A Local Authority v A & Ors

This matter is listed before me to determine whether the injuries identified to a child, now aged 14 months, were inflicted upon her by one (or both) of her parents.

The Local Authority who bring this matter are a Local Authority, represented by Dominik Morton.

The child’s mother is represented by Sara Lewis KC and Rachael Parkhouse.

The child’s father is represented by Owen Thomas KC and Andrew Duncan.

The child, is represented through her Guardian (Emma Atkinson) by Victoria Hoyle.

On 1 August 2024 a child was taken to the A&E department of their local hospital by her parents, who had noted bleeding from a cut under her toe, as well as marks on her feet. In A&E they gave their initial accounts to a treating doctor at 3.32 am, namely that she had been in a wicker moses basket and continuously kicking her feet around. Mum put some pressure on the bleeding, and it stopped quickly. She was screaming while it happened. Dad noticed the blood while feeding and said that he “noticed blood on his arm while feeding her” [J257]. This account was not challenged by any party. The father says in his initial response to threshold that they also noticed a red mark to her foot, and so decided to take her to A&E [A22]. The mother confirmed in her initial response at A31 that the first time she saw the bruise to the child’s foot was when she returned from the evening out.

They were transferred onto the paediatric ward, where the registrar undertook a CP medical, under the supervision of the Consultant. Whilst there, investigations identified that the child had sustained a left tibial shaft fracture, a right distal tibia metaphyseal fracture, a 12mm x 8mm bruise over the dorsal of her right foot, a 10mm x 4mm bruise over her right achilles tendon, and a 1mm x 5mm cut under the 4^th toe of her right foot.

Whilst the parents accept that she sustained these injuries between 4 July 2024 and 1 August 2024 they deny any knowledge of their causation. They both tell me that on the evening of 1 August the father had gone out to take the mother for an evening with her parents, leaving the child in the care of his mother and sister, and then he had returned to the home to care for the child until he went back out later to collect the mother. It was when he was feeding the child after they returned that he noticed blood to her foot, and afterwards the bruises. This account is corroborated by the another family member and grandmother.

This is a single-issue case: Without the unexplained injuries to the child this family would not have come to the attention of professionals. No concerns whatsoever have been raised in respect of their bond with her, or observations of their care of her either on the ward after her presentation to hospital or since, and they have been the subject of a detailed and carefully analysed positive risk assessment which reaches a conclusion that “regardless of the findings the child would be able to return to her parents’ care under a family led safety plan. I have provided a safety plan in the events of a solo finding and of a pool finding” [C127].

Law:

Parties have agreed a summary of the applicable law, which I adopt and summarise here. Where factual matters are disputed, I remind myself that it is for the LA to prove the findings they seek, on the balance of probabilities. There is no pseudo burden on any other party to disprove what is said against them. I must make my findings based on the broad canvas of evidence, considering each piece of evidence in regard to other pieces of evidence. Although hearsay is admissible, I must place the appropriate weight on it in light of the factors set out in the Civil Evidence Act 1995. I cannot look at pieces of evidence in isolation, and an overview of the broader canvas is required to help me to consider whether the LA case has been proved.

The evidence of the parents is of the utmost importance, and I must necessarily form a view as to their credibility and reliability. Parents often lie within the course of proceedings such as these, for many reasons – shame, misplaced loyalty, or fear for example but that does not mean that they have lied about everything, and most importantly does not on its own mean that they are guilty of what they are accused. The court should identify deliberate lies, the significant issue that they relate to and why it is found that the only explanation for that lie is guilt.

Medical Evidence is of assistance, but medical experts do not determine the facts within these proceedings – that is a task for me – and those opinions need to be considered in the context of all the other evidence. I must keep in mind the possibility that the cause of the harm is unknown. This recognises the developing nature of scientific and medical understanding and that it would be wrong to infer non-accidental injury merely from the absence of any other understood mechanism.

In A (Children) (Pool of Perpetrators), Re [2022] EWCA Civ 1348  per King LJ, in respect of the correct approach in uncertain perpetrator cases: ‘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.” 

There is a lengthy bundle available to me in this matter, which includes the medical reports of several jointly instructed experts. At the conclusion of the evidence the parties sought permission to file written submissions, which I have read, as well as submissions filed in response to others. I have viewed the medical imagery available, as well as listened to the very poor-quality recordings of the police interviews of both parents.

The bundle includes several iterations of the initial CP medical undertaken by the registrar and overseen by the consultant. The registrar gave his evidence on day 1. He was an impressive witness, able to identify what he could recall independently, and what was augmented by the process of brief contemporaneous note taking and later expanded into his medical reports. He was able to accept where it seemed likely he had made an error in recording, such as where he records the paternal grandfather having been present during the history taking part of the consultation when in fact all family members agree that it was the maternal grandfather (although the paternal grandfather had been present on the ward at other times). He did not consider it likely however that the parents had told him that the father had returned home between dropping the mother off and collecting her during the evening before the child’s presentation at hospital as he considered this to be an important detail he would have noted if told. Similarly, if told by the parents that the child had woken distressed in her bouncer over that period and been moved to her wicker moses basket he would have made a note of that detail. I accept however that there are errors in his recording which include the presence of the paternal grandfather and in light of this I am satisfied that it is more likely than not that he was similarly mistaken about the parents’ account that Father had remained at home in the evening with the child and his family whilst the mother was out, rather than this indicating a material inconsistency in the parents’ account.

Dr Watt (paediatric radiologist) was not challenged in evidence. His report concludes:

Dr Allameddine, Consultant Haemotologist, recommended further von Willebrand screening, which was undertaken. In response to further questions following receipt of Professor Saggar’s report he confirmed that he does not consider that there are any genetic or haematological abnormalities of clinical significance to suggest easy susceptibility to bruising, that it is very unlikely that the child has any underlying bleeding disorders, and that her results do not provide any basis for the fractures. He was not called by any party for challenge.

Dr Chawla’s paediatric overview (and 2 sets of updated responses) note that normal examination did not result in further bruising to the child, that there was no explanation for the fractures, and that the force required to cause them must have been significant.

Professor Saggar was jointly instructed to give his expert clinical geneticist opinion and confirmed that:

He gave evidence remotely on day 1. His evidence was measured and carefully considered, and he was able to adapt his evidence to take into account hypotheses put to him. He confirmed that the child has not been identified as carrying any gene or variant of significance in relation to her injuries or fractures. He confirmed his agreement with Dr Chawla that a propensity to bruise more easily than others may have been inherited but that this would be informed by whether she continued to be bruised after normal handling. He acknowledged that propensity to bruise does change over time, but in terms of years/life stages rather than over a period of weeks or months. It was not possible to diagnose or exclude a connective tissue disorder in the child in light of her age, although he considered her to have a75% a priori chance of inheriting EDS. Although she did not demonstrate hypermobility at the time she was examined by Professor Saggar (at 10 months old) the court should not attach too much weight to that, similarly to the records identifying her ‘clicky’ joints which were indicative that she may later be diagnosed. He confirmed that in his opinion there was nothing plausible or precipitant in the history given by the parents which would explain the fractures the child sustained.

In terms of propensity to bruise easily, Professor Saggar confirmed that there is a well-recognised issue with hypermobility and connective tissue disorders, although there does still have to be a precipitant force: gripping a foot with no intention to cause bruising may lead to a bruise in a child with a connective tissue disorder, but that propensity would remain and continue to cause bruising. He accepted that if a child were not undergoing ongoing examinations that same force may not be repeated, and also that in foster care normal handling may be even more careful than at home. It is not possible to say that simply because a child has not bruised on another occasion lesser forces had not caused her to bruise previously. Blood immaturity coupled with a genetic predisposition to easy bruising may not consistently maintain the same level of propensity as the blood matures.

On the issue of fractures and bone density he acknowledged that there was a paucity of research and evidence about the links between connective tissue disorders and reduced bone density in infants, noting however that there still needs to be a precipitant force and plausible mechanism even in children with Osteogenesis Imperfecta (“True brittle bone disease” as he described it). Fractures do not occur spontaneously. Whilst he accepted that bone density is increased over time through weight bearing, for example as the child became ambulant, he was careful to caution against inferring much from this given how unusual it was to see fractures in small babies who are being handled normally, with no plausible mechanism or precipitant force. He described the possibility of the force required to fracture the child being lesser than for other children in light of her high chance of having inherited EDS as a theoretical possibility.

He confirmed the pain response in a fractured child who has OI or hEDS to be the same as a child without those disorders: It would be very painful.

I heard evidence from Paternal Grandmother with whom the family were living over the period that the child is accepted to have sustained injuries. She plainly loves her grandchild, her son and the mother very much and came to court to tell me about her belief that they could not have done anything “horrible” to the child to have caused these injuries. I believe that although she was doing her best to help the court honestly, the extent to which her evidence can be relied upon was impacted upon her fixed belief that no one has hurt the child. She repeated that she has never at any times had any concerns about the child or the care she was receiving, and that the only time she ever heard the child cry (prior to her admission to hospital) was when she was hungry. When asked about the parents’ relationship she said they were fully supportive of each other, that the father took to parenting well (“like a duck to water”) that he was “hands on, pulled his weight and did his share”. She described them as very together in their parenting. It was only when put to her specifically by Ms Hoyle that she acknowledged that she had been aware of some difficulties between them, as the mother had complained to her that she felt she was doing everything, and that father had complained he felt left out and lonely. She told me that she could hear everything that happened in the house and that she slept lightly but did not wake at all or hear anything after she went to bed on the evening that the child was taken to hospital.

She did spend time out of the house with her husband, for example going to see friends for a few hours. She could not contemplate that any injury at all had been caused to the child, deliberately or accidentally. This is a grandmother who clearly loves her family very much, and I have no concern whatsoever that she has deliberately misled the court or concealed any information she knowingly holds that would help to explain the injuries to the child, however I am mindful of the risk of the impact on her evidence of confirmation bias: She (understandably) does not believe that either of the parents could have hurt the child so she did not volunteer information about difficulties in their relationship, because she does not consider it relevant. Despite believing that she always wakes in the night when the child cries (she told me by way of a sort of mother’s instinct) she did not hear the child crying on the night of 1 August, in an upstairs bedroom, shortly after she had gone to bed, when everyone agrees that she cried. This is not dishonesty, or concealment but does impact upon the weight I can put on her evidence.

The maternal Grandfather also gave evidence in accordance with his statements. He was effusive in his praise and admiration for his daughter and the child’s father, in terms of their relationship, their parenting, and their general characteristics. I am satisfied that he did his best to recall details over the period in question. He also could not recall a time when he had experienced the child presenting as in pain or “out of sorts”. He described his relationship with mother as extremely close, whereby they had talked about “anything and everything”, including things that were worrying or troubling them, but he was not aware that there were any issues within mother’s relationship with father and she had not told him she felt that father was not pulling his weight. This does not lead me to think that he was seeking to withhold information or mislead the court: it simply highlights that regardless of the close nature of a relationship no one knows what is going on all of the time.

When he drove them to A&E they told him that the child had cut herself, to her toe. He did not recall any mention of bruising and did not see the child’s foot as she was wrapped up in her blanket in her car seat. Taking the child to A&E at night, over a small cut which had stopped bleeding did strike him as ‘overkill’ as he put it, however he did not question it as they were clearly very worried about their child, and on balance had he been in their situation and told by a family member (who had medical training) to go to have it checked out he would have. Again, I am satisfied that this was a grandfather who loves his family very much and has honestly told me what he knows.

Dr Chawla gave evidence in line with her paediatric consultant’s overview reports. She deferred to each expert where their expertise fell outside of her own knowledge but was able to assist me with information from her own clinical experience. In respect of expected pain responses she considered would be noticeable and memorable to a carer present at the time a fracture occurred. She accepted that in undisplaced fractures such as this child’s they may be ‘silent’ after the initial painful fracture, so that a carer not present at the time it occurred may not be aware that the child has sustained an injury. She agreed with Professor Saggar that the level of pain experienced would be the same for the child irrespective of whether or not she is ultimately diagnosed to have a connective tissue disorder. She described her experience and expectation that a child would cry at the time of a break and that a carer would correlate applying force with a change of cry to realise that the force applied had been excessive. If a child was already crying at the time the injury was caused she would expect a worsening or change to the cry to be noted by a carer present, but accepted that this is subjective There was a degree of confusion about the answer Dr Chawla had given in her report at E92, which she explained she had answered as a general proposition rather than a specific question but clarified that “if asking me now I would expect there to be a change in the intensity of the cry”, notable to the carer present, “but if a bystander came in later they may not be able to differentiate the cry from a child who is hungry or upset for another reason”. I am satisfied that the evidence relating to the nature or force of cry of a child experiencing pain is extremely subjective and variable, particularly in a child who is variably described as “screaming” and impatient when hungry, which again, subjectively, may be described at the more intense end of a child’s spectrum of communication of needs.

She considered that the bruising to the child’s right foot was likely to be linked to the same mechanism which caused the right tibial fracture in light of their close proximity. I acknowledge concerns that Dr Chawla believed she had previously considered photographs of the child’s bruises and cut at the time of her original report, when it seems that she could not have. She accepted that she may be mistaken about that. Whilst I am concerned that her original report was written without her considering it necessary to request medical photography in order to assist her report writing, she had photographs available to her whilst giving evidence and reviewed them carefully whilst answering questions about them, and I do not consider that it materially undermined her evidence overall. For example, she was able to examine the medical photography and explain why she could not identify any tissue disruption caused by eczema, inflammation or infection which could have led to skin cracking rather than a cut to the child’s toe.

She confirmed that for the bruising to have been caused by another family member gripping the foot, the marks would have to align to how the foot was held, regardless of whether the child was more susceptible to bruising than a child without that propensity. She did not consider that the line of petechiae shown on the body map, horizontal across the front of the child’s ankle could have been caused by the gripping of the foot on the top and the bottom.

She deferred to Professor Saggar on the issue of possible reduced bone density but noted that she had seen no evidence of it.

Another family member gave evidence in accordance with her statement. She, consistent with all family members, told me about the strength of relationship and parenting skills she had observed in the parents. She described them as “really thriving when she came along. They were so happy and everyone was so happy, they have a beautiful relationship.” She wasn’t aware of any difficulties between them, considering that she would have known as she was able to hear everything they talked about between their rooms. I don’t find that she was being dishonest about this, but again it highlights the difficulty in any person knowing exactly what is going on when they only have access to part of the whole picture.

Unfortunately, the understandable desire to support the mother and father led her at times to answer questions in a manner which wasn’t (upon examination) wholly accurate. An example of this was her description of how she had examined the child’s foot on the night of 1 August, which developed from only having touched her on the top and bottom of her foot to having also held the sides of her feet in order to examine it, possibly the heel, to almost certainly the heel in order to manipulate the child’s foot to examine it, and then when lead by Mr Thomas KC to agree that each of the marks shown on the body map were places that she had touched and were likely to have caused the bruises. This is an explanation the family have unified around (in preference to the possibility of either parent having caused the injuries) but actually when asked specifically, she was clear that she had not touched, and therefore (on Dr Chawla’s evidence) could not have caused the thin line of petechiae on the fold between the child’s ankle and foot. She also did not agree that she had held her with any significant force, or that she had caused the child to cry during that examination so that she had cause to believe she may have hurt her. In fact she said that although she was crying it was more of a “stirring cry”, nothing that concerned her at all. She did not think that a trip to A&E was necessary but agreed with mother who had already decided to take her that if she was worried she should have her checked out. I have no doubt that this witness gave evidence as fully and honestly as she was able, and that she was not concealing anything that she believed could assist the court in understanding what has happened to the child. I am satisfied that she felt considerable pressure as a result of medical experience, and that her lack of experience in caring for the child (this having been the first evening she had fed the child, having never changed her nappy), and the relative lack of time she spent in the family home account for her mistaken belief that the child’s distress at the time of her examination was no more than her usual cry upon waking or hunger.

The Mother gave evidence first out of the parents. She presented as mostly calm but tearful when recalling details surrounding the child’s injures. She told us that the child regularly got upset when having her nappy changed, in contrast to the evidence I had heard previously that she only cried when hungry. She confirmed that her immediate response upon seeing the cut to the child’s toe was to want to take her to A&E. She said that whilst the other family member was examining the child she heard her cry in a way that she did not feel ok with, and immediately went into the room wanting to take her away from her and to A&E. She said that she had a feeling that something serious was wrong with the child and wanted a professional to check her out that night, rather than waiting until the morning. She said that she didn’t see any bruising to the child’s foot until they were waiting for her dad to collect them to go to the hospital, when she saw red purplish bruising to the top of her foot. Like the other witnesses I had heard from, the mother had a tendency to paint things in a better light than they appeared under scrutiny. Whilst she described her joy at being a first time parent and told me how parenting was the easiest thing she had ever done, it is clear that the short period between the child’s birth and her injury was beset by difficulties: significant back pain which impacted the mother’s physical capacity to parent and caused her to feel disappointed in herself, difficulties in milk production which led to an early cessation of breast feeding which had been very important to her, disappointment at her partner’s lack of motivation to fully support her in their practical care of the child, frustration at their living situation, both in terms of an unruly & unwelcome puppy being present in the home and her perceptions of the paternal grandmother behaving in an overbearing manner towards her, intruding on her personal space and seeking more involvement in caring for the child than mother was comfortable sharing. This was in stark contrast to the easy, “open doors” relationships that the paternal grandmother described to me. She described herself as managing significant anxiety following her traumatic birth experience and said that father was also very anxious. She said they were both desperate to have their own space.

She did not share her complaints about father with her father, she told me because she did not want to disappoint him. On 19 July she said that father had rung her repeatedly, and when she told him she was doing the child’s bottles he said he didn’t believe her. She thought that this was because he was worried she was cheating on him, because that had been his previous experience in a relationship, and that it had upset her.

When recalling the photo she took of the child on father’s shoulders on 29 July she recalled thinking that it was “not ok”, and now considers that it was inappropriate handling. She thought so at the time and holds huge regret that she did not raise it with him at the time, or since, and feels that she let the child down as a result.

Mother was very clear about the traumatic impact of the child’s birth on both of them as parents and she acknowledged her own overly anxious approach to parenting as a result: A notable example of this was that she did not want to touch her when she returned from a night out because of the risk of germs from being in a public place.

She could not recall or explain why she had not asked father immediately how she had cut her toe, having told me earlier only that they were both shocked and didn’t know what had caused it. She was concerned that she had only seemed to have things go wrong for her when she was not there, referring back to the time that the child bruised her palms, understood to be from gripping her fists tightly. She told me that on 1 August she immediately became sufficiently concerned for the child’s general wellbeing when she learnt of the cut to her toe, deciding almost immediately that they should go to A&E. She said that during the other family member’s examination of her she had heard her crying in a way which was not normal, and which caused her to want to end it immediately. She could not tell me why father had not driven them which would have saved 10 minutes or so, other than that she had wanted support from her dad.

She disagreed with elements of the paternal grandmother’ evidence, disputing that there had been a 3 way conversation to address the difficulties between her and the father, although it wasn’t put to the paternal grandmother that she had got that wrong. She said that things she had sent by message to father were exaggerated in order to prompt a response and were not accurate, such as telling him that “I’m just struggling and constantly having to be there for the child by myself is taking a toll on my mental health”. She gave conflicting answers about what she had understood the evening on 1 August to be like, saying in evidence that father had told her she’d been asleep most of the night, when in her statement she told the court that father had reported her becoming distressed. In her evidence for the first time she suggested that the child’s cry when they had noticed her cut was not her usual hungry cry and that she thought that she was constantly crying from when father took her upstairs, becoming heightened during the examination which made her feel scared, and feeling that something wasn’t right.

She said that she had asked father outright a couple of times whether he had caused the child’s injuries, but that he had never asked her the same question. She agreed that before 1 August and since, the child has not presented with any unexplained concerning bruising, but thought that was due to everyone “wrapping her in bubble wrap”, despite the fact that she is now cruising and walking and experiencing all the same normal bumps and falls that all toddlers do. She said that she had cancelled the HV appointment the day after the child’s palm bruises first appeared because she was ill and just didn’t want to have the appointment but made herself go to the GP appointment because it was for her daugher

My impressions were not that she was a dishonest witness, but that she struggled to give the whole truth due to her tendency to maintain a positive outlook on the situation. It is not unusual for new parents, of any age, to struggle to find a routine that suits them both in terms of caring responsibilities. It is not unusual for there to be tensions around extremely close living quarters. It is unusual however for there to be a blanket denial of any issues or difficulties whatsoever within a relationship described not only by the couple themselves but also by those around them, and I must consider the evidence available to me as a whole rather than taking accounts at face value. It is also not unusual for there to be discrepancies in recollection: memories are not infallible, particularly when trying to recall detail about either wide and general frames of time or during traumatic and emotional events, such as the night of 1 August 2024. I have not detected any aspect of the differences in account between the parents, for example to be either material, or as a result of deliberate dishonesty or an intention to withhold facts from the court.

The father: I found the father’s evidence more concerning. He presented himself with what I find to be a determined air of being laid back and unconcerned. Whilst I had observed him becoming tearful during parts of the mother’s evidence this was not recreated when he was asked questions about difficult and upsetting experiences for his daughter. His desire to promote a perfect relationship and home life meant that he struggled to recognise or understand more nuanced or complex issues within the chronology: it was plain to me that despite having explored and discussed his feelings of being sidelined by the mother when the child came along, he had not previously considered that not only had he not been prevented from caring for the child, but that he was actively being asked to undertake more caring responsibilities by the mother who was, understandably, struggling to cope singlehandedly following a traumatic birth and yet did not make significant changes to this when she shared the extent to which it was affecting her.

To an even greater extent than the mother he sought to distance himself from words that the parents had introduced, such as the child being ‘distressed’. Father denies any occasions of hearing the child being distressed, including on the night of 1 August when without doubt she had experienced a cut to her foot and had her right foot held and manipulated whilst she had fractures to her right and left tibias [eg A22], telling me in his oral evidence that her crying was “nothing out of the ordinary to me” and in contrast to mother’s description of the child’s cry at that stage which she has described variously as “very distressed” [A34], and “her scream was different and became significantly more distressed. I would say that the scream that she was doing at that point was definitely unusual and I had not previously heard her cry that way” [C195]. Notably, the other family member also described the child in oral evidence as being “pretty normal’ during her examination…more of a stirring cry, not a cry that concerned me in any way, she didn’t seem in pain at all when I was looking at her or uncomfortable”, and paternal grandmother told me that the child had obviously settled after her bottle because after she went upstairs she didn’t hear anything (despite her evidence about the small home, and their ability to hear everything that happened between rooms due to the work being undertaken to the home over that period). Given what is now known about the injuries present to the child at that time and the expert evidence on likely pain response, I prefer the evidence of the mother on this issue and must therefore take into account that the paternal family (including the father) simply did not recognise the child’s pain response as different from her usual cry.

I also noted the father’s unwillingness to accept descriptions such as ‘frustrated’ despite having introduced that term in his statement at C185, to describe mother’s feelings about him not helping enough.

I was particularly concerned about the father’s evidence in relation to the photograph of him carrying the child on his shoulders on 29 July, when she was 12 weeks old [K109]. He describes it now as “stupid” and “silly” but was wholly unable to explain to me what was silly about it or what risks arose from that sort of handling of a very young baby. He minimised his actions by going on to describe it as not thinking it was “overly inappropriate, maybe I shouldn’t do it but I was so excited. She was starting to lift her own head up and I thought it would be fun to walk into the room to show mother she’s on my shoulders but I was wrong.” When asked to show how he had manoeuvred her onto his shoulders he was unable, unsurprisingly, to demonstrate any safe way of achieving this, having necessarily released one of his hands from holding her and supporting her head and being totally unable to explain how he had put her legs around his neck without touching them (as he was keen to tell me he had not). This is relevant to fathers’ understanding of what appropriate and safe handling is of a young baby and is wholly incompatible with descriptions of him being ‘anxious’ around her and being very careful to ensure that everything was done right, describing himself as being “extra cautious when you have a newborn”.

I was surprised by his descriptions of changing the child’s nappy when she was so small as easy, despite it being agreed by everyone that she was ‘very wriggly’, kicking and flailing about, and slamming her legs down during changing and was frequently distressed during changes due to disliking being stripped, as well as the father’s own reported difficulties in dealing with soiled nappies as reported to police [G16].

I must take these observations into account when analysing the evidence available to me, but of course I also balance that against the many positive factors identified in this family. I summarise, but accept:

Notably, these reflect the NSPCC protective and risk factors and must play a meaningful role in my consideration of the broader canvass evidence available to me when determining the likelihood of either or both of these parents’ causing injury to the child.

Analysis of evidence

Finding 1 is not in dispute. It is accepted by all that the child sustained the following injuries;

Equally, no challenge is made to the medical evidence that the above injuries were caused either in a single event, but with two applications of force, or two separate events between 4 July 2024 and 1 August 2024. [E53, E55, E91].

Findings 1 and 2 are made as pleaded.

The first issue I must consider is whether the Local Authority have satisfied me on the basis of the evidence available cut to the child’s toe, the bruising to her right foot, and the fractures to her left and right tibias were caused by the mother or father applying significant and excessive force outside what is considered to be reasonable handling of a child of the child’s age, or whether they remain unexplained.

In some respects, the medical evidence available to me is complex, in others it is more straightforward. For example, there is no radiological, haematological or genetic diagnosis of a propensity to bruise or fracture more easily than another child. There is, however a 75% probability, on Dr Saggar’s evidence, that the child has inherited a connective tissue disorder from her parents, which may manifest itself in a variety of symptoms in the future and may be relevant to the force required to cause the child’s injuries.

It is possible that the child’s early borderline abnormal clotting tests when she was admitted, which then normalised in subsequent, tests may indicate physiological clotting system immaturity, which in turn make it possible that the bruising identified to the child’s foot was caused by minor rather than major trauma. It is possible if, in time the child is identified to have inherited a connective tissue disorder, that this combines to increase the propensity for blood vessels to break and thus there is a susceptibility to bruising with lesser forces and an impeded clotting response.

When considering evidence available to me in a broader sense, it is agreed that the absence of other unexplained bruising to the child is a relevant factor, but one which must be looked at in context. It is not disputed that bruising would either be secondary to consistently reported contact sites (although Dr Chawla also told me that in some cases bruising can arise secondary to traumatic fracture and inflammation sites). In respect to the child’s foot, there is no consistent report of any party applying force to the child’s foot in each of the locations her bruising appeared. Even with a greater susceptibility to bruising, the experts were united in their view that an explanation or consistent history would be expected.

Dr Saggar in his report stated that “given the family diagnosis of HSD, I would not be able to exclude a greater degree of bruising for any given force if the child has inherited HSD, because the easy bruising reflects capillary fragility” [E130]. He noted that the bruising to the child’s arm, accepted to have been caused during proper medical procedures undertaken upon the child’s admission may be evidence of bruising arising secondary to minor forces at that time, and that susceptibility to bruising can vary across a time period so that it does not always manifest consistently. He was clear in his evidence that this variation would arise over long periods rather than weeks or months, and I note that the father’s evidence was that he was gripping the child as tightly as his sister was in order to keep her still for the purposes of examination on 1 August, yet this led to no bruising. I note the registrar’s evidence to me that that “the bruise we found on the child’s arm after admission, this occurs not infrequently due to the process we have to go through of blood taking which involves holding a baby’s arm tightly, it is a challenging process to take blood from a baby as they are small and have subcutaneous fat. The bruise is likely to have occurred secondary to that.” It is therefore explained and is not outside of this witness’s clinical experience.

I note that there are no other reports of unexplained or unusual bruising arising to the child immediately surrounding this timeframe that have arisen through normal handling. The earlier recording of bruising to the child’s palms around 6 weeks of age were seen following an observed mechanism of her squeezing her fingers tightly into her fists and has been accepted by treating medics and experts as being a plausible explanation. There were no reports of the child bruising even after handling now accepted to have been inappropriate, such as when father moved her up onto his shoulders and held her there 2 days earlier.

Whilst taking into account the possibilities (taken separately and in combination) that the child was a baby who may have bruised secondarily to minor forces at that time, I am not satisfied on the balance of probabilities that she was, and I find that a consistent excessive force applied to each of the areas of bruising recorded to the child’s feet would have caused the bruising.

There is no suggestion pursued by any party that the child had a greater susceptibility to laceration than any other child, and the mechanism remains unexplained, however I do take into account the possibility that early clotting immaturity may have led her to bleed more than another child with the same injury.

When considering the right and left tibial fractures, I also take into account the evidence I have heard about the possibility of a greater susceptibility to fracture which may mean that the forces required to cause these injuries are less excessive than those agreed to have been required by the experts. If that is correct, Dr Watt’s acceptance of the proposed mechanism of “bicycling” the child’s legs in order to alleviate trapped wind and/or constipation may have caused the injuries but without excessive force having been applied: “The mechanism of pulling and twisting the lower limbs while doing bicycling leg movements could result in the fractures but the degree of force required would have been significantly out with that of normal handling.”

Whilst it is not disputed that there is no radiological, genetic or haematological or clinical evidence of reduced bone density, a number of possibilities are relevant to my overall analysis:

If the child had a reduced bone density and consequent increased vulnerability to fracture, it follows that the force required to cause the fracture may be less than the force required to fracture an infant without such vulnerability.

Dr Watt tells me that the force required to cause the left tibial fracture to be that of a simple fall from standing, and that a carer may not have known that they had caused a fracture but would be expected to know that an injury had occurred. He considers that “The mechanism of pulling and twisting the lower limbs could result in the fractures present in this case, but the degree of force required would have been significantly out with that of normal handling” [E56] and bases that opinion on the assumption that the child’s bones were of normal strength for her age. He confirms that there is no radiographic evidence of abnormal bone disease process (but notes that radiographs can be normal in children with Osteogenesis imperfecta (OI) at this age) nor is there evidence of a nutritional deficiency or underlying blood disorder. He is aware of the family history of hypermobility, and states “This condition does not usually show any radiographic findings in the skeleton in infancy. My understanding is that this condition may result in fractures in older children and adults but there is no evidence to my knowledge that it causes an increased fracture risk in non mobile infants, even if the child was diagnosed with the condition”

Dr Allameddine states “There are no known bleeding conditions that can spontaneously cause bone fractures, and therefore, there is no explanation to these fractures outside trauma or injuries”.

Professor Saggar reported in summary that “The fractures are unexplained. They require a plausible and precipitant force to explain them. There does not appear to be any history of such an event” [E122]. When reporting he was aware of the “Clear history of a connective tissue disorder on both sides of the family” (on the hypermobile spectrum of the hEDS subtype) as well as an absence of fracture history which could not be referenced to clear and considerable force. He worked on the basis that the child had at least a 50% risk of inheriting this condition at the time he prepared his report, updated to 75% as already set out. Examination of the child has shown that she has no overt or dramatic evidence of hypermobility and her Beighton score upon examination at 10 months was 2/9. No mutation was found in any bone fragility gene and specifically no mutation in the genes known to cause osteogenesis imperfecta (OI). There is no mutation in any of the known vascular fragility associated genes. He was “not able to identify any genetic syndromic disorder and specifically no disorder that would be associated with bone fractures after lesser force”, and that “HSD would not explain the fractures without some associated discernible force”.

There is no mutation in any of the known bone fragility genes and the skeleton on X-ray does not show any abnormality other than the fractures. Professor Saggar noted that “At a clinical level there is no diagnosis in the child that can explain the bruising and fractures in the absence of any clear description of a plausible and precipitant force for each fracture. I note that both fractures could not be explained by one forceful event.”

On the issue of fracture risk associated with hEDS, his report states “In the absence of OI or similar bone fragility disorder, it is a contentious issue as to whether hEDS or the milder form, HSD, can be associated with fractures after a lesser force in babies under the age of one. In my opinion, this is theoretically possible, but there would still need to be a clear ‘memorable’ event. In other words, a force or impact that could explain each site of fracture. It is my opinion that fractures do not occur spontaneously in hEDS or HSD and so if fractures occur, albeit after lesser force, there must be a recognised precipitant force or memorable event for each fracture. The clinical features and my examination findings suggest that the [lack of other] features of significant hypermobility/joint laxity in the child would not explain the fractures unless there is a clear description of a plausible and precipitant force to explain them. I defer to the other experts on mechanisms and any plausible force” [E132].

When exploring the available research, Professor Saggar reported that the Rolfes 2019 study found that in subjects with the 3 most common EDS forms (including hypermobility) they had fractures more frequently identified during childhood but were only found in ambulatory subjects following common childhood accidents. None were found in infants under 1 year of age. This suggests underlying susceptibility in ambulatory subjects, but notably all occurred after associated and memorable forces, unlike the child. Similarly the study undertaken by Yeung (2024) did not support EDS as a cause of fractures in infancy, with only one wrist fracture in a child of an unidentified age being unexplained.

Key to Professor Saggar’s conclusions is his view that “Any future risk of manifesting symptoms would not result in fractures after normal handling. OI has been excluded on the basis of clinical and genetic findings. In my opinion, any precipitant force would still require to be above the normal forces incurred from ‘normal’ or ‘rough’ handling” [E134]. Put another way he says at E135 “she may be at greater risk of fracture for a given force but, in my opinion, any such force would be knowingly abnormal, unusual and require to be a precipitant and plausible event”.

When considering his oral evidence, I am not satisfied that anything Professor Saggar told me materially departed from that conclusion, even when taking into account his view that there is a paucity of research, he maintained that children with hEDS do not sustain fractures in normal activities or on being handled normally, that the force required might be less than required in another child but greater than expected every day handling for a child with hEDS, with the noted caveat that all of the children in the Rolfes study were hypermobile whereas the child was not when he examined her. He went so far as to accept that the force required may be lesser for the child as a “theoretical possibility”.

Taking the evidence available to me in the round I am satisfied that the force required to cause the fractures to the child’s right and left tibias, whilst theoretically and possibly less than required to cause fractures to a child without the child’s probable inherited hEDS, was still above and beyond that reasonably expected in normal, or even rough handling of a child her age.

Both parents had primary care for the child over the period when these injuries occurred. It is clear that they both undertook primary care tasks, such as changing nappies and feeding the child (at least after she became fully bottle fed). Whilst it is agreed between the parents that the mother would have undertaken the majority of nappy changes due to the father’s aversion to soiled nappies, they both agree that it was the father who used the ‘bicycling’ technique on her more than the mother had (telling me that she had done it less than a handful of times) whilst the father accepted doing it “probably daily”. I am satisfied that the likely mechanism described by Dr Watt, of bending and twisting of the legs, is likely to have occurred during a nappy change given the location of the adult carer at the child’s feet, needing to hold her feet in order to facilitate the change of an unhappy and wriggly baby, or to undertake the leg cycling action.

Both of these parents had daily, significant, sole care of the child, and had the opportunity to cause these injuries over the relevant timeframe.

Beyond opportunity, is it possible to identify whether either of these parents, on the balance of probabilities did cause the injuries to the child?

To look first at whether there is a real possibility or likelihood that the mother caused any or all of these injuries to the child, I note her absence from the home during the evening of 1 August and the accepted evidence that she did not undertake any care tasks or even hold the child upon her return until after it was identified that she had been injured. She, then, could not have caused the injury I find to have been caused during the evening of 1 August. This would require 2 separate perpetrators to have caused the fractures to the child’s legs. Whilst that inherent improbability is not determinative, I consider it alongside the observed and agreed anxious care with which mother parented her, her identification of the pain response on 1 August, her unchallenged expressed concerns that she was getting things wrong for the child which led her to seek advice when necessary from health professionals and other adults when she could not explain the child’s unsettled responses, and her demeanour whilst giving evidence, and I find on the balance of probabilities that it is not likely that the mother caused an injury to her child, even accidentally, without sharing this concern with anyone or seeking medical advice. As such I am not satisfied that it is likely or realistically possible that the mother caused any of these injuries to the child.

Moving then to the father, is there a real possibility or likelihood that he has caused any or all of the injuries to the child? I have already indicated my concern about the father’s inappropriate handling of his daugher as shown by the photograph with her on his shoulders. On his own evidence, his excitement overrode any understanding he had, which still appears lacking, of why that was not an appropriate way to handle her. I am satisfied that this can directly inform my understanding of how he undertook other care tasks, unobserved, including leg cycling and nappy changing. I am also satisfied that, in light of his lack of recognition that the child’s cry was different when he was holding her to be examined by the other family member, he may well not have recognised her change of cry when he caused an injury to her: he repeated that she always cried when during nappy changes, and that she was in pain and discomfort when troubled by constipation and so was already exhibiting distress in any event. I have treated with caution Dr Chawla’s evidence in respect of pain response, noting that the father did not identify any pain response surrounding the time that the child was cut, nor around the time that she sustained the bruising to her palms in his care, nor when she had cuts to the inside of her mouth. I am satisfied on the balance of probabilities that it was the father’s lack of care and lack of understanding of appropriate handling for a child of the child’s age which led him to use excessive and inappropriate force (albeit potentially less than required for a child without the child’s probable inherited hEDS) when pedalling her legs or changing her nappy which led to her sustaining fractures.

In terms of timing of the cut, I am satisfied that the cut occurred shortly before blood was observed to the father’s hand on the night of 1 August, in the light of the absence of any observed blood anywhere else within the home which is likely to have been found had it occurred when she was on her bouncer chair or in her moses basket earlier that evening.

The right tibial fracture and bruising, I am satisfied, are likely to have occurred on the evening of 1 August. During that evening the mother reported initially that the father told her of a moment of distress during the evening, but it seems to be accepted that he did not change the child’s nappy during the period that the mother was away from the home. It is agreed that upon the mother’s return, the father was changing the child on the kitchen table, with his mother making her a bottle. Mother was in the toilet next to the kitchen and reports that “she got more and more distressed; I would say very distressed – screaming – but this was not out of character. She was hungry and needed a clean, and she sometimes got very screamy when she was feeling like this”. I am satisfied that it was during this change that father’s inappropriate and excessive force when handling the child led to her right tibial fracture. It is plausible that it would not have been obvious to his mother, who was otherwise engaged in preparing a bottle, or to mother who could not see what was happening, and in light of what is described as the child by this point screaming and being very distressed, it is easy to see how the subjectively assessed pain response at that stage may have been missed: From Dr Chawla’s evidence on this issue I was unable to discern what audible change could be detected in a child already screaming at full capacity. I can also accept that father, on the balance of probabilities not having realised that he had previously caused her an injury had not realised there was any issue with the manner in which he handled her.

In terms of the bruising, on the balance of probabilities I am satisfied that there is a real likelihood that this was also caused by the father during this sequence of events on 1 August 2024. The examination by the other family member has not presented a plausible explanation for the force or location required for the marks each to have been caused where the bruising was noted.

Despite not actively pursuing a case that any wider family member has caused the injury to the child, both parents in their closing submissions assert that by failing to pursue positive cases against wider family members the Local Authority have left a gap so that the court is unable to fully consider who else might have caused these injuries.

Notwithstanding the absence of any party putting to these family members that they caused any of the injuries, or sought for them to be included in the list of potential perpetrators, and taking into account the lack of legal advice or notice that any party may suggest that they may have caused the injuries, I am, at this stage, in a position to review the evidence available to me in the whole: [other family member] has never changed a nappy, and so could not have caused the injuries in the way or time I accept they were caused.

Paternal grandmother was not challenged in her evidence that she has never cared for the child when there was not another adult in the house, that she did not undertake any care tasks before 9 July, and after that that she only cared for the child when mother went to undertake personal care tasks and was close at hand. She did not undertake any care tasks for her on the night of 1 August due to her own medical pre-procedure preparations, and as such (in light of my findings) that would require 2 separate perpetrators concealing information from the court, which I have discounted.

Similarly, paternal grandfather, cared for the child alone on a single occasion, when mother went to have her nails done on 1 July 2024, and so would require the same configuration of 2 separate perpetrators deliberately concealing information from the court which I have discounted.

I am not satisfied that there is a likelihood or possibility, beyond simple opportunity, that any of the wider family perpetrated these injuries to the child.

I am not satisfied that any of these injuries were deliberately inflicted, rather than as a result of careless handling and excessive force, which may have been less than that required to injure a baby without the child’s possible inherited hEDS but that was obviously greater than should have been used. I have no hesitation in accepting that both parents love their daughter very much and would not wish for her to have been harmed.

My findings are as follows:

It has been raised by parents in further written submissions that the LA closing submission that “there was a degree of concealment from the wider family members as well, certainly by the paternal family” renders the procedure so unfair as to require the resumption of part-heard evidence or a re-hearing. I reject this submission. The Local Authority have not pleaded this as a finding sought, and in any event I have roundly rejected any suggestion of evidence supporting deliberate dishonesty or concealment by any family member. The suggestion to the contrary within the closing submissions has not played any role in my decision making.

These injuries were identified a year ago: these proceedings must now move on to see whether, and if so how and when the recommendations of Stephanie Snow, ISW, are to be achieved and I invite parties to agree a timetable to expeditiously reach the point where the critical issue of welfare can be determined.