Slough Children First v Mother & Ors

…The Mother and Father are Indian nationals [who arrived in the UK in late 2021] formerly resident in the UK under the mother’s student visa…Mother was the principal carer for the Child as Father worked full-time – two jobs one in the daytime and one at night (5pm to 5am).

…

On 19th February 2023, in the evening, the Mother reports that she noted the Child to be unsettled and crying and that her left leg was swollen. The parents did not seek medical attention that day. On 20th February, the parents state that they attempted to make a GP appointment for the Child and called the health visitor. The health visitor advised the Mother to call 111. The 111 call, led to advice to take the Child to hospital. These calls are accepted by the parties and two calls were made to the GP surgery at 08.34 and 08.37 on the 20.2.2023.

Shortly after her arrival at Hospital (Arrival at 10.13 on 20.2.2023 [J130] Triage at 10.20) – …the Child was examined by A&E consultant Rebecca Cummings who noted that her left leg was “diffusely swollen and warm from knee to ankle” and “x3 small marks to anterior shin.” [statement at J1382 and notes at J127/128]. Of further relevance Dr Cummings arranged a bone profile for the Child - results at [J137] dated 20.2.2023 at 13.59. Also Vitamin D testing which is at [J138].

On admission to the paediatric assessment unit she was examined by Dr Kriti Singh who carried out a Child Protection Medical [C132 & C139, J224, J138, J142 & J155-159]. Later on that day she was also seen by Dr Edate, a consultant paediatrician [C24a & C24g, J183 & J184-186], an orthopaedic consultant Mr Patel [J161] and a consultant in trauma, Mr Shah [C28a, J162]. Each of these doctors examined the Child, spoke to the parents and took a history from them.

Subsequent investigations including x-ray and skeletal surveys revealed that the Child had suffered 2 fractures to her left lower leg. The fractures were a metaphyseal fracture to the bottom of the left tibia and an older mid-shaft medial tibial fracture which radiological opinion considered to be 10 to 14 days old. The lower leg fracture was considered more recent. Both injuries would have been painful…

…

On 21st February 2023, the hospital made a referral to the Local Authority and strategy meetings were convened on 21st and 24th February [H1-H8]…

…

During the course of the Child’s hospital admission, concerns were noted by hospital staff that Mother had been observed sleeping while holding the Child on ward on two occasions despite having been advised about the risks to her. Furthermore, when the parents were informed on 2[7]th February that the Police were exercising their protection powers and Child would be accommodated in a foster-placement, Father appeared to incite the mother to take the Child and spoke about “taking the baby and going”, saying “if I’d known this was going to happen I would have taken the Child to the village” [H16].

The police duly exercised their powers of protection and the Child was placed into foster care. The Local Authority applied for, and was granted, an EPO on 2nd March 2023. The Local Authority subsequently applied for an interim care order which was granted (without active opposition) on 10th March 2023.

Dr Johnson, radiologist;

Dr Yadav, paediatrician;

Dr Edate, paediatrician;

Dr Cummings, paediatrician;

Dr Singh, paediatrician;

The Mother; and

The Father.

The forensic download material extends to 68 MB of data.

It includes call logs, hundreds of videos and images, and WhatsApp communications created by and or held on each parent’s phone, including for the radiological period for the Child’s spiral fracture and leg fracture.

The dates attributed to videos and images, may be either the date the image or video file was originally created or the date on which a copy was created in WhatsApp on the phone.

There are no videos or images of the Child displaying either distress relating to her left leg or restricted mobility in her left leg. Many of the videos show the Child with full mobility in her left leg.

There are 9 short calls (the longest is 43 seconds) and 1 attempted call between the parents between 18:31 pm and 21:42 pm on 19 February 2023.

There are no communications between either parent (or between either parent and any other person) evidencing knowledge that the Child has leg injuries before admission to hospital on 20 February 2023.

There are no communications between either parent (or between either parent and any other person) evidencing any attempt to prevent any other person knowing how the Child sustained her leg injuries.

The images and videos of the Child are affectionate, and show gentle interactions between the Child and each of her parents in hundreds of videos and images, representing an almost daily record.

There are short videos of naïve parental handling of the Child on five occasions – being held on the father’s lap on playground swings, being held by the father and descending on a playground slide, being held on the mother’s lap on a playground swing, being placed unsecured in an upright baby chair and being held on her father’s shoulder with one hand.

These videos appear either to have been made or to have been copied to WhatsApp on 5 February 2023, 6 February 2023 and 9 February 2023.

There is one video of careless parental handling of the Child – being carried unsecured inside a small rucksack/daypack on her father’s shoulders.

This video is not dated.

A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and

that the harm, or likelihood of harm, is attributable to –

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

the child’s being beyond parental control.

…The principles are conveniently set out in the judgment of Baker J in Re L and M (Children) [2013] EWHC 1569 (Fam), to which I was taken. So far as material for present purposes what Baker J said (and I respectfully agree) was this:

“First, the burden of proof lies at all times with the local authority.

Secondly, the standard of proof is the balance of probabilities.

Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation …

Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.

Fifthly, … Whilst appropriate attention must be paid to the opinion of … experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.

Sixth, … The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.

Seventh, 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.

Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. 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 (see R v Lucas [1981] QB 720 ).” [I address this further below]

To this admirable summary I add three further points.

First, that the legal concept of proof on a balance of probabilities “must be applied with common sense”, as Lord Brandon of Oakbrook said in The Popi M, Rhesa Shipping Co SA v Edmunds , Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948, 956.

Secondly, that the court can have regard to the inherent probabilities: see Lady Hale in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11, para 31. But this does not affect the legal standard of proof, as Lord Hoffmann emphasised in the same case (para 15):

“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely.”

Thirdly, that the fact, if fact it be, that the respondent … fails to prove on a balance of probabilities an affirmative case that she has chosen to set up by way of defence, does not of itself establish the local authority’s case. As His Honour Judge Clifford Bellamy recently said in Re FM (A Child: fractures: bone density) [2015] EWFC B26, para 122, and I respectfully agree:

“It is the local authority that seeks a finding that FM's injuries are non-accidental. It is for the local authority to prove its case. It is not for the mother to disprove it. In particular it is not for the mother to disprove it by proving how the injuries were in fact sustained. Neither is it for the court to determine how the injuries were sustained. The court’s task is to determine whether the local authority has proved its case on the balance of probability. Where, as here, there is a degree of medical uncertainty and credible evidence of a possible alternative explanation to that contended for by the local authority, the question for the court is not ‘has that possible alternative explanation been proved’ but rather it should ask itself, ‘in the light of that possible alternative explanation can the court be satisfied that the local authority has proved its case on the simple balance of probability’.”

I agree with the judgment of Ward LJ. Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward LJ said, judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption or belief in a doctor however distinguished he or she may be. It is, however, necessary for a judge to give reasons for disagreeing with experts' conclusions or recommendations. That, this judge did. A judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes.

Parties should understand that the court’s approach to witness evidence based on human memory will be in accordance with CPR PD 57AC, Appendix para 1.3.

This states that human memory:

is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.

To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death the court must think carefully about the significance 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 questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process which might inelegantly be described as “story creep” – may occur without any inference of bad faith.

Such evidence may demonstrate that each parent has been or is capable of being physically aggressive or emotionally abusive to the other. The potential for harm to a child in such circumstances is self evident but in order to ensure that it is considered in every case, Parliament has enacted an amendment to the 1989 Act to provide for the same: by s 31(9) as introduced by s 120 Adoption and Children Act 2002 harm explicitly includes impairment suffered from seeing or hearing the ill-treatment of another: in colloquial terms, domestic abuse.

However, despite the above, what such incidents do not of themselves demonstrate, is that either parent has the propensity to violence towards small children. A clear distinction is to be drawn between the relevance and admissibility of evidence which describes the harmful circumstances in which a child is being cared for and the same evidence when it is used to suggest that a person has a propensity to commit a particular act. In other words, the evidence will be very relevant to harm or its likelihood in s 31(2) and the court’s assessment of risk in s 1(3)(e) of the 1989 Act but not necessarily to perpetration. It may be forensically unwise for the court to attach much, if any, weight to this evidence if it is directed only to the question of propensity…

No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only ‘what happened in the past?’ but also ‘what may happen in the future?’, a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable.

I therefore respectfully agree with what Macur LJ said in Re M (Children) at [12], with emphasis on the word ‘solely’:

“It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

…

28…There will be cases where the manner in which evidence is given about such personal matters will properly assume prominence. As Munby LJ said in Re A (A Child) (No. 2) [2011] EWCA Civ. 12 said at [104] in a passage described by the Judge as of considerable assistance in the present case:

“Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness - as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core… Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities.”

That a witness’s dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments…in formulaic terms:

“that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and/or that they have lied about everything”.

But this formulation leaves open the question: how and when is a witness’s lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire ‘Lucas’ direction as given, when necessary, in criminal trials.

Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:

“1.

A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that:

(1)

it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake;

(2)

it relates to a significant issue;

(3)

it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt.

2.

The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D’s lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …”

Had the local authority proved that the injuries were inflicted as opposed to being accidental?

If the injuries were inflicted, who had the opportunity to cause them?

Of those people, could one person be identified on the balance of probabilities as having inflicted the injuries (a conventional 'known perpetrator' finding)?

If only two people…could have caused the injuries, but the one responsible could not be identified it necessarily followed that there was a real possibility that each of them may have caused the injuries (an 'uncertain perpetrator' finding).

Risk factors and protective factors

On behalf of the Children’s Guardian, Mr Clive Baker has assembled the following analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.

Risk factors

• Physical or mental disability in children that may increase caregiver burden

• Social isolation of families

• Parents' lack of understanding of children's needs and child development

• Parents' history of domestic abuse

• History of physical or sexual abuse (as a child)

• Past physical or sexual abuse of a child

• Poverty and other socioeconomic disadvantage

• Family disorganization, dissolution, and violence, including intimate partner violence

• Lack of family cohesion

• Substance abuse in family

• Parental immaturity

• Single or non-biological parents

• Poor parent-child relationships and negative interactions

• Parental thoughts and emotions supporting maltreatment behaviours

• Parental stress and distress, including depression or other mental health conditions

• Community violence

Protective factors

• Supportive family environment

• Nurturing parenting skills

• Stable family relationships

• Household rules and monitoring of the child

• Adequate parental finances

• Adequate housing

• Access to health care and social services

• Caring adults who can serve as role models or mentors

• Community support

In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.

Uncertain perpetrator cases—If the judge cannot identify a perpetrator or perpetrators, it is still important to identify the possible perpetrators by asking whether the evidence establishes that there is a ‘likelihood or real possibility’ that a given person perpetrated the injuries in question (Re S-B (Children) [2010] 1 FLR 1161, SC; North Yorkshire CC v SA [2003] 2 FLR 849, CA). In such circumstances, it is all the more important to scrutinise the evidence carefully and consider whether anyone, and if so who, should be included as a possible perpetrator (Re S (A Child) [2014] 1 FLR 739, CA). However, it is not helpful for the judge to give an indication of percentages as to the likelihood that one or other of the possible perpetrators was responsible and judges should be cautious about amplifying in this way a judgment in which they have been unable to identify a specific perpetrator (Re S-B (Children) [2010] 1 FLR 1161, SC).

In Re B (A Child) [2018] EWCA Civ 2127, and Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, the Court of Appeal gave further consideration to so called ‘uncertain perpetrator’ cases. In Re B (Children: Uncertain Perpetrator), the Court of Appeal urged a change of terminology from ‘pool’ to ‘list’. The following principles can be drawn from the two authorities:

The concept of a ‘pool’ of perpetrators is one that seeks to strike a fair balance between the rights of the individual, including those of the child, and the imperatives of child protection;

A decision by a court to place a person in a ‘pool’ of possible perpetrators does not constitute a finding of fact in the conventional sense in that that person is not proven to be a perpetrator but is rather a possible perpetrator;

Where there are a number of people who might have caused the harm to the child, it is for the local authority to show that in relation to each of them there is a real possibility that they did so;

Within this context, the question is whether it has been demonstrated to the requisite standard that a person is a possible perpetrator. Approaching the matter by considering who could be excluded from a ‘pool’ of possible perpetrators is to risk reversing the burden of proof. The court must consider the strength of the possibility that the person was involved as part of the overall circumstances of the case;

In doing so, in future the court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury;

The court should then consider whether it can identify the actual perpetrator on the balance of probability [omitted]. At this stage, the correct legal approach is to survey the evidence as a whole as it relates to each individual in order to arrive at a conclusion about whether the allegation has been made out in relation to one or other on a balance of probability. Evidentially, this will involve considering the individuals separately and together and comparing the probabilities in respect of each of them. Within this context, the right question is not ‘who is the more likely?’ but rather ‘does the evidence establish that this individual probably caused this injury?’ In a case where there are more than two possible perpetrators, the Court of Appeal highlighted a clear danger in identifying an individual simply because they are the likeliest candidate, as this can lead to an identification on evidence that falls short of a probability;

[33] The evaluation of the facts which will enable a court to identify the perpetrator of an inflicted injury to a child will be determined on the simple balance of probabilities and nothing more. Having considered the matter afresh in the light of Elisabeth Laing LJ’s observation, I am of the view that to go further and to add that the courts should not “strain” to make such a finding is an unnecessary and potentially unhelpful gloss which has outlived its usefulness…

[34] I suggest, therefore, that in future cases judges should no longer direct themselves on the necessity of avoiding “straining to identify a perpetrator”. The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.”

Only if the court cannot identify the perpetrator to the civil standard of proof should it then go on to ask of each of those on the list whether there was a likelihood or real possibility that they caused the injuries. Only if there is, should that person be considered a possible perpetrator;

In order to ensure that an imbalance of information regarding each of those on the list does not distort the assessment of the possibilities, in uncertain perpetrator cases, at the outset the court should ensure by way of case management that: (i) a list of possible perpetrators is created; (ii) directions are given for the local authority to gather (either itself or through other agencies) all relevant information about and from those individuals; and (iii) those against whom allegations are made were given the opportunity to be heard.

It is important to note that the court remains under a duty to consider the welfare of the child under ChA 1989, s 1(3) where that child has suffered injury and thereby significant harm, even where it is not possible to say who the perpetrator of harm is (Re S (A Child)). Note that the Court of Appeal has suggested that, in the context of the requirements of the Children Act 1989, s 31(2), the terms ‘non-accidental’ and ‘accidental’ injury are, in addition to being tautologous and oxymoronic, unhelpful, the threshold criteria not being concerned with intent or blame but rather with an objective standard of care (Re S (Split Hearing) [2014] 1 FLR 1421, CA).

Where the court is satisfied that the child has suffered significant harm, the threshold conditions under ChA 1989, s 31(2)(b)(i) will be met in relation to that child even though the court is unable to identify who within the pool of possible perpetrators inflicted the harm: Lancashire County Council v B [2000] 1 FLR 583, HL, in which helpful guidance is given as to how evidence needs to be tested to establish the threshold criteria for the purposes of s 31 where the perpetrator is uncertain. In determining whether a person is properly included in the pool of potential perpetrators, it is essential that the court weighs any lies told by that person against any evidence that points away from them having been responsible for the injuries (H v City and Council of Swansea and Others [2011] EWCA Civ 195). In these ‘uncertain perpetrator’ cases, the correct approach is for the case to proceed at the welfare stage on the basis that each of the possible perpetrators is treated as such (Re O and N: Re B [2003] 1 FLR 1169, HL). The House of Lords held in that case that it would be grotesque if, because neither parent had been proved to be the perpetrator, the court had to proceed at the welfare stage as though the child were not at risk from either parent, even though one or other of them was the perpetrator of significant harm. The judge conducting the welfare hearing should have regard to the facts found at the preliminary hearing when they leave open the possibility that a parent or carer was a perpetrator of proved harm and that conclusion should not be excluded from consideration.

During the 7 days while in hospital post attendance on 20 February 2023, no concerns were expressed about mother’s (or father’s) behaviour towards the Child or in general on the ward. To the contrary, the court will note the following examples:

Dr Cummings noted that the parents were “appropriately distressed” [J127]…

Dr Singh recorded “Mum is appropriate and interacting well with the baby. Mum is keen for all the investigations to happen and get to the bottom of the cause of this fracture … needs safeguarding assessment and further investigations and mum is happy with this and given consent for the whole procedure” [J24]

All the nursing notes describe the mother interacting well with the Child, talking to and playing with her, feeding her, changing her nappies etc with no concerns being expressed; notes of the strategy meeting on 24 February record that the safeguarding nurse said parents “have been appropriate at the hospital” [M5]

The parents asked appropriate questions of all doctors including where the fracture (then identified) was and whether there would be long term sequalae [J193]

The parents showed no sign of wanting to obstruct investigations

A specific request was made by the LA team manager for parental interactions to be documented by staff [J181] and still no concerns were noted; one notable example records “all the time mum been very appropriate towards child …” [J157]

The police record “She [mother] has been very upset and crying, along with her husband. But she is feeling better now the baby is getting better” [M11]

The mother expressed concern when she thought the Child was in pain [J153, J156], when she thought the swelling was worsening [J171-172] and when the Child was crying after her ophthalmology examination [J155]

The parents’ distress at being told their baby was being removed was plain

[C36]

29…We came back home about 4.30pm. I took her out of her pram and put her on our bed. I changed my clothes and then changed the Child’s nappy and clothes. She seemed fine and playing but at times she was whingeing. I did not see anything wrong with her when I changed her. I did not see any swelling, redness or marks on her. A little bit later, probably about 5pm — 5.30pm, she started crying and whingeing again. I picked her up and fed her. When I put her down, she began crying again. When I walked around with her, she was fine. She nodded off. About 7.30pm, she was really crying and it was a different cry, as if she was in pain.

I tried to find a way to comfort her. I took her clothes off. I saw her left leg was swollen and I saw that she could not straighten it…I gave her calpol and she settled. She slept until about 9.30pm. Then she started to cry again but settled when I walked around with her and fell asleep

on my shoulder. I got into bed and she slept on my lap...She woke up about 1am and I fed her. I saw swelling on her leg but the redness had reduce/gone. I gave her calpol again and she fell asleep on my lap whilst I was sitting up in bed.

The next morning the Child woke up about 8am. She started crying loudly. It was not her normal cry. Both the Father and I were now really worried as she kept crying.

[M119]

My husband did go out in the evening to the High Street. And when the Child started crying at that time I called him that I am not being able to settle her down, can you come back?

…I gave her Calpol. When she didn’t stop then I called my husband.

And that is when I noticed as well, because when she was not settling down I took her clothes off because I wanted to check if she has got any rashes or anything on her body, that why is she not settling? That’s when I saw that she had swelling on her leg.

About half past seven, eight o’clock in the evening.

[M120]

After coming back I put her in the bouncer…then I put her on the bed…

…

And when your, when you called your husband how soon did he come back?

He went on cycle High Street from our place it’s about ten, fifteen minutes so he came between those ten, fifteen minutes.

[C149]

11…When we came home, it was about 4-4.30pm. I put the Child into her bouncer but she was not happy and then I put her on the bed and changed her clothes and her nappy from her heavy outdoor clothes to her indoor clothes (trousers and a top).

The Father then went out, to the High Street again to finish doing some shopping and the Child and I were alone. She was crying and really upset so I gave her some Calpol and some milk to settle her and she did settle for a while, but she then woke up again and was crying and wouldn’t settle. I called the Father and he came back within [] 5 - 10 minutes. I think I was on my own with the Child for about 40-45 minutes.

[J168]

Discussion with parents:

Noticed baby was irritable at 5pm

Clothing removed

Leg was swollen. Hence came into ED.

[C34]

It was my wife who would change the Child’s nappy or bath her and I would help by handing things over to my wife. I think I changed the Child’s nappy or clothes a handful of times but not very often as my wife would do this.

[C84]

20…When we returned home the Child was ok and after being at home for a little while the Child started to cry. My wife picked her up and gave her milk but the Child was not settling. I said to my wife that maybe she should take the Child’s clothes off to check her and when she did this we did see that the Child’s left leg was swollen. Both my wife and I thought she may have been bitten when in the pram. My wife gave her Calpol and the Child settled and went to sleep. However she slept for a little while, I cannot recall the exact time, but then she started to cry and my wife picked her up and settled her and fed her again.

[Z2]

6…we decided to take her home and we agreed that I would return to the High Street to do the rest of the grocery shopping. I then left the house to return to Slough High Street to get the groceries and I was calling my wife to check what we needed for the house.

I think it was around 6.34pm that my wife called me to tell me that the Child was unsettled…

[C154/5]

We got home around 4pm — 4.30pm, as I said in my second statement. As far as I can remember, I think the Father left around 4.40pm — 5pm to go back to the High Street to finish the shopping as there were still things we needed to buy.

I first did 1-2 deliveries then went to the grocery store, did my shopping and when on my way back home I got another delivery and did a third delivery before going home.

I was still at the High Street when I got the third booking.

I meant I’d finished the grocery shopping and there was nowhere else to go and I got the third delivery.

[E3]

In my opinion, even given the difficulty in dating of fractures, these two injuries have occurred on separate occasions.

[E3]

X-ray evidence of bone healing typically starts to appear after 5 - 11 days. The absence of any healing response indicates that this fracture is no older than 11 days of age on 23/02/23 and therefore no older than 8 days of age on 20/02/23. The radiological dating of any fracture is difficult, imprecise and a subjective estimation.

[E15/1n]

there is no evidence of any bone metabolic disorder, evidence of rickets or any osteopenia. She was born at full term, hence there is no likelihood of any osteopenia of prematurity (a condition which can cause bone fragility in extremely premature infants who require intensive care).

…

[E15/1]

p…she does not suffer from any significant organic disorder which can predispose her to excessive fractures without trauma. She has remained well while in foster care with no further fractures identified or any other concerns. Children who have increased bone fragility due to inherited or metabolic conditions are likely to continue to have more fractures with increased mobility as they grow.

In my opinion, based on the above factors, it is not likely that she suffers from an organic condition which can predispose her to excessive fractures without significant trauma.

[E15/1m]

Her vitamin D was noted as 20 nmols/l (reference range 50 to 200). Less than 25 nmols/l is taken as vitamin D deficiency.

[E19/6]

Vitamin D deficiency is a common problem in young children, especially in the Asian population. The evidence from the multiple medical reviews have indicated that low vitamin D is not likely to lead to excessive fractures without significant trauma (3- 9)…

The Child’s low vitamin D may have affected her bone fragility, although there was no radiological or biochemical evidence of rickets or other biochemical abnormalities indicating increased bone fragility.

[E23/10]

Bone fragility attributed to suboptimum levels of vitamin D have been offered as an alternative explanation for suspected non-accidental trauma in young children with fractures, although common it is unknown whether vitamin D deficiency increases the susceptibility to fractures in children.

[E24/10]

There is no accepted association between the serum vitamin D levels and bone strength in children. Metaphyseal fractures have been found to have high specificity for abuse, even in children with low vitamin D levels. Children with very low vitamin D levels also suffer from low

calcium, elevated alkaline phosphatase, lower phosphate levels and high PTH. None of these findings were identified in the Child.

In my opinion, based on the biochemical parameters, it is less likely that there was demineralisation of the bone leading to increased fragility and the Child’s radiological investigations did not reveal significant demineralisation of the bone.

[E25/10]

Studies have identified no difference in the serum concentration of vitamin D in children with fractures suspicious of abuse and non-inflicted fractures (7-10).

Vitamin D insufficiency was not associated with multiple fractures, especially in rib fractures or metaphyseal fractures, which have high specificity indicators for abuse.

In non-mobile children with a low level of vitamin D, it is not likely, in my opinion, to lead to multiple fractures. Although, as I have stated above, if the Child continues to have fractures without significant trauma while in supervised care, more investigations and assessments may be needed.

The Child had no radiological features of rickets or biochemical features of rickets. Hence, in my opinion, the low vitamin D is unlikely to be a factor in causing these fractures, although it is not possible to predict the bone fragility with low vitamin D levels in an otherwise healthy child.

In children exhibiting evidence of rickets, fractures are likely to occur with less force being applied than in children without rickets;

The Child did not have rickets (either radiologically or biochemically demonstrated) although that “does not diminish what we do not know” about the effect of low vitamin D levels on bone fragility;

Accordingly, there is an area of uncertainty about fragility in children with low vitamin D levels but without evidence of rickets;

The fractures are more likely to have been caused by forceful handling beyond that which would be expected from day to day care rather than a pre-disposition to fractures by reason of low vitamin D levels;

His conclusion in (d) above notwithstanding (c) above was based on:

[J187]

PC Marway who was also acting as the interpreter in Punjabi translated at one point that father said "let mum stay with the baby and I will stay away”.

[E3]

Each fracture is the result of significant force applied to the bone. The amount of force required to cause these fractures is unknown, but in my opinion, it is significant, excessive and greater than that used in the normal care and handling of a child.

These fractures would not have occurred from normal domestic handling, over-exuberant play or rough inexperienced parenting.

At the time that the fractures occurred, the Child was less than 4 months of age, and she would not have had the strength or level of development to self-inflict these injuries.

[E4]

The midshaft fracture of the left tibia is the result of a twisting, impact or bending snapping action applied to the bone. At the time the fracture occurred, there would have been some twisting/torsional forces applied to the bone. The radiological appearances of the fracture are non-specific with regard to the exact mechanism of causation and the same fracture pattern could occur from a variety of different causative events.

The metaphyseal fracture of the distal left tibia is typically the result of severe twisting/torsional force applied to the end of the bone. The radiological appearances of this fracture are non-specific with regard to the exact mechanism of causation.

In my opinion, the action of the Child moving and banging her legs would not create sufficient force or a suitable mechanism to cause either fracture.

[E4]

In my opinion, the action of putting on a child’s socks could create a suitable twisting action of the leg and ankle to cause either tibial fracture. However, any action would require excessive force applied to the limb to cause a fracture. In my opinion, unless any dressing or changing action was done using excessive inappropriate force, this would not have caused the tibial injuries.

[E76]

In my opinion, the actions of dressing a child, putting socks on them and overall movement and handling would not result in any fracture, unless these actions were done using excessive inappropriate force, which has not been described.

In my opinion, similarly massaging a child would not result in a fracture unless the action was performed using excessive inappropriate force, which has not been described.

[E17]

a healed spiral fracture of the left tibia (shin bone). In my opinion, shin bone fractures in a very young child who is non-mobile could not have been caused by the child herself. She did not have any of the conditions which can lead to fractures without significant trauma. Her vitamin D levels were low, but there was no evidence of any bony changes (rickets) or metabolic biochemical changes (calcium profile and liver profile) which could indicate that she had high bone fragility. The Radiology Reports have not identified any radiological evidence of any bone disorders which could increase her susceptibility to fracture. In my opinion, a fracture of the shin bone requires significant trauma and it has been described as being a spiral fracture, and these are usually caused by torsion being applied to the leg with significant force which can lead to the fracture. The likelihood of this being caused accidentally with the lack of any plausible history is low and, in my opinion, a significant fracture in a very young child is likely to have been

caused non-accidentally unless a clear plausible explanation is provided by the carers (1-10); and

she also had a metaphyseal fracture of the lower end of the left tibia. Metaphyseal fractures are classically associated with non-accidental injury and are caused either by stretching or torsion being applied to the joint, and this requires significant force which is much more than that required in the usual handling and playful activity with a young child (1-10).

[E22/9]

d…If the mother had applied significant tortional [sic] force to the limb while putting the socks on, it is a likely mechanism which can explain both the fractures. The force needed to cause the fractures would have been much more than that used in usual handling and playful activity with a child of that age.

[E80]

The description was given by mother that she may have used more force while giving massage to the Child or while putting socks on. In my opinion, if significant force was applied with torsion to the left leg, then this mechanism can explain the fractures. The force needed to cause the fractures in the left limb are likely to be significantly more than that used in the usual care of young children. In my opinion, during the day-to-day care and dressing/undressing children of her age fractures (tibial spiral fracture and metaphyseal fracture) are not likely to occur unless significant force was applied (1-10).

[E127/1]

In clinical practice and from the assessment of multiple children who are examined by clinicians and undertake Xrays of the limbs, it is unusual to find fractures in children who have been handled normally without any excessive force, accident or trauma.

The inconsistencies may point to mistake in recollection, lying or a mixture of the two;

If the accounts were identical it might conversely be suggested they pointed to a rehearsed story designed to cover up something;

If the inconsistencies arose out of attempts at fabrication, it is difficult to identify whether they were lies told for some other purpose than to exculpate themselves.

[E4]

At the time the fractures occurred, I would expect that the Child would have been in pain and shown signs of distress which would have lasted for some moments. Following this initial distress, the signs and symptoms related to these fractures could have been variable and I would defer to the paediatricians in all aspects of clinical presentation, both at the time that the fractures occurred and subsequently.

[E22/9]

At the time the fractures were caused, it is less likely that the mother [perpetrator?] would have noted that the fractures had been caused although the Child would have been distressed. It is likely that a reasonable carer would have noted that the child was in distress, although they may not have been aware that there were underlying fractures.

In my opinion, a perpetrator would have been aware that significant force had been used to cause these injuries…

[E20-21/7]

a…The duration of the initial distress can be variable in a very young child as they can be easily distracted by feeding, cuddling, etc. It is also likely that, after the injury was sustained, the Child’s movements of the limb would have been reduced and she would have cried when the limb was handled during the day-to-day care of a child of her age.

In my opinion, it is likely that a reasonable carer would have noted that she was in distress and not moving the limb as before and was crying when the limb was moved or handled, although they may not have been aware that there was an underlying fracture.

After the initial injury the limb is likely to remain painful until the bones heal completely and it is likely that the Child would have demonstrated distress and pain when the limb was handled during usual day to day care of young child, eg., bathing, changing clothes, nappy change, etc.

[E22/9]

f… A non-perpetrator witness is likely to have been aware that the Child was distressed and that significant force had been applied to cause the injuries, although they may not have been aware that there were underlying fractures. A non-perpetrator non-witness reasonable carer is likely to have noted that the Child was distressed after the injuries were caused and it would have been likely that the limb was swollen, spontaneous movements may be reduced and the Child would have been distressed when the limb was handled during the usual day-to-day care of a young child. It is not likely that a reasonable carer would have been aware that there were underlying fractures, although it is likely that they would have been aware that the child was distressed when the limb was moved and the swelling of the limb could have been noted by a reasonable carer.

[E128/3]

In cases where there is a non-displaced limb fracture in a very young child, the likelihood that the carer would be aware of an underlying fracture is very low as there may be no external deformity, there may or may not be swelling and the child may have pain and distress, although

this is manifested as crying. Crying in young children can be caused by multiple causes, and it is not necessary [not necessarily the case?] that a carer may be aware that there is an underlying fracture and may not seek medical attention.

…

[E129/4]

a…Especially in cases of no known event where a young child may have undergone a fracture

without significant external symptoms, the carer may not be aware that there is an underlying fracture and may not present a child for medical attention.

[E130/5]

It is plausible that the pain and distress responses to such fractures can be variable and the deformity, limitation in limb movement or pain may be variable in a child.

In very young children who are non-vocal, it is not possible in all cases to identify that the cause of the distress or pain is from a fracture.

If the fracture had led to a disability in terms of decreased limb movements, external swelling or limitation or painful joint movements, then it is likely that a reasonable carer may suspect that there is an underlying problem with the limb, although they may or may not be aware that there is an underlying fracture.

[E130/6]

It is likely that a carer, who was not a perpetrator or witness to the event which caused the injuries, may not be aware that there was an underlying fracture, and it is likely that they would not have known what forces had been applied to cause such fractures.

[C37]

I don’t know why we did not take the Child to the hospital straightaway instead of calling the GP. I just didn’t think. I thought as she was registered with a GP I should call and take her to the GP first and they would refer me to the hospital if they thought it was necessary. I didn’t know that I could take her to the hospital first. Normally, when we had any problems with our health, we called the GP first… We didn’t get any medical attention for her on Sunday evening because, although she was crying it was on/off as she would settle when I walked around with her and fell asleep on me. I gave her calpol and she would settle. I really did not think she needed medical advice. I am sorry. I knew she was in pain but I didn’t know what was wrong with her. The Child is my first child. I do not have parenting experience.

The next morning the Child woke up about 8am. She started crying loudly. It was not her normal cry. Both the Father and I were now really worried as she kept crying. I think we called the GP from the Father’s phone. We held on and were number 17/19 in the queue. I was given an appointment for 3pm that day. I thought it was a long time to wait. Whilst, we were waiting to speak to the surgery, I called the Health Visitor on my phone. I was told by the person I spoke with at the Health Visiting service that they could not help me and advised me to call NHS 111/hospital. I called 111 who advised we should take the Child to hospital which we did by taxi…

[C85]

We should have taken the Child to the hospital straightaway but we both thought we should first contact the GP. That is something we have always done.

[J163]

She noticed no other bruising or swellings that she an [sic] remember. They didn't seek medical advice as they thought this can happen and might improve on its own. At midnight the Child was crying again so gave paracetamol and observed.