A London Borough v S & Anor

The four children who are subject of these care proceedings are U, V, W and X. They are the children born in marriage to the mother, S, (“M”) and the father, T, (“F”). Their sibling, Z, sadly died of natural causes in 2022.

On 10^th April 2022, during a hospital appointment for Z at the Royal London Hospital, her parents raised concerns about her right leg. On that date, she was 8 weeks and 3 days old. Upon X-ray, a fractured femur was identified. As Z was non-ambulant, the treating medical team were concerned about non- accidental injury and referrals were made to the police and children’s services.

The purpose of this hearing is to determine the nature and cause of Z’s fractured femur which the LA, represented by Ms Roberts and Ms Suresh of counsel, contends is a non-accidental inflicted injury. At the beginning of the hearing, the LA contended that M and F were in the pool of perpetrators for this injury. In submissions at the end of the hearing, the LA asserts that the M is the likely perpetrator. The LA schedule contains other allegations including that of failure to protect.

This hearing was listed, initially, as a combined fact-finding and welfare hearing to reflect the fact that all parties agreed, whether findings were made or not, that the children should return to their parents’ care. At the start of the hearing, I was informed that this had changed and that the professionals considered it likely that there would need to be some form of risk assessment post any findings of NAI. I agreed and so this hearing has proceeded as a factfinding hearing alone into the causation of Z’s fracture and other related findings as set out in the updated schedule dated 14.6.23.

The M and F deny inflicting any injury upon Z. M is represented by Mr Larizadeh KC and Mr Bailey. F, by Ms Howe KC and Ms Fisher.

Earlier in the proceedings, the M’s evidence implied that X might have caused Z’s fracture when, on an occasion he had been left alone with Z while M went out, he took her out of her car seat. M says that she came home to find Z was crying. X is separately represented in this hearing by his guardian, Ashlie Davis and by Mr Howling KC and Mr Alleyne-Brown. X is a young man who is vulnerable in his own right.

It is now disputed by M that she ever sought to suggest that X had caused Z’s injury. No party has sought to argue during this hearing that X has either caused accidentally or inflicted any injury on Z and Mr Howling’s and Mr Alleyne- Brown’s task has reduced significantly.

The M has now aligned herself with the F’s case and submits it is likely that Z’s injury was caused by a healthcare professional at GOSH on 4/4/22. During this hearing, Mr Larizadeh has made it clear that it is not the M’s case that the fracture was caused as a result of excessive or abnormal force. I shall set out F’s case on this in the next section.

The Guardian for U, V and W, Amy Williams, is neutral on the disputed allegations but Mrs Bath has helpfully explored both factual and medical issues as appropriate.

Great Ormond Street Hospital

EVIDENCE

THE LAW

The judge is the decision-maker, and the expert is not. There have been a variety of cases in which expert evidence has been rejected upon the basis that the court believed the evidence of the parents. The evidence of an expert is not held in any special position and there is no presumption of belief in an expert no matter how distinguished they may be. It is the role of the expert to advise but the decision is that of the judge based on the evidence. The expert is part of the wider canvas of evidence which is to be weighed by the judge against the other evidence. A judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes. It is, however, necessary for a Judge to give reasons disagreeing with the experts’ conclusions or recommendations: Re B (Care: expert Witnesses) [1996] 1 FLR 667 and Re D (A Child) [2011] 1 FLR 447.

A summary of the guidance contained in the relevant authorities is set out helpfully in the judgment of Baker J from paragraphs 53 to 64 of Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam):

“57.

Fifthly, the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental injury includes expert evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council v KD & L [2005] EWHC 144 Fam at paragraphs 39 to 44, Mr Justice Charles observed: "It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision." Later in the same judgment, Mr Justice Charles added at paragraph 49: "In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non- accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted

and the threshold is established."

As Mr Justice Ryder observed in A County Council v A Mother and others [2005] EWHC Fam 31 "A factual decision must be based on all available materials, ie. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be".

Hearsay evidence is admissible in family proceedings when given in connection with the upbringing, maintenance or welfare of a child (Children (Admissibility of Hearsay Evidence) Order 1993 SI 1993/621) notwithstanding the common law rule against hearsay. Such evidence must be considered in the wider context. Proper caution must be exercised because that hearsay evidence has not been the subject of formal challenge in cross-examination. In R v B County Council ex-parte P [1991] 2 All ER 65 (at 72J), [1991] 1 FLR 470 at 478, Butler-Sloss LJ observed that ‘A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon.’

The court’s assessment of the parents and other carers of the child is very important. As Baker J (as he then was) reiterated in Re JS [2012] EWHC 1370, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).

Discrepancies and/or lies must be considered carefully in context to evaluate what significance, if any, they have to the determination of the disputed issues, because people can lie for many reasons which are unconnected to guilt. R v Lucas [1981] QB 720 - The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything.

Even if a witness is found to be dishonest such a conclusion does not necessarily indicate guilt and the family court should adopt the same approach as is taken within the criminal jurisdiction. In H-C (Children) [2016] EWCA Civ 136, McFarlane LJ said this: Within that list of factors, although the judge does not expressly prioritise them, the finding that Mr C lied about the quietness in his flat that night is given the greatest prominence in this section of the judge's analysis. A family court, in common with a criminal court, can rely upon a finding that a witness has lied as evidence in support of a primary positive allegation. The well-known authority is the case of R v Lucas (R) [1981] QB 720 in which the Court of Appeal Criminal Division, after stressing that people sometimes tell lies for reasons other than a belief that the lie is necessary to conceal guilt, held that four conditions must be satisfied before a defendant's lie could be seen as supporting the prosecution case as explained in the judgment of the court given by Lord Lane CJ:

The significance of the passage of time, fading memory and exposure to repeated questioning should be considered when evaluating the significance of discrepancies:

“To these matters, I would only add that in a case where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significant or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability.

Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should be considered, as should the effect on one person of hearing accounts by others. As memory fades a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as “story creep” may occur without any necessary inference of bad faith.” Peter Jackson J (as he then was) in Lancashire CC v M & F [ 2014] EWHC (Fam).

When attempting to identify the perpetrator of a non-accidental injury: The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children) [2009] EWCA Civ 472 at [12]. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is, should A or B or C be placed into the ‘pool’. Re B (Children: Uncertain Perpetrator)[2019] EWCA Civ 575.

Article 8 and Article 6 of the ECHR are engaged in relation to this application. As I said before, the parties and intervener have been very well represented throughout these proceedings by specialist family solicitors and specialist counsel. It was plain that these highly experienced advocates were doing their very best to explore any possible innocent causation other than non-accidental injury. The court is reassured that every possible organic cause of Z’s injuries was fully explored, and every suspicion or theory harboured by the parents fully canvassed. In short, I am satisfied no single stone was left unturned.

Each of the experts gave evidence which was lucid, persuasive and well explained. Each brought his own expertise to the complicated issue of causation and each has his own style. Each expert acknowledged the complexity of Z’s medical profile. There was no challenge of significance to the opinions of the experts as to the most likely answer to the questions they were instructed to address. Research evidence was circulated and various papers were put to the experts during the hearing and I shall deal with those parts which were relevant.

However, whilst there were no significant areas of disagreement between the experts, in approaching the questions they were instructed to address in this case, there were some possibilities explored which some were more inclined to be open to accept.

So, for example, Dr Kunnath, who discounted the probability of an accidental self-injury and opined that the fracture was inflicted upon her by an adult or an older child, either accidentally or deliberately had stated in his report that it was reasonable to presume that Z had low bone density and consequently poor bone strength compared to her normal peer although he acknowledged that I do not have any evidence from her investigation or literature to substantiate this. He changed his evidence on this issue when giving oral evidence, for reasons to which I shall return. Whereas Dr Watt (whilst acknowledging the well-known limitations of imaging alone in the assessment of bone density) opined there were no reliable radiographical features of a medical condition affecting her bones and my assumption is that her bone strength was normal. He modified his position in the experts’ meeting and in his oral evidence, conceding there may have been reduced bone density. Dr Allgrove opined although it is possible, she may have had a minor reduction in bone density and therefore, in bone strength, the amount of force required to cause the femoral fracture would have been outside the degree of normal handling. Dr Saggar had undertaken

In advance of the experts meeting, the written evidence supported an analysis that whilst Z presented with a range of complicated medical issues, some of which had the potential to impact upon bone density, there was no reliable evidence (whether radiographical or metabolic) of any medical issue impacting upon her bone strength in such a way as to result in a fracture other than through excessive force. It was unlikely, therefore, that this injury occurred without there being a traumatic mechanism, either in the form of rough handling or an abusive act.

There is a transcript from the experts meeting on 12 April 2023. There was a significant degree of consensus between the experts.

I permitted cross examination of the experts, on the application of Mr Larizadeh KC and now propose to set out in more detail the basis of the individual opinions, the extent to which there was successful challenge and evaluate the expert evidence and the conclusions which can be drawn from it.

Dr Andrew Watt, Consultant Paediatric Radiologist, reviewed the imaging for Z and set out his radiological findings. He is an impressive witness whose evidence was persuasive. He did not stray outside the areas of his expertise and made fair concessions in cross examination, helpfully and appropriately. I accept Dr Watt’s evidence.

His findings were:

Z’s femoral fracture showed early bony healing on 10.04.22. The periosteal reaction appears discontinuous which may be a result of a lack of immobilisation of the fracture. Progressive healing is evident on 22.04.22 onwards. The age of this fracture based on the radiographic findings alone is between 1 and 3 weeks old on 10.04.22 as bony healing was already evident then. (My emphasis)

As to causation and force: This type of fracture is usually caused by either indirect bending or twisting to the femur. A direct blow or impact would be a less likely mechanism but still possible. In general, the morphology of a fracture is of limited help in general in inferring the causative mechanism (bend vs twist vs impact) in long bone fractures such as this. This type of fracture is not an uncommon injury in toddlers who are learning to walk or who are mobile but is a very uncommon finding in a non-mobile infant of this age. The force required to cause such an injury is not known but such injuries can be caused in mobile children by jumping from a height, falling with trapping the leg, or falling from a short height onto the leg. The fracture was displaced and would have probably resulted in an immediate degree of loss of function of the limb with a prominent or pain response and variable swelling and deformity later, but I understand that the clinical response to pain of infants of this age can be variable and I defer to the Paediatrician here.

He went on to opine For an explanation to be adequate, it must fulfil the criteria for timing, mechanism, force and identify a memorable incident of significant distress to the child (my emphasis). He assumed Z’s bones were of normal strength. He considered the injury had not been adequately explained.

His conclusions were: No adequate accidental or medical explanation has been provided to account for the injury. There are no radiographic features of a medical condition affecting the bones and my assumption is that her bone

He considered there was insufficient evidence to support the hypothesis implied in the mother’s evidence that Z may have been injured by X when he took her out of the car seat: it was unwitnessed and there was no report of Z being in distress. Nor did he consider it likely that Z was injured during her hip scan, nor in subsequent clinical examinations by medical professionals as there were no reports of her being in significant distress. He discounted the possibility of an accidental cause because Z was not mobile and because of the type of fracture. There were no radiographical features of OI, rickets or any other organic cause of Z’s fracture, subject to his deferring to the other experts on the question of her bone density. He noted tests for vitamin D and other deficiencies were performed at the time and the results are described as normal (vit D 78 nmol/l) explaining that a deficient level of Vitamin D in conjunction with a normal clinical exam, normal other blood tests and no radiographic evidence of rickets would indicate that Z’s bone strength was most likely to be normal. Born at 33 weeks, Z was not at risk of bone disease of prematurity and born by caesarean section, the timing made birth injury highly unlikely.

Dr Watt found no evidence of osteopenia to suggest an underlying weakness of bone strength on the radiographs provided, but imaging studies can be normal in this age group. It is recognised that reductions of bone density of between 20-30% can be present without any reliable radiographic abnormality being evident. When giving oral evidence he extended this saying 20-40% but confirmed that a 40% reduction in bone density did not necessarily equate to a 40% increased risk of fracture but would also depend on other factors such as biomechanics.

He opined that the presence of significant chronic heart disease and the use of frusemide [which had been prescribed to manage Z’s heart condition] are associated with and increased fracture risk, but I am not able to quantify this risk. In the oral evidence this was excluded as relevant because these medications were prescribed for Z only on the 4^th April, days before her presentation on 10^th.

Dr Watt’s addendum report invited him to consider additional imaging taken months after Z’s fracture between the end of June and the beginning of July. By 7^th July, Z’s lower limbs were, in his opinion, mildly osteopenic. The postmortem skeletal survey of 24 adequate quality images indicated in general normal bone density. The long bones appear generally somewhat gracile and mildly osteopenic. He clarified that this assessment did not change his assessment of the appearance of the bones in the April imaging.

He was also asked to reconsider the imaging from 11^th April together with the report from Drs R and L, treating radiographers, which stated that Z’s ‘the bones appear relatively osteopenic’. Mr Larizadeh KC queries whether or not all of the imaging has been disclosed but they had clearly been seen by Dr Watt who opined: I did not think the original radiographs I reviewed in my first report showed a marked degree of osteopenia and I noted that the ribs

In the experts meeting he said that from a radiological perspective there isn’t an easy or reliable way of assessing bone strength in infants of this age to come to an objective opinion. There’s no objective test that you can use to identify the degree of bones loss or the degree of bone strength compared to normal in this age group unfortunately.

Dr Watts recommended an expert in the clinical and biochemical aspects of metabolic bone disease in infants may be of assistance.

He concluded that no adequate accidental or medical explanation has been provided to account for the injury. There were no reliable radiographic features of a medical condition affecting the bones and my assumption is that her bone strength was normal, but Z was mildly premature and found to be suffering from Down Syndrome and a complex cardiac abnormality. I am not able to positively confirm from the radiographs provided that these conditions have resulted any significant impact on Z’s bone strength, but I have confirmed that radiographs are a poor test in this situation.

When cross examined by Ms Howe, Dr Watt accepted that Z’s bones had not been examined post mortem which was a lost opportunity. He agreed that the DEXA scan was the gold standard for the assessment of bone density in living children but this test was not available for Z because of her age. I accept Ms Howe’s submission that this means that the Dr Watt (and the other experts) are reliant on less precise imaging in assessing her bone density and therefore her propensity to fracture.

He responded to Mrs Bath in cross examination, that he would not have expected a femoral fracture to have occurred with what I regard as normal handling. What rough handling means is a difficult concept but I presume it exists in a space between normal handling and clearly excessive force. As I don't know how much bone strength has been reduced in this case it’s difficult for me to exclude the possibility of rough handling resulting in the fracture.

When considering the mother’s account of the actions of HCA L, he said in response to questions from Mr Larizadeh: I would not expect that type of movement to cause a femoral fracture in an infant of normal skeletal strength otherwise we would have these infants presented to medical attention with femoral fractures with that given history. the issue for me is more about the abnormal weakness of the bone. He said: my feeling is from what has been said by other experts that there is a reduction on bone strength present but I’m not able to quantify how significant that is - and the situation - where Z would fracture femur with essentially what would be regarded as normal handling. that’s the issue here. You would not expect a femoral fracture in an infant of normal skeletal strength. Z probably doesn't have normal skeletal strength. I can’t see it on the X rays but to paraphrase the other experts were of that view.

When recalled to the witness box he accepted:

Dr Saggar, Consultant Geneticist, was instructed by the parties and authored a report dated 5 November 2022. He participated in the experts meeting, also giving oral evidence.

Dr Saggar gave balanced evidence authoritatively and is an impressive witness whose evidence I accept. He remained within the area of his expertise, despite questions which might have caused him to stray beyond his expertise.

He completed genetic testing and did not identify any gene mutation, other than T21, which could affect bone strength. Dr Saggar noted that T21 is associated with reduced bone density and osteoporosis but it is considered, on the basis of research, to be an age-related effect. Dr Saggar is not aware of a risk of bone related fragility in neonates or small children.

In his paper he had highlighted the gaps in knowledge which existed in relation to T21 and cited the LaCombe paper (2020), which had identified there was a current and evolving evidence of altered bone regulation, the one single important clinical correlation is absent; which is the lack of any reported clinical fracture susceptibility in neonates. That paper arrives at a set of conclusions which showed significant differences in BMD between individuals with T21 beginning in their second and third decades of life . In addition: The current body of research suggests that the underlying cellular process that disrupts bone homeostasis and promotes osteoporotic phenotypes is reduced

When cross examined by Mr Larizadeh, he agreed the research generally started with children who were 10 and that bone density difficulties were likely to result from a continuing process, which made it difficult to be clear about when such difficulties began in individuals with T21. He clarified that he had seen DS children with fractures but always accompanied by plausible event precipitating, like a fall or injury. I don’t follow them up long term – had this been a child who came to my clinic and fractured 3 months later, and there was no concern about that.

The specific conclusions of the LaCombe research were not put to other witnesses but do provide support for an analysis that there is a developing understanding of identified differences in bone density between individuals with T21 and healthy individuals. To this extent, they indicate a need for careful evaluation of the evidence on this topic in relation to the disputed issues. Having said that the overarching conclusions in that paper were consistent with the evidence of each of the expert witnesses that:- on the basis of mainstream medical knowledge, there is a distinction between adolescents and adults on the one hand and small children/babies on the other, hence the consensus that there is a lack of any reported clinical fracture susceptibility in neonates.

Dr Saggar accepted, fairly, that whilst one looks for a unifying diagnosis, there could be many factors which might make a small contribution to osteopenia. However, there would still need to be a forceful event, the femur was a very large bone. It would either need a significant genetic susceptibility, significant metabolic problem, or significant force. The only question is how much force in the face of the first two elements. He had said in the experts meeting that the fracture would be unlikely to have arisen spontaneously because he had not seen fractures in children of this age with Down Syndrome without a clear history of force.

Under cross examination by Mr Larizadeh he stated that the testing he undertook led him to be satisfied that it was highly unlikely a genetic mutation causing bone fragility was present and had been missed. He had done the exome testing to cover that possibility. He was very confident there was nothing from his testing which indicated spontaneous fracturing with normal handling. He accepted that there might, theoretically, be another gene which caused the problem but agreed that Z did not have osteogenesis imperfecta, and had no other fractures. I would quote the residual of less than 1% - if the child has not had further fractures, child is following the normal course as you’d expect with DS.

At the conclusion of his evidence, his opinions on the key issues as developed during the experts meeting remained unchanged.

Dr Kunnath, Consultant Paediatrician, was jointly instructed to prepare an expert report in this case. He reviewed the medical records which indicated that Z’s blood tests on 10/04/22 showed normal haemoglobin, cell counts, Vitamin

He opined the most common cause of such a fracture is falling from a height but as Z is not independently mobile and is looked after continuously due to her medical condition, such an accident would have been witnessed. Babies of this age are only able to move hand and leg vigorously while crying or when excited without displacement of the body, so such they are not able sustain an accidental injury by their own. In addition, her Down Syndrome and a heart condition meant she was her less vigorous than a normal child. By inference, he opined this fracture is inflicted on her by an adult or an older child; either accidentally or deliberately.

A fall forceful enough to cause a fracture of a long bone as this is likely to cause other associated injuries like bruises, head injury or other bone fractures…

In terms of mechanism, the most plausible could have been by either indirect bending or twisting to the femur. A direct impact would also be possible which would most likely be a deliberate harm. He agreed with Dr Watt and his evaluation in relation to mechanism. Birth injury could account for this fracture but it was outside the radiological window, as was any injury at the hip scan on 14^th March. If Z’s leg had become trapped when X removed her from her car seat when he was left in charge of her, and if undue force were exerted in order to release the leg, this could account for the fracture.

Z was later diagnosed to have hypothyroidism on 01/06/2022. As all babies are screened for hypothyroidism at birth this would have been flagged up if she was born with hypothyroidism. He did say that he had not seen the results of neonatal blood screen though. The Guthrie test was obtained and was normal.

Bone density

He noted there were limited studies of bone mass in those with Down Syndrome and they tended to be small case series in paediatrics and adult populations. Down Syndrome is associated with multiple endocrine disorders affecting bone integrity: Growth retardation, hypogonadism, poor calcium and vitamin D intakes, and muscle hypotonia are recognised risk factors for low bone density in general, and in Down syndrome in particular; except low muscle tone other factors may not be relevant to Z at her age. This was a very specialised area beyond his expertise and he recommended that a paediatric metabolic specialist would be in a position to answer questions on mineral accretion and bone density [E187]. The court subsequently granted permission for Dr Allgrove to provide an opinion.

In preparing his written opinion, he had queried the opinion of Dr Watt that Z’s bones were of normal strength for an infant of her age. He noted the appearance of Z’s ribs were described by the treating team as a little gracile and it is ‘reasonable to presume that Z has low bone density and consequently poor bone strength compared to her normal peer, though I do not have any evidence from her investigation or literature to substantiate this’. He considered that she may be susceptible to fracture by excessive force applied inadvertently during the normal cares by an adult or by rough handling by her siblings. [E185].

Dr Kunnath’s link between hypotonia and reduced bone density is relevant in Z’s case because babies with Down Syndrome can be less vigorous in their movements. M’s evidence was that Z moved less in utero. However, when giving oral evidence, Dr Kunnath was able to view the video produced by mother of Z on 28th March. The key part of that video is the opening section which shows Z moving both of her legs vigorously. This caused Dr Kunnath to revise the opinion he had expressed in his report. He said:

He added that children born with very low tone make hardly any movements and there is slow progress. He opined that Z would not have had significant hypotonia in the womb or at birth because the tone will take a long time to improve, 2-3 years and her movements on the video on 28th March, just 6 weeks post-birth are near normal. Ms Howe points out that at birth, Z was assessed as exhibiting central and peripheral hypotonia (MB1 PDF 586) and then shortly after birth. She queries why the single video clip would have dislodged that evidence.

I agree the evidence of Z being hypotonic at birth is relevant, but I do not find it inconsistent with Dr Kunnath’s evidence. He did not exclude the possibility of hypotonia, rather noting that she is unlikely to have had any significant hypotonia at birth/in utero. His opinion that the video indicated a near normal child, near normal tone, the types of movements you expect at that age supports an analysis that any hypotonia observed after birth was not significant. This is consistent with his evidence and the evidence of the other experts that any reduction in bone strength is likely to have been minor.

Dr Kunnath opined that there was a very low risk that Z’s medication (frusemide and spironolactone) had increased the fracture risk because Z started treatment only a few days before her presentation with a fracture.

Dr Kunnath’s oral evidence indicated that there was no reason to consider that Z had reduced bone strength which meant that the force required to cause a fracture in a normal strong bone like a femur was considerably higher than anybody would normally exert during normal care needs.

When asked by Mr Squire about the mother’s description of the actions by HCA L he said I would do exactly the same thing and I don’t expect a normal baby to have a fracture from that procedure.

Dr Kunnath’s evidence was thoughtful, balanced and persuasive. I accept his evidence.

Dr Allgrove, Consultant Paediatric Endocrinologist was jointly instructed to report on Z’s case. He participated in the experts meeting and gave oral evidence. He reviewed Z’s medical notes and opined that there was nothing to suggest any increased bone fragility or abnormalities in Z’s bones. She did not, in Dr Allgrove’s opinion, suffer from any metabolic bone disease. There is no radiological or biochemical evidence to support this. However, given that she was 33 weeks gestation and had congenital heart disease which warranted the use of, amongst other things, loop diuretics (furosemide) which does have some effect on increasing urinary calcium excretion, this may have had some minor effect on her bone integrity but not, in my opinion, sufficient to account for the injuries with which she presented.

On mechanism and force, he said the femur is regarded as the strongest bone in the body. As explained by Dr Watt, the mechanism of the fracture that she had would have required a bending and slightly twisting motion to cause it. The force required to cause such a fracture is not known as it cannot be measured in any justifiable way, but in Z’s case the force required would not have been significantly different from that causing fractures in other children. He did not consider that Z’s fracture was consistent with metabolic bone disease of prematurity.

The questions Dr Watt had declined to answer as outside his expertise were put to Dr Allgrove. He was asked whether or not her heart condition, Down Syndrome and early birth may have affected her bone strength and he answered:

He concluded In my opinion, although it is possible that she may have had a minor reduction in bone density and therefore in bone strength, the amount of force required to cause of femoral fracture would have been outside the degree of normal handling. Nor did he consider it likely that Z’s fracture arose as a result of an unknown cause: Z has had extensive genetic examination undertaken and no abnormality other than the presence of Down Syndrome has

Asked if there were gaps in the medical research on the issues to be determined, he observed medical research is always ongoing but, in this case, the research which is currently being undertaken is clear-cut and there aren’t any major gaps which the court needs to address.

The only missing result he identified was PTH (parathyroid hormone). It is recommended that this is included in the initial investigations. However, all other investigations were normal and there is no reason to suppose that the PTH would have been abnormal. In oral evidence he explained in response to questions from Ms Howe KC, there was no reason to suspect PTH would have been elevated where her calcium was normal: PTH increases in response to low calcium to try to correct it. Her calcium was not low. Moreover, one of the effects ot PTH is to increase phosphate excretion so it then becomes low. Hers [Z’s] was normal. And the alkaline phosphatase, which is a marker of bone turnover, was normal.

In oral evidence, Dr Allgrove maintained the opinions expressed in the report and the experts meeting. So, he said there isn’t any evidence to suggest having Down Syndrome at the age of two months has any influence on bone strength which I understood as a reference to peer reviewed research to which he was later referred. Further the influence of furosemide (which can affect bone strength) was minimal as it was prescribed for Z on 4^th April, even if the fracture had occurred before then. Z’s biochemistry was normal and she did not have rickets, her calcium, Vitamin D and alkaline phosphatase were normal.

The decline in her serum calcium readings post birth was not relevant because the calcium level in a newborn baby was higher than in that of its mother and so the fact that Z’s serum calcium fell over the days after the birth was a normal physiological post-birth response. Looking at the results for Z, he said 2.62 was not high for a new-born baby, it was within the normal range, and the 1.85 fall post birth, once the transfer of calcium across the placenta was removed represented a normal response. It had nothing to do with bone density issues identified later on.

He rejected the suggestion that Z suffered from hypothyroidism (which might impact on bone fragility). He agreed her TSH level on 12^th March was marginally elevated, giving rise to the possibility of sub-clinical hypothyroidism but in his opinion the important result was her free T4 which was well within the normal range. He was asked by Ms Roberts to explain the opinion expressed in the experts meeting that he wasn’t sure whether hypothyroidism has any significant influence on bone fragility and answered that with hyperthyroidism you can [see an influence]. Hypothyroidism does not. There are thousands of children born each year with congenital hypothyroidism and, to the best of my knowledge, at no increased risk of bone fragility.

Ms Howe KC challenged Dr Allgrove in cross examination on the opinion Z was not suffering from hypothyroidism, referring him to the Hawli paper Endocrine and musculoskeletal abnormalities in patients with Down Syndrome,

Ms Howe then put to Dr Allgrove the Lanham paper on the Effects of hypothyroidism on the structure and mechanical properties of bone in the ovine fetus S A Lanham and others, a study of the foetuses of 45 Welsh mountain sheep which demonstrated that hypothyroidism in utero has significant effects on the structure and strength of bone, with different consequences for cortical and trabecular bone. Dr Allgrove’s response was I am not sure why you are pursuing this because she was not hypothyroid. She had normal free T4. Not even marginally low – well within the middle of normal range. So any discussion of hypothyroidism in this child would be irrelevant [to the consideration of the potential impact of such an in utero condition on her bone strength].

When Mr Larizadeh cross examined Dr Allgrove, he suggested that there was a gap in the evidence available for consideration of whether or not Z could have been suffering from hypothyroidism at the time of the fracture, referring him to the period 12/3/22 – 7/6/22 when no testing was available. Dr Allgrove said this :- Right – a situation here where the thyroid function is assumed to have been normal at birth, as you rightly say – Guthrie test made no comment about hypothyroidism. One can assume normal. Only gets reported if abnormal. Then comes 12th March – thyroid function still almost normal in sense that T4 normal, TSH very marginally elevated. This child presents with fracture at end of first week of April. If you’re suggesting under circumstances of child having normal free T4 10 days before fracture, that hypothyroidism subsequently has an influence – I cannot accept that. Absolutely nothing to suggest thyroid function had any impact on this child’s bone.

In response to questions from Mr Larizadeh that her thyroid levels might have been abnormal at birth, he said No reason to suppose they were abnormal. Normal at birth. Normal a month after birth. Became abnormal 2 – 3 months later. Most common reason babies with DS develop hypothyroidism is they develop antibodies in thyroid gland. That is probably what happened. There is nothing to suggest abnormal thyroid in utero.

Mr Larizadeh sets out in his submissions a series of dates which pre-date 12^th March and which, he submits, support an analysis that Z’s thyroid functioning was abnormal. He submits, that Dr Allgrove’s evidence was dismissive of the possibility of Z having an underlying metabolic condition and hypothyroidism. He submits Dr Allgrove could not assist on the impact of hypothyroidism on bone growth and development. I do not accept that submission. Dr Allgrove was asked about the normal Guthrie result and the results of 12^th March and 7^th June but not all of the dates/results set out in submissions were put to him although I accept that the general proposition was put. The dates which pre-date 12^th March are, for the purposes of identifying the relevance of this issue to a fracture occurring weeks after 12^th March, less significant than the result of 12^th March itself. Dr Allgrove’s opinion was and remained that Z was not suffering from hypothyroidism at the relevant time. In this context, he did dismiss this possibility her thyroid functioning was abnormal, but I did not find his evidence inappropriately dismissive.

Ms Howe KC submits that Dr Allgrove’s evidence on this issue was troubling because it is known that Z did develop severe hypothyroidism during her lifetime which required treatment by the end of May 2022. She says the end of May was much closer in time to the likely window within which the fracture occurred than the birth heel prick. I have considered this submission carefully. The first problem with it is that the submission sidesteps the evidence, also referred to by Dr Allgrove, that the March 12^th test showed free T4 at a normal level and only mildly elevated TSH, which Dr Allgrove cited in support of his contention that Z did not have hypothyroidism (which I understand to mean at the relevant time as he was aware she developed it later). To follow the logic of Ms Howe’s submission, March 12^th is much closer in time to the fracture window than the end of May.

Even if I am wrong about that, the overall impact of Dr Allgrove’s evidence when considered alongside the research to which he was referred, is that whilst the Hawli paper drew a clear link between the occurrence of hypothyroidism in those with Down Syndrome, and the Lanham paper on the compromised bone strength identified in utero in sheep, his evidence supports an analysis that it was unlikely that Z had hypothyroidism impacting upon bone strength at the time of the fracture.

I did not find Dr Allgrove dogmatic. He was probably (entirely justifiably) exasperated by the technical difficulties at court which delayed his evidence by an hour on the day as he had been scheduled to give evidence for the morning only - his evidence had to continue into the lunch break. In addition, he appeared genuinely perplexed, and perhaps a little frustrated, by extensive and repetitive cross examination on the issue of hypothyroidism, which he made clear on numerous occasions, he considered irrelevant. In that context, some of his answers were direct and/or blunt as Ms Howe submits. I do not consider that this undermines his evidence. As questions are repeated, answers may get shorter. Evidence given confidently and clearly, as Dr Allgrove’s was, can be just as helpful as evidence given cautiously. All evidence, when challenged, requires evaluation by the court in terms of its contents, rather than the manner in which it is given.

The chronology of medical appointments has already been set out above. Following her discharge from hospital, Z was seen by a number of professionals on 14/3; 15/3; 24/3; 31/3; 1/4 and 4/4. None of them noticed or observed any signs or symptoms of Z having difficulties manoeuvring her limb or showing any other signs of fracture or injury.

The parents were clear in their oral evidence that there was no fall or other accident which could have caused Z’s injury.

Their evidence was consistent on the issue of the parenting roles each adopted in the family home. F was the breadwinner, his shifts meaning he left the home in the mid-late afternoon, returning at about 11pm. M was the children’s primary carer. After her discharge from hospital in mid-March, F assisted M feeding Z via the naso-gastric tube while she was in her cot at night on his return from work. However, during Ramadan, which commenced on 2nd April in 2022, M undertook these night-time feeds as M stayed up. Whether or not this was the case for Ramadan in its entirety is unclear as he did suggest to the police that he undertook night feeds during Ramadan too, it was certainly agreed by the mother that overnight on 4^th – 5^th April, the F did not care for Z or feed her.

It was also agreed that X was not alone at any point with Z from her return from GOSH to the conversation M had with MS the following day.

I agree with the submission of the LA that the parents appeared to have extremely selective recall - providing accounts furnished with detail about the events of the 4th of April 2022 that had not been mentioned before this trial, but then pleading lack of memory and passage of time when challenged on inconsistencies in their various accounts.

It is agreed that F never undertook any intimate care of Z, these tasks being performed exclusively by the M.

It is likely, given the evidence of family life described above, that F relied heavily on his wife in relation to aspects of Z’s presentation which were unusual. I consider this to be significant. It reinforced the impression I formed during his oral evidence, that he loved his children but was not really engaged with the particulars of their care in the same way as the mother who was their primary carer. This is not a criticism of F: it merely reflects the different roles these parents adopted in bringing up their family. My impression is that F was not particularly involved in Z’s care to the extent that he was able confidently to interpret Z’s responses.

Neither of the parents appeared to be prepared to acknowledge that there were stresses and strains in looking after the number of children in the family in relatively confined accommodation. This part of their evidence was not credible. The F was cross examined about whether or not he had thought about the impact upon M of having to care for their other children and run the home, as well as caring for Z in these circumstances, but he did not give me the impression that this had preoccupied him particularly. The hearsay evidence of one of the children was that the M became sad, angry, upset and tired by Z’s crying. When M was asked about this, she denied being tired. She claimed not to like sleeping, which was not credible. The M was not prepared to accept that there were strains upon her in this period. Her evidence on this was not credible.

I find that M did keep certain things hidden from F for example, that she had left Z in the care of X. A responsible parent would not leave a child with Z’s difficulties in the care of an older sibling, particularly not one with X’s difficulties, as it is clear the mother did when she left Z with X. An effective partnership between M and F would have resulted in M’s feeling able to speak to F about the logistical difficulties of being in two places at once, so that they could formulate a joint plan. She did not do this and so he was unaware that she was managing Z’s care in this way.

I found the father to be a somewhat perplexing witness. By the time he entered the witness box, he said he accepted the expert evidence. This meant he accepted, therefore, Z’s femur would not have fractured during normal handling. At the same time, he continued to maintain the handling of Z at GOSH on 4^th, which he accepted used no more than normal force, likely caused her fracture. He did suggest that the procedure in moving Z around seemed normal to him at the time, but he realised after hearing HCA L’s explanation in oral evidence that it was not normal. As HCA L had not described performing any abnormal procedure, this part of his evidence was not plausible. He categorically denied any possibility that the fracture could have been caused by the mother, nor indeed by X. He was asked who could have done it if not the mother, X, or himself but could not provide a clear explanation.

His evidence, by comparison with that of the M, has been more consistent. The impression I formed of the F was that he remains devastated by Z’s death. He spoke of her lovingly. At the end of his evidence, there was an outpouring of grief-stricken anger about the circumstances which had deprived him and his wife of being able to care for Z in the last months of her life. I formed the clear impression that he blames the medical staff outside London as well as the LA, for delays providing information to the parents, poor management of Z’s conditions, and in short unsatisfactory care leading to her death. The court is not engaged with determining any issues in relation to Z’s death, but it did strike me as significant to his stance in this case, that he continues to harbour feelings of bitterness towards both local authority and the medical team which cared for Z in those last few months. I wondered whether, in his own mind, now at some distance from the events in question, his bitterness about Z’s death has contaminated his view of the care she received both at the RLH and GOSH and caused him to be more suspicious of Z’s responses during the examinations on 14/3 and 4/4. Whilst I appreciate that he has always questioned whether Z was injured at the appointments on 14/3 and 4/4, the subsequent inadequacies which he believes to have compromised her care are likely to have reinforced his initial suspicions. A parent better attuned to Z’s behaviours and responses may not have concluded that her responses were signs of distress.

In that context and given the description provided by Dr E of what

When addressing the issue of the appointment on 4^th in his first statement, he had been worried she had cried after HCA L pulled her legs to be measured. Z did cry for 7-8 minutes when her leg was stretched but I cannot comment on the reason. At that time, F was not making a direct allegation against GOSH and if anything appeared to rank the appointment on 14^th higher in the list of probable causes of Z’s injury. The LA submits that F had also said that the nurse noticed Z’s leg was hurting in relation to 4^th when he and M changed Z’s nappy. The subsequent description of the examination is more consistent with this observation being linked to the 14^th March and so I find it is more likely than not that this is a dating mistake.

The mother was an unsatisfactory witness. The longer her evidence progressed, the less credible her evidence. She impressed me as focused on exculpating herself. At the same time, she resiled from accusing others, including during her oral evidence, even though the effect of her evidence overall was that she was in fact doing precisely that, as her written submissions confirm.

So, for example she did not directly (at least to the court) accuse X of injuring Z but she had implied it and required the issue to be explored by the court. Further, she aligned her case with that of her husband and submitted that the court should find HCA L had caused the injury during the routine examination on 4^th April. Despite this shift in her position, she was at pains during her oral evidence to say that she was not blaming GOSH nor was she upset with HCA L. I found her evidence on this issue wholly implausible. On her case she is an innocent parent of a child, now sadly deceased, who was deprived of that child’s care during the last months of her life by the actions of HCA L. If she genuinely believed HCA L had injured Z, she would likely have been very upset and she would have blamed her unequivocally.

Equally troubling was her assertion that she could lie to the judge/the court but she could not lie to Allah. Whilst she may believe this to be true, it did not inspire confidence that she approached the issue of giving evidence to the court with a focus on telling the truth.

Her written evidence was inconsistent and her case changed. I acknowledge that the language difficulty for M (and to a lesser extent F) communicating sometimes without an interpreter. However, the records indicate that when she spoke to professionals, many discussions were interpreted. Those which were not interpreted must be approached with caution in case of misunderstanding and given that her accounts were provided via a third party. So, I have not attached weight to subtle inconsistencies arising from the use of different words. Even accounting for this, the inconsistencies/fluctuations in M’s evidence are not adequately explained by interpretation or communication difficulties. Interpreters assisted her when she provided her written evidence. In addition, her 2023 statements and her police interview were reviewed by the interpreter booked by the mother’s solicitor. Inconsistencies in those accounts cannot be satisfactorily explained by fading memory or language difficulties. In addition, the father confirmed to the guardian that he had amended his statements to ensure they were accurate. During the hearing, he reviewed the video and transcript of his police interview and made alterations to confirm its accuracy. Language issues are not a sufficient explanation for the inconsistencies and omissions in their accounts.

My assessment is that M has been focused on locating the blame for Z’s injury away from herself and has manipulated her evidence with this aim. This could simply reflect the fact that she genuinely had no idea of how the injury occurred and is searching for possible explanations or it could signify a more sinister and strategic attempt to exculpate herself. I have concluded that the latter is more likely.

So, in her police interview she mentioned the appointment on 14^th March. As with the approach she took in relation to X, she drew back from making any direct allegation against the doctor, instead describing vividly the F’s concerns: Every time they checked and they grabbed her leg and they pulled her leg and my husband said, “Oh, they’re breaking the leg”. I said, “No, don’t talk, they are doctor, they’re not going to break the leg”. Later in the interview she confirmed she did not have any idea of how the injury occurred. My interpretation of what she said in these exchanges is that she was implying that what happened at the appointment on 14^th could be a possible cause but locating the concern about the appointment with the F rather than herself.

In her initial statement of evidence in these proceedings, she made no mention of the hospital appointment on 14^th March. Nor does she suggest that anything unusual happened at the GOSH appointment on 4^th April or repeat what she said in the interview about 14^th March. Instead, she mentions the occasion she left Z with X. She continued, through leading counsel to require the court to investigate the X/car seat hypothesis whilst at the same time, asserting she was not blaming X. My assessment is that she was trying on the one hand to present herself as X’s caring M who was not blaming X whilst on the other hand attempting to keep the option of doing so open to her. In this regard her position statement of May is illuminating: The mother does not know how Z sustained a broken femur. She went to mosque on 28th March 2022 with U, V and W and left Z sleeping in the living room with X to care for her. When the client returned home she saw X holding Z. It is significant that within the family her children understood her to be blaming X for Z’s fracture. The involvement of X in these proceedings, when he has always denied injuring Z, has had a significant impact on his wellbeing.

By early June of this year the M’s case shifted to focus upon the GOSH appointment, the expert evidence having excluded the appointment on 14/3 because it was outside the timeframe. She then filed evidence providing a detailed account of HCA L’s examination of Z on 4^th April and was advancing a positive case that this examination likely resulted in Z’s fracture….up to this point Z had not been crying at any point since we arrived at the hospital. The nurse held Z by the right knee and then bent her right knee upwards for her head to reach the fixed measuring post. She then stretched her right leg out to measure it. Z started to cry when this was done.

The shifting focus of the mother’s case reinforces my impression that she has been seeking to locate blame for Z’s injuries other than with herself. This could, of course, be because she does not know how the injury occurred but I do not think that is the most likely explanation.

GOSH – 4^th April Turning now to the evidence and findings in relation to Z’s appointment during the Cardiology Clinic at Great Ormond Street Hospital. Z was weighed and measured by HCA L; Ms G undertook the ECHO scan. Finally, Z was seen by Dr K, Consultant Cardiologist accompanied by Nurses N and D.

The written accounts by the parents of what happened at GOSH suggested excessive force/inappropriate handling. The father’s first statement described Z’s legs being pulled to be measured, Z crying for 7-8 minutes when the leg was stretched. In paragraph 10 of his statement of 19.5.23, he added more information about this appointment: Z was being weighed and measured and they pushed her back and forth whilst holding her leg and she screamed. When she started crying her heart rate increased. The nurse examined Z naked and came to check. The lady doctor undertook a scan. [my emphasis]

In his statement of 6^th June 2023, he said Z was naked when she was weighed, in order to measure Z’s length she was placed on a fixed long table adjacent to the wall. Z was laid on the table parallel to the wall. In order to straighten Z’s legs for measurement, the Health Assistant pressed down on the knees, applying a little pressure. The Health Assistant then used one hand around her ankles and pulled Z a short way approximately a couple of inches backwards down the table. The Health Assistant then placed her hand around Z’s right thigh, and then pushed Z very slightly further up the table. [my emphasis]

His account of what happened at the GOSH appointment differed from that of the M. In his statement he described remembering the worker pulled the legs to be measured. He remembered the HCA pressing down on both knees (rather than just the right knee) with the heel of her palm and then pulled her holding her ankles and pulling her and holding just her right thigh and pushed her, clarified later as first she pressed her knees down, held onto ankle and pulled her a little bit back, then held onto the thigh and pushed her up. After this F said Z cried for 8-10 minutes although he had said 7-8 in his witness statement. For the avoidance of doubt, so long after the event he was describing, I attach no significance to this difference. When it was put to F that she must have stopped crying by the time of the heart scan he responded: when I said 7-8 minutes that is basically the room and also the waiting area – when the measurement took place from that room, this room and also waiting area.

The M had not dealt with the 4^th April in her written evidence until June this year. Her focus was on the possibility of an organic/unknown cause or X (PS 12.5.22, para 2). On 7.6.23, M provided evidence which appeared to suggest something happened at the appointment at GOSH on 4^th April. The mother’s account is that Z was shivering because she was cold. The nurse told me where to put Z down in front of her and I did so. My husband was then stood between me and the nurse. Z was lying on the measuring table. Up to this point Z had not been crying at any point since we arrived at the hospital. The nurse held Z by the right knee and then bent her right knee upwards for her head to reach the fixed measuring post. She then stretched her right leg out to measure it. Z started to cry when this was done. [my emphasis] The nurse told me to put Z’s quilted pram suit back on so that it would be easier undress her again for her heart scan. While I put the quilted pram suit on her she was still crying. It was a distress cry that worried me. It also worried my husband who asked why she was crying like this. The mother said that Z continued to cry throughout the heart scan, was crying non-stop and moving. The medic/nurse trying to scan Z tried to pacify her by giving her some drops in her mouth to calm her down, to be still for the scan. I was stroking her head to try and get her to calm down. Dad was standing by and asking why she was crying. After the echocardiogram, Z was in discomfort and making a moaning noise, which the medic/nurse same heard and that she was still unsettled afterwards. Then A doctor checked her heart again and prescribed her x2 heart medicine. There was no interpreter for this. Then a nurse took us to the main hospital to get the medication from the pharmacy. The pharmacist told us how to administer the medication. Throughout this whole period Z was not quiet, and was making a moaning, groaning noise. I asked a nurse to get a syringe to feed Z, which she did. I gave her a feed but Z was still crying. We then left and went home on train. Z was still crying, on an off, when we got home at about 6pm.

M’s description of what occurred at GOSH is not easy to follow but indicates use of an inappropriate mechanism by which Z was moved up the measuring table by HCA L holding onto her knee and pushing her. In terms of the second mechanism described of her straightening the leg, M could not say, when cross examined by the LA whether or not the nurse was using excessive force. When cross-examined by Mr Squire she agreed that HCA L used normal handling to gently flatten the knee as gently pressing the knee downwards.

GOSH witnesses had been asked by the LA, when they were to be witnesses for the LA rather than intervening, to respond to a set of agreed questions about what had happened on 4^th April and statements were served. Once the parents case revived the allegation that the fracture had been caused during this appointment, GOSH intervened and more extensive narrative statements were filed.

The first professional to encounter Z at GOSH was HCA L who undertook the initial investigations. She is a nurse who has been employed by GOSH for a period of 11 years. She sees about 40-50 patients daily in outpatients. She has never been accused of injuring a patient. She has never been subject to disciplinary proceedings.

HCA L was a calm and assured witness. She had no recollection of the specifics of this appointment other than through her notes. She explained what happened at such appointments. It was standard practice for parents to be asked to undress their child in advance of being weighed and measured. The parents would then be asked to place their child on the weighing machine and then on the measuring machine. The process took 8-10 minutes. She then measured blood pressure. For a baby she does this when they are in the pram. As Z was a cardiac patient she would have taken this by wrapping the pressure cuff around the right lower leg above the ankle. This usually happens before the child is fully undressed to reduce the chance the child will be distressed, which can interfere with the reading. The child is then fully undressed and placed by the parents on the weight machine until the reading is taken. She would not handle a child whilst this measurement is undertaken. The final measurement is the

When the child’s head is in the right place, the leg often requires straightening as babies of Z’s age usually hold their legs in a bent position. To do this, she placed the open palm of her hand over the child’s knee and applied gentle pressure to the knee to straighten the leg. The measurer (which is movable) is moved to the sole of the child’s foot to record the length. This takes a couple of seconds. She confirmed to Mrs Bath that it was normally just one leg rather than two.

Any pressure applied to the child was very gentle. In her oral evidence she said it was not really pressure, just hold a little bit very gentle. Nor would there be any reason for her to twist or bend a child’s leg. It was not her practice to push a child up the measuring table by bending their leg and using their legs as the M had suggested she did. She would not move a child down the table as their head needed to be at the top and she would not pull a child by their ankles on the table. She did not recall doing anything to Z to cause a fracture to her femur and she confirmed in her oral evidence that had she done so, she would have recorded it and informed other staff. Similarly, if she had any concerns about the parents’ interaction with Z or with her or each other, she would have recorded that. Both in her written and oral evidence HCA L emphasised her ability to distinguish between a distressed cry and a general cry. She said that babies do often cry when they are undressed as part of this process. This is one of the reasons the blood pressure is undertaken before the child is undressed. If she heard a child cry in distress, she would note that on EPIC (the digital record). After the measurements were taken the baby would be taken upstairs.

In cross examination, it was put to her that Z’s legs were pulled to be measured (F’s account with which M agreed) and also that she had stretched her right leg out to measure it (M’s recent account). She disputed pulling or stretching the leg and reiterated that gentle pressure applied by the palm of her hand to the knee resulted in the leg going down. She resolutely disputed M’s assertion that she had held her by the right knee and bent her right knee upwards for her to reach the fixed measuring post. She never held Z at any point. If the child needed holding in position, she always asked the parents to do it: I am doing near here, moving back of machine to touch the palm of the foot. The head is at the other side. I am here and reading. I can’t hold at the head and read at feet. That is not possible.

It was put by Ms Howe that father recalled her placing a hand on Z’s ankles just to move her down the table slightly, and then to reposition her head to the right

The descriptions of HCA L’s actions in both M’s and F’s recent statements are inconsistent with her description of the procedures she followed. In considering the F’s account, it does not make sense that Z’s legs would be pressed on to be measured before her head was in place at the top of the measuring table. However, I accept it could be that so long after the events in question, F has become confused about the sequence of events. F’s account is also inconsistent with the M’s account. M makes no mention of Z being pulled down the table by her legs only to be pushed up again. It is also inconsistent with his own previous statement in which he does not describe any action by HCA L of pushing Z further up the table. All of this could simply reflect the difficulty in recalling now events which occurred so long ago. It could also be because F was trying to align his account with that of the M who described HCA L holding Z by the knee and moving her up the table before she stretched the leg out. This description of a child being moved and bending the knee levering the child’s weight up the table is a description of an action which is clearly inappropriate. It is difficult to reconcile this action with Mr Larizadeh’s submission that HCA L’s actions could be described as normal handling.

I agree with the submissions of the Local Authority that in his oral evidence, the F appeared to be unquestioningly supportive of the mother’s position. Whilst this is unsurprising in the context of their marriage and strong commitment to each other, I do consider it a little odd was that he did not appear, either in his written or the oral evidence, to reflect and re-evaluate his position in light of her evidence and shifting position. In addition, it is a little surprising that he remained unwaveringly supportive after her early admission that she did not tell him she had left Z with X on a number of occasions. The evidence suggested he was unhappy about that, asking her “what have you done”. The evidence also suggests M kept the information from him because she knew he would not approve.

I found HCA L to be an honest witness. Despite the serious accusation levelled against her, she gave evidence calmly and professionally. I had no doubt she was telling the truth.

Ms G is a cardiac physiologist working at GOSH with experience in examining babies of Z’s age with Down Syndrome. She would see on average one a day. She conducted an Echocardiogram of Z following the measurement and weighing. The first picture was taken at 9.14am and it would normally take about 5 minutes in preparation for imaging. The appointment lasted about 30 minutes and she would have taken more images than normal because of the complexity of Z’s condition, in order to rule out other problems. If a child cries she would suggest the parent soothed the child (whether by bottle or otherwise). If that doesn’t work she would offer a child sucrose, which is not noted in the records usually. However, as she confirmed in her oral evidence if a child had been crying in distress, she would have noted it.

Ms G did not agree that it was likely that Z was very unsettled. She said I looked at every single picture and her heart rate was stable from the first until the last picture. If she would have been crying, I would have artefacts on the image itself and on heart rate that is recorded the whole time. She doesn’t have any artefacts. So, I can see, looking at my scan, I can see she was stable and settled. She agreed it was possible that if Z remained still but was crying non- stop, she would still be able to take pictures but she reiterated Looking at my scan, I can’t see at any point that she was upset. My pictures are clear. They do not have artefacts, I’m confident by looking at them that she was not upset.

I accept Ms G’s evidence. Although other evidence suggests that Z was crying at points during her examinations at GOSH, she was not, I find, crying and moving about throughout the entire echo. This would have interfered with the readings and likely resulted in the examination being paused. Had this happened, it would have been recorded on her notes and it was not.

Dr K is the consultant cardiologist who examined Z in clinic after she had her echocardiogram and been weighed and measured. He has been in post for 9 years and worked previously as a consultant at the Charles Hospital and University Motol Hospital in Prague.

Z had ventricular septal defect and double outlet right ventricle which is a very common heart defect he has seen many times. He said there was no note on the Echo scan that Z had been upset, crying or in distress. This would normally be noted as it can affect the quality of the imaging. As part of his examination, he would always note whether a child was in distress. There is no such note for Z.

If needs be following the previous investigations, the parents would usually be asked to undress the child to the nappy so he could access the femoral arteries. He would ask the parents to place the child on the bed and watch their breathing. After this he would listen to the heart and palpate the child’s abdomen. He confirmed in his evidence in chief that in order to listen to and grade the systolic murmur, it was important that the child was not crying because this would interfere with his ability to hear and grade the murmur. If Z had been crying, it would have been noted and was not. His notes suggest Z was settled.

In order to check the femoral pulse, the technique depended on whether the child’s leg was bent. If it was, he would gently press it down with a flat hand and palpate the artery with the other hand at the point where he expected to feel the femoral pulse. Under cross examination, he described this as in the crease between the leg and the lower abdomen. If the leg was already straight, he would simply press at the point he expected to feel the femoral artery. He disagreed that this was in a different part of the anatomy to the femur, explaining: The head of the femur is inserted into the pelvis, above the level I was pressing….the artery runs along the bone. He said that he would expect that if Z had a fractured femur on the day of his examination, he would expect a pain response, which is not indicated in the notes. He always took enough time to document things properly and always noted when a child cried, which he had not done in this case.

In his statement, he said Given my experience as a paediatric cardiology consultant, I am usually able to tell the difference between a child’s normal

When palpating above the top of the femur, there would likely have been a pain response or he could even have displaced part of the fracture. He agreed with Mr Larizadeh that he had never palpated a femoral artery above a fracture site but when it was put to him he was guessing, he responded that he had palpated fractures and was making an assumption on the basis of his clinical experience.

Had there been asymmetry in the leg movement, he would have expected to notice but agreed he might not have noticed if the legs were not moving. When this was followed up with Dr K, it was put to him he might not have noticed if Z’s legs had been covered by her quilted pram suit, he disagreed. He explained: putting the finger in the groin, it is a very sensitive area, small children don’t particularly like it, they often bend their legs as a result. That is my clinical experience. It may trigger leg bending, I do not recall exactly for this child, but legs tend to bend and would uncover leg movement asymmetry.

He was asked by Ms Roberts whether he was aware of any link between Down Syndrome, complex cardiac malformation and bone fragility and replied: there is literature suggesting there might be increased bone fragility but only in adult patients and Z was only 2 months old. To my knowledge, there is no evidence suggestive that there would be increased risk of bone fragility.

Dr K was an impressive and truthful witness and, whilst I accept he is a treating physician, it was clear that he had expertise in relation to the matters about which he gave evidence, in particular, I accept his evidence including in relation to bone fragility consistent as it is with the expert evidence in this case.

CD is a cardiac intensive care nurse at GOSH. She had been seconded to the team on 04/04 and was still in her supernumerary period meaning that she was accompanied by Nurse N. Her evidence contained the observations undertaken prior to the meeting with Dr K. After that, an interpreter was called so as to ensure that the parents understood Dr K’s advice. The notes recorded that Z had been crying a lot over the last few days and although she thought M told her this when the interpreter was present, she did not know if what the interpreter said was accurate. She had recorded that Z cried during the appointment and was head bobbing but that resolved when she settled but couldn’t remember specifically when this observation was made. She explained

IN is a nurse with considerable experience. She qualified over 30 years ago and whilst at GOSH worked as a senior staff nurse in the cardiac intensive care unit for 17 years, preceded by years as a charge nurse and more recently as a cardiac nurse specialist. She had regularly seen babies with Down Syndrome. Normally she meets the patients who are due to see the consultant during the echocardiogram and on this occasion she did so although at this point no interpreter was present. The parents redressed Z prior to her appointment with Dr K. She did not notice anything unusual in Dr K’s examination, nor did she notice anything wrong with her leg. She remembered speaking to the parents after the appointment with Dr K in order to ensure they understood the advice.

Mr Larizadeh cross examined her about her observation Z was dressed appropriately in clean clothes because the notes did not say anything about this. Nurse N agreed she could not remember whether Z was dressed but did say she would have noted if the clothing had been inappropriate. He also challenged her on her assertion the parents would have undressed Z on the basis that had she not been dressed, there would be no need for undressing. Her response to this was that Z would have left the hospital clothed.

She had not remembered Z crying but had referred to Nurse D’s notes. She did not recall Z crying as M asserted throughout the echo. She said If child is extremely distressed and cried, it affects the breathing, you would stop the echo for a period, until child was able to breathe and this would be documented. She thought moaning after the echo would have been an unusual sound and if the baby were distressed it would be noted. She agreed she had not referred to Z’s skin being mottled nor of her crying although she did say that had she been crying for a significant period of time, it would have been noted. She said it was not unusual for babies to cry, particularly if they had been in hospital for 1.5 hours. She said that she had never completed a witness statement before and didn’t realise she had to provide that much detail. She agreed she did not know 100% whether crying was from pain or another reason.

Nurse N is very experienced and was with Nurse D who had taken the detailed note. Inevitably Nurse D was able to provide more detail in relation to notes she had made herself. I accept Nurse N’s evidence and find her to be a truthful witness. I do not consider that the questions put to her regarding whether or not the child was undressed or whether or not her clothes were appropriate undermines her evidence in relation to the key parts of the examination.

Mrs Bath read to Nurse N, the M’s description of Z moaning throughout this whole period (as set out in paragraph 9 of her statement), crying after her feed, continuing until about 6pm. She did not remember this. Had Z been crying/moaning continuously throughout the period, she would have got the doctor to check the child again observing I have never seen it, it isn’t my experience.

Telephone call from RS – 1606 on 4^th April 2022 (Core PDF 358; Second Medical Disclosure 316 & 348). In her statement of evidence, RS notes “no other concerns” in relation to the telephone call she had with mother on 4^th April. The medical notes indicate this call took place at 1606. When asked about this in her oral evidence, she said usually when I say that nothing discussed which worried about or which needed to review and the parents did not disclose any worrying issues with Z. This telephone call took place after the GOSH appointment or as it was coming to a close (the evidence of the parents that they arrived home sometime between 5-6pm). RS was not challenged in relation to this call. I accept her evidence on this issue.

Tuesday 5^th April 2022 - MS (not RS) called M twice to arrange a home visit later that day (12.06; 14.04) and then visited Z at home at 1600. Z was asleep. She sets out her findings none of which included concerns about Z’s leg. However, towards the end of the appointment, M concerned Z’s right leg uncomfortable when touched but she moving it normally. MS said M showed me a short video on her phone. When Z woke up and I was able to see her leg it appeared normal with no swelling or bruising. She did not appear uncomfortable particularly. She had woken up hungry for a feed. In her police statement MS said that the video she was shown showed Z moving her leg fine but she did not know when it had been taken or whether it was the same video M produced for this hearing. This was not clarified by the M in this hearing.

MS said she checked over Z’s leg with my hand. In oral evidence she explained she touched in gently but didn’t move it. There was no swelling or bruising that I could see, I could not see any issues. Once Z had woken during our appointment she had been crying on and off so it is hard for me to determine that she may have been crying due to me checking her legs or possibly that she had just woken up and was hungry.

When she gave oral evidence MS confirmed the purpose of her visit was to check that Z was being fed via the naso-gastric tube as there had been concern this was not happening. She had used a telephone interpreter but the interpreter had hung up by the time M raised the issue about the leg. All she could recall now was that the gist of what M said there was something wrong with the leg.

I found MS to be an honest witness who did her best to assist the court. Inevitably, because of the length of time since the events in question, there were areas in which she found it difficult to recall precisely what had happened. Considering her evidence, my overall impression was that, as she acknowledged herself, she had not really paid much attention to the leg issue, coming as it did right at the end of the appointment and after she had dealt with the issues she was there to investigate. If Z’s leg was fractured at this point in time, she would not necessarily have known that from a visual examination, as the evidence of the other treating clinicians indicates. Although she had noted that when Z’s leg was touched she was moving it normally (as per her email), if Z’s leg was fractured at this time, I consider it unlikely that she observed it moving normally. My impression of her evidence was that she was trying hard to assist but really could not assist with clear and reliable observations of Z’s leg.

Alternatively, her evidence could suggest that the fracture had not occurred by the time of her visual examination, although this would appear to be an odd and unlikely coincidence given that it was the very same limb which was identified to have fractured days later.

Thursday 7.4.22, MS wrote to the multi-disciplinary team treating Z to tell them (inter alia) that M had told her Z had pain in her right leg when it was touched but she was moving it normally.

Friday 8^th April- 1045, RS, neonatal community nurse. Telephone call to father to review Z. Home visit cancelled as Z seen by CCNT (children’s community nursing team) already this week and in clinic at GOSH. CCNT to continue to review Z at home. No other concerns.

RS’s written account and oral evidence provided an overview of her engagement with the family after Z’s discharge from hospital. It is clear that there with ongoing input from the cardiology team, there were a significant number of appointments which needed to be kept. Her evidence suggests that attempts were made not to overload the parents with appointments, so that the appointment scheduled for example for 8^th April did not go ahead because Z had already been seen that week. The parents appeared, generally, to have engaged well with the community nursing team who observed Z to be well (and well looked after) on the occasions she was seen.

On Sunday 10^th April - Z was taken to A&E at the Royal London Hospital by M and F where she was seen by a number of doctors and underwent a CP Medical by Dr E, Consultant Paediatrician. His report, dated 14.4.22 contains a helpful summary of the interactions between the parents and the doctors/nurses who saw Z before his medical examination of Z on 12.4.22. This continues the chronology. Dr E confirmed he was not the primary treating physician on the weekend rota when Z was admitted but saw her after the weekend. Dr E was an honest, thoughtful witness who gave truthful and

He recorded Z was brought to hospital because her parents were concerned she was sleepy. When there, they said Z was not using her right leg as much and appeared to be in discomfort when it was touched. He observed the identification of the fractured thigh bone in a non-ambulant child resulted in concerns about the possibility of non-accidental injury.

He agreed in oral evidence that the parents had presented the child for examination and were co-operative. He agreed that the parents had successfully undertaken the naso-gastric tube training prior to Z’s discharge following birth and that there had been no observed concerns about their interactions with Z during her stay.

Significantly, his evidence indicates that neither parent raised any concern with Dr E, Dr W or Dr MSH about the conduct of HCA L at the examination at GOSH on 4^th April.

He recorded Dr MSH, Paediatric Registrar’s examination, The right thigh appeared swollen compared to the left thigh but this was not obvious on observation alone. The right leg was painful when the thigh was moved. In his oral evidence, he interpreted this as that Z was a small baby and there were no overlying skin changes at the time. He agreed the right thigh appeared slightly more swollen but unless the thigh was exposed and you looked, it was not obvious. Put simply, if you stood at the end of the bed and looked, there was no obvious deformity of the right leg. He recorded what the parents had told her at 8am on 10^th without the benefit of an interpreter:

Pausing there, by agreement the appointment which is referred to in this note was that with MS and it took place on 5^th not 6^th April. I do not place reliance on the inconsistency regarding dates in this exchange, given the absence of an interpreter. However, F’s observations about Z moving her right leg less since she was discharged from the NICU is consistent with what he later told Dr W the consultant through an interpreter, so I find he did say this and M did not correct him.

Later at 1600 on 10^th, the parents told Dr W, the Consultant Paediatrician at 1600 through an interpreter:-

Neither Dr MSH nor Dr W was required for cross examination on their notes. When giving oral evidence, Dr E could recall meeting the family and discussing Z’s case with them. He thought it important to have an interpreter and advocate because of the concern about NAI and a junior doctor accompanied him to take a contemporaneous note. He accepted under cross examination by Ms Howe, that because question and answer were interpreted, the reliability of the note also depended upon the accuracy of the interpretation. I pause to observe it also depended on the accuracy of the note taker.

He was asked during his oral evidence about Z’s thyroid function test and thought it would have been completed in the neonatal period because Z had Trisomy 21 but he would check the Guthrie test taken at birth (subsequently checked and normal). He confirmed that the parathyroid hormone level had not been measured at the time of admission because he checked and he agreed that this was a recommended test. However, Z’s Vitamin D level was normal, so was the calcium and alkaline phosphatase and phosphate. Although not an endocrinologist or a radiologist, there was no biochemical evidence of rickets or metabolic bone disease. Despite the bones being relatively osteopaenic on Xray, interpreting bone density was a complicated issue. He agreed with Mr Larizadeh that Z’s results in June suggested she had a serious thyroid problem, clarifying in re-examination that the results from February and March indicated that at that time, she did not.

Dr E deferred to the expert endocrinologist on the significance of the TSH result. He confirmed that when asked whether they could think of anything else which caused the injury, whether handling by a sibling or another, the answer had been no. I found Dr E to be an honest, knowledgeable and careful witness. I accept his evidence as to the conversations he had with the M and F and the findings set out in his child protection medical report.

Dr E recorded the discussions the parents had in which they offered potential explanations for Z’s injury, including with him. He recalled that F identified the hip scan (which took place on 14^th March) as an occasion when the fracture could have occurred and noted: At the beginning nurses told parents the baby was moving less due to heart problems but parents noticed as soon as she went home that she was moving her leg less. Felt that after her hip scan the baby was crying a lot and wonder if this is the cause of the fracture and 2 days after going home after the scan noticed baby crying a lot, not moving leg much, when touching leg baby crying more. In his oral evidence, his recollection was that both parents had been given a fair opportunity to speak and he made sure that he got information from both of them although he could not remember precisely who had said what although it was F who initiated the hip scan discussion.

Under cross examination Dr E could not recall which parent said Z had been in pain. In response to a query about what they had done, M was reported as saying: Yes, spoke to community nurses at home on 23/3/22 who came to check the baby. I told her I was worried because when I touch it she screams and doesn’t move it. The nurse said she would go away and discuss with doctors and we were waiting to hear from her. 2 days ago when the breathing got worse she came to hospital and also told about the leg problem then. The challenge to this part of Dr E’s evidence by M was around whether or not M accepted using the word “screams” rather than the chronology he records (of an appointment on 23/3) about when M first noticed problems with the leg. The suggestion M had noticed difficulties with the right leg on 23/24 March is inconsistent with the M’s written and oral evidence in these proceedings. It is inconsistent with Jubaida Haque’s note of her visit on 24/3/22 (there was no visit on 23^rd) in the Second Medical bundle PDF 1820, which makes no mention of M raising this issue with her I have just seen this very cute little lady. She looked really well today.

In her written evidence, M said she noticed the leg problem on 4^th April. In M’s police interview (conducted on 13^th April) she said she first noticed the leg issue on Wednesday, which I interpret as more likely to mean Wednesday 6th April. She may have forgotten that MS did not come to her house on 6^th as it was clear from other things said that she was referring to the day of the visit.

M did not identify she noticed any difficulties with Z’s leg as far back as 14^th March but said the doctor touched the leg here and then did that the way she’s showing as in pushing and then she crying. In F’s first statement, he referred to the M’s conversation with MS on 5^th April for which he was not present, in his first statement, saying she had said she would get back to them, implying he knew by 5^th there was a problem. Inconsistent with this, his first statement asserts that after discharge on 12^th March, Z was small weak and not moving much although she started moving other limbs but not her right leg which is consistent with what he said in his police interview.

F told staff at the RLH on 10^th April that the mobility issue in her right leg was present from her discharge from hospital on 12^th March. He attributed this to her Down Syndrome and the fact that they had been advised some of Z’s long bones might be shorter. The M did not correct his assertion the leg problem dated from 12^th March. F told the guardian in January that he saw no signs of injury to Z after X cared for her (on 28/3) although he may have been referring to external signs rather than mobility as he mentions bruising and swelling. He also made the observation that none of the professionals had noticed it [the injury].

Under cross examination, F said after a while Z came home from hospital RLH at that time Z was to move her hands and leg comparatively less. Then we saw that the movement of her hand gradually improved however she was moving her leg but comparatively right moving less than left. The expert evidence does indicate that babies with Down Syndrome can move less than normal children. In such a child, it would not be surprising, therefore, if there were a difference in movements compared to their other children of similar age. However, In Z’s case, any such difference is likely to have been minor, given Dr Kunnath’s evidence about Z’s movements on the video on 28^th March, which I agree appeared normal.

Given none of the experts suggests that the fracture window dates before 20^th March, F’s suggestion that there was an immediate difficulty with Z’s right leg, but no other limb, after Z came home from hospital, is unlikely to be truthful.

In their oral evidence in this hearing both M and F identified 4th April, the date of the GOSH appointment as the date upon which M noticed the leg problem and mentioned it to F. The father said this was on the evening on 4^th April. When it was put to him he had not said this previously and might be aligning his account with that of the M, he said that he did not know what M had told MS (as he wasn’t there) but that M had told him on 4^th after they came home from the hospital [and M did the nappy change] that Z can’t move her leg…when I’m changing the nappy she cries. Later in his oral evidence he said that the M had told him that Z moved/pulled her leg when she changed the nappy.

F said he observed the next nappy change. Initially when questioned by the LA he did not say that he had seen Z pulling her leg but later in response to questions from Mr Squire, he said I did say that when my wife told me she pulls the leg during a nappy change, I need to go to sleep I will see it next time. Next time nappy change happening, I saw and I also saw her pulling the leg. She cried a little. This is something I did not see.

F has not said previously that M brought this issue to his attention after the hospital appointment on 4^th. Was this an attempt by F to make the timing fit with the mother’s evidence and bring it closer to the GOSH appointment?

The inconsistencies in accounts as to when the leg problem was noticed, as set out above, require evaluation. Parents who find themselves in the position of having to account for serious injuries to their child and who genuinely cannot do so because they have no knowledge of how the injury occurred, search their minds for any possible explanation. This process can lead to different and inconsistent hypotheses about the causation and timing of an injury. There is nothing sinister about this understandable process. Such inconsistencies in accounts may only indicate the anxious search for an explanation consistent with the injury.

However, if a parent knows how an injury occurred because they witnessed it or caused it, such inconsistencies can represent attempts to obfuscate or deceive.

Considering the inconsistencies in the parents’ accounts, the first factor which I consider to be relevant is that on the accounts of both M and F in this hearing, it was the mother who first noticed the difficulty with Z’s leg and alerted F to that difficulty. This is consistent with the evidence she was the primary carer of Z and attended to all of her personal care. It is also consistent with their joint evidence that it was only the M who cared for Z overnight on 4/5 April.

The Hip Scan on 14^th March - Both M and the F suggested the hip scan on 14^th March to Dr E. The M agreed, under cross examination by Ms Roberts that she had mentioned this as an occasion when the fracture could have occurred and that Z cried. She denied telling him that Z was moving her leg less after the scan. Earlier in the hearing when Dr E gave evidence, the M’s challenge to his evidence focused on whether or not the information about the hip scan came from F rather than M and then the fact that M had an advocate rather than an interpreter with her (although Dr E was able to confirm that this was the hospital description for interpreters). The possibility of injury on 14^th March does not fit with the parents’ written and oral evidence of when M noticed and alerted F to problems with the leg.

The suggestion that the appointment on 14th March could have caused the fracture has to be considered alongside F’s unsurprising and genuine belief that the hip scan could provide a plausible account for Z’s injury. When asked by Ms Howe KC whether a parent observing the hip scan and the manipulation of the leg during the consultation might have appeared to be unusual, Dr E agreed babies did not tend to like this manipulation and often cried as they found it painful. He agreed it was reasonable for F to have mentioned this as a possible occasion when a fracture could have occurred and did not consider there was anything sinister in F mentioning it because it was probably the only other time the leg was handled other than by someone in the household although there was nothing unusual about it from a doctor’s perspective. It involved passive movement of the ankle pointing the toes up and down, then bending and straightening the knees and finally passive bending of the hip joint resulting in bending the knee to 90 degrees and moving the leg out and inwards to move the hip joint out and in. When doing this, a doctor would normally put a hand on the thigh in the area the fracture occurred. I accept Dr E’s evidence.

A fracture in mid-March is inconsistent with the evidence on timing of the fracture. It is also inconsistent both with the parents’ evidence that the injury was noticed either on the evening of 4^th April and the written evidence all of which suggests the injury was noticed around that time. If the parents or one of them knew that the appointment on 14^th March did not result in Z’s injury, this was likely a deliberate attempt to deceive. If they did not, it was not unreasonable to advance this as a possible cause for injury.

X and the car seat - The M’s assertion to the police in her interview (as amended by her interpreter) that they said this injury happened 14 days ago may reflect a misunderstanding on her part about the information available at that time in relation to injury timing. Such a misunderstanding could possibly explain why she was suggesting the occasion when X looked after Z on 28^th March as a possible date when the injury occurred. Or it could be an opportunistic attempt to deflect criticism away from herself, as Z’s primary carer, and onto X. I shall deal with the evolution of the case which required X’s separate representation now, relevant as it is to the evaluation of the parents’ accounts and the inconsistencies outlined above.

At the hospital on 10^th, M told the doctor that she did not leave Z in the care of the older children. Later the same day, she told Dr W through an interpreter, that the older boys picked Z up but always carefully. During a police interview on 13^th April, M denied ever leaving Z in the care of X and repeated

In her statement of evidence and response to threshold dated 17^th June 2022, she said: On a few occasions I left Z with X while I took my other children to school. I only left the children for a few minutes while I dropped the other children at school. I left Z in the car seat with X, this happened on approximately 5 occasions….On one occasion when I returned back home and I had found that X had taken Z out of her car seat. X said he had taken Z out of her car seat because she was crying. I took Z from X straightaway to check if she was alright. Later on she said that Z seemed fine.

Her final statement produces a video of Z on 28^th March (the statement mistakenly refers to 28^th April and was corrected by M in her oral evidence) produced to show Z moving both her legs, presumably taken before she left Z with X.

In her final response to threshold she said I don’t know for sure that by leaving Z with X’s caused a leg fracture. When I got back from the mosque, I noticed Z on X's lap. I asked X why he carried Z on his lap? He replied that Z was crying. However, when I got home, I hadn't noticed that Z was crying or in a less comfortable position.

It has been submitted that the M’s case had never been that X caused Z’s injury and Mr Larizadeh invites the court to find X did not cause the injury to Z. I accept that M has never said X injured Z deliberately. In fact, her first statement says in terms I do not think X would have done anything to Z. Additionally, her final response indicates that she did not notice anything amiss with Z on her return. Nevertheless, I do not consider it accurate to suggest that she has never sought to locate responsibility for Z’s injury with X. The social work evidence indicates that the M has blamed X for Z’s injury within the family.

Whilst her case refined during these proceedings and she now submits that Z’s injury was likely caused at GOSH on 4^th April, it was the M who first cast suspicion over X by implying that when she left him alone (later clarified as 28^th March), he could have caused the injury when he took Z out of her car seat. Shortly after her suggestion, X was appointed a separate guardian and he has continued to be represented separately within these proceedings. He has told his guardian he did not hurt Z. A direction was made in December of last year for any application for X to give evidence to be lodged by 13.1.23 (the M made no such application). These directions would not have been made had the court’s understood the M simply to be identifying individuals who had opportunity to inflict this injury. Even if the court (and everyone else in the case) had misunderstood the M’s position, at the PTR, when the court was exploring the role of X in the fact-finding, it was suggested by the M’s team that the LA schedule of findings improperly overlooked the “car seat/X evidence” and that the court, with its inquisitorial role had a duty to investigate. By this time, the guardian for the younger children did want to explore this possibility, as rough handling by a sibling had been identified as a possible (albeit hypothetical) cause for Z’s injury by some of the experts.

The fact is that the possibility of X injuring Z had emanated entirely from the M. Even as late as the advocates meeting pre-hearing (this not being disputed), it was suggested M’s team might produce a videoed re-enactment for the court to view, produced by counsel. In fact, this was never done, perhaps because of the logistical difficulty as a result of there being no witnessed event.

For these reasons I do not accept the submission that the M has never sought to attribute, by implication if not express allegation, responsibility for this injury upon X. The unchallenged social work evidence is that U reported to social services that mother had said that X broke Z’s leg and that it happened a few days before she went to hospital on 10^th April 2022 and so, whilst M has not sought within these proceedings and this hearing, to pursue an allegation against X directly, her accusation against him, as reported by U, has hung over these proceedings and X and his family and necessitated his representation by a separate guardian.

In a way which I consider evidences a similarly manipulative and strategic approach, the M, having never in her evidence until June this year, accused any of the staff at GOSH of injuring Z at the appointment on 4^th, aligned herself with her husband’s case about this appointment after Dr Watt agreed the injury could have been caused as late as 6^th April. By this time the possibility of 14th had receded because of the expert evidence on likely timing.

Whilst the F had raised concerns about the examinations of Z at hospital on 14/3 and 4/4 in his first statement, the mother had not done so. She had previously stated in position statement and document that she did not know what had caused Z’s fracture and in her initial response to threshold that: ‘I did not mention that Z was in pain as she never expressed any pain’ and later ‘Z did not cry or seem distress and therefore it was difficult to know when she had broken her leg … I was not aware when Z may have sustained her injuries as she did not cry or react.’ Yet in this hearing, occurring over a year since the events in question, that is the causation issue which has been actively pursued on her behalf with descriptions of Z crying from the appointment through most of the day until 6pm.

I do not consider that evidence and the chronology in the evolution of M’s position supports an analysis that the M genuinely believed Zs injuries occurred at hospital on 14/3 or 4/4. Nor do I consider it likely that she has ever believed that X caused Z’s injuries. Nevertheless, she has been prepared to suggest, whilst implausibly not being upset or blaming them, hospital staff for causing

The M has not put forward any event occurring whilst Z was in her care, or accident which could meet the requirements indicated by Dr Watt (timing, mechanism, force from a memorable incident of significant distress to Z). It is inherently unlikely, had Z’s injury occurred accidentally, that she would have failed to provide an account of such an accident throughout long-running care proceedings when she and her husband have been accused of injuring Z and separated from their children pending determination of the factual issues.

One interpretation is that she drew back from making direct accusations within the proceedings because she knew that the individuals over whom she had cast a cloud of suspicion had not caused Z’s injuries and was attempting to divert attention from herself. It is more likely that she has speculatively and opportunistically accused others of causing the injury to deflect criticism away from herself. In this context her lies were strategic and manipulative and were motivated, I find, by a desire to exculpate herself.

F genuinely believes that neither his wife, nor X inflicted this injury upon Z. In contrast with the M’s case, F has always put forward the appointments on 14^th March and 4^th April as occasions when Z could have been injured. He has, I find, genuinely believed that these examinations could have resulted in Z’s injuries. This could support a finding that he does not have direct knowledge of how Z’s fracture occurred.

F has lied about the date on which difficulties with Z’s mobility in her right leg were identified and lied about the fact the movement in her other limbs improved. However, the F has relied heavily upon the M for information about

FINAL CONCLUSIONS AND FINDINGS