L and M (Children), Re

On 3 ^rd August 2011, over 22 months ago, a six month old girl, whom I shall hereafter call M, was taken by her father to see a GP. The father said that he was concerned about some swelling on the baby’s head. The GP was unable to notice much by way of swelling, but did notice a clicking sound in her chest and a bruise on her chest near to the location from where the sound appeared to emanate. As a result, M was referred to hospital. On initial examination, she appeared to be well, happy and alert, but further investigations revealed that she had sustained multiple skull fractures, and rib fractures of two different ages.

These discoveries set in train care proceedings in respect of M and her older brother L. In May 2012, HHJ Marshall in the Swindon CC found that M’s injuries had been inflicted non-accidentally in the care of her parents. The judge’s findings were, however, the subject of a successful appeal to the Court of Appeal, who ordered a retrial before a judge of the Family Division. This judgment is delivered at the conclusion of that retrial. Having heard submissions, I give leave for it to be reported on an anonymised basis – that is to say on the strict understanding that no person other than the advocates and solicitors and any other person named in the judgment shall be identified and in particular the anonymity of the children and the adult members of the family must be strictly preserved.

The father was born in 1979 and is therefore aged 33. His mother came from Sri Lanka and he spent his early years in that country but at the age of 14 came to live with his father in the UK. He is a serving soldier in the army. The mother was born in 1983 and is therefore now aged 30. The parents met via the internet in 2002 and were married in December 2004.

The parents portray themselves as being very different in character. The father is, they say, an introvert, very laid back, whereas the mother, is something of an extrovert and is said to worry about things more. She describes herself as boisterous, lively, easy going and ready to try anything. In the past, she worked, has a love of animals and has always kept a large number of pets. The evidence suggests that they are a close couple. Although they have arguments on occasions, they both deny that either has a temper.

In 2007, they moved to an army base in the East of England. On 23 ^rd November 2008, the mother gave birth to their first child, L. After L was born, the mother had difficulty forming a close bond with him and describes their relationship as ‘distant’. The father later told the police that he was the “sole carer” of L for the first three or four months. The mother sought advice from a neighbour with whom she had formed a friendship. Unfortunately, this friendship soon turned very sour indeed. The neighbour made a number of complaints against the mother, contacting social services alleging that the mother was neglecting L. There was no evidence to back up these allegations. The professionals involved with the family, in particular the health visitor, expressed no such concerns. However, social services decided to start a section 47 investigation, and a social worker made an unannounced visit to the home accompanied by a police officer. This investigation proved very unsettling to the parents but resulted in a positive assessment. L was described as a well cared for and contented baby. The home was described as well maintained, clean and safe. The report noted that there appeared to be a positive attachment between mother and baby.

Despite this positive outcome, the mother was very unsettled by the complaint and as a result the health visitor expressed concerns about her mental health and its impact upon her ability to care for the baby. The mother also felt that the escalating problems with the neighbour were impinging upon her health and her capacity to care for L. The parents described how the mother would hand the baby over to the father when she found it difficult to cope because of her low mood. Despite these difficulties, the mother refused the offer of anti-depressants. By April 2009, however, her mood had improved.

In May 2009, a new health visitor carrying out a statutory visit was concerned about what she thought were petechiae on the L’s forehead and a possible bruise to his left ear. L was referred for a medical examination on the following morning, by which time all the marks had disappeared. The doctor thought it therefore very unlikely that the marks had been true petechiae. There was no evidence that L had suffered any kind of trauma.

The difficulties with the neighbour continued. The father described her as making their lives hell. After the complaint to social services, the neighbour complained to the RSPCA alleging that the couple were abusing animals in the house. When the RSPCA inspected however, they had no concerns. The neighbour made a further complaint that the couple were damaging their property, which belonged to the Ministry of Defence, but again an inspection revealed this allegation to be untrue.

As a result of their difficulties with the neighbour, in June 2009, the family moved to a new home outside the base. At about this time, the mother became pregnant again. During the pregnancy, the father decided to abandon his plans of qualifying as a specialist pilot and was transferred to other work. At this time, he became dissatisfied about the way he was being treated by the Army.

In March 2010, when her pregnancy was at 38 weeks, the mother tragically discovered that the baby she was carrying had died. She then had to go through the traumatic experience of giving birth with the knowledge that at the end of her labour there would be no live baby. Like Judge Marshall, I find it difficult to imagine the anguish and emotional impact of such experience. It is clear from their written statements, and their oral evidence before me, that the parents continue to feel the loss of the baby, whom they named C, very keenly. The father believes that C’s death was caused in some way by the stress placed upon the family by their various experiences. Neither parent sought any bereavement counselling, preferring to deal with their grief without professional assistance.

After losing C, the parents decided immediately to try for another child and the mother became pregnant in about June 2010. On 3 ^rd March 2011, she gave birth to a girl, who I shall refer to as M. Understandably, this was a source of great joy to the parents. In contrast with her experiences after L’s birth, the mother had no difficulty in quickly forming a close attachment with M.

On 31 ^st March, when M was 4 weeks old, the mother pointed out to the health visitor a lump or swelling on the side of M’s head which had been there for several days. On examination by the health visitor, a long lump of about 2.5 cm in length was noted along the line of the coronal suture. The GP who examined M later that day thought that there was nothing to indicate that this was a cause for concern.

In April 2011, the father was posted to another base in Wiltshire. The mother and the children were unable to join him until 21 ^st June 2011. Initially, the father spent the weekends at home but for six weeks from 4 ^th May, he was sent on an exercise on Dartmoor and during this period he did not return home at all. The mother was left looking after both L and M, and their large menagerie of animals by herself, for several weeks. During this time, M suffered from constipation and colic and became rather ‘clingy’, only wanting the mother and not happy being cared for by anyone else.

After arriving in Wiltshire in June, the mother did not immediately register the children with a GP in the area. Her explanation for not doing so is that her earlier unhappy experiences left her reluctant about registering them with the army medical centre, preferring to use services outside the base. She became preoccupied with settling the family into their new home. As a result, neither child was seen by any health professional between 6 ^th June, prior to their leaving their previous home in the East of England, and 3 ^rd August, when M was admitted to hospital in circumstances described below. During this time, M did not receive immunisations as normally prescribed.

It is accepted that there were a number of pressures on the family in the first few months of M’s life. In particular, as stated above, the mother had to look after the children by herself for several weeks while the father was away. In addition, both children, and the mother herself, were unwell at times. The mother also had financial worries dating back to before she was married. On the other hand, the parents were relieved to be away from the troubles at their previous location and, having lived through the trauma of losing a baby, felt that they now had a new start in a new home and with a second child.

The mother has described an incident which she says occurred on about 16 ^th July while the father was away for 24 hours. While she was in the bath with M, and as she was in the process of getting out of the bath, she slipped and grabbed M tightly in order to avoid dropping her. Following this incident, M became distressed and was unsettled for the rest of the evening and during the night. I shall consider this incident in more detail below. Afterwards, the mother did not seek medical attention for M, nor did she mention it to the father. The mother also referred in evidence to an incident when she had been asleep in bed with M and the baby had suddenly cried out. The mother woke and found M against the headboard. The mother wondered later whether she had inadvertently hit out in her sleep and accidentally struck M. A similar thing had apparently happened on one occasion when the mother had accidentally struck the father in her sleep.

When the father came back from the prolonged absence on exercise, he found that M was reluctant to be held by him. There was little attachment between them. In contrast to their relationship with L at the corresponding stage, the roles of the parents were reversed. Whereas with L it had been the mother who had found it difficult to form a bond in the early months and the father had stepped in, with M there was a close relationship with the mother from the outset but the father found it difficult to establish a bond. In evidence, the father said that it felt as though he was a stranger to M, and that she “completely rejected” him. During this period, the father would work a shift pattern of 4 days followed by 4 nights followed by 4 days off. During his days off, however, he sometimes took on other jobs. This pattern limited the time he was available to spend with the children. Thus, although the father was back in the house, the greater part of the responsibility for caring for the children was taken on by the mother. M was, in the mother’s phrase, a nightowl who slept a lot during the day and awoke for a time at night.

On 24 ^th July, the mother took the children for a surprise visit to the maternal grandparents’ home in Oxfordshire. They arrived early and stayed all day. The grandmother and her partner made a return visit on 31 ^st July. The grandmother noticed nothing wrong with the children. Likewise, a neighbour, TA, who recalls speaking to the grandmother that day whilst she was holding M, noticed nothing untoward with the baby. The neighbour TA says that she recalls seeing M in the garden almost every day during this period and observed nothing unusual.

On 2 ^nd August 2011, both the mother and father were at home with the father having a day off. They say, at about 6.30 pm or 7 pm in the evening, the mother was outside feeding the animals. According to the father, whilst he was feeding M in the living room, he dropped her and she fell, he believes, onto the coffee table and then the floor. M became distressed but when the mother came into the house and asked what was wrong the father did not tell her what had happened. I shall consider this incident in greater detail below.

Early the following morning, the mother got up to give M a feed. According to the mother, the father was present during this feed. The father said that he saw nothing of M in the mother’s care that morning. Although as the mother said in evidence, M was in a playful mood as usual at that time, neither parent noticed nothing wrong with the baby at this stage and M was put back to sleep. The mother subsequently got up L who was going out on an outing with her brother. After they had left, the mother started to prepare a bottle for M and asked father to go and get the baby. It is his case that, when he picked M up, he noticed for the first time a bump on the side of her head. He took the baby downstairs to show the bump to the mother. She describes how, when he came downstairs with the baby, the father was ‘looking pale and his hands were shaking’. The mother describes the bump as ‘huge’ and ‘something you could not fail to notice’. The swelling appeared to extend from her right eye to the back of her head. There is a dispute as to whether or not the mother later said that L’s right eye was affected by the swelling. The mother emphatically denies that she said this. In addition, as she was holding M, the mother noticed what she describes as ‘a sort of clicking in her ribs’. Although she had previously heard M making a rattling or crackling sound when she was breathing, this was very different from the clicking noise she observed on this occasion.

The mother says that, because of the swelling on M’s head, the mother decided that she should be seen by a doctor. As she had not registered the children with a GP, she went next door to get the number of the army medical centre and came back to telephone for an appointment. The mother says she was “beside herself and very very upset”. As they were about to leave for the appointment, an insurance representative arrived for a pre-arranged visit. As it was necessary for the mother to talk to him, it was decided that the father would take M to the doctors.

On arrival at the surgery, M was seen first by the practice nurse. Her note reads:

The father accepts that he did not tell the truth to the nurse. He said in evidence that he was “absolutely terrified” and did not want social services involved with the family again.

The nurse referred M to the GP whose note reads as follows:

She did not refer to any swelling on the head.

M was then referred to the local hospital, and she was taken there by both parents. She was seen first at 3 pm by a junior doctor who noted the presenting complaint as (1) a lump on the right side of the forehead (2) ‘crepitus’ on the left side of the chest noticed by the GP and (3) a bruise on the left side thoracic spine. In his note of his examination, the junior doctor described M as “alert, happy, active”. He noted the bruise on the chest but cold not detect any crepitus. He also noted a small bruise on the right forehead. He noted that “Mum thinks she may have done it on the bars on her cot”.

At 5.30 pm that afternoon, M was examined by a consultant paediatrician who subsequently reported:

As a result of this finding, the paediatrician asked for a chest x-ray. As reported by other radiologists, this showed a definite fracture of the left eighth rib posteriorly in a place which the paediatrician described as ‘consistent with the crepitus’. There was also some suspicion of recent injury to the left, ninth and tenth ribs immediately below this. Suspecting that these injuries may have sustained non-accidentally, the doctors informed social services.

When the paediatrician confronted the parents with the news about the rib fracture, they were very surprised and distressed. They did not provide any explanation at that stage. At that point, the father left the hospital ostensibly to collect L. In the event, however, he did not immediately return with the boy. In his statement, he explains his actions as follows:

“I went home with the intention of dropping L with the neighbour and to bring some overnight things. On the way home I came to my senses and realised that by not admitting what had happened I wasn’t protecting anyone. I sorted L out with the neighbour and went back to the hospital where I told T what had happened”.

It is the mother’s evidence that on receiving this news she slapped the father’s face. She said in evidence before me that she had done this because the father had lied, had not come clean about dropping the baby and left her thinking that she had done something wrong. The father does not recall the slap.

When the social worker arrived, the father told her what had happened on the previous day. A note taken by a doctor at the time recalls the father saying that M ‘fell out of arms and hit side on coffee table and fell to floor. He was stooped over and the coffee table was low so she did not fall from high. She cried immediately but settled soon afterwards.’.

On 4 ^th August the father was interviewed by the police. He set out his account of the incident on 2 ^nd August. According to one of the hospital nurses, the mother told her later that evening that she did not want the father to come back to the ward “in case he says something wrong”. The mother denies saying this. It is her case that she said that she did not want him coming back in case she (i.e. the mother) did something wrong. In oral evidence, she told me that by this she meant that she might slap him again.

On 5 ^th August, a CT scan of M’s head was carried out followed by a full skeletal survey later that day. These revealed multiple skull fractures, coupled with soft tissue scalp swelling over the right frontal region, together with evidence of further rib fractures. The scans did not, however, reveal any evidence of intracranial injury and the consultant paediatrician decided that the circumstances did not warrant conducting an MRI scan of M’s head. An examination of L. including a skeletal survey, revealed no injuries. M was detained in hospital for six days. During this time, the mother remained there throughout, although subject to supervision.

Further police interviews were carried out of both parents on the 9 ^th August and of the mother on 1 ^st September. Both emphatically denied inflicting any injury on M. The mother did not mention the earlier bath incident in either interview. I am told by her counsel, and I accept, that she did mention the incident to the solicitors acting for her in the criminal investigation before the second interview, but was advised not to mention it.

Meanwhile, L and M had gone to stay with their maternal grandmother on a voluntary basis. On 25 ^th August the local authority started care proceedings in respect of both children. Interim care orders were made on the basis of care plans that the children should remain with their grandmother. They have lived with her up to the date of this hearing. All the evidence indicates that they have thrived in her care, although there is also evidence that both children, and in particular L, have been adversely affected at being separated from their parents. Throughout the past 21 months, contact between the children and their parents has been on a supervised basis.

The proceedings were transferred to the county court and listed before HHJ Marshall for a fact-finding hearing in June 2012. For that hearing, expert reports were prepared by a number of medical specialists, namely Dr. Stephen Chapman, consultant paediatric radiologist at Birmingham Children’s Hospital, Dr. Katharine Halliday, consultant paediatric radiologist at University Hospital Nottingham, Mr. Peter Richards, consultant paediatric neurosurgeon at the JR Hospital, Oxford, and Professor Nicholas Bishop, professor paediatric bone disease at Sheffield University. At the hearing, at which all four experts gave oral evidence, the consensus was that M had suffered rib fractures on two separate occasions, severe and complex skull fractures – “spectacular”, in the view of Mr. Richards – but no discernible brain injury. This left all the experts baffled.

In her judgment, Judge Marshall described the case as “most unusual and difficult”, observing that

Nonetheless, the judge, having considered the written and oral evidence of the parents, concluded that they had not told the truth about what had happened to M. This led her to make the following finding.

She concluded that all the injuries had been sustained non-accidentally whilst in the care of her parents. She was unable to determine that either the mother or the father was more likely than not to be responsible for inflicting the injuries, and therefore concluded that both remained in the pool of possible perpetrators.

The parents appealed against these findings and on 20 December the Court of Appeal – Munby LJ (as he then was), Kitchen LJ and Sir Stephen Sedley – allowed the appeal and ordered a retrial before a judge of the Family Division, such listing to be arranged by me as FDLJ of the Western Circuit. In his judgment, with which the other members of the Court agreed and which is reported as Re M (Children) [2012] EWCA Civ 1710, Munby LJ concluded that, given the experts’ evidence that they were “baffled” as to the explanation for the injuries, and the judge’s finding that M’s presentation had been “inexplicable”, she had failed to explain how she had arrived at her final conclusion, an omission which, “going to the central issue in the case, is fatal and necessarily vitiates her findings”.

Munby LJ added an important observation, having noted the paucity of the literature cited by the experts:

At a case management hearing on 13 ^th December 2013, I listed the retrial before myself for two weeks in May 2013. I also gave the parties permission to instruct Dr. Neil Stoodley, consultant paediatric neuroradiologist, to provide a report of the radiological and neuroradiological material. It seemed to me that, as a key part of the “conundrum” identified by Judge Marshall had been the apparent absence of any evidence of brain damage, it would be helpful to obtain a further opinion from an expert whose particular expertise was the interpretation of neuro-imaging of children. The material available to Dr. Stoodley included not only the x-rays and CT scans carried out in August 2011 but also fresh magnetic resonance images taken in September 2012, as a result of concerns about an aspect of her motor development. Dr. Stoodley duly prepared a report, and took part in a further telephone conference with the other experts. All the experts then contributed to a schedule of agreement and disagreement.

For the purposes of the retrial of the fact-finding hearing, I was supplied with extensive written material including, inter alia, statements from the parents and a number of other witnesses, the medical experts reports and ancillary documents, extracts from the local authority records, the medical records relating to M’s admission, the GP surgery records, transcripts of the police interviews of the parents, transcripts of the oral evidence before Judge Marshall, and transcripts of the judgments given by Judge Marshall and the Court of Appeal. At the hearing, I heard evidence from the following witnesses in this order: Dr Halliday, Dr Chapman, Nurse Y, who had helped to care for M during her hospital admission in August 2011, the MGM, the social worker Charlotte Roper, Dr. Stoodley, Mr. Richards, Prof Bishop, the mother and the father. I had the benefit of extensive written position statements and final submissions from counsel instructed in this case – Miss Pamela Scriven QC and Miss Hayley Griffiths for the local authority, Mr. Anthony Kirk QC and Miss Shona Rogers for the mother, Mr Frank Feehan QC and Mrs Alexa Storey-Rea for the father, and Mr. John Ker-Reid for the guardian. I am very grateful to all counsel, and to their hard-working instructing solicitors, for their assistance in this troubling case. The legal representation on all sides has been of a high quality.

In determining the issues of this fact finding hearing I apply the well-established legal principles. I have summarised those principles at length in my earlier decisions in Re JS [2012] EWHC 1370 (Fam) and Devon CC v EB [2013] EWHC 968 (Fam). All counsel have referred to one or both of those summaries. I have those principles firmly in mind and need only refer to them briefly here.

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

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

Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. I have borne this principle in mind throughout this hearing.

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

Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.

Sixth, cases involving an allegation of non-accidental injury often involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.

Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.

Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

Ninth, as observed by Dame Elizabeth Butler-Sloss P in an earlier case

This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother’s two other children had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed:

With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1:

In Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed,

Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so

Rib fractures

There was a large measure of consensus between the two radiologists, Dr. Chapman and Dr. Halliday, as to the interpretation of the radiological evidence as to the rib injuries, consisting of the chest x-ray carried out at 16.28 on 3^rd August and the skeletal survey performed two days later at 15.34 on the 5^th. Both doctors identified healing fractures of the left lateral 5^th and 6^th ribs sustained between 8^th and 22^nd July (in the view of Dr. Chapman) or 6^th and 20^th July (in the view of Dr. Halliday). Both radiologists noted irregularity over the 7^th rib at an adjacent to the fractures to the 5^th and 6^th ribs. Dr. Chapman thought this represented a further fracture but Dr. Halliday disagreed and the case has proceeded on the basis that there were only two fractures at this point.

In addition, however, Dr. Chapman and Dr. Halliday agreed that there was a more recent fracture of the posterior 8^th rib at a position just outside the transverse process where the rib articulates with the spine. The fracture of this rib was of a different date to the others, and was more recent, demonstrated by the presence of healing reaction visible on the skeletal survey of 5^th August 2011 bur not visible on the x-rays taken on 3^rd August 2011. Because of the presence of the healing reaction on 5^th August 2011, both radiologists agree that the fracture occurred several days earlier. Both agree that the first radiological signs of healing appear between 4 and 11 days after a fracture. Dr. Halliday in oral evidence said that there is no description in the literature, or in anyone’s experience, of a healing reaction being seen less than 4 days after fracture. It is unusual to see healing as soon as four days after the injury. Both radiologists agreed that the healing process is usually observed later than this; Dr Halliday told the court that the healing process normally occurred at around 7 days, and Dr Chapman that the typical bracket is 7 to 10 days. Thus the expert opinion of the radiologists is that the earliest date on which the 8^th rib facture could have been sustained is 1^st August 2011. On the basis of current medical knowledge, both excluded the possibility that that fracture was sustained on 2^nd August 2011. In expressing that opinion, both accepted that, when dating fractures, it was appropriate to take into account the clinical presentation of the child.

Much attention was directed during the hearing to the presence of crepitus detected by medical professionals when M was initially examined on 3 ^rd August. In the GP’s surgery, it was observed by the practice nurse and by the GP herself, and although it was not detected by the SHO in the first hospital examination, the note taken by the consultant paediatrician Dr. Scott-Jupp is clear: “chest: small dark purple-green bruise 1 cm diameter left lower chest, I cm lateral to spine. Close to this bruise, I can palpate definite crepitus in a rib, ?7 ^th rib, not obviously painful”. By the following morning, however, he was no longer able to detect it. The mother said in her statement in these proceedings dated 27 ^th January 2012 that she noticed “a sort of clicking in her ribs” on the morning of the 3 ^rd and that this was not something she had experienced before. Father told the GP, however, that a crackling sound had been present since birth.

Dr. Chapman told the court that crepitus is produced by two ends of a broken bone grating against each other. The healing process begins immediately so the further away from the fracture the less likely there will be movement at the fracture site. He thought it logical to conclude that it would be more obvious soon after the fracture, although he told the court in oral evidence that he had experience of one case in which crepitus had been observed 3 days after the fracture – in a 3-day-old baby who had sustained a fracture at birth. He regarded this as indicating that crepitus may not be an absolute indicator of timing. Professor Bishop observed that crepitus will be there from the moment the bone is broken until the moment it becomes solid. He added: “without doing specific experiments in human children it is very difficult to be certain. Animal studies suggest that the healing has usually stabilised the bone within about one week and up to 14 days after the fracture occurred.”

Counsel for the parents rely on the evidence of Dr. Chapman on the timing of crepitus in support of their submission that the 8^th rib facture could have occurred on 2^nd August. They invite the court to prefer the evidence of Dr. Chapman on this point to that of Prof Bishop, pointing out that the studies to which the latter referred were carried out on animals, that Prof Bishop said that he had not felt any crepitus for 5 years, and that he deferred to the radiologists as to the timing of the rib fractures. Frank Feehan QC on behalf of father submits that radiology has elements of the “art” as well as the science and that radiologists see different things in the same scan and it is a matter of interpretation, which is not certain. He adds that what he characterises as the initial slightly dogmatic approach of the radiologists is ameliorated by their acceptance that these matters must be taken into account. It is submitted that their “certainty” as to the age of this fracture is nothing of the sort.

I accept that there is an element of “art” in the interpretation of radiographs. They are, after all, artefacts. The court has experience in other cases of the evidence of radiologists being contradicted by pathologists following a physical examination of a bone in a post mortem examination. I also accept that the court must consider all the evidence on this point, including the clinical presentation of the child. Nonetheless, I found the evidence of Dr. Chapman and Dr. Halliday as to the dating of the 8^th rib facture to be compelling. I reject the suggestion made by Frank Feehan QC and Alexa Storey-Rea in closing submissions that there was an element of dogmatism in their evidence on this point. Their combined experience of interpreting x-rays of rib fractures leads them to advise the court that, at the outside, the fracture of M’s 8^th rib occurred at the latest on 1^st August and more probably a few days earlier. I do not consider that the evidence as to crepitus undermined their opinion on this point, and in any event I found Prof Bishop’s more detailed explanation as to crepitus more persuasive than that given by Dr. Chapman. Before reaching a final conclusion as to timing of the rib fractures, however, I must of course consider the medical evidence in the light of the other evidence to which I shall turn later.

Both radiologists stated that rib fractures were commonly caused by the application of compressive forces rather than direct impact. They both thought that the account given by the mother of the incident in the bath was a possible explanation for the earlier fractures. Dr. Halliday said: “it is within date and if the child were grabbed and compressed around the waist it would be possible that would account for those two fractures. It would be unusual but it would be possible.”

The initial consensus and conundrum

It was the evidence and analysis of the head injuries presented to Judge Marshall that created what she described as “the conundrum” in this case. That evidence and analysis is set out at length in the judgments of both Judge Marshall at first instance and Munby LJ in the CA. In short, the consensus of expert opinion at that stage can be summarised as follows.

First, the CT scan and skeletal survey demonstrated that M had complex fractures of the skull. An infant’s skull comprises, in simple terms, plates of bones – the frontal bones, two parietal bones on each side, and the occipital bone at the back – joined together by fibrous areas known as sutures – the sagittal suture running along the top of the head from front to back separating the two parietal bones, the coronal suture running across the front of the head separating the frontal bone from the two parietal bones, and the lambdoid suture – so called because it is shaped like the Greek letter lambda – which runs across the back of the head between the two parietal bones and the occipital bone. In his first report, Dr. Chapman summarised the fractures (illustrated by a 3D representation of the CT scans) as complex fractures of both parietal bones and the occipital bone and particularised them as follows:

In addition, Dr. Chapman observed “widespread bilateral scalp swelling”, most prominently on the right frontal region at the top of the skull. He also observed what he described as two or three short lines extending from the sagittal suture into each parietal bone which could represent further fractures. Alternatively, he thought they might represent normal variants know as “fissures”, fibrous areas where the bone is not quite as well formed. Subsequently in oral evidence before me he described how the skull bones form in a radial or “star” pattern which sometimes results in areas between the “rays” of the star that are not fully formed in the baby’s skull, remnants of the incomplete ossification of the bone. It is quite common to see fissures going out from the main sutures into the skull in a young baby, although they become less common as the child grows and the bone becomes completely ossified.

Both Dr. Halliday and Mr. Richards agreed with Dr. Chapman’s analysis of the fractures. The word used by Mr. Richards to describe these fractures, with which no other expert disagreed, was “spectacular”. Professor Bishop described it as the most extensive skull fracturing he had ever seen.

The second point upon which there was a consensus of expert opinion at the time of the hearing before Judge Marshall was that, save for the fractures and scalp swelling, there were no other symptoms of head injury and in particular no evidence of brain damage. Given the extent of the apparent skull fractures, all the experts then instructed agreed that one would have expected M to have suffered much more extensive scalp swelling and extensive brain damage, and to have exhibited signs of pain. Mr Richards drew attention to cases in which multiple skull fractures and brain injury had occurred, for example one where a man had sustained multiple fractures as a result of an accident involving helicopter rotor blades.

The third point of consensus was that the likeliest cause of bilateral skull fractures of the magnitude thought to be present was either a crush injury or impact against a hard surface, but the combined view of the experts then instructed was that such an injury would have been expected to cause significant brain damage. In his report, Mr. Richards added this qualification: “occasionally in clinical practice patients present following high force injuries where significant brain injury could be expected and are found to have extensive fracturing bilaterally (a term commonly referred to as eggshell skull) with no brain injury apparent. It is presumed in these circumstances that the skull has absorbed the impact and caused the extensive fracturing in circumstances where otherwise significant forces would be transmitted to the brain.”

The final point on which there was a consensus of medical opinion was that there was no evidence that M was suffering from any bone fragility. This was the view not only of the radiologists but also of Prof Bishop, a specialist in paediatric bone disease.

It was this combination of circumstances that created the conundrum and led the experts to use extreme language to describe their state of mind at that stage, as summarised by Munby LJ at para 27, by which M’s presentation was variously characterised as unique, unexplained, strange, very unusual, inexplicable, unprecedented and baffling.

As described above, in preparation for the retrial this court gave permission for the instruction of Dr. Stoodley, a consultant paediatric neuroradiologist. It is fair to say that Dr. Stoodley has made a significant contribution which has led some of the other experts to modify their view. In addition to the radiological evidence available at the time of the first hearing before Judge Marshall, he had available the results of an MRI carried out on M in September 2012, some 13 months after her admission to hospital, following a referral because of some concerns about her development These revealed some evidence of diffuse axonal injury in the left frontal region of her brain. Furthermore, taking up the suggestion made by Munby LJ, Dr. Stoodley helpfully cited a number of further research papers, of which the most recent and important was “Skull fracture vs accessory sutures: how can we tell the difference?” (Sanchez et al, Emergency Radiology 2010 17:413) to illustrate and support his interpretation of the imaging.

Dr. Stoodley observed that, prior to his instruction, the case had progressed on the basis of a number of assumptions, namely (1) that all of the lines (or “lucencies”) seen on the images of M’s skull were fractures (2) that all these fractures occurred at the same time and that the fractures and the frontal soft tissue swelling were related in time, and (3) that, given the extent of the fractures, there would have been inevitable associated brain injury. He frankly suggested that none of these assumptions necessarily stood up to logical analysis.

Dr. Stoodley’s key insight was to suggest that a significant number of the lucencies seen on the images of M’s skull might not be fractures at all. As stated above, Dr. Chapman had acknowledged that some of the lucencies might be fissures, but in addition Dr. Stoodley suggested that some of the longer lucencies might be accessory sutures over and above the normal sutures which lie between the individual skull bones.

In the Sanchez paper, the authors explain this phenomenon as follows:

Analysing radiographic differentiation of skull fractures and accessory sutures, Sanchez and his colleagues observe:

In this case, Dr. Stoodley suggested that some of the lucencies previously identified as fractures may in fact have been either fissures or accessory sutures. He thought that small lines emerging at right angles from several of the sutures represented fissures. More significant was his suggestion that several of the longer lines were accessory sutures. In particular, he put forward the proposition that the lines crossing the two parietal bones from the coronal suture to the lambdoid suture had the appearance of intraparietal accessory sutures, and the line emanating from the left bottom corner of the lambdoid suture and travelling up the occipital bone before meeting the lambdoid suture at a higher point was an accessory occipital suture. A 3D reconstruction of the images reinforced his interpretation of these lucencies, and in addition demonstrated a faint line, which he interpreted as a further accessory occipital suture, emanating from the right bottom corner of the lambdoid suture and travelling up the occipital bone to the apex of the lambdoid suture close to its junction with the sagittal suture. He noted that there was an element of symmetry in the appearance of the bilateral lucencies which he considered “noteworthy in terms of potentially random events leading to fractures”.

Dr. Stoodley was, however, clear that not all of the lucencies seen on the imaging were normal variants. Fissures and accessory sutures are very unusual and to have so many in one individual seemed to Dr. Stoodley to be very unlikely. He thought that some of the lines seen on the images had the appearance of fractures, in particular three lucencies extending from the top of the skull more or less at a right angle to the sagittal suture, two descending the right parietal bone and one the left parietal bone, in each case joining the line crossing the parietal bone which Dr. Stoodley interpreted as an accessory parietal suture. In addition, he considered that a line emanating from the left accessory intraparietal suture had the appearance of a fracture, because (a) it is generally held that sutures do not branch and (b) the images indicated that there was a degree of depression associated with the lucency.

A further observation made by Dr. Stoodley, which he considered to be contrary to the views of the other experts, was that it did not necessarily follow that all the fractures occurred at the same time. Indeed, if (contrary to his preferred view) the court concluded that all the lucencies were fractures, he thought it very unlikely that they could be reasonably explained on the basis of a single impact event. Most of the lucencies were not associated with soft tissue swelling and therefore if they were fractures it was possible that they had occurred earlier so that any swelling that might have been caused at the time of the fractures had disappeared by 3^rd August when M was presented to the GP. If, on the other hand, the court accepted his view as to the presence of accessory intraparietal and occipital sutures, Dr. Stoodley thought it might be possible to explain the fractures emanating from the sagittal suture and any fractures extending from the intraparietal sutures on the basis of a single impact towards the top of the head.

The other experts agreed that the skull fractures may not have occurred at the same time and that this could possibly explain the absence of brain injury. They did not agree, however, on the key issue of whether some of the lucencies seen on the imaging were accessory sutures. In the telephone conference, Dr. Chapman, Dr. Halliday, Mr. Richards and Prof Bishop all stressed that accessory sutures were rare, in particular intraparietal sutures. Following the experts’ telephone conference, further X-rays of M’s skull were taken which revealed no evidence of further fractures. All the lucencies seen on the previous images had disappeared. Dr. Chapman thought that the fact that the lines which Dr. Stoodley proposed as accessory sutures had disappeared was some evidence that they were fractures, since there is some suggestion in the literature that such accessory sutures may continue into adulthood.

For the hearing, Dr. Stoodley arranged for colour 3D images to be prepared demonstrating all the lucencies and indicating those which were in dispute between himself and, in particular, Dr. Chapman. In oral evidence, it was established that Dr. Chapman thought there were 9 or 10 fractures, whereas Dr. Stoodley thought there were only four. At the end of his oral evidence in answer to a question from me, Dr. Chapman listed a number of features, based on further research, which supported his interpretation of the lucencies as fractures rather than accessory sutures, namely the rarety of accessory sutures, the absence of Wormian bones, the fact that the lucencies had disappeared on the latest x-rays, the fact that accessory sutures are 5 times more common in men than women, and the fact that unilateral accessory sutures are 5 times more common than bilateral.

In his oral evidence, Dr. Stoodley was taken through his analysis of each of the lucencies. He pointed to the symmetrical features which led him to conclude that some of the lines were accessory sutures, in particular the junction of the intrapareital lucencies with the lambdoid suture, and the lower junction of the intraoccipital lucencies with the bottom corners of the lambdoid suture. He accepted that intraparietal sutures are rare – during his career he has only seen one and prior to this case he had never seen them bilaterally – but that was what these lucencies looked like. In contrast, accessory sutures in the occipital bone are more common – he has seen a considerable number, although prior to this case he could not recall seeing two in one bone. He added “the fact that a condition is acknowledged as being rare is not perhaps the important issue – the most important issue is whether the patient has that rare condition or not”. There is, he suggested, “a big difference between rarity in medicine and balance of probability in terms of the law”.

Whilst preferring the interpretation that these lines were accessory sutures, Dr. Stoodley accepted that it was “entirely possible” that they all represented fractures of varying ages, and was clear that at least 4 of the lucencies were indeed fractures. He reiterated his observation that the lucency shown on the left lateral view descending from the intraparietal suture was a fracture, since it coincided with an area of depression detected on the CT scans. He agreed with the observations of Dr. Fairhurst, the radiologist who first reported on the imaging in hospital, that there were features commonly found in non-accidental head injury, including bilateral fractures, separation of the fracture margins, and complex branching of the fractures.

Mr. Richards listened to Dr. Stoodley’s evidence and gave his own evidence afterwards. He said that there was a lot with which he agreed. He acknowledged the difficulty in distinguishing between fractures and accessory sutures. His experience of accessory sutures was similar to Dr. Stoodley’s – one case of intraparietal sutures, no previous experience of bilateral intraparietal sutures, more experience of occipital sutures including (unlike Dr. Stoodley) bilateral sutures.

Dr. Chapman and Dr. Halliday agreed that there was no radiological evidence of fragility in M’s bones. It is accepted, however, that X-rays are not particularly accurate in detecting bone fragility. For that reason, Professor Bishop, an expert in paediatric bone disease, was instructed to carry out a further assessment. Having analysed the original X-rays, together with further images taken specifically for the purpose of his assessment, examined M, and taken a detailed family history, he concluded that she has a normal skeleton with no evidence of any known type of underlying bone fragility. The fact that the recent X-rays demonstrate that M has not sustained any further fractures, and is now a toddler and thus prone to more accidental falls, is further evidence against bone fragility.

On the basis of Prof Bishop’s unchallenged opinion, I conclude that there is no evidence that M was suffering from any known metabolic bone fragility. In the course of the hearing before me, however, the question arose as to whether there was a mechanical fragility – in other words, whether the possible presence of fissures and accessory sutures in her skull indicated that she had a greater propensity to sustain fractures.

Dr. Halliday did not think that that a child with a higher number of fissures in her skull was more prone to fractures. She was unaware that such an association had ever been described. If anything, she thought the fibrous fissures, being less brittle than bone, might be more accommodating and less likely to fracture, although she added that this was all theory and speculation. Dr. Stoodley, however, whilst agreeing that there is no specific association between fissures and fractures, suspected – without any evidence, as he candidly accepted – that, if there is a fissure within a bone, then any trauma to that area may cause a fracture with a lesser degree of force than would be required if a fissure was not present.

Initially in his oral evidence he said that most of the lucencies which were agreed by all to be fractures were not directly related to any possible fissures or accessory sutures. Later, however, when I asked whether the fact that the three fractures of the parietal bone emanated from the sagittal suture at right angles suggested that they were originally fissures, Dr. Stoodley replied that he could not exclude that as a possibility on the basis of the imaging appearances. This led him to suggest that the presence of fissures could lead to fractures extending from them as a result of a lesser degree of force than would be required to produce the same pattern of fracture in the absence of such fissures. Like Dr. Halliday, he acknowledged that this was speculation, the basis for which was the assumption that, if you have a complete plate of bone, it is probably stronger than areas of bone which have not fully developed and have areas of fibrous tissue within them. But he also cited his experience of cases in which there had been pathological evidence of a traumatised fissure with an associated fracture. He added, however, that the level of force required to cause a fracture was unlikely to be significantly reduced by the presence of fissures. If it were otherwise, in Dr. Stoodley’s words, “we should not be having this discussion because there would be an obvious association, and there patently isn’t”.

Mr. Richards agreed that, whilst there was no evidence of metabolic bone fragility, there was validity in the suggestion that emerged in Dr. Stoodley’s evidence of a mechanical fragility in the skull attributable to the presence of fissures and accessory sutures. Asked to comment on the two hypotheses advanced by on the one hand Dr. Halliday (that fissures being fibrous might absorb shock) and on the other hand Dr. Stoodley (that fissures create a mechanical fragility) Mr. Richards suggested that “you could have something that absorbs shock but, when the force overcomes it, it cracks in a big way”, but accepted that these were all theories.

Prof Bishop accepted in cross-examination by Mr. Kirk that the literature in this area is “very limited”, that cases with this amount of multiple fissuring are rare, and that this is uncharted, unknown territory. Earlier in oral evidence, Prof Bishop made this observation:

On the basis of his reading of the literature, Prof Bishop told the court that there was no known association between fissures and an increased propensity to fracture. He drew a distinction between propensity to fracture and bone immaturity. The propensity to fracture depends, he suggested, not on its immaturity but rather on the intrinsic and extrinsic factors cited above.

Whether or not the presence of a number of fissures and accessory sutures increases the likelihood of skull fracture has no bearing on the susceptibility to fracture in the rest of the skeleton. Prof Bishop pointed out that, whereas the skull develops out of membrane, most other bones, including the long bones and the ribs, develop out of cartilage. The process of ossification from cartilage is different from the development from membrane. Thus whether or not there was any link between the immaturity of the skull bones and any propensity to skull fractures, there was no known link between immaturity of the skull bones and propensity to fracture elsewhere in the skeleton.

Dr. Stoodley confirmed that that there was no evidence of brain damage or other intracranial injury from the scans performed in 2011. He added, however, that it was possible that the diffuse axonal injury seen on the later MRI performed in September 2012 related back to the incident or incidents that caused the skull fractures in 2011. The fact that M did not have any abnormal neurology would not exclude the diffuse axonal injury being related to an acute event at or around that time because “frontal pathology … is often clinically silent”. He added that it was very unusual to see diffuse axonal injury in a domestic setting. However, importantly, Dr. Stoodley did not accept the view that the absence of evidence of brain injury was of particular significance. In every day neuroradiological practice he regularly sees cases where skull fractures of various types have occurred as a result of impact head trauma in the absence of any associated brain injury. Even if the court concluded (contrary to his opinion) that all the lucencies seen on the imaging were fractures, it is not inevitable that there would have been associated brain injury. He suggested that the cases to which Mr. Richards alluded (for example, involving a helicopter accident) were only relevant if they were cases in which there was extensive skull fracture in the absence of brain injury.

In response to Dr. Stoodley, in a further telephone conference, and in a subsequent schedule of agreement and disagreement, the other experts agreed that the abnormality seen on the September 2012 MRI could be related to axonal injury attributable to a significant impact injury to the head. Although it was not possible to date the age of the injury on the basis of the MRI images, they agreed that it was very unusual to see diffuse axonal injury, as a result of head trauma, in a domestic setting. The diffuse axonal injury observed in the September 2012 MR imaging comprised a number of small areas in the left frontal lobe. Although Dr. Stoodley was unable to rule out the possibility of long-term consequences, he said that the injury is in the area of the brain where such damage will not necessarily have any significant effect on M’s long-term development. He thought that it was unlikely that this damage could have resulted from a fall of the type described by the father, although he could not completely exclude it.

In the telephone conference, there appeared to be disagreement, in particular between Dr. Stoodley and Mr. Richards, about whether the lack of brain damage was unusual given the extent of the skull abnormalities. In his oral evidence, Dr. Stoodley repeated his view that the absence of brain damage was not surprising, whether or not the fractures occurred on one or more occasions. He did not think that it necessarily followed that the more serious the fractures, the more likely there would be brain injury, although he was unable to recall a case in which a child had sustained fractures on this scale on one occasion without sustaining brain injury. In his oral evidence before me, Mr. Richards appeared to modify his position slightly, saying that the “brain injury side … is not important”. He pointed out that he had considered this point in his report in the passage cited above in which he had discussed the phenomenon of eggshell skull.

Dr. Chapman confirmed in cross-examination by Mr. Kirk that it was impossible to date skull fractures which do not heal in the same way as other bones. Dating depends on associated features such as intracranial injury, clinical presentation or scalp swelling. In this case, there was no contemporaneous evidence of intracranial injury and nothing in the way of clinical presentation to indicate that M had multiple skull fractures.

In his report and his oral evidence, Dr. Chapman expressed the opinion that there was evidence of swelling on both sides of the scalp. He thought that it might have been associated with some though not all of the fractures, or alternatively have been attributable to a separate incident that was not responsible for any of the fractures. Insofar as it was attributable to the fractures, it indicated that those fractures must have been sustained no earlier than 26^th July.

In his report Dr. Stoodley observed that, whereas he could see evidence of quite extensive soft tissue scalp swelling over the right frontal region, which was likely to have occurred as a result of an impact injury to that part of the head, he could not see any evidence of scalp swelling at any other site. He expressly disagreed with Dr. Chapman’s opinion that there was evidence of scalp swelling on the left parietal region. In respect of timing, Dr. Stoodley broadly agreed with Dr. Chapman. He thought it likely that the swelling he observed had occurred as a result of an impact injury at some time in the 7 to 10 days prior to the CT scan on 5^th August.

All the experts were of the opinion that, however the fractures were caused, M would have experienced pain. In evidence in chief, Prof Bishop said that a child who has weaker or more fragile bones experiences the same amount of pain from a fracture as a child with normal bones, and similarly will experience the same amount of pain afterwards when the fracture site is handled until the healing process leads to stabilising of the bone. He added, however, that with children who are unable to comment or make themselves understood, it can sometimes be difficult to discern pain or the cause for pain – whether it is due to a fracture or to something else. He also said that, with rib fractures, it can be difficult to detect pain because the ribs tend to splint one another and reduce the amount of movement and therefore the level of pain, although there would be pain when pressure was applied to the area of the fracture. When Frank Feehan QC drew his attention to the note made by Dr Scott-Jupp of his examination of M in hospital on 3^rd August, in which she is described as happy and alert and not in pain when the area of the crepitus was examined, Prof Bishop thought that showed something about M’s perception of pain.

All the experts agreed that each fracture would be expected to cause ongoing pain, particularly with movement and handling of the head, and noted that there was no reported history of the baby being in prolonged pain. Mr. Richards was clear that, whether or not there was neurological damage, he would have expected the fractures, and the force required to cause the fractures, to have resulted in a great deal of pain, and a massive swelling over the scalp, which would have been observed if the child had been examined less than 24 hours after sustaining the injury.

Dr. Chapman accepted in cross-examination by Mr. Kirk that it is conceivable that a single high energy impact applied to the midpoint of the top of the head might produce a complex eggshell fracture, although in subsequent answers to a question from me he found it difficult to envisage how such an impact might cause fractures all over the skull. In such a case, it was possible that the skull might absorb the impact and protect the brain so that the child had no neurological upset. Dr Chapman thought that, whilst skull fractures can occur from falls of the type described by the father, the extent of the fracturing in this case was outside his experience of domestic accidents.

Cross-examined by Mr. Feehan, Dr. Stoodley accepted that he could not exclude the possibility that the lucencies that he considered to be fractures were caused by a single impact to the head. In answer to a question from me, he thought it possible that the impact could have occurred at the location of the scalp swelling.

At the conclusion of his evidence, cross-examined by Mr. Kirk, Mr. Richards, who had sat through Dr. Stoodley’s evidence, accepted that there was no real difference between them. Mr. Richards now concluded that the likeliest explanation for M’s presentation was that she fell into the category of patient he identified in his report – one with an eggshell skull in which “it is presumed … that the skull has absorbed the impact and caused the extensive fracturing in circumstances where otherwise significant forces would be transmitted to the brain.” Like Dr. Stoodley, Mr. Richards could see biological support for the proposition that, if the skull was weaker because of the presence of the fissures and sutures, the application of a force to what he called “the sweet spot” might explain these radiating fractures. He remained of the view, however, that it would be unusual if some degree of pain or disturbance in M were not reported by the parents.

Dr. Stoodley’s contribution to this case has been invaluable. His insight, supported by the literature, has, in my judgment, resolved the conundrum identified by Judge Marshall. I accept his challenge to what he perceived as the three assumptions that had been previously made by other experts.

First, I accept his interpretation of the imaging that a number of the lucencies previously considered to be fractures are in fact accessory sutures. In reaching this conclusion, I acknowledge that I am preferring his evidence to that given by Dr. Chapman, and in view of the latter’s eminence as a radiologist I have thought carefully before coming to this conclusion. I also accept that a child with bilateral intraparietal accessory sutures and two occipital sutures is extremely unusual – unique in the experience of the doctors in this case. In my judgment, however, Dr. Stoodley has demonstrated convincingly by reference to the imaging and in particular the 3D reconstruction that there is a striking symmetry between the lucencies that he proposes as accessory sutures. I think it highly implausible that a child could sustain multiple fractures of this appearance. On a balance of probabilities, I find that the number of fractures in M’s skull was four and not the eight to ten suggested by Dr. Chapman.

Further, I accept Dr. Stoodley’s opinion (which, I acknowledge, originated in a line of questioning from the court) that it is possible that the lucencies emerging at right angles from the sagittal suture into the parietal bones, which he accepts are fractures, started out as fissures. Acknowledging that there is no support in the literature for the proposition that the presence of fissures leads to an increased propensity to fracture, I accept the ultimate view of Dr. Stoodley and Mr. Richards that there is validity in the suggestion that emerged in Dr. Stoodley’s evidence of a mechanical (as opposed to a metabolic) fragility in the skull attributable to the presence of an abnormal number of fissures and accessory sutures.

In these circumstances, I share the conclusion ultimately arrived at by Mr. Richards that the most likely explanation for the skull fractures in this case is that M had an eggshell skull which has absorbed the impact and caused the extensive fracturing in circumstances where otherwise significant forces would be transmitted to the brain.

Like Dr. Stoodley and the other experts, I cannot rule out the possibility that the fractures were sustained on more than one occasion. Whether or not they were sustained on one or more occasions, I accept Dr. Stoodley’s evidence that it does not necessarily follow that M would have sustained brain damage . I accept his evidence that skull fractures, including multiple fractures, may occur without brain damage . Dr. Chapman and Mr. Richards agreed that it was possible for the skull to absorb an impact leaving the brain undamaged, and indeed common sense suggests that this is one of the functions of the skull. In any event, as no MRI was carried out it is possible that there was some brain damage that went undetected at the time, a possibility that is supported by the fact that the MRI carried out in September 2012 found some evidence of diffuse axonal injury.

I therefore find that key elements in the conundrum that previously perplexed (and baffled) the experts and judges have been resolved. M suffered four fractures of her skull. Those fractures were probably caused on one occasion by an impact to the top of her head, although it is possible that they were caused on more than one occasion. Although she has at some point prior to September 2012 sustained minor brain damage, there is no evidence that she suffered any brain damage as a result of the skull fractures, but that is not unusual as skull fractures are often sustained without any accompanying brain damage. The soft tissue scalp swelling observed on the right frontal part of her head could have been caused as a result of the same impact as resulted in the fractures, or could have been sustained on another occasion.

There is only one element of the conundrum left unresolved by the medical evidence, namely the absence of any evidence that M suffered any pain as a result of the skull fractures. I accept that a child’s perception and presentation of pain vary, but I accept the evidence of the experts that it is surprising that M displayed no signs of pain as a result of these skull fractures.

It is of course M’s parents who provide the principal evidence as to her presentation prior to her admission to hospital. I shall consider this point as part of my analysis of their evidence shortly.

At this point, before turning to the parents’ evidence, I mention some points of wider importance that emerged from the medical evidence in this case.

As mentioned above, no MRI was carried out on M in August 2011. Dr. Stoodley reminded the court of the recommendation of the Royal College of Radiologists and the Royal College of Paediatrics and Child Health (“Standards for Radiological Investigations of Suspected Non-accidental Injury”, March 2008) that an MRI scan should be performed if an initial CT scan of a child is abnormal (para 15.3). He informed the court that there have been a number of recent cases in which such MRI has not been performed in these circumstances. Plainly from a forensic point of view, the absence of an MRI contemporaneous to the other imaging is a lacuna in the evidence. All the experts in this case agreed that an MRI should have been carried out at the time. I recognise, of course, that there may be clinical reasons why the treating physicians choose not to carry out imaging. I also note Mr. Richards’ observation that resources for MR imaging are scarce. I share Dr. Stoodley’s view, however, that “whilst the lack of an MRI scan at the time of M’s acute admission will not have affected her clinical care, an opportunity was potentially lost to gain useful forensic information”. It may therefore be appropriate for the professional bodies to review this issue to establish the extent to which the Royal Colleges’ recommendations are being followed

There is, in addition, a more fundamental point of general importance. This case demonstrates yet again the invaluable role played by medical experts in cases of alleged non-accidental injury. There is rightly a renewed scrutiny on the use of experts in family proceedings, and some potent arguments have been advanced against what is perceived as the misuse and overuse of experts. In response, the Family Procedure Rules have been amended so as to impose more stringent regulation of the instruction of experts. Henceforth, under the amended rule 25.1, “expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”.

In difficult cases of non-accidental injury, it will continue to be the case that expert evidence from a variety of disciplines will be necessary to assist the court to resolve the proceedings. In the recent case of Devon CC v EB and others cited above, I observed at para 156

This case provides a further example. The medical picture presented to Judge Marshall created what she thought, and Munby LJ in the CA agreed, was a conundrum. In directing a retrial, Munby LJ, whilst leaving the scope of the retrial to be decided by the judge conducting it, suggested that there should include a more exhaustive search of the literature. The instruction of Dr. Stoodley, a further search of the literature by the experts, and the process of the retrial in which the experts have each made an important contribution, have enabled this court to resolve the conundrum.

Court-appointed experts play a vital role in difficult cases of non-accidental injury. As this case demonstrates, it will ordinarily not be sufficient to rely on the opinion of the treating physicians in this type of case. In respect of M’s rib fractures, the court-appointed experts provided insights that would not otherwise have been available to the court. The radiologists who initially reported on the X-rays, but who were not called to give evidence in the hearing, identified evidence further possible ten rib fractures. Neither Dr. Chapman nor Dr. Halliday identified any fractures at these points, and the local authority has not pursued this issue. As Mr. Kirk pointed out in closing submissions, the consequence is that this case looks somewhat different from how it appeared initially to the treating physicians. Had the case been presented purely on the basis of their interpretations, the focus of the court would have been significantly different. In respect of the skull fractures, as both Dr. Stoodley and Mr. Richards recognised, it is possible that in the past lucencies that had been routinely but wrongly diagnosed as fractures in spite of the fact that it was recognised that fissures and other abnormalities existed. Both experts had been involved in a case in which they had diagnosed a fracture but a bone pathologist had identified a traumatised suture. As Mr. Richards said in evidence, “we are beginning to get pathological evidence coming out to make us re-think our thoughts about fissures and fractures in the same way [as] a few years ago we got more evidence about birth causing subdural haemorrhages.” This is another example of how medical opinion about non-accidental head injury is continuing to evolve.

This case provides further illustration of the important role of court-instructed experts in these difficult cases where the medical evidence is unusual and therefore outwith the experience of many hospital doctors. In the circumstances, it goes without saying that it is vital that experts of sufficient calibre and experience should continue to be available where the court considers their instruction necessary to resolve the proceedings. In the course of this trial, I have been informed that a number of doctors commonly instructed in these difficult cases are not at present accepting instructions. Any impediment to the instruction of experts in these difficult cases will make it much harder for the court to achieve a just and timely outcome for the child.

I turn to consider the explanations given by the parents for the injuries sustained by M.

The mother has given an account of an incident in the middle of July 2011 (she believes it was the 16^th) which, it is suggested, may explain the fractures of the left 5^th and 6^th ribs. Her detailed account is set out in her first statement in these proceedings:

The opinion of the medical experts was that this account could explain the fractures to M’s 5 ^th and 6 ^th ribs. The forces which would have been applied by the mother in squeezing M to stop her falling would be the type of compressive forces required to cause rib fractures, and M’s response as described by the mother would be the type of response that might be expected from a baby who had sustained fractured ribs.

On the other hand, counsel for the local authority point to three facts which, they suggest, undermine the plausibility of this account. First, given the mother’s professed protective attitude towards M, they submit it is surprising that she did not take her to the doctor. They submit that on the mother’s account the effects on M were plainly far too prolonged for a simple fright. Secondly, the mother did not mention this incident to the father. Pamela Scriven QC and Hayley Griffiths submit that it is inconceivable that she would not have told him the very next day when he was back from work and home all day if things had really happened in the way she said. Thirdly, the mother did not mention it in the first police interview. I have already described the circumstances in which she was advised not to mention it in the second police interview.

As set out above, the court must not consider the evidence in isolation but, rather, look at each part of the evidence in the context of all the other parts. Before reaching any conclusion on the 5^th and 6^th ribs, I therefore turn to consider the other injuries.

The parents’ case is that these injuries must all have occurred in the incident on 2 ^nd August when, according to the father, he dropped M while the mother was in the garden.

The father’s account of this incident in his statement is as follows:

The mother’s account is that she recalls hearing M crying whilst she was outside but knew that she should not interfere as the baby needed to get used to the father caring for her. She told the police (and confirmed in oral evidence to me that it was correct) that she had come in from the garden twice. On the first occasion, the crying stopped just as she entered, the father and M were on the sofa, she heard M burp, and thought that the feeding was over. She then went outside and the crying resumed. When the mother returned indoors, she found M looking very red faced and crying loudly. She was sitting in her chair and the father was on the sofa. The mother said that she asked the father what was wrong but he remained silent. She assumed that it was because M was upset at being with the father and so she picked her up. She gave her some calpol. It took at least half an hour to 40 minutes before M quietened down. In oral evidence, the mother said that M had been “as miserable as sin”. According to the father, he did nothing else with M that day – he “completely shut down. I felt bad. An awful lot was going through my head. How to own up, how to tell T? I couldn’t bring myself to say anything that had happened I was scared.”

The parents suggest that the fracture of the 8^th rib must have occurred during this incident. If, however, the court accepts the experts’ evidence that the fracture must have occurred no later than the 1^st August, it cannot have been sustained in the incident described by the father. Furthermore, if the court accepts the experts’ evidence as to the compressive forces required to cause a rib fracture in this posterior location, it is difficult to see how the injury could have been sustained in a fall as described by the father. Once again, I remind myself that the court must not consider the evidence in isolation but, rather, look at each part of the evidence in the context of all the other parts.

It is the parents’ case that, in addition to the 8^th rib fracture, the incident described by the father as having occurred on 2^nd August also accounts for the much more serious head injury. In view of the evolution of the medical evidence, and my findings as set out above, it is, as Dr. Stoodley and Mr. Richards accepted, possible that the four fractures identified by Dr. Stoodley could have occurred as a result of M falling onto the top of her head. As the father cannot say exactly how she fell in the incident he describes might account for the fractures, if the father’s account is truthful.

I regret to say, however, that I have grave doubts as to the truthfulness of his account, for the following reasons.

First, I find it very improbable, if the father had dropped M in the way he describes, that he would conceal it from the mother and from the medical professionals. His explanation for doing so – that he was concerned not to worry the mother or get social services involved – was to my mind implausible. Mr Feehan and Mrs Storey-Rea urge me to view this aspect of the case in its human context – his likely horror at what had happened, the relief that she was all right, the struggle of conscience against the instinct for self-preservation. I have thought carefully about those submissions, but ultimately do not accept them. Had the father dropped her in the way he describes, he would have been much more likely to tell the mother immediately, and seek medical help. His evidence about this was to my mind wholly unconvincing.

Secondly, there are a number of inconsistencies in the various versions of the incident given by the father. In particular, in giving his account to the police and to the social worker, he described the time for which M had cried as much shorter than in his statement in these proceedings cited above. At one point he told the police that she had cried for only a minute or so. According to the social worker’s note, the father said that he had “picked her up and she settled down and stopped crying. T came into the room and he did not tell her as he did not think that M had been seriously hurt.” This account is significantly different from that given in his statement, and from that given by the mother who describes in her statement how M was red and crying loudly when she came into the house, and that thereafter she took some 30 to 40 minutes to settle. According to Prof Bishop’s note taken during his examination of M on 8^th May 2012, the mother said that M had cried for about 20 minutes before she went into the house and 20 – 25 minutes afterwards.

Thirdly, there is considerable inconsistency in the evidence about the lump or swelling allegedly seen by the parents on the morning of the 3^rd. The father described it to the police as a “bit of a bump”. The mother described it as “big” to the police and “huge” in her oral evidence before Judge Marshall. In contrast, none of the medical professionals who examined M later that day noticed swelling.

Fourthly, and linked to the previous point, there is a conflict between the mother and Prof Bishop as to a comment made by her during his examination of M on 8^th May 2012. According to Prof Bishop’s note – which he said in evidence was made contemporaneously – the mother told him that she had not noticed the lump when she first fed M that day but at about 10.30 after being put down to sleep for one 1 to 1.5 hours; that the lump was big and that M’s right eye was closed. The mother emphatically denies that the eye was closed or that she had told Prof Bishop that it was. In his report, Prof Bishop does not refer to the eye being closed. He records the mother saying: “it was a large lump and the right side of her face was swollen.” In his oral evidence, however, he was clear that the mother had said that the eye was closed. I accept the professor’s evidence on this point. It follows that the mother has not told the truth. She has either given a false account to the professor or to the court or to both.

Fifth, if the lump was as large as the mother says it was on the morning of the 3^rd, and she was in a state of high anxiety when she went next door to find out the details of the GP’s surgery from the neighbour, it is to my mind very surprising that she did not accompany the father and M to the surgery. If, as she says, she felt particularly protective about M, it is implausible that she would have chosen to stay to speak to an insurance representative.

Sixth, there is the evidence of one of the nurses that the mother said on 4^th August, after the father had given his account of dropping M and been arrested and taken to the police station, that she did not want the father to come back to the ward “in case he says something wrong”. The mother challenges this account, but having heard the nurse give evidence I am in no doubt that her verbatim note in the medical records is accurate and that she is telling the truth. Accordingly, I find that the mother has lied again on this point.

Seventh, I find M’s appearance when she was examined at the surgery and then at hospital was inconsistent with a child who had sustained multiple skull fractures less than 24 hours earlier. Mr. Richards said that, if M had been injured less than 24 hrs before she was seen by the medical professionals on 3^rd August 2001, he would have expected her to present as a child suffering a great deal of pain, and a massive swelling over the scalp. No such symptoms were seen in the surgery. The nurse noticed no swelling, only that the right side of the head looked larger than the left. The GP did not refer to seeing anything on the head at all. Neither mentioned any indication of pain, and the GP described M as “responding normally”. At the hospital, the SHO described M as “alert, happy, active” and by the consultant as “well, alert”. There was no evidence of the degree of swelling or pain that, according to Mr. Richards, would have been expected had she sustained the multiple fractures 24 hours earlier.

Finally, I take into account the way in which the parents’ gave evidence about this issue. Making all allowances for the difficulties in giving evidence, in particular the passage of 21 months since M was admitted to hospital on 3^rd August, I found them to be hesitant and unreliable. In particular, I found the father’s account and demonstration of what he says happened on 2^nd August to be vague and unconvincing. I do not accept the submission that this should be attributed to grief and bewilderment.

All these factors together point strongly towards a finding that the parents have not told the truth about this incident. There are, of course, a number of factors pointing the other way, and I turn to consider them now.

First, it is pointed out that there is no other evidence that either M or L were mistreated in any way by their parents. On the contrary, there is a considerable body of evidence that they were well cared for. Because of the earlier, unwarranted, allegations made by the neighbour, the parents had been subjected to a degree of scrutiny not normally imposed on parents. The outcome of the s47 investigation, and of subsequent checks and assessments carried out by social workers and health visitors, was that L was provided with high quality care. There is less evidence from professionals about the care given to M, not least because the family moved and the mother did not register the children with a surgery prior to 3^rd August. There is, however, no evidence that M was treated with any less care than her brother. Such evidence as there is – from neighbours and family members – suggests that both children were being well looked after in the weeks and days leading up to 3^rd August. Specifically, there is no evidence that M displayed signs of having incurred a head injury. Mr. Kirk and Miss Rogers submit with justification that the mother and father are in all respects respectable, hard-working, devoted and caring parents to their children.

Secondly, it is submitted that all the evidence shows that M was a much wanted baby, particularly after the tragic loss of C. In one statement, the mother described M as “my precious, miracle baby that made our family complete. I could never want to hurt her.” The parents’ counsel submit that it is improbable that such a wanted baby could be subjected to non-accidental injury. On behalf of the mother, Mr. Kirk and Miss Rogers ask whether this mother would have lost all self control and hurt “the little girl she had so much hoped for, born after a tragedy which broke the hearts of our entire family” in the manner suggested.

Thirdly, looking at the wider canvas, the parents’ representatives submit that it is striking that these injuries all occurred at a time when the family was relatively free of stress. The local authority, in seeking to explore the context of the injuries, draw attention to a number of factors which had caused stress and pressure on the family in the preceding years – the bitter dispute with the neighbour leading to false accusations of neglect and the involvement of social services; the difficulties that the father faced in his Army career; the challenges faced by the mother acclimatising to life as a military wife; the tragic loss of C; longstanding financial worries; health problems for the children; and, for a period of several weeks earlier in 2011, the father’s absence from the home leading to the mother having to cope with two children by herself and then to difficulties in the attachment between M and the father when he returned from the exercise. In response, Mr Feehan and Mrs Storey-Rea submit, with justification, that on the face of it the weeks and days leading up to the discovery of the injuries were the most stress-free period for the family for several years. They had moved to Wiltshire and left all the troubles of the previous location behind. They had a new much-loved and much-wanted baby. The father was back from his exercise and living at home again. His career had settled down.

Fourthly, Mr Feehan and Mrs Storey-Rea submit that, if M had been subjected to a non-accidental head injury, even in a momentary loss of control, it is unlikely that she would have been taken to the doctor, especially as there was, according to the records of the examinations in the GP’s surgery and at hospital, no obvious sign that she had sustained a head injury. If they were going to cover up an assault, there was, submits counsel, no need to take her for an examination. Mr Feehan and Mrs Storey-Rea acknowledge that perpetrators do take their children to doctors, but in most cases that is because there is an acute episode that prompts even a perpetrating parent to protect the life of their child. In this case but for the “mild asymmetry” seen by the GP surgery there was no sign of anything wrong. Had these parents not been panic-stricken it is highly likely that these shocking findings would never have come to light. Mr. Kirk and Miss Rogers make the same point but put it slightly differently. Is it likely, they ask, that they would take M to the surgery on the morning of 3 August 2011 with scalp swelling if one or both of them had knowingly subjected her to episodes of violence on three or more occasions? Is it likely that they would conspire to conceal a succession of injuries until the symptoms and signs had all but resolved and the child was presenting as well, happy and without pain, and then seek medical attention?

Fifthly, Mr. Kirk and Miss Rogers return to the complexities of the medical evidence which proved so troubling in the earlier stages of this litigation. They ask, rhetorically, is it reasonable to expect a conventional explanation from the parents that is consistent with the clinical picture, when the clinical picture is itself remarkable and inconsistent with what we assume ourselves to know?

Sixth, all counsel for the parents submit that the inconsistencies in the father’s various accounts, and between the father and the mother, are relatively minor and not particularly probative, that there are invariably inconsistencies in the various accounts given by parents in these circumstances, that they have to be seen in the human context, and that it is perfectly possible for honest witnesses to remember events differently and imperfectly over time. On behalf of the mother, Mr. Kirk and Miss Rogers contend that there is an internal consistency in the mother’s account as well as in her evidence to this court, and they also assert that the mother’s response and distress when the injuries became apparent, and the father put forward his account, was entirely appropriate.

I take all of those points into account. In addition, I remind myself of the Lucas principle – that there are many reasons why a witness lies and the court must not assume, simply because someone has lied about some matters that he or she has lied about everything. This is always an important point and perhaps particularly so in this case. I accept that these parents had endured a difficult time at the previous base, including the ordeal of a s47 investigation based on apparently untrue allegations, and it is therefore entirely possible that those experiences might lead them to conceal information. I note the way in which the mother described how she felt invaded and violated as a result of the intrusion into her family life as a result of the s.47 investigation and the subsequent involvement of social services, and that these feelings were reinforced following the tragic death of C which led to further rumours and, in the mother’s words, left her angry and fearful of people with any form of profession that allowed them access to her life and to private information about her”. I accept that a father who had dropped a baby might conceal the truth about what had happened out of shame or embarrassment.

Balancing all these elements together, however, I have come to the clear but regrettable conclusion that the parents have not told the truth about the circumstances in which M sustained her skull fractures or the fracture to her posterior 8^th rib. I do not accept that those injuries were sustained as a result of the fall as described by the father as having occurred on the afternoon of 2^nd August 2011. I find that each parent is concealing information and has given a false and misleading account.

I therefore find that the local authority has proved on a balance of probabilities that M sustained four fractures to her skull and a posterior fracture of her 8^th rib non-accidentally whilst in the care of one or both of her parents. Because in my judgment neither parent has told the court the whole truth about what happened, I cannot say whether these injuries were sustained as a result of one or more incidents, nor can I identify which parent was responsible for inflicting those injuries. It is possible that each of the parents is culpable for part of the injuries. On balance, however, I consider that to be unlikely. It is probable in my view that one of the parents is responsible for the injuries and the other is knowingly withholding information so as to protect the perpetrator.

I return to the issue of the earlier rib fractures, those of the lateral 5^th and 6^th left ribs. As stated above, the opinion of the medical experts was that the mother’s account of the incident when she squeezed M as she slipped in the bath could explain these fractures. On the other hand, as mentioned above, the local authority point to the fact that it is surprising that this mother, who is so protective of M, did not seek medical attention for M after this incident, and that she failed to mention it at the time to the father, or to the police in the first interview. In addition, having regard as I must to the totality of the evidence, I must now take into consideration my finding that the mother has lied about the later injuries. On a balance of probabilities, I therefore find that the fractures of the 5^th and 6^th ribs were sustained non-accidentally whilst M was in the care of one or both of her parents. Again, in view of the parents’ deception, I am unable to find exactly when or how she sustained the fractures, nor I am able to identify which of her parents was responsible.

I make these findings only after prolonged thought and with regret and reluctance. I know these parents have endured a great deal of hardship over the past few years, in particular the tragic loss of C and now these protracted proceedings leading to these findings. I accept that in many other ways the mother and father have been good parents to L and M. I accept that they are devoted to their children. I accept that they are desperate to care for them again.

All children should wherever possible be brought up by their parents. That is as true of L and M as of any other children. I do not regard these findings as the end of the story. All the professionals in the case – the social workers, the guardian and the court – must do what we can to see if L and M can be safely returned to their parents. But the primary responsibility now lies with the parents themselves. I urge them, even at this late stage, to be more frank with the court so that we can all understand what happened to M and work together to ensure that she and her brother are safe in the future.