Cambridgeshire County Council v The Mother & Ors

A child and family assessment by the Local Authority concluded on 13 August that there was no ongoing role for social care.

On 20 August, Z was taken to her general practitioner for her eight-week examination. At that stage a series of bruises were noted for which the mother had no explanation and in fact was recorded to have said that she had not noticed them when dressing Z that morning. The matter was again referred to the Local Authority and Z was taken back to the Queen Elizabeth Hospital. She underwent a child protection medical examination performed by G, who noted bruises to the abdomen and the right inner thigh, a tiny bruise behind Z’s right knee, what was described as a ‘faded bruise’ along her right flank and a ‘linear mark’ along the left flank. G took the view that those bruises had been inflicted and were not accidental.

Accordingly, both children were initially made the subject of police protection before being voluntarily accommodated by the Local Authority with the parents’ agreement under section 20. The parents were arrested in respect of both the bruises and the fracture. These proceedings were issued on 23 August. Interim care orders were made and the children were placed with the maternal grandmother. Some time thereafter, the police investigation concluded with no further action being taken.

At a hearing on 18 September I gave permission for the instruction of experts in the fields of radiology and paediatrics. Dr Karl Johnson, consultant radiologist, reported on 21 November and Dr Kavita Chawla, consultant paediatrician reported on 9 December. Both prepared addendum reports and replied to written questions.

In his report, Dr Johnson confirmed that Z suffered a metaphyseal fracture to the distal end of her left tibia. On 29 June, from the images, that fracture was no more than eight days old and thus it occurred from birth onwards. The fracture was caused by the application of significant force and whilst Dr Johnson concluded the exact amount of force required is unknown, it must be significant, excessive and greater than that used either in normal handling, over-exuberant play or rough handling by an inexperienced parent.

The mechanism to cause the fracture requires a twisting or tortional movement. At the moment it occurred, Z would have been in pain and showed signs of distress lasting for some moments.

It was possible, thought Dr Johnson, that the fracture was caused at birth, but he made observations in respect of both force and mechanism that cast doubt in respect of that.

As to whether it was or might have been sustained as a result of a heel prick test or some other procedure or examination, if and to the extent those procedures involved no more than reasonable handling then it was extremely unlikely that that would have generated sufficient force to cause the fracture. Separately, whoever was responsible for causing the fracture, if and to the extent it was inflicted, would have known that the actions were likely to have caused Z harm and injury even though it may not have been apparent that her leg was fractured.

When asked to clarify questions of mechanism and force, Dr Johnson repeated that a heel prick test could create a suitable mechanism but would need to be performed with, as he wrote, “excessive inappropriate force”.

There is no material disagreement between the experts, as is apparent from the later report of Dr Chawla. She was also asked to deal with the bruises and considered it likely that they had an accidental (or innocent) explanation. Following receipt of that view in particular, which Dr Chawla expressed in replies to written questions, the Local Authority confirmed that it would not in these proceedings be seeking findings in relation to the bruising.

Both experts were also asked for any updated views following the provision of statements from the various medical professionals involved in Z’s care and there were no material changes to their conclusions.

In determining the issues in this hearing I apply the following legal principles.

The burden of establishing the matters that it asserts is solely on the Local Authority.

In particular, the parents are not required either to disprove the Local Authority’s case nor are they required to set up or provide an alternative explanation for the injuries. Where the parents do so, however, the court will engage with that. That does not, however, have the consequence of creating any sort of reverse burden of proof. I will refer to the case of Re B, decided in 2017 by his Honour Judge Bellamy on this issue and in particular on the application of the principle around where the burden of proof lies. Within his judgment Judge Bellamy said:

“The father says that the injuries were caused as a result of him dropping B onto a wooden floor whilst he was chasing W. I do not have to be satisfied on the balance of probability that the explanation does in fact account for B’s injuries. The more appropriate question for the court to ask is whether the father’s explanation is sufficiently credible for the court to be able to say that the Local Authority has not made out its case to the requisite standard.”

Judge Bellamy referred back to a case decided by the then President, Sir James Munby, called Re Y in which at paragraph 20 he said:

“Thirdly, the fact, if fact it be, that the respondent, here the parents, failed to prove on a balance of probabilities an affirmative case that they have chosen to set up by way of

defence, does not of itself establish the Local Authority’s case.”

Sir James Munby then referred back to the decision of His Honour Judge Bellamy. I apply that principle firmly and clearly.

The standard of proof is the simple balance of probabilities. That means whether a thing is more likely to have occurred than not. There is no enhanced or raised standard of proof for more serious allegations and the court can within its determination consider the inherent likelihoods of certain scenarios.

In considering and determining the matter, I survey all of the evidence together; it is sometimes referred to as a ‘wide canvass’. That is, expert evidence, professional evidence and the lay evidence of the parents. As Ms Elliott reminded me in submissions, experts do not decide these cases, the court does, and I consider each aspect of the evidence in the context of all the other evidence.

If and to the extent the court departs from the recommendations or conclusions of expert witnesses, I need to give good and cogent reasons for doing so. As part of the process, I am able to draw inferences but those inferences must derive from the evidence that exists in the case and cannot be based solely on suspicion or surmise.

Although submissions were made around the credibility of the parents in particular, and indeed in at least one respect the medical professionals, other than the Local Authority’s case around the infliction of the fractures themselves, this is not a case where there have been allegations of dishonesty. Accordingly, I only summarise the principles in R v Lucas and I remind myself not only that lies are told for all sorts of reasons but of the need, pointed out in the case of Re A, B and C in 2021, that the Lucas direction should not simply be formulaic; in particular I remind myself that the telling of a lie by itself does not evidence guilt of an offence or the infliction of an injury.

I turn to the approach in what are sometimes referred to as the ‘uncertain perpetrator’ cases. That was considered recently by the Court of Appeal in Re A in 2022. In paragraph 19 of her judgment King LJ referred back to the words of Peter Jackson LJ in a well-known case in which he said,

“The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list, ‘Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?’ Only if there is should A or B or C be placed into the pool.”

That describes the general process and approach that the court needs to take, subject, as was made clear in paragraph 34 of the judgment, for the words “should not strain to do so” to no longer be considered necessary. In concluding that section of the judgment, King LJ wrote,

“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 he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.”

Lastly in respect of the legal principles, I was referred by Ms Moore on behalf of the Intervener to the case of Re W in 2016, paragraph 95 in particular, which in summary

The evidence in this case was gathered together in a core bundle of three volumes. I have summarised the expert’s reports already. I have in addition considered the statements provided by the parents. There was separately a significant number of medical notes provided which were unhappily paginated but thankfully only brief reference was made to a small number of those documents during the hearing. A number of witness statements were provided, in particular from the trust by witnesses who were not in the event called to give evidence. I will take the witnesses out of order, grouping them together as the Trust witnesses, the expert witnesses, and the parents.

I heard oral evidence from B the advanced neonatal nurse practitioner; H, a midwife; A who as I have indicated delivered Z and is a specialist doctor in obstetrics and gynaecology; from C, a midwife, from F, the training midwife who attended with E on 26 June at the parents’ home; from J, a paediatric and neonatal safety nurse; E, the midwife that I have referred to, together with the two experts, Dr Johnson and Dr Chawla, both of whom were called to give evidence; the mother and the father.

B was an impressive witness, recognised by the fact that neither parent in the end made any submissions about her evidence and therefore I will summarise it more briefly than might otherwise have been appropriate.

She was part of a team that was there, as she put it, solely for the baby. She did not witness the delivery and although it was a relatively small space, did not see Z emerge. She was not aware however of anything untoward or unusual and was most concerned and inevitably focused on the fact that Z required resuscitation. It was some 11 minutes or so into her life before she was breathing normally.

B had a further interaction with the baby some four hours later or so by virtue of the first heel prick test through which Z was noted to have slept. B was asked more generally about heel prick tests and made clear that twisting a baby’s ankle is not normal and she would have noted it had she seen anybody doing that. She described heel prick tests as the ‘bread and butter’ of her job and they do not involve any need either to twist or otherwise handle the baby roughly during them. She gave a clear and straightforward demonstration of performing one.

Whilst fractures sustained at birth are not uncommon, those fractures generally occur to the clavicle, shoulder or arm. She herself was not familiar with a fracture ever having been

H assumed care on 20 June, so before Z was born, at around 8pm. Her involvement included the undertaking of, as she referred to it, a head-to-toe examination of the baby just before 5 o’clock in the morning. In her oral evidence, she confirmed that she regularly attends on caesarean section deliveries, which she estimated to be some four a month. She was standing next to the surgeon that delivered Z and took the baby from her when she was delivered. She was unable to recall whether the delivery was head or feet first and did not recall seeing any twisting of the ankle or anyone otherwise being rough with the baby in general. She, like B, confirmed that she would have noted it had she had observed that. She handed Z to the neonatal team and then her focus remained on the care of the mother, who plainly required it.

When asked, H did not consider this a “straightforward caesarean section”. She also administered the vitamin K injection after the newborn infant physical examination. She described the process of obtaining parental consent, holding the leg still and flexing the knee to, as she put it, “expose the thigh” and then place an injection into the thigh. She said she would not hold the ankle whilst performing that procedure; that would have made it more difficult.

Although the head-to-toe examination was described by her as observational, the baby was stripped and features of that observation included listening to the heart, taking the temperature, palpating sensitive areas, checking creases, responses and reflexes, which would involve her running her finger along the bottom of the baby’s foot and stretching the legs. If there was an excessive or unusual cry, she said that would be a concern and she would have documented it.

A was asked first about her experience and qualifications. She trained abroad before coming to this country and has some 15 years’ experience in obstetrics and gynaecology, a field in which she has always worked. I am not sure that her estimate of certain statistics was always accurate, particularly when dealing with the number of caesarean sections that she might have performed in the Middle East, but I am confident that nothing turns on that. She has never witnessed an ankle fracture being caused to a baby during a caesarean section.

Like many of the Trust witnesses, she has no independent recollection of this case and was reliant both for her statement and evidence generally on the notes. She was attending another caesarean section when she was called to this one. She described the considerable bleeding that the mother suffered as “quite common” and she had to inform a consultant who came and helped in stopping it. She agreed that there were adhesions, including of the mother’s bladder to the uterus, which she said was as a result of the previous surgery. She did not, however, looking back, consider there was anything in particular about this case that was remarkable or unusual. She saw nothing and did nothing that might have caused a fracture to the ankle.

A was asked about the greater level of detail provided in her second statement. That was provided because of the particular issues in this case and she was straightforward in saying that the second statement and what is described within it is standard practice. I am satisfied there is nothing sinister, unusual or concerning in her not recalling the case directly. It rather tends to suggest that there was not anything unusual nor any particular features of it that meant that she was able to independently recall it.

She confirmed when being asked questions by Ms Elliot that where injury to a baby during the birth process is either suspected or even expected the process would include notification of a senior registrar or consultant. A meeting would take place after the procedure in order to discuss and review practices and in order to consider whether anything might have been done differently or better.

A was criticised on behalf of the parents for variously appearing defensive and for seeming to minimise what was a serious and difficult procedure. I am satisfied there is nothing in those criticisms. It was unsurprising (and indeed would be concerning if it were otherwise) that a surgeon performing an operation in which complications occurred remained detached and professional. She was, I accept, quite matter of fact in her descriptions but not in a way that served to cast any doubt on her evidence. She confirmed that Z did indeed require resuscitation and she straightforwardly said that that was not mentioned in her statement because, and I quote, “it had nothing to do with the procedure”.

She was clear that Z was delivered within the time required where a caesarean section is being performed, she thought in reasonable condition, with good colour and so on, and – just as B had made clear to me that her priority was the baby – so A made clear that her priority was the mother.

The explanation for the significant differences which in my view exist between the experience of that procedure of these parents and an experienced surgeon is straightforward. The blood loss, the baby requiring resuscitation and so on, were not so uncommon, said A, as to amount to anything particularly unusual or were such as would enable her to independently recall the event, and I am satisfied that it is that difference that explains the differential in language reflecting that the medical professionals did not necessarily regard this as a traumatic or particularly difficult delivery. I bear in mind that within a short period of time after it, the mother and Z were discharged onto the maternity ward rather than either to intensive care or some other specialist ward.

C similarly told me that she does not recall this case and was reliant on the notes in order to prepare her statement. She was on duty on 21 June when she regarded all of the observations she made as normal. She took a blood sample from Z that day and told me that her usual practice is to ask the parents when they are about to feed a newborn so that she can undertake the procedure just before the baby is fed. She told me the baby would either be in the cot or being held by one or other of the parents. She did not note which foot she took the sample from and said that that was something she might do in future.

In more detail, she said that her practice is always to hold the foot with her left hand – she is right hand dominant – and use a lancet to withdraw the blood. She told me that she undertakes heel prick tests at least weekly and during them no twisting is required. When asked, she said if the baby is too distressed you would simply wait until it calmed down. Like the other witnesses, she was clear that if anything out of the ordinary or unusual had occurred she would have documented it. She was in no doubt that if she was concerned the baby had been injured, she would have escalated it to a paediatrician.

She was asked separately about her own views and experience of the blood screen taken as standard at Day 5 and confirmed that that is usually a more difficult procedure than the heel prick test undertaken at birth, partly because you need five blood spots during that test, all of a sufficient size. She said those blood spots would be collected on a test card and that a bit of pressure would probably be required but that rotation of the foot would not be.

She told me in detail about what the training for undertaking those procedures involved and used the word “mortified” at the thought she might have hurt a child whilst doing so.

F had been at the hospital for around four months by the time Z was born. She, as I have said, attended the five-day screening test administered by E at the parents’ home. Unlike a number of the other trust witnesses, F did recall this case, or at least that visit. That was partly because she had met the mother before and partly because she was still learning. She did not notice anything unusual or untoward and she thought that Z on the whole seemed fine during and after it. She did recall the baby at one stage having choked on her milk and having to have her position adjusted slightly while she was being fed. She did not recall Z crying throughout the entire procedure.

F did not see the blood coming out when E took the sample and thought that it was a case where the blood was slightly longer in coming. She spent some of the time playing with Z’s older sibling X and so was distracted by that. She thought that the mother was over by the pram but watching the test. That is not something that the mother herself recalls.

When asked how long the visit was in total F estimated about an hour or just over, and when asked whether that was unusual made the point that slots in the clinic are offered over a 45-minute period so it was not particularly unusual.

F was asked by Ms Elliott about the process for reporting concerns of one sort or another and I consider that F was clear in her knowledge and understanding that generally if she needed to report something she would go to her line manager. She was not required as part of that process to inform the colleague that she was with, and moreover, rather than being limited to knowing what the procedure is, told me that she herself has had cause to use it in the past.

After F’s evidence I was due to hear from E on the Friday afternoon. I was informed that shortly before giving her evidence she had asked for special measures during which it transpired that she had received a diagnosis of Parkinson’s. Given the obvious potential relevance of that for the parents on the one hand and the need for E to have the opportunity of setting the relevant matters down in a statement on the other, it was agreed that we would adjourn her evidence and give her the opportunity to produce that statement.

I then heard from J, the paediatric and neonatal safety nurse. She prepared her statement using the notes but she did also recall the relevant period. She dealt with Z’s re-admission to hospital and the concerns around the swelling, the fracture that was identified and the appearance suggesting that the heel prick test performed on 26 June had been performed in the outer central part of the heel rather than to the side.

J was the author of the letter attached to the father’s first statement dated 11 July 2024. In that and in her statement, she describes what is referred to as the ‘duty of candour’ process which has three phases, including an initial conversation with the parents in person, a letter setting out the current position and then informing the parents of the outcome of the investigations. As I understand the written evidence, this case reached phase 2.

It is clear from the terms of the letter and the other documents that the Trust was working on the basis that the heel prick test undertaken on 26 June was performed at the

No questions were put to J on behalf of the parents. Ms Elliott put to her that one interpretation of the letter of 11 July is the Trust acknowledging that something untoward had occurred and apologising and J was clear, with reasons, that that was not the case. She acknowledged that that was one interpretation one might take, however, from the letter.

J was present at the round table meeting that I referred to earlier. In my view the terms of the letter and the transcript of that meeting lend some weight to Mr Cleary’s submission that the Trust was asking how the injury might have occurred but did not then go on to consider how in fact it did occur. The situation, without question, was left as unexplained, despite, as I see it, there having been opportunity for the Trust to gather more evidence and in doing so rule out certain possibilities. J said to me in terms, and I quote, “We felt unable to pinpoint the cause of the injury and it remained unclear how it happened.” She said, “We focused on the heel prick test being done at the centre of the heel and did not really look at the mechanism of injury.”

Separately, I also note that the letter of July 2024 refers to an infection in Z’s bone as a possibility and it appears that the view eventually formed was that the swelling observed in Z related to the fracture identified rather than any infection.

E produced the statement that I have referred to in which she summarised the chronology of matters that led to her diagnosis with Parkinson’s in late 2024. In her statement she describes being taken to one side by a colleague in early 2024 as a result of there having been visible shaking in certain parts of her body. She wrote that that was not a subtle or gradual onset and on reflection, and I quote: “I had noticed these symptoms had been present for a couple of weeks prior.” So that goes back to, at the earliest, the middle of September 2024.

In her oral evidence she stood by the contents of that statement and denied the presence of any symptoms earlier than approximately the middle or end of September 2024. She said that she first noticed symptoms in her right leg and then her hand. She said her left hand never shook; it is a condition that often effects only one side of the body. She was clear that had she noticed any symptoms earlier she would have acted upon them.

In light of what was known and/or thought to have happened to Z, E’s line manager made a suggestion that she undertook a number of heel prick tests under supervision and be signed off before returning to performing any on her own. That occurred in early August and as I have already indicated, it does not appear that prior to that step being taken she was spoken to about Z’s injury or the way in which the heel prick test was actually performed on 26 June. In the same way and as was submitted on behalf of the parents, there seemed to be a certain lack of curiosity around why it was that she was being dealt with in that way, including her not having asked the question whether any of her colleagues were being monitored or supervised in a similar way.

E told me about the circumstances of the heel prick test on 26 June, the nature of the checks that she undertook and what observations were done. It is known as the Guthrie test and she told me requires five to six separate blood samples being dropped onto a test card. She told me that the size for each spot is slightly smaller than a five pence piece.

E had returned to work in 2023 after some years away in order to have her children. She thought that she had done some 20 to 30 heel prick tests following her return by June 2024. She agreed that it took slightly longer to obtain blood from Z but said that that was nothing unusual, it is simply that some babies bleed more easily. She gave, when asked, a detailed description of the procedure using a doll. She placed her thumb behind the heel, an index finger under the toes and applied a lancet to the corner of the heel in order to take the sample. She confirmed that no pressure is applied; she is and I quote “just holding the foot in place”, she is not flexing the foot during the procedure. She wipes away the first spot of blood in the expectation that the heel then bleeds onto the card and it is the card that is moved around in order to collect the drops rather than the baby being moved.

E told me that she recalls seeing evidence of previous heel prick tests having been done to Z. She did not recall either parent saying or asking anything nor, she said, was the visit memorable for any anything unusual having happened. The only thing that she did recall, unrelated to the procedure, was her view that X appeared to remain in a dirty nappy for longer than would have been ideal, but nothing of course turns on that whatsoever.

She said in straightforward and clear terms that she did not at any stage twist Z’s leg and that there was no need to. She did recall the baby being unsettled, even during a period where she understood her father was feeding her, and she confirmed, including by reference to a diagram within her statement in the bundle, that she took the sample from the shaded area in figure 1, that is to say from the outer (side) aspect of the heel. She was clear and adamant in her evidence that she did not take the blood sample that day from the centre of Z’s heel.

She was unable to recall the detail of the position of those present in the room which were herself, F, both parents and X. She confirmed that during the process she had to lift the foot into position but otherwise she adjusted her own position in order to undertake the test. She said that Z cried immediately afterwards, as she put it, like any baby would after having a needle put into their foot.

The greater detail provided in the father’s second witness statement was put to her and in her answers, I thought, gave fair, measured and clear evidence where she was able to do so. She was equally clear where she was not able to recall specifics. She said she did not recall having to re-perform the test but added the qualifier “I’m not saying that I didn’t”. She told me that it is acceptable to have up to three punctures in order to complete the test.

As for the father’s description in his second statement of Z kicking and crying and screaming, with E having to try and keep hold of her foot followed by what is described as a tugging or pulling movement of Z away from the father, E was clear and straightforward in not recalling any of that. She said she would not be “pulling or tugging” the baby and when asked whether any additional force would be used said “absolutely not”. She was particularly clear, in my view, when she confirmed she did not at any stage twist the foot and at one point she said, and again I quote, “Nobody should be twisting a baby’s foot during a heel prick test”.

She confirmed her own view that Z’s cry was not in any sense abnormal. She was challenged on whether she knew how Z cried and confirmed “I know what an abnormal cry in a baby is. The cry is different in pitch and is different from those expressing tiredness, hunger or the rest”. She was clear equally that she did not squeeze the foot, having no need to do so.

She confirmed that at no stage did F raise any issues or concerns with her about that test or the way in which she had performed it. She did not make any changes to her practice in the period after she recommenced doing them herself.

E, when asked, confirmed that she only placed her notes of the visit onto the hospital system on 4 July, having been prompted to do so and after it had become clear what had happened to Z. I also, however, bear in mind that she said her evidence was based not only on the notes but also a degree of recollection and in that context I also bear in mind the presence with her of a colleague, albeit a student.

She was reliant to an extent during her evidence on what her “usual practice” would be. As I have indicated already, I do not regard anything untoward or unusual about that and indeed there was nothing in her view about that visit that would otherwise have caused her to remember the details of it independently. When asked about whether her recollection of certain, not necessarily relevant details such as who it was that undressed Z, might be wrong, she was straightforward in accepting that that was possible.

E told me that her abilities and general experience more generally involve her being, as she put it, the go-to person for undertaking heel prick tests in general. She spoke separately about midwives not wanting to hear or see babies crying and she herself apologising to parents when it appears that she is the result of infant distress.

In his oral evidence, Dr Johnson, the first expert to give evidence, confirmed that the fracture could have occurred in a single moment, as he put it, like the cracking of an egg. It required a suitably forceful twisting movement. He was asked about the need to restrain children for certain procedures and confirmed that he himself has to do that at times. The force used in normal restraint is not sufficient to cause a fracture, it requires more. He confirmed an infection at eight days old would not be enough to cause the fracture or increase propensity to fracture. That was a qualifier to his clear evidence that, radiologically, there were no signs of infection on the scans in any event.

Dr Johnson was of course aware of the views of the treating and reviewing clinicians and in particular those views that the scans evidenced osteomyelitis. He disagreed and, during what I considered to be a particularly impressive passage of his evidence, offered the suggestion that the reporting radiologist was not a specialist paediatric radiologist. He confirmed separately to Ms Elliot that osteomyelitis can be very damaging if not caught early and efficiently dealt with. That is why the medics in Nottingham considered it and he said that they were right to do so. He equally said however and straightforwardly, “But it’s not there.” He was very clear in his opinion and also made clear that he would be prepared to change it if a different clinical picture were presented to him.

He remained of the view, including when challenged, that the swelling seen on the MRI scan on 3 July likely relates to the fracture, at least, he said, in part. I detected no doubt in his view that the fracture was at least partly contributing to the swelling seen. He was clear, as he had been in his written reports, that whilst one cannot quantify the force required to cause

In a separate and important passage in his evidence he was asked about whether any manipulation of the ankle for the purposes of various procedures or observations might be sufficient. In doing so he drew what in my view was a very clear distinction between mechanism and force. The actions, for example, of checking a baby’s reflexes, holding the ankle in order to take blood and any number of other procedures may be sufficient to create the mechanism to cause this sort of fracture, but unless accompanied by the requisite degree of force, would not do so.

As what to my mind was a telling example, he made the point that he himself handles children and babies for all sorts of procedures and to cause a fracture requires excessive force from an adult. A baby wriggling, for example, he said would be insufficient and would represent a negligible contribution to the likelihood of a fracture being caused.

He was asked whether a cumulative combination of an adult holding the baby, the baby wriggling whilst being held and a medic holding the foot might result in a fracture and was clear in saying no, because the force required is beyond that used in restraint.

Dr Chawla confirmed the view expressed in her written report that fractures can be asymptomatic. She clarified what was asserted otherwise to be an apparent inconsistency in her written report around where there are clinical features of a fracture, such as swelling, one would generally expect those symptoms to appear relatively soon after the causative event. She was, as I have said, in complete agreement with Dr Johnson about the force required. She herself has over 30 years’ experience in paediatrics and has not seen heel prick tests cause fractures. She said in common with Dr Johnson that it would only do so if a significant twist was applied.

Dr Chawla also agreed with Dr Johnson in considering that Z did not have osteomyelitis. When taken to aspects of the evidence that might otherwise have hinted at an infection, including the skin at Z’s ankle appearing flaky and some of the photographs which are in evidence, none of those Dr Chawla considered were clear enough to point towards an infection. She equally made the point that a number of other typical clinical signs of infection were not present such as a raised temperature.

Dr Chawla accepted that heel prick tests can be more difficult in obtaining blood if the foot is cold and not well perfused.

Dr Chawla, like E, said that a baby would have a different cry at a different pitch if it was injured. She did qualify that evidence by saying that the nature of the cry is indicative but not conclusive, and that of course must be right. She agreed with Dr Johnson in particular that in respect of undertaking a heel prick test, the mechanism required to cause a fracture is present but the force is not; that the force required is excessive and inappropriate force; that a baby wriggling would amount to a negligible contribution to the force required; that it is excessive force from an adult hand that is required; and that at the time the fracture is caused, anyone present and observing would know that something was wrong and that the baby was likely harmed.

Dr Chawla was unable to attribute a percentage contribution to the swelling seen between the fracture and any infection that may have been present. She agreed with Ms Elliot, who suggested to her that it was an enormous coincidence that a baby had cellulitis

Dr Chawla was cautious around that, as it seemed to me, because of the views of the treating clinicians who had diagnosed cellulitis, but she reiterated, when asked, that there were no other signs of infection present, and as it seems to me on the papers, one reasonable interpretation is that the diagnosis of cellulitis was made because of the swelling. That is notwithstanding the fact that a fracture was present at the same time. When asked, she said that, had she been the treating paediatrician and seen no other markers of infection or cellulitis, she would have thought it less likely.

The evidence of both experts was as the court is entitled to expect. It was measured and fair and supported by a considerable amount of experience and expertise across both. Both appropriately deferred to the other when offering views and Dr Johnson I thought was particularly meticulous in not offering views on matters that were outside of his expertise.

The mother, during her evidence, was upset and emotional from the start. She spoke warmly and positively, and I accept genuinely, about both of her children and told me that contact with them is going well. She began her evidence by correcting an error in her first statement at paragraph 20 which she concluded by writing, “I just assumed that she may have an infection due to the heel prick and this having been done in an unpreferable spot.” That needed to be corrected because she cannot have been aware of that as a potential cause at the time. She said that she thought she got it from the letter (of July 2024) and misremembered E telling her, which as I say, cannot have been the case at the time.

Whilst she recognised that there had been concerns around her mental health, she did not consider that they were such as to affect her care of Z. She told me that she felt better after the birth of Z than she had after the birth of X.

Entirely understandably she has a limited recollection of Z’s birth itself. She said that she was awake but she could not see and she was unable to recall the position of the various people in the room. None of that, as I say, is in any way surprising. She accepted feeling overwhelmed at the time and that she was missing X.

She did not recall either feeling or therefore articulating any concerns about the various examinations and observations of Z by the medical professionals in the days after her birth. She did not recall the top-to-toe exam described by the midwife and thought that Z generally seemed fine after those procedures were concluded. Similarly, and in respect of the heel prick test undertaken on 26 June, the mother told me that she saw little of it. She was playing with X and does not recall standing or sitting in a position where she was watching what E was doing. She did suggest that during it Z cried in an unusual way which was more high-pitched.

There were aspects, I thought, of her evidence in which she downplayed or minimised some of the difficulties, in particular the impact then and previously of her depression, which, as I have said, she denied in respect of her care of the children. Notwithstanding a – as she would say –- traumatic experience giving birth to Z, she was still able, she said, to care for her from the start and she told me that she would not say that it was a struggle. In other respects, and as she herself acknowledged, it is clear that she was overwhelmed. In her own statement she used the phrase “it was all a haze”. That is in the third statement that she produced in these proceedings.

There was some uncertainty or confusion between the parents around who was responsible for the night feeds, both in the days immediately after the first discharge from hospital and later. The mother said variously that she was responsible for the night feeds, although at other points accepted that the father may have undertaken some, and so in that way the night routine was shared. She did, as I understood her evidence, say that after they first came home, it was she almost exclusively that attended to the night feeds.

She confirmed in the days after 26 June what the family had done. In particular, on 28 June they went to Downham Market from where they live in Wisbech in order to register Z’s birth. That same day they also visited the home of the father’s mother’s partner, which I think was in Waterbeach, and so it is clear that on that day Z spent a fairly considerable amount of time in the car, being put into and taken out of the car, and being held by various individuals and family members.

The mother told me that she noticed Z appeared more unsettled that evening but did not recall what they did. It appears that Z went to bed quite late, sometime around midnight. Separately, she confirmed that at times she felt quite frustrated with the way in which the father would sleep throughout the night, but she said she wanted him to have a good night’s sleep so as to enable him to assist the next day and then in his return to work.

She recalled on 26 June seeing a plaster placed in the central part of Z’s heel.

In questions from Ms Elliot, the mother confirmed that both parents think it was the heel prick test that is responsible for the fracture. She confirmed that on the Thursday, 27 June, they had a normal family day at home without any problems, and I have referred already to the details of their various journeys on Friday 28^th.

When the greater amount of detail set out in the father’s second statement was put to her, she did not recall being told that before – which was surprising evidence – and when asked and was taken to it, said that she felt worried that he had not told her previously. That was in contrast to the father’s evidence who told me that he had told the mother that, and I am not in a position to resolve that uncertainty.

During his evidence, the father I thought was flatter and more matter of fact. He also began with a correction, and that is to change the reference in his final statement in describing the second test undertaken by E on 26 June from “rougher” to the word “unusual”. That seemed to me a curious correction to make and it was not entirely clear what the difference was.

At paragraph 32 of his most recent statement, there is in my view a considerable amount of greater detail around the procedure undertaken on 26 June than had been offered previously. Mr Elfer makes the fair point on his behalf that at the time of preparing his earlier statement the question of the fracture was not part of the Local Authority’s case.

In that regard, however, Mr Cleary reminded me of the Local Authority position statement for what was the very first hearing, or certainly a very early hearing, when under the heading “The Fracture”, I think it was Mr Cleary himself wrote:

“The fracture to Z’s tibia is not included in the initial threshold. Cambridgeshire County Council rely upon this injury as part of the context in which the bruises have occurred, heightening the concern, but would not ask the court to take this injury into account in considering the interim threshold under Section 38 of the Act. Cambridgeshire County Council is likely to apply for further assessment in respect of the fracture, though this will be a matter for the case management hearing.”

In my view, it cannot therefore be said that there was no apparent need to set out in appropriate detail the events as are described at paragraph 32 of the later statement at an earlier stage.

More generally, the father denied saying to the connected persons assessor that he had suffered with anxiety and vulnerable mental health for 20 years. He was clear that there had been separate periods in 2021 as a result of bereavement and the way in which his then partner was dealing with him or treating him, and then in 2024, which as I said earlier seemed to relate more to matters connected with work.

I thought his evidence also included some curious features, including the language of minimisation on a number of occasions in different contexts. He used phrases like “a little bit” or “a tiny bit”. He was asked whether he agreed with the mother’s description of the family routine in the days that the family spent at home after the first discharge and said “a little bit”. He was asked whether he noticed the mother’s depression and said “a little bit”. When asked about the process of cleaning Z and changing her nappy, he said he would open her legs “a tiny bit”, and that in particular was evidence that I, as did Miss Elliot, found difficult to follow.

There were inconsistencies in his evidence, including whether he was a light sleeper, as he asserted in his first statement, or a heavier sleeper as he asserted in his second. He explained that by saying that he was a light sleeper on paternity leave but a heavy sleeper after he returned to work. That was not, I have to say, an explanation that I found convincing.

I did not find the oral evidence that the father gave in clarifying and further expanding on the events of 26 June particularly easy to follow, in particular around where he was looking, around where E was, around what was in his field of vision and whether and to what extent he was or was not observing, looking or glancing at E as she undertook the procedure. It seems to me, bearing in mind the approximate size of Z as she then was, that what was going on must have been at least within his field of vision, even if, as he said, he was not looking directly at it because he does not like the sight of blood.

Like the mother, the father appeared to me to be clear in avoiding any suggestion that they were blaming E for having caused the fracture to Z. He expressly denied wanting to create the impression that E was responsible for that fracture as a result of the procedure on 26 June.

He was asked about his use of the phrase “considerable swelling” seen on 29 June to which he immediately responded, “I didn’t say that”. He did, however; it is there at paragraph 41 of his most recent statement.

He was asked whether he thought it was odd that Z went to bed apparently fine on 28 June but that there was “considerable swelling” the next morning and he said, “Not really, no”. When Ms Elliot asked him, he said that he was first told of the fracture the following week whilst he was at work, although that seemed to conflict with other aspects of his evidence when he said that he was away from work and the mother had told him. More importantly, Ms Elliot asked him, “What did you think on hearing that news?” and the father said, “I can’t really remember”.

In my view, his evidence around when he was told about the fracture and the conversations and discussions that he had both with the mother and the hospital staff about the heel prick test, were confused and inconsistent.

The evidence of the single joint experts is clear. The mechanism required to cause this fracture was the application of a twisting or torsional force. The force required went beyond ordinary handling, rough play or that produced by inexperienced parenting. The person responsible would have known that something was wrong and the baby had been harmed, even though the precise details of a fracture would not necessarily have been apparent and it follows that anybody present and watching would thus know the same.

The parents advance no positive case and that means that on their behalf their counsels’ treatment of the expert evidence was appropriately exploratory. In fact, however, as Mr Elfer rightly conceded during submissions, their case necessarily involves a challenge to at least certain aspects of the expert evidence and, in particular, as to the degree of force required to cause this fracture. A number of the Trust witnesses, and E in particular, were asked whether it was possible that a ‘mistaken application’ of ‘slightly too much force’, ‘squeezing a little too hard’ or similar might have occurred, but that does not, on Dr Johnson’s view, account for the fracture.

It follows, from that evidence, that Z’s injury is unlikely to have been accidental, in other words caused by someone undertaking a procedure, applying a little bit too much force and without even knowing that anything was wrong. A finding of that nature would stand, as I see it, in direct conflict with Dr Johnson’s clear evidence. A logical consequence of that is that if the injury was caused by a medical practitioner, not only has that person either lied or at least seriously misled the court, but that person’s colleagues have done so too in a way that at the very least would involve elements of a cover up.

It is important to record, and I do so without criticism because the parents were not able to give direct evidence about it, that that was not put to any of the Trust witnesses. In my view, all of the Trust witnesses were honest people seeking to do their best. I agree with Ms Moore when she submitted that a number of them spoke with genuine empathy, E perhaps in particular, about midwives not wanting babies to cry and apologising to parents when they do. I also agree with Ms Moore that the fact that witnesses who make clear they are reliant on notes in order to prepare statements and give their evidence are symptoms of straightforwardness and honesty. It also tends to suggest, as I have already observed, that nothing surprising or out of the ordinary happened that would otherwise have caused them to form any independent recollection.

The swelling observed in Z’s leg, in my view, on the clear evidence of Dr Johnson in particular relates to a fracture having been present. It was, I am satisfied, a clinical symptom of that fracture having been sustained. Even if Dr Johnson is wrong about whether there were signs of infection present on the scans, he must also be wrong when he said that in any case that would not produce any increased propensity of Z to fracture, and so when I come to consider the dating of the injury I bear in mind Dr Johnson’s evidence that, radiologically, the picture goes all the way back to Z’s birth. The rest of the evidence taken as a whole seems to me to suggest that it was more likely to have occurred in the days preceding 29 June than at birth. That observation in particular relies upon Dr Chawla’s evidence that, where a fracture does present with symptoms, they appear relatively soon after the causative event.

I am satisfied that there is force in the Local Authority submission that the parents, and the father in particular, have sought to portray the events of 26 June and the procedure undertaken as worse than it was. I accept the evidence of E and F that nothing especially unusual or untoward occurred that day. I am also satisfied that I do not need to decide whether E did in fact perform the procedure in the outer central part of Z’s foot rather than at the side. As Ms Moore submitted, this is not a clinical negligence claim and I also observe in parenthesis it is not an employment tribunal claim either, and the most that might have been said about E having undertaken the procedure in a suboptimal position is that it increased the risk of Z sustaining an infection, but beyond that it seems to me the issue is irrelevant.

I have come to the clear view that none of the alternative explanations beyond infliction are credible; they are not such as to prevent this Local Authority establishing its case and proving that the fracture was inflicted. There is no evidence of a suitable mechanism combined with the necessary force having been applied to Z’s ankle at any time and during any of the investigations, observations, or procedures undertaken of her. The parents saw nothing, either of them, that made them comment or ask questions at the time. It would, as I say, involve the hospital staff misleading their own employer as well as the court and would involve other staff in a cover-up; both matters that I regard as inherently unlikely.

I agree with Mr Cleary that the views expressed by the representatives of the hospital at the time are something of a red herring. Not only was the information-gathering process only partly completed when more was plainly available, the hospital seems to have started with the assumption that the heel prick test undertaken on 26 June was done in a suboptimal location and that that led to an infection that was seen on the scans some days later. The investigation was not properly, comprehensively and/or thoroughly followed through. As I have indicated, even if there was an infection, it did not increase Z’s propensity to sustain a fracture.

I bear in mind that this family has no previous social care involvement. It is not a family in which there are concerns around substance or alcohol misuse. There are aspects of the evidence that point to periods of vulnerable mental health, but I accept that has not been at a consistent or critical level throughout.

Applying that summary and analysis of the evidence to the process required by Re B, it is plain that both parents had the opportunity to cause the injury to Z. They have both been completely clear that no other person, other than the medical professionals, had care of Z in a way that provided an opportunity for them to have injured the baby. Both plainly must be on a list of potential perpetrators.

I have thought separately and very carefully about whether I am able to identify which of them was responsible. Both, I bear in mind, gave evidence against their own interests in that regard. If the fracture, for example, occurred during the evening or the night of 28 June

I bear in mind in this part of the exercise the evidence regarding the mother relied upon by Ms Bacon being a caring and loving parent about whom there have been no concerns expressed in the various observations of her and the baby during the period of time that they spent in hospital. But her mental health at the relevant time was vulnerable; she was overwhelmed at times and there was, as I have indicated, a degree of frustration, including expressed by her, at the lack of assistance that she was provided at certain times with the baby’s care. I bear in mind the impact of Dr Johnson’s evidence which suggests that this was or may have been a heat of the moment event. That evidence I am satisfied is not sufficient to remove the mother from the list of perpetrators.

In the circumstances and by reference to the document at A41 of the bundle, I make the findings sought at paragraphs (1) and (2). (1) is an uncontroversial finding: Z did indeed sustain a fracture, and paragraph (2) splits out in four sub-paragraphs aspects of mechanism and force and includes an observation Z could not have caused the injury herself.

Paragraph (3), importantly, reads, “The injury in paragraph (1) was caused by (a) the mother” – I do not make that finding – “(b) The father” – I do not make that finding – “(c) the mother or The father but it is not possible to identify one of them as the sole perpetrator of the injury” – I make that finding.

Paragraph (4) reads:

“In respect of the injury in paragraph 1, the parent who did not harm Z knew that the other had done, and separately the parent who did not harm Z therefore failed to protect her by not seeking immediate medical attention and not reporting what had happened to the treating medical care or social care professionals.”

I do not make that finding. I bear in mind in this regard the case law that makes clear allegations of failure to protect as a separate threshold allegation cannot simply be a bolt-on to cases where findings of inflicted injury have been made. The failure to seek prompt medical attention is not borne out on the evidence in any case, given there is nothing to gainsay the parents’ account that the swelling was first noticed on 29 June. Bearing in mind Dr Johnson’s compelling and rather colourful evidence of the way in which this injury may have occurred, there is not sufficient evidence in my view to find either that the other parent was present, or observed what happened, or indeed has been told by the perpetrator exactly what happened.

I do not think in the circumstances of this case that findings in respect of paragraph (4) would add much if anything to the findings I make in paragraph (3) in any event.

Following the judgment above I directed an assessment of the parents (and wider family) using the Resolutions Risk Assessment model.  An initial assessment was positive and recommended a period of further assessment and testing over a period of around 6 months.  Having heard submissions and on the basis of agreement (or non-opposition) I directed that further assessment be undertaken by the Local Authority. The assessment was positive, as was a period of transitioning the children back into parental care. The case concluded with no order being made; the children have returned to their parents.