came when he asserted that the post mortem of Edith had been “botched” by reason of the absence of testing for 25 hydroxyvitamin D levels, the absence of a skin sample being taken for genetic testing and a failure to apply the Kennedy principles. There is, however, no evidence that Edith’s post mortem contravened the standards applicable in this jurisdiction. Dr Armour confirmed that blood samples taken at post mortem were appropriate for a baby of Edith’s size and age, that a sample of skin was taken at post mortem for fibroblastic culture (and frozen should further genetic testing become necessary) and that the Kennedy principles do not apply in a case of suspicious death.

With respect to osteogenesis imperfecta, genetic testing was undertaken specifically in response to Professor McCarthy raising the need to carry out such testing, notwithstanding the absence of any clinical or pathological evidence beyond the fact that Edith had sustained multiple rib fractures. Genetic testing by Professor Saggar for the genotype of osteogenesis imperfecta was negative. No party sought to challenge the expert evidence of Professor Saggar and he was not required to give oral evidence.

Once again, Professor McCarthy appeared unable to accept, or even to weigh in the balance, the evidence of Professor Saggar. Once again he articulated his objections ad hominem. Professor McCarthy contended that Professor Saggar, a consultant musculoskeletal geneticist, did not have sufficient expertise to offer an opinion and that Professor Saggar’s choice of laboratory was inappropriate. Professor McCarthy (who is not a geneticist) contended that the results were unreliable due to the quality of the laboratory or the quality of the sample. There is no evidence before the court to support those bare assertions.

By the time of the experts meeting on 24 September 2024, Professor McCarthy stated with respect to osteogenesis imperfecta that “it’s likely that it is not present” but could not rule it out “100%”. By the time he gave evidence to this court, and notwithstanding his previously expressed views that Edith “had” osteogenesis imperfecta, Professor McCarthy was trying to represent his views as “not a diagnosis” but “a postulated theory.” However, at no point did Professor McCarthy resile from his opinion that Edith “had extremely fragile bones which could break as easily as eggshells”.

Vitamin D Deficiency

Professor McCarthy also opined that Edith’s vitamin D levels were not sufficiently analysed via blood testing for 25 hydroxyvitamin D and that the features identified by Professor Mangham as fractures to the right 9^th posterior rib, left 3^rd posterior rib and right 10^th anterior rib, were “remodelling changes highly suggestive that baby Langley had rickets”. In support of this conclusion, Professor McCarthy cited Ayoub, D., Hyman, C., Cohen, M. and Miller, A Critical Review of the Classic Metaphyseal Lesion; Traumatic or Metabolic, AJR 2014; 202: 185-196 (hereafter “Ayoub et al”) , stating that (emphasis added):

“The changes are identical to those seen in other publications about rickets and childhood, particularly one by Ayoub showing identical histological features seen in [Edith] which are due to rickets. (see illustration of bone lesion from the paper by Dr Ayoub).”

Notwithstanding Professor McCarthy’s views about the competency of the post mortem, blood tests were undertaken. The results contained two readings that militate against the presence of a significant vitamin D deficiency in Edith. Namely, neither alkaline phosphate nor serum calcium were raised. Professor McCarthy appears to have been unaware that, in such circumstances, the British Paediatric and Adolescent Bone Group’s Position Statement on Vitamin D Deficiency, published in the BMJ in 2012, provides as follows with respect to testing for 25 hydroxyvitamin D: (Footnote: ⁴)

“In infants with unexplained fractures, unless conventional radiography and biochemistry (abnormal blood concentrations of calcium, phosphate, alkaline phosphatase, or parathyroid hormone) provide evidence of rickets, 25 hydroxyvitamin D is not implicated.”

Whilst he acknowledged the blood test results in the experts meeting, and therefore must have known of their significance, Professor McCarthy made no mention of those results as factors pointing away from vitamin D deficiency in Edith, either in his reports or in his oral evidence to this court.

As noted, in support of his view that Edith demonstrated “remodelling changes highly suggestive that [Edith] had rickets”, Professor McCarthy relies on Ayoub et al, on which Professor Cohen was a co-author. As was made clear by Keehan J in M v Derbyshire County Council [2018] EWHC 3734 (Fam), the paper by Ayoub et al was comprehensively refuted by Perez-Rosello et al. Absence of Rickets in Infants with Fatal Abusive Head Trauma and Classical Metaphyseal Lesions, Radiology 2015; 275(3); 810-821 (hereafter “Perez-Rosello et al). The theory propounded in Ayoub et al, that classical metaphyseal lesions are in fact misinterpreted findings of healing rickets, was described by Perez-Rosello et al as “ungrounded speculation” and ignored the multitude of cases chronicled in radiologic and clinical experience.

Perez-Rosello et al also noted that Ayoub et al invokes the concept of “temporary brittle bone disease”, notwithstanding its rejection by the Society for Paediatric Radiology, the European Society for Paediatric Radiology and the American Academy of Pediatrics. The paper by Ayoub et al was also severely criticised by the Society for Pediatric Radiology in Brown et al, Society for Pediatric Radiology Child Abuse Committee SPR Child Abuse Committee Response regarding Classical Metaphyseal Lesion, AJR Am J Roentgenol 2014; 203(2): W232. Professor McCarthy did not bring to the attention of the court any of these strong critiques of the Ayoub et al paper, on which he placed central reliance.

Dr Ayoub has also received significant direct criticism by the courts in this jurisdiction. In M v St Helens BC [2018] EWFC 1, [2018] 2 FLR 371, in criticisms taken into account by Keehan J in M v Derbyshire County Council, Peter Jackson LJ held as follows: (Footnote: ⁵)

“It is not seriously disputed between the parties that if the Family Court had been asked to approve the prior instruction of Dr Ayoub as an expert witness, it would have been unable to do so. There are two fundamental reasons. Firstly, he does not have the necessary expertise to offer an opinion to a court on the origin of radiological appearances in infants, particularly pre-term infants, as they are a patient cohort of which he has no clinical experience. Secondly, his approach is shot through with the dogma that child abuse is over-diagnosed. It does not matter for this purpose whether he is right or wrong. The expert with a scientific prejudice may perform a service to science by asking questions that challenge orthodoxy, but be unsuited to be an expert witness, a role that requires objectivity when giving answers.”

In the same year, Sir James Munby P considered Dr Ayoub’s research and approach in Re X (A Child) No 4 [2018] EWHC 1815 (Fam), [2019] 1 FLR 1131 and concluded:

“[46] As I have said, in my judgment Dr Ayoub’s evidence is worthless. I find it difficult to imagine any circumstances in which he could appropriately be called as an expert to give evidence in a family court in this jurisdiction.”

Given the difficulties with the Ayoub et al paper, Professor McCarthy’s opinion that Edith exhibited a pattern which is highly suggestive of rickets as the changes in Edith “are identical to those seen in other publications about rickets and childhood” is founded on a comparison drawn against a serially discredited source. In the experts meeting on 24 September 2024, Professor McCarthy once again sought to retreat from his initial bare assertion, conceding that Edith “did not have rickets, full blown rickets” and “the blatant skeletal changes of rickets are not present radiologically or histologically”. However, he maintained his firm view that Edith had “brittle bones”.

Ehlers-Danlos Syndrome

Following the results of Professor Saggar’s genetic testing, Professor McCarthy raised for the first time that it was not possible to rule of Ehlers-Danlos Syndrome in Edith. This had not appeared in his first or second reports and Professor McCarthy did not identify any pathological or clinical features in Edith that had led him to suggest this.

At the first experts meeting, Professor McCarthy then proceeded to inform the meeting that “I’m going to drop the Ehlers Danlos syndrome. I don’t believe that too much myself.” Just as Professor McCarthy had not identified any pathological or clinical features in Edith that had led him to suggest that Ehlers-Danlos Syndrome, he did not specify what had caused him to “drop” the condition. There is, in any event, no evidence before the court to demonstrate that Edith suffers from that condition.

Antiretroviral Medication

Another cause contended for by Professor McCarthy that again he had not raised initially but advanced later, was Edith’s exposure to antiretroviral drugs in consequence of the mother’s HIV positive status. In his third report, Professor McCarthy states that there is research suggesting antiretroviral drug, tenofovir disoproxil, lowers bone mineral density by 12% and that it “is also known that this antiviral passes the placental barrier to the fetus”. In the expert’s meeting, Professor McCarthy made the definitive statement that “this infant [Edith] had been definitely traumatised by levels of antiretroviral and there’s no question she had skeletal fragility in my mind.” Once again, however, Professor McCarthy did not provide the whole picture to the court.

Dr Leadbeatter cited in his report two papers on the impact of antiretroviral medication. In one study, Siberry GK, et al, Pediatric HIV/AIDS Cohort Study. Lower Newborn Bone Mineral Content Associated With Maternal Use of Tenofovir Disoproxil Fumarate During Pregnancy, Clin Infect Dis. 2015 Sep 15;61(6): 996-1003, the amount of bone of tenofovir-exposed infants was found to be 12% lower than for unexposed infants (although Dr Leadbeatter noted that the Siberry et al paper lacked infant bone mineral density standards, making it difficult to determine if lower bone mineral content in antiretroviral exposed infants is abnormal). This is the study Professor McCarthy appears to be referencing in his third report. However, Professor McCarthy did not mention the other study, Mora S. et al, Exposure to antiretroviral agents during pregnancy does not alter bone status in infants, Bone, 2012; 50; 255-258, which suggests exposure to antiretroviral medication does not negatively impact bone metabolism and bone development. Professor McCarthy likewise did not refer the court to the recent paper that Professor Mangham highlighted, namely Reddy, K. et al In-utero exposure to tenofovir-containing pre-exposure prophylaxis and bone mineral content inn HIV-unexposed infants in South Africa, Journal of the International AIDS Society, 2024, 27: e26379.

Professor Mangham opined that the large study in Reddy et al suggests that in-utero tenofovir exposure does not alter bone integrity among breastfed infants in the first 18 months of infancy, even among pregnant women who demonstrate moderate to high adherence to regimen. In addition to bringing the Reddy et al paper to the attention of the court, Professor Mangham reminded the court that even were it to be the case that antiretroviral medication affects bone density, there was no indication in Edith of a reduction in bone density that would have predisposed her to bone fractures. Whilst positing that the focal 15% reduction noted by him in Edith could be the result of antiretroviral exposure, Professor Freemont opined that if bone loss does occur through exposure to antiretroviral medication, it does not exceed the focal levels of bone loss seen in Edith, which he was satisfied would not predispose her to fractures.

Low Birth Weight

Finally, Professor McCarthy opined that Edith exhibited low birth weight and a failure to thrive that would have made her bones more fragile. In his second report, Professor McCarthy stated that Edith “had a low birth weight and a history of respiratory distress indicating that her development was sub optimal.”

Edith’s post-natal records do not record a low birth weight alert. Her customised centile chart records her as weighing 2660g at deliver, above the 10th centile. Her Health Visitor and GP records demonstrate that all professional observations were positive and no concerns were identified when Edith was seen at home by the Health Visitor on the 13 October and 13 November 2020, as well as by her community midwife and the general practitioner for her six week development check. Dr Armour confirmed that there was nothing at post mortem to suggest undernourishment, including no loss of fat deposition. It was unclear on what expertise Professor McCarthy was drawing when he opined that unparticularised respiratory distress is symptomatic of sub-optimal child development. Neither in his reports nor in his oral evidence did Professor McCarthy cite any evidence to support his contention that low birth weight or failure to thrive predisposes an infant to fractures. Professor Mangham was not aware of any evidence that correlates low birth weight with bone fragility. Notwithstanding this, Professor McCarthy stated in the experts meeting that:

“And this is a small child, and she’s small when she died, she’s probably undernourished for whatever reason, possibly related to her Tenofovir, her antiviral load and I would definitely expect her bones to be more fragile... This is consistent with having a fragile skeleton.”

Whilst serially abandoning most of the conditions he proposed, Professor McCarthy maintained his opinion that it was “unquestionable” that Edith had fragile bones which predisposed her to fractures. However, it became increasingly apparent during his oral evidence that Professor McCarthy’s basis for asserting bone fragility in Edith was confined to a circular argument resting on the number of fractures sustained by Edith. He confirmed in cross-examination that his primary evidence for “brittle bones” was the number of fractures seen in Edith. Professor McCarthy’s assertion that Edith was predisposed to fractures, that she had bones that “could break as easily as eggshells”, was thus entirely circular. Namely, Edith had fragile bones because she had “many, many fractures” and Edith had “many, many fractures” because she had fragile bones.

I regret that I consider Professor McCarthy’s evidence on the issue of bone fragility to be wholly unreliable. His evidence on this issue was characterised by sweeping assertions confidently delivered but largely untethered from the evidence. On repeated occasions he gave the court only a partial picture of the material relevant to the opinion he was advancing, leaving out information that did not support his conclusions and evidencing a poor understanding of his duties to this court. Professor McCarthy was repeatedly dismissive of the evidence of other experts where it failed to accord with his own strongly held view that it was “unquestionable” that Edith had “brittle bones”. His criticism of such evidence was almost always ad hominem in nature, rather than a professional, reasoned defence of his own opinion and / or refutation of the evidence he disagreed with. He maintained a fierce attachment to his position notwithstanding evidence to the contrary. For example, asserting in the experts meeting on 3 July 2025:

“But the point I want to make is, and I will, I will state this in court and go to length to prove it. I'm convinced that this child had very brittle bones.”

Overall, Professor McCarthy’s approach was to start with a settled and immovable belief that it was “unquestionable” that Edith had “brittle bones” and then cast about for evidence to justify that belief, continuing to do so even as each condition he settled on was ruled out by compelling evidence. His unwillingness to be diverted from his concrete starting position by cogent countervailing evidence revealed a clear scientific prejudice. Professor McCarthy conceded as much in evidence, telling the court that:

“...where you have a clinical scenario where there are a number of fractures and bone fragility is a possibility, I make an assumption that bone fragility could be underlying because what else could it be.”

I am satisfied that there is no evidential basis for concluding on the balance of probabilities that Edith suffered from a condition that predisposed her to fractures. I accept the evidence of Professor Mangham, Professor Freemont, Dr Armour, Professor Saggar, Dr Marnerides and Dr Leadbeatter that the condition of Edith’s bones did not predispose her to fractures. Edith did not have osteogenesis imperfecta type 1 or a vitamin D deficiency sufficient to predispose her to fractures. There is no basis for concluding that Edith was rendered susceptible to fractures by reason of her exposure to antiretroviral medication. There is no evidence that Edith met the criteria for low birth weight, no evidence that she failed to thrive and, in any event, no evidence that correlates low birth weight or poor development with increased propensity to fracture.

I therefore proceed to examine the nature, extent and causation of the injuries to Edith on the basis that, on the balance of probabilities, she had an essentially normal bone pathology and no predisposition to fractures.

Fractures or Remodelling

I turn next to determine the nature and extent of the injuries sustained by Edith. As with the question of bone fragility, this is an issue that turns primarily on the expert medical evidence. Before turning to consider that question, it is again necessary to consider and determine competing expert evidence as to the nature of the features seen in certain of Edith’s ribs. I am satisfied on the balance of probabilities that two of the three alleged older injuries (the right 9^th posterior rib, left 3^rd posterior rib) and the disputed alleged acute injuries (the right 10^th anterior rib and in the right 4^th, right 6^th and right 7^th posterior ribs and the left 9^th posterior rib) were fractures and not remodelling consequent on ‘micro injuries’ or metabolic bone disease.

The definition of a ‘fracture’ appeared relatively uncontroversial. Professor Freemont defined a fracture as “an area of bone injury in which there is evidence of damage to bone tissue and bone structure (usually called a fracture line), associated with either haemorrhage in recent fractures or evidence of healing reaction in older fractures.” Professor Mangham, Dr Armour, Dr Marnerides and Dr Leadbeatter each relied on Professor Freemont’s paper with Naqvi and Raynor, Histological ageing of fractures in infants: a practical algorithm for assessing infants suspected of accidental or non-accidental injury (2019) Histopathology 75:1; 74-80, in identifying the features of a fracture. Professor Mangham told the court that “A fracture is a breach in the integrity of bone matrix inevitably involving severance of collagen. Fractures have secondary consequences reported as part of a fracture, although they are not part of the definition.” Dr Leadbeatter defined a fracture as a discontinuity in the bone structure accompanied by haemorrhage if the discontinuity is acute, or signs of healing if the discontinuity is older. Professor McCarthy, whose evidence must inevitably be viewed with very considerable caution, stated that to be considered a fracture red blood cells must be present with some discontinuity of the bone (although it was not entirely clear whether he was referring to an acute fracture or to fractures generally).

Professor Freemont’s evidence concerning the description of a ‘micro injury’ forming part of a process of the remodelling of bone tissue in infants was far less clear cut and, as I shall come to, problematic in several material respects. Professor Freemont’s description of ‘micro injury’ appeared to comprise three central elements.

First, all or some of the features that denote a fracture are absent. Professor Freemont described ‘micro injury’ as being “areas of damage that do not include all the features that together characterise ‘a fracture’”. He opined that the broadly similar definitions of a fracture set out above will only apply to an injury to the macroscopic structure of the bone and not just any damage to the matrix of the bone, a fracture being required, in his view, to go through “several pieces of the bone or cartilage” to establish it as a fracture. As such, Professor Freemont distinguished a fracture from a ‘micro injury’ by reason of the latter being restricted to an area of the bone and being completely internalised within the bone, describing them during his oral evidence as “tiny fissures usually at the edges of the metaphysis” which “contain ‘debris” and in respect of which there “is little or no associated haemorrhage”. There was notable variation in the language Professor Freemont used in his description, including ‘micro injury’, ‘micro fracture’, ‘lesion’ and ‘fissure’, with these terms being used interchangeably such that it was difficult at times to understand what was in fact being referred to.

The second element of Professor Freemont’s description of ‘micro injury’ concerned the function fulfilled by the ‘micro injury’. At the first experts meeting, Professor Freemont stated he used the term ‘micro injury’ because damage to small pieces of bone triggers a reaction. In answer to a question posed by Dr Marnerides, Professor Freemont agreed that he was postulating that the changes described by Professor Mangham as fractures are in fact part of a physiological remodelling process in the infant bone, i.e. part of the normal biology of the infant bone tissue. Professor Freemont considered that this normal, physiological process might be mistaken for fracture in infants as the rich blood supply in the areas involved can be interpreted as haemorrhage and the active bone formation and breakdown can be interpreted as fracture repair.

The third element of Professor Freemont’s description of ‘micro injury’ concerned the force required to cause a ‘micro injury’ leading to bone remodelling in infants. He asserted that ‘micro injury’ could result from non-abusive trauma to the bone, including tension applied to the bone by ligaments and the “normal” handling of the child by a parent. Professor Freemont asserted that ‘micro injury’ leading to remodelling could thus be caused by “cuddling hard” or by “an internal force such as coughing”, although later he also stated that to cause a micro injury “there has to be trauma” comprising “an abnormal load applied to a normal tissue”, necessarily implying that “cuddling hard” and “coughing” comprise abnormal loading of infant bone.

The first difficulty with Professor Freemont’s evidence that the features identified by Professor Mangham represent a physiological process in which micro injuries form part of a natural process of remodelling bone tissue in infants is that the features in question can also meet the definition of a fracture, albeit a small fracture, by reference to the definition set out above.

I accept Professor Mangham’s evidence that histology showing a microscopic feature comprising a breach in the integrity of the bone matrix, in the form of a severance of the collagen comprising the matrix, and evidencing red blood cells or fibrinoid eosinophilic material, is describing a fracture by reference to the definitions given by the experts in this case, being damage to bone structure associated with either haemorrhage, in recent fractures, or evidence of healing reaction in older fractures. It was not clear from Professor Freemont’s expert evidence why a small feature moves classification, from being categorised as a fracture to being categorised as a ‘micro injury’, simply by virtue of its size when the features that define a fracture are present.

A related factor that further undermines Professor Freemont’s evidence is that the preponderance of expert evidence suggests that the appearance of the areas identified in Edith differs markedly from the appearance of physiological remodelling. Dr Armour pointed out in evidence that remodelling is often seen in samples of chondral junctions and it is organised, symmetrical and not haphazard in appearance in the way the areas identified by Professor Mangham are. Professor Mangham likewise told the court that “Remodelling is an organised process and is easy to distinguish from the healing reaction.” As such, Professor Mangham opined that the remodelling process proposed by Professor Freemont does not explain the focal cellular response directed towards the disruptions to the bone matrix integrity in the form of fibrinoid material seen in Edith. In addition, he stated that remodelling concerns the surface of the bone, not the deep areas in which the features he identified were located.

The second difficulty with Professor Freemont’s evidence concerns force. No expert, including Professor Freemont, Professor McCarthy and Professor Cohen, sought to suggest that fractures in normal bone can be caused by a force equivalent to normal handling. It was not clear from Professor Freemont’s expert evidence why a lower degree of force, sufficient to fracture collagen, is required to disrupt the bone matrix in a ‘micro injury’ as compared to the force required to disrupt the bone matrix in any fracture larger than a ‘micro injury’, particularly where, as Dr Armour pointed out, the disputed features are in the osteocartilaginous junction which, for the most part, is a protected area. Professor Mangham’s evidence refuting the idea of differential forces operating to disrupt the collagen matrix as between a ‘micro injury’ and a fracture was persuasive. Namely, that a fracture has a starting point, that the force needed to initiate a fracture in a given bone is the same whether the fracture is 1 mm or 10 mm and that the initial disruption to the bone matrix may, or may not, then progress further depending on how the forces continue to be applied. More fundamentally, Professor Freemont’s evidence was not able to provide an answer to a crucial question posed by Professor Mangham. Namely, “Why uniquely, at this deep protected site, of all organ systems, only at this site are these micro injuries a consequence of normal handling?” This leads to the third difficulty with Professor Freemont’s evidence.

Third, in identifying the features seen in Edith as ‘micro injury’ forming part of a process of remodelling of bone tissue in infants, Professor Freemont proposes a physiological (as opposed to a pathological) process that forms a natural component of the biological mechanism of bone remodelling in babies. In such circumstances, it might be expected that the natural process proposed by Professor Freemont would be seen in areas other than the posterior portions of an infant’s ribs. However, there is no evidence that it is.

During the second experts meeting, Dr Armour invited Dr Mangham to range over the whole of the relevant slides at a lower magnification to see whether there were other areas of cartilage irregularity, or whether fibrinoid filled cavities or accumulation of fibrinoid material was present more widely at the osteochondral junctions. That exercise identified only the focal abnormal areas identified by Professor Mangham. In the context of this exercise, Dr Marnerides asked a follow up question of Professor Freemont. Namely, why micro injuries forming part of a natural process of remodelling of bone tissue in infants are not seen in regularly sampled anterior costochondral junctions if they are indeed part of a physiological process of bone remodelling. In response, Professor Freemont sought to place posterior areas of the rib in their own unique category, contending that the posterior portions of the ribs react in a different way to their environment and that:

“...when this particular area of the posterior rib is stimulated by some, you know, tension coming from the ligaments and there is a micro injury to the bone and then you might get a stimulus laying down new bone.”

The distinction drawn by Professor Freemont between posterior and anterior costochondral junctions to meet the concerns of Dr Marnerides is not persuasive. In particular, it does not explain why evidence of the physiological process he says is happening across the posterior areas of the ribs was not seen in the other posterior sections, as demonstrated by Dr Armour’s request for Professor Mangham to range over the slides a low magnification. More fundamentally, Professor Freemont’s assertion that such features are not seen in the anterior costochondral junctions because the posterior rib behaves differently is undermined by the fact that one of the features in question identified by Professor Mangham, and said by Professor Freemont to be remodelling consequent upon micro injury, was located in an anterior junction.

It might also be expected that a physiological process that forms a natural component of bone remodelling in babies would fit well with what is already known about the physiological process of bone remodelling. However, the expert evidence before the court tends to support the opposite conclusion in circumstances where Professor Freemont did not deal with the question of why there is a physiological process of remodelling based on ‘micro injury’ operating in infants.

Professor Mangham stated that bone remodelling is a well recognised physiological process. Namely, mechanotransduction consequent upon variable bone loading. As such, Professor Mangham stated that Wolff’s Law (Footnote: ⁶) does not need a process of ‘micro injury’ to the bone matrix in order to achieve bone remodelling in infants through the application of normal levels of force. As such, Professor Mangham opined that there is no biological foundation for the physiological process of bone remodelling in infants consequent upon ‘micro injury’ proposed by Professor Freemont. In short, it is not necessary to invoke an additional physiological remodelling process involving ‘micro injury’ consequent upon normal handling in order for an infant bone to adhere to Wolff’s law. Professor Mangham further opined that doctors are not aware of any physiological system that utilises normal parental handling to damage tissue in order to promote growth and development in children.

The fourth difficulty with Professor Freemont’s evidence is that I am satisfied that it lacks any proper research foundation. During his oral evidence, Professor Freemont asserted that his opinion is supported by research, stating that “It is now recognised that micro injuries are part of the process that drives new bone formation and remodelling”. However, in his report, Professor Freemont cited only Ayoub et al. Whilst he referred to animal studies and a paper from the 1960s concerning osteoporosis in the elderly, these were not clearly identified. Professor Freemont referred to work he had undertaken in the 1980s, but did not identify published papers arising from that work.

Whilst Professor Freemont asserted that he relied on the paper by Ayoub et al only for the narrow proposition that care should be taken not to overinterpret lesions, it is clear from his report that he cited this heavily criticised paper as support for his central thesis that damage to the metaphyses may be seen in children who have not suffered abuse. Professor Freemont’s report makes no mention of the criticism of Ayoub et al detailed in Perez-Rosello et al. Professor Freemont’s use of Ayoub et al as a foundation for the physiological remodelling process he proposes further detracts from the weight that can be given by the court to his evidence on that issue.

More fundamentally still, Professor Freemont conceded in cross-examination that there is no research evidence for or against ‘micro injury’ leading to remodelling of bone in infants and children. Whilst, as I have noted, he relied on a paper from the 1960s concerning osteoporosis in the elderly (whose relevance to infants was not immediately clear) and cited his own work during the 1980s (but did not identify it), Professor Freemont confirmed that such research that has been undertaken has been “confined to adult humans”. As such, he conceded that there is “nothing to enable it to be described in children, it is based on similarities of appearance to micro injuries recognised in animals.” I accept Mr Rothery’s submission that it is surprising that, despite years of clinical practice and research going back to the 1960’s, the identification of areas of remodelling consequent on micro injury resulting from normal handling of infants and children has not been reported elsewhere in the academic literature.

This leads to the final difficulty that causes me to reject the evidence of Professor Freemont on this issue. I accept the evidence of Professor Mangham and Dr Leadbeatter that Professor Freemont’s opinion that Edith sustained ‘micro injury’ as part of a physiological process of bone remodelling is “novel” and that it “is novel to bring this [theory] into the infant bone field.” Further, having regard to the paucity of research literature or other evidence demonstrating any mainstream support for his view, I am satisfied that in telling the court that the features in dispute represent a physiological process of remodelling of bone tissue in infants, Professor Freemont was doing no more than advancing in these proceedings his own, novel, hypothesis. A novel hypothesis that simply does not stand up to forensic scrutiny.

To make good his hypothesis that the features identified by Professor Mangham are part of a physiological process of bone remodelling in infants, Professor Freemont is forced to postulate, in addition to the well understood physiological process of bone remodelling by way of mechanotransduction consequent upon variable bone loading, the existence of a further and novel natural remodelling process that relies on micro injury resulting from ordinary forces applied to the bone to trigger normal remodelling, a natural process which operates only on posterior costochondral junctions (notwithstanding that this latter contention is refuted by the facts of this case), which affects only certain posterior junctions and which appears only as a focal feature notwithstanding it is physiological in nature. Professor Freemont supports that hypothesis by reliance on the much criticised research of Ayoub et al whilst at the same time conceding there is no research evidence for or against ‘micro injury’ leading to remodelling of bone in infants and children. Ultimately, Professor Freemont’s novel hypothesis collapses under the weight of its own contradictions.

I am likewise unable to place any weight on the evidence of Professor McCarthy and Professor Cohen on this issue. Rather than a physiological foundation for remodelling (that would be open to the same objections set out above) Professor McCarthy and Professor Cohen opined that the features identified by Professor Mangham are the result of remodelling or abnormal remodelling consequent upon, or producing features similar to that seen in vitamin D deficiency or other metabolic disease. For the reasons given, I am satisfied that Edith did not have vitamin D deficiency. In addition, there are further difficulties with the expert evidence of both Professor McCarthy and Professor Cohen with respect to their assertions regarding remodelling in infants.

In his first report Professor McCarthy opines that the features identified by Professor Mangham as fractures were “areas of remodelling” that were “similar” to the changes seen in vitamin D deficiency. In his second report, Professor McCarthy became more concrete in his assertion, stating the changes identified by Professor Mangham were “identical” to those seen due to rickets. In doing so, Professor McCarthy asserted that the paper by Ayoub et al shows “identical histologic features seen in [Edith]”. I have already dealt above with the difficulties of opinions emanating from reliance on Dr Ayoub. In any event, Professor McCarthy does not explain why the changes seen in Edith are “identical” to those described in Ayoub et al. During his oral evidence, Professor McCarthy also suggested that remodelling occurring in this context could be caused by non-abusive play with children, such as pretending they were an aeroplane. That evidence cannot be accorded weight, entangled as it is with Professor McCarthy’s unquestioning belief that Edith had fragile bones, which I have rejected. His evidence was further undermined by sweeping and flippant statements when opining on this issue, including a dismissive assertion that “three rib fractures is not child abuse” and musing that he may have broken the rib of one of his own grandchildren whilst simply playing with them.

Professor Cohen’s evidence was very difficult to follow. She also relied on Ayoub et al, in respect of which she is a co-author, in support of her evidence that the relevant features in Edith comprised “abnormal remodelling” consequent on vitamin D deficiency. Beyond there being no evidence that Edith had vitamin D deficiency, Professor Cohen was not able to explain why such “abnormal remodelling” was not seen in ribs that had not sustained fractures when those ribs would have been affected by the vitamin D deficiency for which she contended, telling the court that “We don’t see them in normal ribs, it is a good question, I do not have an answer.”

It was particularly striking that during her evidence Professor Cohen sought to return to vitamin D deficiency at every available opportunity. This reflected a clear pattern, also exhibited during her exchanges with Dr Marnerides at the experts meeting, of Professor Cohen seeking to promote her views on vitamin D deficiency. Professor Cohen repeatedly circled back to vitamin D deficiency as an explanation for the features identified in Edith even though, again, there is no cogent evidence of a vitamin D deficiency. In particular, Professor Cohen speculated that low vitamin D levels in Edith could be the result of a small placenta. There is no evidence that Edith’s placenta was small. Ultimately Professor Cohen was forced simply to speculate on what could cause a vitamin D deficiency in Edith, making the contradictory statement that “We don’t really know what caused it but it is most likely attributed to a nutritional deficiency.” I am satisfied that Professor Cohen evidenced a clear scientific prejudice.

I am not able to accept the evidence of Professor Freemont, or of Professor McCarthy and Professor Cohen, that remodelling, either as a consequence of micro injury or consequent upon metabolic bone disease, is the explanation for the alleged older injuries in Edith’s right 9^th posterior rib, left 3^rd posterior rib and right 10^th anterior rib or the alleged acute fractures in the right 4^th right 6^th and right 7^th posterior ribs and the left 9th posterior rib. Their evidence does not stand up to forensic scrutiny.

The fact that the court has rejected the evidence of Professor Freemont, Professor McCarthy and Professor Cohen does not, of itself, prove that the features identified in the right 9^th posterior rib, left 3^rd posterior rib and right 10^th anterior rib and in the right 4^th, right 6^th and right 7^th posterior ribs and the left 9^th posterior rib are fractures, much less, if they are fractures, how and when they were caused. Those issues must be evaluated on their own merits. It is to that task that I now turn, beginning with the question of whether the features identified by Professor Mangham were fractures.

The alleged older injuries

To reiterate, the dispute regarding the alleged older injuries centres on the right 9^th posterior rib, left 3^rd posterior rib and right 10^th anterior rib. Notwithstanding their differing views as to genesis, all parties accept the microscopic features identified by Professor Mangham represent focal changes to the areas identified. In considering the nature of those changes, I am mindful of the rightly cautious approach taken by Judd J in A Local Authority v Mrs H & Ors [2025] EWFC 316 at [80] and [202]. Against that, given the manner in which this case has developed, this court has an unprecedented level of expert analysis and discussion available to it when considering this issue.

The disputed features of the right 9^th posterior rib, left 3^rd posterior rib and right 10^th anterior rib concern minute areas within the osteocartilaginous junctions detected by what all experts acknowledged is Professor Mangham’s unprecedently thorough methodology. Professor Mangham provided the court with annotated slides to demonstrate, in the disputed areas, what he considered to be an irregular bone / cartilage interface, persistent areas containing old haemorrhage, cellular response including new bone matrix and thickened periosteum showing increased cell activity.

Professor Mangham, Dr Leadbeatter and Dr Armour and Dr Marnerides considered there to be a fracture to the right 9^th posterior rib with signs of early healing in the form of an established cellular response. Dr Leadbeatter saw discontinuity in the bone and signs of healing and so regarded it as a healing fracture, albeit latterly he retreated from this categorisation. Professor Mangham, Dr Leadbeatter and Dr Armour and Dr Marnerides likewise considered there to be a fracture to the left 3^rd posterior rib. When considering specifically the photographic image of the slide L3 B8 in the second expert’s meeting, Professor Mangham, Dr Armour, Dr Leadbeatter and Dr Marnerides all identified a fracture line with signs of healing and particular a cartilaginous spur indicating chronicity. Dr Leadbeatter identified some healing changes on the basis of the eosinophilic fibrinoid-type material, changes within the associated soft tissue or mesenchyme and the production of a small cartilaginous spur that would go to chronicity. Dr Armour saw what she considered to be a fracture to the osteochondral junction, with deposition of fibrinoid material, a cellular response, osteoid and the beginnings of a cartilaginous spur. They again considered the appearance to be a healing fracture, albeit that Dr Leadbeatter again retreated somewhat from that categorisation. For the detailed reasons I have given, I have rejected the evidence of Professor Freemont, Professor McCarthy and Professor Cohen that there was a remodelling process operating in Edith resulting in damage to her ribs arising from normal handling, to which they ascribed the features in question.

I acknowledge that Dr Leadbeatter’s caution caused him to retreat from calling the alleged older injuries fractures. However, Dr Leadbeatter did not resile from his that he saw discontinuity in the bone and signs of healing in the right 9^th posterior rib and that he saw healing changes on the basis of the eosinophilic fibrinoid-type material, changes within the associated soft tissue or mesenchyme and the production of a small cartilaginous spur that would go to chronicity in the left 3^rd posterior rib.

I further acknowledge Dr Leadbeatter’s evidence that there is no control group to demonstrate what the appearance of rib heads might be during normal growing periods, including when subjected not to external trauma but to alterations in loading through normal handling. Professor Mangham also conceded that the issue is a difficult one, stating that “I accept that they are more difficult, because they are not seen in life, the issue can be debated.” However, the nature of the alleged older injuries fall to be determined in the context of all of the evidence. As I have found, Edith did not have any condition that predisposed her to fractures as the result of less force than ordinarily required to break the collagen matrix of the bone. The features of the right 9^th and posterior rib, left 3^rd posterior rib exhibit discontinuity in the bone matrix and cellular changes consistent with healing. These features fit the definition of fracture. Finally, the features identified by Professor Mangham as a fracture occurred in the context of a large number of accepted rib fractures in Edith.

I am satisfied on the balance of probabilities that the features in the right 9^th posterior rib and the left 3^rd posterior rib are properly identified as fractures having regard to the definition of a fracture provided by the preponderance of expert evidence in this case.

The evidence is not, in my assessment, any longer sufficiently cogent to make a finding on the balance of probabilities in respect of the right 10^th anterior rib. With respect to the right 10^th anterior rib, Professor Mangham considered that this was the most subtle appearance of all the disputed slides, but considered there to be a fracture with evidence of a cellular reaction indicating chronicity. Dr Armour and Dr Marnerides could see the area of abnormality Professor Mangham pointed out on the slides when he identified a fracture. However, Dr Armour deferred to Professor Mangham as to interpretation of the appearance and Dr Marnerides would not have identified the appearance as being abnormal had Professor Mangham not pointed it out. Dr Leadbeatter could not identify an area of abnormality.

Whilst following the original hearing I concluded that on the balance of probabilities the feature identified by Professor Mangham in the right 10^th anterior rib was a fracture, having had the opportunity to consider the additional evidence, and whilst I entertain some suspicion regarding the feature, I am not satisfied that the court can safely conclude on the balance of probabilities that the feature identified by Professor Mangham in the right 10^th anterior rib is present and is a fracture. My conclusion with respect to the right 10^th anterior rib does not cause me to alter my opinion in respect of the fractures to the right 9^th posterior rib and the left 3^rd posterior rib.

The alleged acute injuries

The expert evidence is in agreement as to twenty six acute rib fractures identified in Edith. All experts are agreed that the fractures likely occurred at a similar time, around the time Edith died. No party seeks to dispute that agreed expert evidence and I am satisfied on the balance of probabilities that Edith sustained those fractures.

There are four disputed alleged acute injuries, all of which are posterior, namely the right 4^th, right 6^th and right 7^th posterior ribs and the left 9^th posterior rib. All experts agreed that the appearance of the disputed areas are abnormal but differed as to the nature of the abnormalities.

I am satisfied on the balance of probabilities that the abnormalities identified by Professor Mangham on the right 4^th, right 6^th and right 7^th posterior ribs and the left 9^th posterior rib are fractures. The three right sided features on the right 4^th right 6^th and right 7^th posterior ribs occur on ribs with at least two other fractures to them. It is also reasonable to infer in the circumstances that the feature on the left 9^th posterior rib, which does not have other fractures, is likewise a fracture. I prefer the evidence of Professor Mangham and Drs Leadbeatter and Armour that these features are fractures to that of Professors Freemont, McCarthy and Cohen. For the reasons I set out above, I do not accept the evidence of Professor Freemont, Professor McCarthy and Professor Cohen regarding remodelling consequent upon ‘micro injury’ or metabolic bone disease.

No expert considered the difference between twenty-six acute rib fractures and thirty acute rib fractures to be forensically significant and confirmed it would make no difference to their opinions overall.

Bruising

The experts agree that Edith sustained subcutaneous bruising to the right side of the chest 6 cm below the lateral third of the first rib and overlying the right 4^th, 5^th, and 6^th ribs measuring 3 by 2 cm. They further agree that Edith sustained a bruise to the right pleural cavity measuring 7 by 2 cm lateral to the vertebral column posteriorly at the costovertebral junction extending from the right 1st to the right 9^th ribs. Dr Armour considered the latter bruise to be a very large bruise for a baby of Edith’s size.

Injuries

Having regard to the matters set out above I am satisfied on the balance of probabilities that the following injuries were sustained by Edith:

Dating of Fractures

In this case, the dating of the fractures sustained by Edith is, in respect of the acute rib fractures, inextricably bound up with the question of causation.

All experts agreed that, in life, a fracture will ordinarily bleed. Further, all experts agreed that the haemorrhage resulting from a fracture will undergo sequential changes that can be identified microscopically and which proceed in accordance with known time frames. The presence of haemorrhage and damage to osteocytes adjacent to the edges of the fracture initiates a repair response, which also proceeds in accordance with recognised timeframes. All experts acclaimed what they considered to be a seminal paper by Professor Freemont, and others, namely Naqvi, A. Raynor, E. and Freemont, A. Histological aging of fractures in infants: a practical algorithm for assessing infants suspected of accidental or non-accidental injury (2019) Histopathology 75(1): 74-80 (hereafter “Naqvi et al”), which systematically documents the histological features of fractures of known age in infants 12 months or younger in order to build a chart of the appearance, presence and disappearance of each histological feature of a fracture. (Footnote: ⁷) The paper concludes:

“The data indicate a reproducible and universal sequence of histologically defined events as healing progresses, including haemorrhage; clot formation; inflammatory cell infiltration; granulation tissue formation; stimulation of mesenchymal stem cells; production of matrix: appositional (on pre-existing bone surfaces), de novo (in fibrous tissue) or endochondral (on surface of cartilage-like callus); osteoclastic / osteoblastic bone remodelling with lamellar bone formation; and return of a more normal structure. Features of progression varied between cases, presumably through biological variation, but were remarkably consistent in different fractures from the same individual.”

The expert evidence was not in agreement as to the extent to which the use of osteocyte necrosis (Footnote: ⁸) is a reliable method of dating fractures. This question is relevant to timing in this case in circumstances where it is suggested that early or limited zonal osteocyte necrosis in Edith indicates that the acute fractures were inflicted during life and not due to CPR following cardiorespiratory arrest. Professor Mangham considers the use of osteocyte necrosis to be dependable in dating the fractures. Professor McCarthy considered it to be a subjective and variable technique often dependent on the manner of tissue preparation although, for the reasons I have given, I treated his evidence with considerable caution. Professor Freemont (who refers in his paper to the use of osteocyte necrosis to date fractures (Footnote: ⁹)) found osteocyte necrosis unusually difficult to assess in Edith, and chose not to use it as an aging biomarker. Dr Leadbeatter also considered the significance of zonal osteocyte necrosis and expressed himself to be cautious in regarding such changes as evidence that a fracture has occurred in life. It is not, however, necessary to determine this point in circumstances where I am satisfied that there are other, non-contentious, features in Edith that allow the court to determine the question of timing.

For the reasons set out above, I am satisfied that the features in the right 9^th posterior rib and left 3^rd posterior rib are properly identified as fractures. All experts accepted that there were some cellular changes exhibited by these fractures. Professor Mangham considered that in respect of the right 9^th posterior rib chronicity was demonstrated by locule of fibrinoid material. With respect to the left 3^rd posterior rib, Dr Armour considered that in the context of fracture to the osteochondral junction, with deposition of fibrinoid material, a cellular response and osteoid, there were the beginnings of a cartilaginous spur as the surviving bone grows beyond the damaged bone. When considering specifically the photographic image of the left 3^rd posterior rib in the second expert’s meeting, Professor Mangham, Dr Armour, Dr Leadbeatter and Dr Marnerides all identified a fracture line with signs of healing and in particular a cartilaginous spur indicating chronicity. Dr Leadbeatter identified healing changes on the basis of the eosinophilic fibrinoid-type material, changes within the associated soft tissue or mesenchyme and a small cartilaginous spur that would go to chronicity.

In these circumstances, Professor Mangham dates the fractures in the right 9^th posterior rib and left 3^rd posterior rib to between 2 to 4 days before the day on which Edith died based on the presence of an active cellular response over the course of the survival period involving a number of tissue types by reference to Naqvi et al. Based on the literature, Dr Marnerides agreed with Professor Mangham’s dating. Dr Leadbeatter could not be as precise but opined that they were not related to the time of Edith’s collapse and resuscitation. Professor Freemont, Professor McCarthy and Professor Cohen favoured one episode of injury in the context of their view that the fractures to the right 9^th posterior rib and left 3^rd posterior were remodelling, consequent upon micro injury or vitamin D deficiency or other metabolic bone disease, evidence the court has rejected for the reasons given.

I am satisfied on the balance of probabilities that the fractures to the right 9^th posterior rib and left 3^rd posterior rib occurred earlier than the acute fractures, likely between two and four days prior to Edith’s death and, accordingly, represent an earlier episode of injury to Edith.

All experts agreed that the acute fractures occurred at a point immediately proximate to Edith’s death. The key dispute with respect to the dating of the acute fractures centres on whether they occurred ante mortem or post mortem. That question, along with the question of whether CPR can cause posterior rib fractures and the evidence as to how CPR was in fact performed on Edith, is central to the question whether Edith’s acute fractures were caused by CPR. CPR is, by definition, performed at a point following ‘death’, i.e. following an episode of cardiorespiratory arrest. If the acute fractures occurred ante mortem, that would accordingly be evidence reducing the likelihood of CPR as the cause of those fractures.

I pause to note that, in his second report, Professor McCarthy appears to proceed on the basis that CPR could have been performed on Edith whilst she had a heart beat. During the experts meeting, Professor McCarthy asserted that the acute fractures he ascribed to CPR occurred two to four hours or three to two hours before death. In response to Dr Marnerides asking him why CPR would be being performed on Edith two to four hours or three to two hours before death, Professor McCarthy replied “Well, I can’t answer that, I can’t answer that. That’s something that is beyond me”. When it was pointed out to Professor McCarthy that the evidence showed that CPR started at the time of the 999 call, Professor McCarthy claimed that his use of “two to four hours” was a generic term that meant “directly before death”. For the avoidance of doubt, and notwithstanding confused and confusing evidence of Professor McCarthy, I am satisfied on the balance of probabilities that Edith was in cardiorespiratory arrest when CPR was commenced. There were no signs of life in Edith either at the point the mother commenced CPR at the time of the 999 call, nor when paramedics attended and took over CPR, nor during the further attempts at resuscitation that occurred at hospital.

Professor Mangham and Dr Armour each conclude that the bleeding around the acute rib fractures is evidence that the fractures were caused while Edith was still alive. Dr Armour considered that the acute rib fractures showed significant haemorrhage, indicating that the fractures were inflicted in life. She was clear that there would need to be an active cardiac output and blood pressure in order for the fractured ends of the ribs to actively bleed. Dr Leadbeatter was more cautious in his original evidence on this point but was clear that the level of bleeding seen in Edith was greater than he would have expected as the result of CPR. Professor Mangham considered that the haemorrhagic nature of the fractures pointed away from them occurring after cardiorespiratory arrest. Dr Marnerides also considered the amount of haemorrhage in Edith to be evidence of ante mortem fractures. Professor Mangham reminded the court that Professor Freemont’s own, much respected, paper with Naqvi et al states that “it is generally accepted that post mortem fractures (including CPR induced) do not bleed significantly.” I accept Mr Rothery’s submission that the research papers relied on by the experts in this case are replete with references to minimal bleeding in fractures from CPR. (Footnote: ¹⁰) As Mr Rothery memorably put it in his written closing submissions, “Starkly put, the dead don’t bleed.”

By contrast, Professor Freemont contended that CPR performed on Edith could lead to the bleeding seen as CPR causes blood to move through veins and arteries. Professor McCarthy and Professor Cohen concurred with this view.

Professor Freemont cited James, R. Rib histology after unsuccessful cardiopulmonary resuscitation in infants suffering sudden cardiac death from natural causes; implications for injury mechanism and timing Histopathology 2021, 78, 373-380 in support of his contention that the bleeding at the fracture sites in Edith was post mortem, noting that James reported that CPR-related (and therefore post mortem) fracture bleeding can penetrate bone marrow by as much as 15mm. Professor Freemont measured the maximum distance the haemorrhage had extended inside the bone marrow from the fracture site in Edith, concluding that the maximum distance was 8.2mm and the range was 0.7 to 8.3mm with an average of 4.1mm.

The James paper considered bleeding within the bone, as distinct from bleeding into surrounding tissues. It is important to note that the bleeding at the fracture sites was not the only area of bleeding discovered in Edith post mortem. As I have found, Edith exhibited subcutaneous bruising to the right side of the chest 6 cm below the lateral third of the first rib and overlying the right 4^th, 5^th, and 6^th ribs measuring 3 by 2 cm and a bruise to the right pleural cavity measuring 7 by 2 cm lateral to the vertebral column posteriorly at the costovertebral junction extending from the right 1st to the right 9^th ribs that Dr Armour considered to be very large for Edith’s size.

Dr Armour had never seen such bruising associated with CPR. Dr Armour remained firm in her view that the bruising would not occur without cardiac output, opining that CPR following cardiorespiratory arrest could not create sufficient blood pressure to cause the extent of the bruising seen in Edith. Dr Leadbeatter considered the bruising seen on layered dissection of the chest wall exhibited a degree of haemorrhage in that location that appeared more extensive than he would expect following attempted CPR. He confirmed that, whilst it is recognised that there may be some haemorrhage from fractures caused by CPR, he had never seen such a degree of soft tissue bleeding in the subcutaneous tissue of the lateral chest as a consequence of attempted CPR. In Dr Marnerides’ opinion, having seen around 1,000 cases of sudden unexpected death in infancy where there had been CPR, bruising of the type seen in Edith does not occur post-mortem as a result of CPR.

Professor Freemont stated that he could not comment on the cause of the bruising as that falls outside of his area of expertise. However, in an effort to demonstrate that bleeding to the extent seen in Edith in the bruise measuring 7 by 2 cm lateral to the vertebral column posteriorly could result from CPR, Professor Freemont sought to compare photographs of Edith’s rib cage with a photograph from Love, JC. et al, Cardiopulmonary Resuscitation Induced Posterior Rib Fractures in Nontraumatic Pediatric Deaths, Am J Forensic Medical Pathol 2022; 43: 55-59 (hereafter Love et al). Professor Freemont’s thesis appeared to be that because the picture from Edith’s autopsy was “similar” to the picture from the paper by Love at al this was evidence that the bleeding in Edith could have occurred post mortem. I will come later to the difficulties presented by the Love et al paper when deployed in the forensic context of court proceedings. However, on this point, I am satisfied that the court must approach the comparison Professor Freemont sought to make with considerable caution. First, it is not at all certain that the comparison is one of ‘like with like’. The photograph in the Love et al paper relates to a case where there may have been overlay, the authors accept the cause of the posterior fractures is unknown, and they attribute them to CPR on the basis that is “the most parsimonious explanation given the facts of each case”. In short, one cannot be confident that in the cases in the paper by Love et al the only explanation for the posterior fracturs was attempted CPR. Second there is a limit to the value that can be placed on Professor Freemont’s opinion given the poor quality of the image in the Love et al paper, which is in black and white.

I am satisfied on the balance of probabilities that the nature and extent of the bleeding discovered in Edith post mortem demonstrates that, whilst they occurred proximate to her death, Edith was alive at the time she sustained the acute rib fractures. Whilst Professor Freemont considered that the two thumb technique can lead to normal systolic blood pressure in an infant, this is outside his area of expertise, as he conceded. The court was not provided with expert evidence as to how effective chest compression is at perfusing peripheral areas. Whilst Professor Freemont places heavy reliance on James, Edith’s fractures showed no more than the amount of haemorrhage described by James as related to CPR. As such, the paper could take Professor Freemont no further than the proposition that such bleeding cannot by itself definitively identify the fractures as being ante mortem. In addition, the James paper has a small sample with 9 of 15 cases showing findings and, as Professor Freemont observed, there is uncertainty about how James measured the bleeding, given his use of the term ‘diameter’. Further, and significantly, in answer to a question put by the court, Professor Freemont stated that if a child died at the point of compression being applied to the chest sufficient to fracture the ribs “you could get the same result as James”. I prefer the evidence of Professor Mangham, Dr Armour, Dr Marnerides and Dr Leadbeatter on this issue.

My finding that the older rib fractures occurred between 2 to 4 days prior to Edith’s death, outside the period during which CPR was given to Edith, makes it less likely that the acute fractures sustained by Edith were the result of CPR as I consider it to be unlikely that Edith would have sustained two separate episodes of fracture through two different mechanisms only 2 to 4 days apart. Likewise, my finding that Edith was alive at the time she sustained the acute rib fractures again reduces the likelihood that the acute fractures were the result of CPR in circumstances where CPR was instigated only after cardiorespiratory arrest. These conclusions are also, I am satisfied, consistent with the conclusions I have reached with respect to the question of whether CPR can cause the constellation of fractures seen in Edith, including multiple posterior rib fractures, and with the evidence of how CPR was in fact administered to Edith in this case.

Cardiopulmonary Resuscitation and Rib Fractures

Whether CPR can cause the number and distribution of posterior rib fractures seen in Edith again led to a divergence of expert opinion. All of the experts acknowledged that the historic position has been that CPR does not cause posterior rib fractures and that, therefore, posterior rib fractures were pathognomonic of child abuse. The differing expert evidence in this case as to whether that remains a valid general proposition centres on two key developments.

First, in 2000 there was general change of approach to infant CPR. It was recommended by national and international advisory bodies on the practice of CPR that, instead of chest compressions being given with an infant lying on a hard surface and the heart compressed regularly by pushing down on the sternum with two fingers (the so called “two finger technique”), the infant should be held around the chest with both hands and the sternum compressed using two thumbs (the so called “two thumbs technique”). Professor Freemont contended that, following this change, there has been “an increased number and altered distribution of rib fractures in infants coming to post mortem examination following unsuccessful CPR.”

As to the second, and related, development, Professor Freemont asserts that “There are now many peer-reviewed publications demonstrating that posterior fractures are found in CPR when the two thumbs chest compression technique is used”. In his report Dr Leadbeatter helpfully set out a literature review concerning the question of whether fractures, including posterior fractures, are seen as a consequence of chest compressions during CPR. (Footnote: ¹¹)

Professor Freemont opined that in circumstances where, in his opinion, Edith exhibited evidence of a fracturing episode that occurred at a time compatible with the fractures being caused by CPR, where Edith’s fractures had a distribution that he considers has been described in infants being managed by two thumb CPR and where he considered that the extent of marrow haemorrhage in Edith’s bones matched that described in ribs fractured by CPR, on balance Professor Freemont opines that CPR, rather than non-accidental injury, is the cause of Edith’s fractures. Professor Freemont formulated this opinion on the basis that there was only one episode of injury, which I am satisfied is not the position for the reasons I have given.

Professor McCarthy likewise considered in his first report that “it is not out of the range of possibilities” that Edith’s fractures were caused by CPR. Again, however, in formulating this opinion, Professor McCarthy proceeded on the basis of his “unquestionable belief” that Edith had “brittle bones”. As I shall come to, he also proceeded on the basis of a wholly inaccurate set of assumptions with respect to the manner in which CPR was performed on Edith by the mother.

Professor Mangham was open in cross-examination to the possibility that CPR might be found, on very rare occasions, to cause posterior fractures. He told the court that “It seems at most an extremely rare event, if not present at all. If they do occur it is a very rare event indeed. It could be that the CPR is not ideally delivered.” He was also clear in his view that Edith’s posterior fractures were not caused by CPR. Professor Mangham explained that posterior fractures result from a fulcrum effect around the top of the transverse joint causing the tip of the rib to move behind the transverse process. For that to happen Professor Mangham considers that there needs to be an element of lateral force. In CPR, Professor Mangham stated the force is exclusively posterior-anterior and would not cause the fulcrum effect. By contrast, he considered that encircling compressive forces around the chest would provide the necessary lateral component. Professor Mangham stated that this was the mainstream view as to mechanism. He further opined that, even were it to be accepted that posterior fractures are sometimes a consequence of CPR, the obvious displaced fractures seen macroscopically radiologically in this case are most unlikely to result from CPR. Dr Marnerides had not seen posterior rib fractures as the result of CPR.

Dr Armour likewise opined that CPR does not ordinarily cause posterior rib fractures. Dr Armour confirmed that she has never seen posterior fractures, or fractures to the first ribs, in a baby of Edith’s age due to CPR. Dr Armour noted that children have a more pliable rib cage and she had never seen full thickness fractures caused anteriorly by CPR or in any other location. She further noted that the posterior fractures in Edith were asymmetrical in distribution. She reminded the court that the force applied to the chest of a baby during CPR is symmetrical, from the front to the back and not to a degree that causes full thickness fractures or posterior fractures. Dr Armour had seen some anterior rib fractures, consistent with attempts to resuscitate, but considered these also to be rare in CPR, very difficult to see and are not displaced, stating that CPR related fractures in babies of Edith’s age:

“... are often very difficult to identify macroscopically-with your own eyes. They can however be felt/palpated and histological examination shows minimal bleeding into the fracture line. There may be a break in the periosteum or small linear fracture in part of the bone.”

Dr Leadbeatter informed the court of his personal experience of seeing, 15 years ago, a single posterior rib fracture that he had ascribed to CPR. He noted that the posterior fracture in question showed little haemorrhage to the naked eye, and no haemorrhage under the microscope. Dr Leadbeatter stated in evidence that he has, since 2023, identified 3 further posterior rib fractures in an infant which he says he is likely to attribute to CPR. He emphasised that the fractures that are due only to resuscitation are very difficult to see and they may also be difficult to feel and stated that his own experience of rib fractures as a consequence of CPR is that they are largely anterior.

Dr Leadbeatter expressly noted that the total number of rib fractures in Edith exceeded those recorded in the literature concerning CPR. Dr Leadbeatter also accepted, during cross-examination at the original hearing by Miss Grocott, that the bruising identified by Dr Armour was beyond what he had seen in cases of posterior rib fractures and greater than he had seen in cases of fractures caused by CPR. When asked in examination in chief about the significance of the posterior fractures in this case being displaced he stated, consistent with the view he stated during the experts meeting, that the displacement is evidence against CPR as a cause:

“if they are palpably or visibly displaced that tends to argue against the literature regarding such fractures which appear to be not significantly displaced when attributed to resuscitation”.

This evidence as to the rarity, or absence, of posterior fractures in cases of CPR was challenged by Mr Stonor and Mr Hunt on behalf of the mother by reference to the research originally drawn to the attention of the court by Dr Leadbeatter, including the paper by Love et al heavily relied on by Professor Freemont as part of the foundation of his view that Edith’s fractures were the result of CPR.

In summary, Love et al presented four deceased infants in the USA with no trauma history except that it was believed they had received two thumb CPR. Following anthropological analysis (i.e. analysis that involves stripping tissue from the ribs and therefore does not admit of histopathology), they were found to exhibit posterior rib fractures. As a result, Love et al concluded that two thumb CPR can cause posterior rib fractures in infants. Professor Freemont uses that conclusion in these proceedings to demonstrates that posterior rib fractures can be caused by CPR using the two thumb method. Professor Freemont opined, by reference to the Love et al paper, that the fractures in Edith had a distribution described in infants being managed by two thumb CPR. During his oral evidence, Professor Freemont asserted that CPR can cause multiple posterior rib fractures. There are a number of difficulties with Professor Freemont’s reliance on the paper by Love et al.

First, and as conceded by Dr Leadbeatter and highlighted by Professor Mangham, there are a number of cogent reasons for treating the paper by Love et al with considerable caution:

Dr Leadbeatter stated the paper by Love et al, is useful in that it conjectures an additional mechanism, rather than proving that posterior rib fractures result from CPR. Professor Mangham considered that little weight could be attached to the Love et al paper as demonstrating that posterior fractures result from CPR. Professor Mangham’s evidence reflected Dr Armour’s concerns, regarding the weight that could properly be attached to the paper by Love et al. Dr Armour stated that, had she seen the cases presented in the paper by Love et al, she would have advised that the police further investigate the circumstances in which the injuries were sustained in each case. She took the same view with respect to the cases Dr Leadbeatter cited based on personal experience. In the experts meeting, Dr Marnerides was not able to agree that the Love et al paper is of use in this case where it is not “directly comparable, let alone applicable, to the case discussed in this instance”.

Second, whilst Professor Freemont asserted that the paper by Love et al was one example of “increasing numbers of scientific papers reporting how the 2-thumb technique can cause fractures that otherwise might be considered abusive”, this is not borne out by the literature. As Dr Leadbeatter demonstrated, the literature is in fact “scanty” and may not give details of the precise means of determination of the presence or absence of rib fractures. A further abstract was provided by Dr Leadbeatter entitled Clouse, JR. and Lantz, PE. Posterior rib fractures in infants associated with cardiopulmonary resuscitation. Proceedings of the American Academy of Forensic Sciences, 60^th Annual Scientific Meeting Washington DC: American Academy of Forensic Science 2008: G12 (pp 254-255. Professor Mangham noted that this was an abstract deriving from a meeting that took place 15 years ago and that the podium finding had not been followed up by a paper. Professor Mangham further noted that Collins, KA. and Byard, RW (Eds). Forensic Pathology of Infancy and Childhood (pages 332-337), New York: Springer, 2014; Dolinak, D. Rib fractures in infants due to cardiopulmonary resuscitation efforts. Am J Forensic Med Pathol; 28: 107-110 is not primary research and misquotes Reyes et al and Matshes et al, each of which do not report posterior rib fractures.

Third, in reaching his conclusion that the paper by Love et al demonstrates that CPR causes posterior rib fractures, Professor Freemont omits to refer to Reyes, JA. et al, Response to letter: Increased incidence of CPR-related rib fractures in infants – is it related to changes in CPR technique? Resuscitation 2012; 83: e111. That paper is the largest study of cases involving CPR. It reveals an increased incidence of anterior rib fractures following the change to the two thumb CPR technique but no cases of posterior rib fractures over the same period.

Fourth, Professor Freemont conceded in evidence that the multiple, asymmetric, full thickness near complete and displaced nature of the posterior rib fractures identified in Edith are very different to the posterior rib fractures identified in the paper by Love et al that are ascribed by the authors of that paper to CPR. This must call into question Professor Freemont’s assertion that “Edith’s fractures had a distribution described in infants being managed by two thumb CPR.” In the circumstances, it is not clear to what comparator Professor Freemont was referring when he made that statement.

Fifth and finally, Professor Freemont’s oral evidence on the question of posterior rib fractures and CPR gave further cause for concern.

Professor Freemont provided two expert reports to the court containing careful assessments of the current position regarding CPR related fractures in children, including the evolving methodology of infant CPR and the provenance of posterior fractures. At no point in either report does Professor Freemont mention any personal experience of seeing posterior rib fractures arising from CPR of the type seen in Edith, i.e. multiple, asymmetric, full thickness near complete and displaced. However, during the course of the experts meeting, when asked by Mr Rothery “Have you seen full thickness fractures of ribs, either anteriorly, laterally, or posteriorly due to resuscitation in a baby”, Professor Freemont replied in the affirmative. Professor Freemont repeated this affirmative answer during his oral evidence. In neither instance did he particularise, by reference to place, date or case history, his experience of seeing full thickness rib fractures in the context of CPR. It is surprising to say the least that his alleged personal experience did not find its way, with particularity, into his reports.

Professor Freemont’s assertion that he has seen a range of CPR fractures including the full thickness fractures seen in Edith’s rib cage must, I regret, be treated with caution. If he had seen such fractures I am satisfied that, in the context of this case, he would inevitably have described in his reports what he himself had seen and when. The local authority goes as far to invite me to find that Professor Freemont misled the court. I do not go that far. However, it remains a matter of concern that, if he has had personal experience of the type of fractures sustained by Edith arising from CPR, Professor Freemont did not include that obviously relevant evidence in his expert report and could not particularise it when he finally did mention it.

Each case will turn on its own facts. Having considered the evidence informing the question of posterior rib fractures and CPR in this case, I am satisfied that the court should proceed on the basis that (a) CPR cannot be completely discounted as a cause of posterior rib fractures in infants but posterior rib fractures in infants are a very rare outcome of CPR, (b) if a posterior rib fracture does result from CPR it is likely to be un-displaced and be difficult to detect macroscopically and radiologically, (c) if a posterior rib fracture does result from CPR it is likely to demonstrate minimal bleeding into the fracture line and (d) if a posterior rib fracture does result from CPR it is likely not to be accompanied by associated bruising.

As I have already noted, my finding that the older rib fractures occurred between 2 to 4 days prior to Edith’s death and my finding that Edith was alive at the time she sustained the acute rib fractures reduces the likelihood that the acute fractures were the result of CPR for the reasons set out above. I am satisfied that the fact that Edith suffered multiple, asymmetric, full thickness near complete and displaced posterior acute rib fractures reduces further still the likelihood that her acute fractures were the result of CPR.

Nature of CPR performed on Edith

Professor McCarthy opined in his first report that the fractures sustained by Edith could have been caused by inexperienced CPR administered to Edith by the mother. I am satisfied that Professor McCarthy based this conclusion on a wholly inaccurate set of assumptions. Professor McCarthy stated as follows:

“Although rib fractures in children are very suspicious for child abuse, in my opinion, it is not out range of possibilities that this could be a single incident of accidental fractures when the mother was giving CPR. It is well-established that rib fractures are very rare in infants receiving CPR. However, most of the studies documenting this idea are cases where the CPR was delivered by trained emergency technicians or in the emergency departments. It is in thoroughly conceivable to me that after the mother received telephone instructions to give CPR to her baby Edith, that she was frantic and terrified when she was giving CPR on the hard kitchen floor. Since she had no training whatsoever in CPR, she easily have inflicted extensive rib damage. In fact, there are studies that have shown that CPR in infants which is delivered in an unorthodox way can fracture multiple ribs, even when done by trained personnel. See: Matshes EW, et al Two-handed cardiopulmonary resuscitation can cause rib fractures in infants. Am J Forensic Med Pathol Dec 2010. Moreover, additional CPR was carried out for 20 minutes in the ambulance and again at hospital. This is an extraordinary amount of chest compression.”

On the basis of this account, Professor McCarthy concluded that “it is my opinion that, although child abuse may be a possibility, it is likely that the 32 rib fractures were all due to very aggressive CPR on the hard surface of the kitchen floor.” However, even on the mother’s own case, and certainly on the basis of the earlier findings of this court that the mother has not sought to revisit, the foundation of Professor McCarthy’s opinion bears no resemblance to what in fact happened on 20 November 2020.

As is clear from the papers sent to Professor McCarthy, the mother told the police that she had yearly CPR training as a healthcare assistant at the hospital to which Edith was admitted, which was mandatory for all hospital staff. In confidently assuming that the mother “had no training whatsoever in CPR”, Professor McCarthy accordingly appears to have failed to pick up that the mother was trained in CPR annually. The recording of the 999 call indicates that the mother was not, as assumed by Professor McCarthy, “frantic and terrified” but rather was listening to, and following the instructions given by the 999 operator, albeit in very difficult circumstances.

Whilst Professor McCarthy assumed “very aggressive CPR” on the part of the mother, during her police interview, the mother describes using the two finger method of CPR, describing herself as doing small compressions with two fingers. Whilst it is the case that there was some confusion regarding the advice given by the 999 operator, at no point has the mother ever suggested she might have broken Edith’s ribs when performing CPR. Rather, as is also clear from the papers sent to Professor McCarthy, the mother stated of her own volition that she undertook the CPR with “not a lot of force”, telling the police in interview that “I don’t think I have done it hard enough and I’d have felt it if she broke a rib” (emphasis added).

On the mother’s own evidence I remain satisfied that it is more likely than not that she did not use robust or excessive force when undertaking CPR on Edith. The mother’s statement that she knew she should use a particular level of force, as a result of her training, but that she could not do so because Edith was so small has the ring of truth when uttered by an otherwise caring parent, which I am satisfied the mother was:

“Not a lot, I knew I should have done more but I couldn’t. And I remember doing it on the training and you’re supposed to use quite a lot of force, but she was just so small…so I don’t think I used as much force as I should have done.”

In the circumstances, as I did with his evidence that Edith had “brittle bones”, I reject the evidence of Professor McCarthy that Edith was subjected to “very aggressive CPR on the hard surface of the kitchen floor” as wholly unreliable. Cross examined by Miss Cheetham on this point, Professor McCarthy once again revealed that he had been proceeding almost entirely on assumption:

“When you take an untrained person I presume it would be rather aggressive, I do not know for sure, it gets very aggressive when it is a loved one. It is a presumption on my part that a frantic mother trying to give CPR to a child would be aggressive.”

Cause and Perpetrator of Edith’s Injuries

Having regard to the evidence set out above, I am satisfied that CPR does not provide an explanation for the multiple acute rib fractures sustained by Edith. The timing of the older fractures, the court’s conclusion that the acute fractures occurred during life, the number and pattern of the acute fractures, particularly the presence and number of posterior fractures and the fractures to the first ribs, the degree of fracture, i.e. full thickness fractures, near complete fractures and the palpably displaced fracture edge, the degree of asymmetry in distribution, and the degree of haemorrhage present around the fractures, all militate against CPR as the cause of the acute fractures. In any event, the fact that on the mother’s own evidence, and in circumstances where Edith did not have fragile bones, she did not use excessive force in administering CPR to her moribund daughter further militates against CPR being the cause.

As I have stressed at a number of points during the course of this judgment, the fact that I am so satisfied does not, of itself, prove the causation of Edith’s injuries which, again, must be determined having regard to all of the evidence before the court. On the totality of the evidence, however, I am satisfied that it is more likely than not that the older rib fractures and the majority of the acute rib fractures sustained by Edith were caused by two episodes the forceful compression of her chest by the mother (it is not possible to rule out entirely some of the anterior rib fractures having been caused or exacerbated during CPR).

Dr Armour, Dr Hurrell, Dr Marnerides, Dr Leadbeatter and Professor Mangham each opined that the totality of the pathological evidence favours abusive compressive chest trauma as the cause of the older and the acute rib fractures. Dr Amour concluded that the fractures exhibited by Edith are best explained by an excessive squeezing or compressive type force applied around the chest. Dr Armour stated that the absence of bruising identified to the skin of the chest is supportive of this mechanism. Professor Mangham concurred with Dr Armour’s view that the fractures are best explained in that way. Dr Marnerides also opined that the injuries indicated excessive/abusive squeezing/compressive type force applied around Edith’s chest. Dr Armour rejected Mr Stonor’s proposition in cross examination that the injuries to Edith do not sit easily with an abusive act, stating:

“I don’t agree this does not sit easily with abusive trauma. There were 32 acute rib fractures in 7 week old baby, in addition three other fractures which predate aged between 2 and 4 days. Thirty two acute rib fractures is excessive and cannot be explained by CPR or overlay. The child has 24 ribs, and only five ribs were uninjured. Of the rib fractures, you could see the broken ends in chest cavity and in some of the anterior they were completely fractured. Thirty two rib fractures involving that many ribs, the baby is not going to be able to breath. A fit adult man would struggle to breath with this many rib fractures. There were a number of ribs that had three separate sites of fracture.”

I have considered carefully the submission of Mr Stonor and Mr Hunt that what they term the “divergences of opinion within mainstream pathology” that they submit have been evident in this case must inevitably reduce the confidence the court can have in those experts who opine that Edith’s injuries were caused by abusive trauma. However, given my considerable concerns regarding the evidence of Professor Freemont, Professor McCarthy and Professor Cohen in this case, I do not accept that this is a case of true “divergence of opinion within mainstream pathology”.

On proper examination, the divergence between Professor McCarthy and the other experts on the issue of whether Edith had fragile bones was revealed to be a bare assertion by Professor McCarthy supported by nothing more substantial than circular logic. The purported divergence between the experts as between fracture and remodelling was revealed to be merely a false distinction based on a novel hypothesis without any apparent research foundation (on the part of Professor Freemont) and/or a bare assertion grounded in long discredited research (on the part of Professor McCarthy and Professor Cohen). The purported divergence between those experts contending that CPR caused Edith’s rib fractures and those opining that the injuries were inflicted resulted from elevating to foundational status a research paper incapable of supporting the weight of the propositions for which it was cited.

I have also carefully considered the evidence concerning the fact that Edith’s older and acute rib fractures were not accompanied by other evidence of external injury (they being accompanied by evidence of other internal injury in the form of bruising). Dr Armour agreed with the proposition that this is unusual, but stated that some cases are unusual and, more fundamentally, that such cases are noted in the literature, citing Lauridson, J. and Cromblin. K. Prolonged Abusive Chest Compressions in an Infant: An Occult Form of Child Abuse American Journal of Forensic Medicine and Pathology. Volume 36, Number 4, December 2015. p274-275. I further note that the epidemiological analysis contained in the 2012 Cardiff study for the NSPCC identified that fractures, particularly rib fractures, may not be accompanied by external bruising. In the circumstances, and particularly when account is taken of the internal bruising injuries noted in Edith, the absence of external bruising or other injury does not cause me to change my view on causation.

I have also considered the epidemiological objection raised by Professor Freemont. Professor Freemont opined that even if the features he considered to be micro injuries forming part of a process of remodelling of bone tissue in infants are fractures, as the court has found, they cannot in any event be taken as evidence of abusive trauma based on the current epidemiological research with respect to abusive injury.

Professor Freemont cites three meta-analyses, including that undertaken in the UK by the Royal College of Paediatrics and Child Health, (Footnote: ¹²) which he states identify a number of features that are pathognomonic of abusive injury. Namely, fractures in children less than 18 months of age; rib fractures in the absence of major trauma, birth injury or underlying bone disease have a high predictive value for abuse; multiple rib fractures; and metaphyseal fractures. Professor Freemont also refers to the meta-analysis of world literature undertaken by Cardiff University for the NSPCC (Footnote: ¹³) in 2012 which identifies pathognomonic features as multiple fractures of different ages; rib fractures in children who have not been in a major accident; metaphyseal fractures in infants; and tibia and fibula fractures in children under 18 months.

In these circumstances, whatever the precise definition or description they are given, Professor Freemont contends that the small features identified by Professor Mangham as fractures cannot be considered indicative of abuse as they do not “map” onto the types of fractures used to develop the epidemiological sets from which the “red flags” of abusive bony injury are derived, namely almost exclusively shaft fractures or classical metaphyseal lesions. As such, Professor Freemont asserts that there is no evidence by which the features identified by Professor Mangham can be used to distinguish accidental from non-accidental bone injuries and the court cannot infer from their presence that Edith experienced abusive trauma. There are a number of difficulties with this proposition.

First, the fractures seen in Edith cannot be looked at in isolation. The court has to consider the evidence as a whole. The fractures sustained by Edith do very closely map onto features that are pathognomonic of abusive injury. They are fractures in a child less than 18 months of age, rib fractures in the absence of major trauma, birth injury or underlying bone disease and multiple fractures of different ages. Second, whilst not classical metaphyseal lesions, the fractures the court has identified occur at sites including the metaphyses. Third, the fact that the fractures identified by the court do not appear in the epidemiological studies prior to the techniques developed by Dr Mangham due to them not being apparent radiologically, does not mean that the fractures have no medico-legal significance.

On the totality of the evidence before the court, I am satisfied on the balance of probabilities that the majority of the acute rib fractures sustained by Edith were caused by two episodes of the forceful compression of her chest. I am further satisfied that the mother was the perpetrator of the injuries sustained by Edith.

In the same way that I have held in mind the lay evidence when addressing the medical evidence, I hold in mind the medical evidence when addressing the lay evidence. Bar a short period of time when Edith was in the care of the mother’s sister on 19 November 2020, the mother had sole care of Edith during the window provided by Professor Mangham for the older fractures and the acute fractures. There is no suggestion that either R or any other member of the family was responsible for the injuries sustained by Edith. Whilst it is clear from the evidence of one of the paramedics, and from one of the treating doctors, that ‘two thumb’ CPR was used on Edith, as I have noted, no party has suggested, or sought findings that the paramedics or the medical staff deliberately caused or contributed to Edith’s injuries. Whilst the mother contends that Edith’s ribs may have been fractured through the proper use of CPR by health professionals, for the reasons given I am satisfied that CPR does not provide an explanation for the multiple acute rib fractures sustained by Edith.

The mother’s evidence as to the events of the evening of 19 and 20 November 2020 and the days preceding is of utmost importance. The mother asserts that her recollection of the events occurring in that period is very poor. Whilst the court is able to speculate as to the reasons for this, particularly in light of the amount of alcohol the mother now concedes she imbibed on the evening of 19 and 20 November 2002, I do not attach forensic significance to the mother’s lack of recall when evaluating her credibility. Through no fault of the mother, and by reason of the failures on the part of the safeguarding agencies I dealt with at the original hearing, the mother’s oral evidence was given some 28 months after Edith died. It would be a feat of recall for anybody to remember each relevant detail of the events of the evening of 19 and 20 November 2020 and the days leading up to it at this distance in time from that date, let alone for a person in the position that the mother was in at that time and the distress she experienced following Edith’s death.

The corollary of this position, however, is that the court must focus, consistent with ordinary forensic principles, on the accounts given by the mother and others closest in time to the events with which the court is concerned, as being the accounts likely to be the most reliable. Those accounts comprise the text messages and phone records to which the court has access, some of which have been set out above, the mother’s initial statements to police officers and her first interview and the ABE interview conducted with R. Mr Stonor and Mr Hunt rightly remind the court of the decision of Peter Jackson J (as he then was) in Lancashire County Council v M and F. That decision again reflects the broad forensic principle that the accounts given nearer in time to the event that is in issue are, if not otherwise lacking in credibility, likely to be more accurate than accounts given some distance in time from that event.

The wide canvas of evidence in this case includes considerable positive evidence of the mother’s parenting of Edith and R. In particular, I have had regard to the positive professional assessments of the mother’s parenting. Those are helpfully set out in the ‘Broad Canvas’ document submitted on behalf of the mother by Mr Stonor and Mr Hunt. There is also no evidence that the mother habitually lost her temper with the children and no evidence that she had previously been violent to either of them or to others. That evidence acts to reduce the likelihood that the mother inflicted the injuries on Edith, an event that the court is entitled to regard in any event as inherently improbable where what is said to have occurred is that an otherwise caring mother on two occasions squeezed her newborn daughter to the point of fracturing her ribs, on the second occasion fatally.

It is also important, however, to remain cognisant of the fact that the positive assessments of the mother’s parenting in the papers were arrived at when the mother was sober and in circumstances very different to those which I am satisfied characterised the days leading up to the evening of 19 to 20 November 2020 and on that evening itself. Those very different circumstances must also impact on the court’s assessment of the inherent probabilities. Whilst the positive aspects of the mother’s parenting are forensically very important, and I have accorded them significant weight, I am satisfied that those positive aspects were significantly overborne by the stressors acting on the mother during the period in question and her levels of alcohol consumption on the evening of 19 and 20 November 2020.

The parental relationship was dysfunctional and was characterised by separations and reconciliations. I am satisfied that the mother did not feel supported in the parenting task by the father, as is clear from passages of her police interview. I am also satisfied that the text messages that are set out earlier in this judgment demonstrate that during the period leading up to the evening of 19 and 20 November 2020 the mother was under considerable emotional stress. That evidence demonstrates clearly that the mother was caring for an infant who had not developed a regular pattern of sleeping, who would wake regularly and who once awake would demonstrate upset if not picked up and held. In addition, the mother had care of R, who wished constantly to be by her side and who was also reluctant to sleep on her own and in a regular pattern.

On 23 October 2020, the mother now concedes that she had become significantly inebriated whilst having care of both of the children. As early as 28 October 2020, the mother referred to Edith as a “cunt” in a text message, her explanation for this being that she was tired due to Edith not sleeping. The continued stress caused to the mother is readily apparent from the messages she sent in the days leading up to 19 November 2020. In her oral evidence, the mother further conceded that she was placing herself under pressure to create the perfect family life for the children. All of this was taking place as the country remained in lockdown due to the Covid-19 pandemic.

Considering the totality of the evidence, and having regard in particular to the evidence of the stressors acting on the mother with respect to Edith from at least 28 October 2020, I am satisfied that it is more likely than not that at some point between 16 and 18 November 2020, under very considerable stress from her efforts to care for both children on her own whilst entertaining caustic doubts about her ability as a mother, the mother lost her temper with Edith and squeezed her chest, possibly in an effort to stop her crying, resulting in fractures to Edith’s right 9^th and left 3^rd posterior ribs.

The contemporaneous evidence provided by the mother’s text exchanges and attempted phone calls on 19 and 20 November 2020 demonstrates that she remained under very considerable stress at that time. The mother conceded in her oral evidence that Edith was “particularly fussy” on 19 November 2020 and had a “particularly bad” day on that date. In the message sent to GK at 1400hrs, the mother stated of Edith that she was “driving me mad today”. During her police interview, the mother described herself as exhausted. I am satisfied that it is likely that the presence of the earlier injuries to Edith’s right 9th and left 3rd posterior ribs explains, in part, why Edith was more fractious than normal on 19 November 2020 and, in the mother’s description was having a particularly bad day.

Again having regard to the contemporaneous evidence provided by the text exchanges, and as conceded by the mother in her oral evidence, I am satisfied that into this stressful situation the mother introduced a significant amount of alcohol. By 9.30pm on the evening of 19 November 2020 the mother was sending a picture of Edith to a friend titled “Little bitch”, describing R and Edith as “twats” and stating she needed alcohol. The impact of the stress and alcohol consumption on the mother is demonstrated by the fact that as the evening progressed she increasingly cast around for adult company, including making phone calls to the father notwithstanding the difficulties between them. By the time of her exchange with ET, at which point the mother had consumed nearly two bottles of wine, the mother was describing herself as “so sad”, describing herself as “so tired” and stating that she was not able to cry anymore. The mother described those feelings as occurring everyday. I conclude from this evidence that she was by now in considerable emotional distress. It is also of note that when ET came to her property, it is clear from the mother’s first interview that ET did not, by reason of her own inebriation, provide the emotional comfort the mother sought from her.

Whilst at the original hearing the court heard evidence concerning the possibility that the mother had overlain Edith, at this hearing Mr Stonor and Mr Hunt have concentrated on behalf of the mother on the question of whether CPR was responsible for the injuries sustained by Edith. For the avoidance of doubt, I am satisfied that the evidence demonstrates that the mother did not overlay Edith prior to discovering her moribund.

The mother’s initial accounts to police officers at the hospital and in her first interview do not assert that she overlay Edith. In her first account to DI Ashcroft and DS Tricket, the mother contends that Edith was placed to sleep on the bean bag, an account also given to the paramedic Dale Anderton, DC Topping, PC Ghigi and PC Tidmass. It is only after PC Rose spoke to R at the hospital, during which conversation R stated that she found the mother asleep on the sofa and “mummy’s head was on the side of Edith’s face”, that the question of overlay came to the fore. R’s own account is unclear as to whether Edith was asleep on the sofa with the mother or on the beanbag, R stating when asked if Edith was asleep on the beanbag, “no Edith was asleep on the beanbag when I was asleep”. In her later ABE interview at no point did R herself state explicitly that Edith was on the sofa with her mother, albeit she did not dispute that proposition when DC Johnson assumed that her prior comments regarding the mother’s stomach lying on Edith’s face meant that this is what R had seen, R thereafter stating towards the end of the interview that “They was just lying on the couch, asleep”. Notwithstanding R’s account, in her first interview, the mother stated that she did not think any party of her body was overlaying Edith when she awoke.

In her first interview the mother made clear both that upon being woken by R she moved Edith carefully (the mother described scooping up Edith and placing her on the couch and told the police that she thought she would have noticed if something was wrong with Edith at that point) and that she looked at Edith in a brightly lit environment (the main sitting room light being on). The mother did not suggest in her first interview, or subsequently, that Edith was a different colour, with no mention at that point of her being pale or grey. In her first interview, the mother stated that the room was bright and stated that she could see Edith’s face and that the blanket was not over her face. Whilst the mother later sought to suggest she did not look at Edith with care, even in her statement to this court she concedes she glanced at Edith at this point. Again, there is no mention of her being a different colour at this point. Further, having picked Edith up at this point, the mother did not suggest that she felt floppy, which the mother immediately noticed when she came back to Edith some fifteen to twenty minutes later in the context of Edith being quite good at holding her head.

I am satisfied that it was only when the mother returned to Edith fifteen to twenty minutes after being awoken by R that she noticed Edith was a different colour and was non-responsive. The fact that upon being woken by R, and having seen and moved Edith, the mother took R to bed, made a bottle and had a cigarette before returning to Edith some fifteen to twenty minutes later further supports the conclusion that the mother was not at that point worried that Edith had been injured by having been overlain. Having regard to the unanimity of expert evidence on the effect of Edith’s rib injuries on her ability to breathe, I am satisfied on the balance of probabilities that Edith had not been injured, whether by overlay or otherwise, at the point the mother was woken by R.

Having regard to the totality of the evidence before the court, I am satisfied that at some point after being awoken by R after less than three hours of sleep (having regard to the time the mother’s phone screen ceased activity on 20 November 2020) and prior to making the 999 call, the mother in a state of heightened stress, exhaustion and inebriation, again lost control with Edith and squeezed her chest with sufficient force to cause the majority of the remaining factures identified by Professor Mangham.

I am satisfied that, having regard to the extent of the fractures caused, this second episode of inflicted chest compression was significantly more forceful than the first episode. The precise effect of the mother’s drinking on 19 and 20 November 2020 can only really amount to supposition on the part of the court. However, the court is used to seeing cases in which there has been an earlier episode of lesser inflicted injury to an infant prior to a later episode of much more catastrophic inflicted injury. In the context of the court being satisfied that it is more likely than not that Edith experienced two episodes of compressive chest trauma inflicted by the mother in a loss of control, the court cannot discount the possibility that, in circumstances where the mother had by that point consumed two bottles of wine, which may have reduced markedly her ability to moderate the level of force used, it was the disinhibiting effect of the two bottles of wine that resulted in the second episode of compressive trauma to the chest being so much more damaging to Edith than the first.

Cause of Death

I am satisfied that the cause of Edith’s death was the injuries she sustained as the result of the second episode of compressive chest trauma inflicted on her by her mother. Whilst it is the case that non-specific features comprising generalised parenchymal oedema and vascular congestion in her brain and multifocal areas of intra alveolar oedema and focal areas of intra-alveolar and subpleural haemorrhage in her lungs were noted, the evidence before the court demonstrates that it is overwhelmingly more likely that Edith died because she could not breathe effectively due to multiple inflicted rib fractures. In his original report, in a conclusion he did not resile from in oral evidence, Dr Leadbeatter states at the end of his report that:

“How a pathologist words a cause of death when the pathological findings are of uncertain significance differs between pathologists, and a pathologist may take a different view as to the wording of a cause of death if evidence of other circumstances attending the death were to change: were it to be established, for example, that there was no overly robust cardiopulmonary resuscitation, and that there were no bony fragility, then the pathological findings in this case favour death as a result of compression of the chest. Were the court to find that there had been overly robust cardiopulmonary resuscitation, and that bony fragility could not be excluded, then I would regard the death as an unexplained sudden death in an infant exposed to antiretroviral therapy in utero, sharing a couch with a parent.”

Dr Armour, Dr Marnerides, Dr Leadbeatter and Professor Mangham consider that as a result of her rib fractures Edith’s respiration was likely compromised either by the direct effect of the abusive compressive chest trauma or the rib fractures, impairing Edith’s ability to breath and leading to her death. Professors McCarthy and Freemont made clear that if the Court found abusive compressive chest trauma caused the rib fractures, that would provide a sufficient explanation for Edith’s death through respiratory failure.

The need to step back and survey the whole evidential landscape is particularly important in this case given that the nature and extent of the medical issues necessarily require significant attention be paid to the expert evidence. That necessary focus should not detract, and has not detracted in this case, from the task of the court as it was articulated by King LJ in Re A. Namely, standing back from the case to consider the whole evidential picture and asking the ultimate question of whether that which is alleged by the local authority is more likely than not to be true. Or, as it was put more pithily by Dr Marnerides in the experts meeting, avoiding the mistake of looking at the tree and losing the forest.

Having surveyed the whole landscape of the evidence of this case and looking atall the evidence afresh, I am satisfied that that which is alleged by the local authority is more likely than not to be true save in one respect. Accordingly, I make the findings that are set out in the Schedule to this judgment. The current care order in respect of R will remain in force.

Finally, I cannot leave this judgment without addressing the manner in which some of the expert evidence in this case has been given. As I have set out in detail during the course of this judgment, the evidence of Professor Freemont, of Professor McCarthy and of Professor Cohen gave rise to significant concern on the part of the court.

As set out in the body of the judgment, Professor McCarthy repeatedly presented to the court opinions based on assumption or conjecture divorced from the facts of the case, demonstrated himself unwilling to moderate an adversarial, trenchant and inflexible approach even in the face of compelling contrary evidence from other experts and presented to the court a partial account of relevant research. Professor Freemont chose these court proceedings to promote a novel hypothesis of ‘micro injury’ as a discrete physiological remodelling process in infants consequent on normal handling, without qualifying it as such in his evidence and in circumstances where there is no published research showing such a process operating in infants. In support of their respective evidence on remodelling, all three experts sought to elevate to foundational status, without qualification or reference to relevant competing research, a scientific paper that promulgates a discredited thesis from an author repeatedly criticised by the courts in this jurisdiction. In the same context, Professor Cohen displayed a clear scientific prejudice in seeking, time and again, to force this case into the territory of vitamin D deficiency despite all evidence to the contrary.

With considerable regret, I am satisfied that the evidence of Professor Freemont, of Professor McCarthy and of Professor Cohen each at times fell below the high standard expected of expert witnesses giving evidence before the family court in this jurisdiction. The concerns I have highlighted with respect to the expert evidence of Professor Freemont, Professor McCarthy and Professor Cohen are thrown into still sharper relief in circumstances where their evidence appears to have played a significant role in the decision of the Crown Prosecution Service to offer no evidence against the mother in her trial for the murder of Edith.