Tag Archives: rickets

Genuinely shocking

Posted on July 20, 2015 by suesspiciousminds

 

The Court of Appeal in Re A-S (children) 2015 had to deal with an appeal, the facts of which were genuinely shocking to me. And that is as a lawyer who has been dealing with Children Act 1989 cases for over twenty years now.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/748.html

 

Within care proceedings, a range of findings were made against the mother, the most serious of which was that she had deliberately drowned her baby (who survived and is fine now). The mother’s case, including her case on appeal, was that she had been negligent in leaving her child unattended in the bath, where he became submerged, but that it was an accident.

 

You may be thinking that it must be very difficult to establish to the requisite standard of proof whether the incident of drowning was deliberate or accidental. The shocking thing about this case is not merely the incident itself, but that the whole thing was recorded by way of a 999 call.

 

The call lasted for around 15 minutes.  The mother telephoned 999 to say that there had been an accident, that her baby had been left unattended in a bath and had slipped under the water.  However, that 999 call is recorded, and the medical experts (and indeed the Judges) who listened to it had three major concerns :-

 

1. That up until around the nine minute mark, the baby can be heard making normal baby noises that would not be consistent with a child who had nearly drowned.

2. That at around the nine minute mark, the mother stops speaking although the paramedics can be heard trying to talk to her and engage with her. And the sound of running water is heard.

3. That after that period, a scream is heard from the mother, and thereafter, the noises made by the baby are consistent with a child having been immersed under water –  the baby is heard again grunting and coughing then in further respiratory distress and suddenly stops breathing at 10 minutes 48 seconds  – and he was in this position until the paramedic arrived and resuscitated him at around the 15 minute mark.

 

There was also evidence from several medical professionals that it was just not possible that a child would have nearly drowned, showed no ill effects for nine minutes, then stopped breathing and required resuscitation by a paramedic. The sequence of events is just wrong.

“Diana Howlett … is a consultant paediatrician of 20 years. She and two of her colleagues of similar experience, Dr Goldsworthy and Dr Linton, who had been asked to listen to the recording of the call. Her report is at G87. Putting its contents very simply all the three doctors say there is a disparity in their view between the history given by the mother (the child had been found drowned a few minutes prior to the phone call) and the “auditory history” of the child on the call, ie the crying and other sounds L was making in the first 10 minutes of the call and his presentation when medical help arrived at the house. They concluded that they can hear the sound of running water after 10 minutes and the explanation is that it is at this point the child is being drowned. In their written submissions Mr Ekaney QC and Miss Evans ask me to treat this evidence very carefully. The doctor said in cross-examination “we were asked to give an opinion but none of us would consider ourselves experts in this area. It raises more questions really”. I do not intend to put any significant weight on this evidence. They heard what they heard, the baby appeared to be crying while mother was shouting things like “don’t die”, “stand up”, and in particular “wake up, wake up” when from the noise he was making he appeared to be awake. I have to say I heard that too.”

 

  1. I turn to the report of Dr D S James of the Wales Institute of Forensic Medicine at Cardiff University. It was accurately and sufficiently summarised by Judge Marston in his judgment as follows:

    “He says if you ignore the content of the 999 call M’s description of immersion, apparent respiratory arrest, gradual recovery after rescue breaths and presentation to paramedics after 10-15 minutes wet, cold and in respiratory distress but responding well to oxygen with an eventual good recovery is in keeping with the pathology of near drowning. If the child was not in respiratory distress and apparently vocalising normally for an infant of his age ie “well”, the description of a very unwell infant, cold, quiet and collapsed raises the question why there has been a significant and sudden deterioration in his condition. In his report the doctor puts two possibilities, either it is a complication of the immersion or “there has been a further episode of immersion causing L to collapse”. In his conclusions he says the baby would not usually be normal for 10 minutes prior to a sudden deterioration but the consequences of near drowning are complex and variable and there are pathophysiological mechanisms which merit consideration by paediatric clinicians.”

  2. Finally, I go to the report of Dr Stephen Playfor, Consultant Paediatric Intensivist in the Paediatric Intensive Care Unit at the Royal Manchester Children’s Hospital. Dr Playfor’s report contains a very careful and detailed analysis of what can be heard on the recording of the 999 call. He constructed what he called “a robust timeline of events”. His opinion, on the balance of probability, was that L was drowned during the interval of 49 seconds between 21.43:28 and 21.44:17. (Since the recording started at 21.34:48, this corresponds with the interval between 8 minutes 40 seconds and 9 minutes 29 seconds.) He opined that the likelihood of the respiratory distress which can be heard subsequently on the recording occurring as a physiological response to an episode of drowning before the making of the 999 call is “very small (<5% chance).” He said:

    “A single episode of drowning occurring before the recorded 999 call … is not compatible with the sounds contained within that recording.”

    He added:

    “L can be heard to vocalise and cry normally during the first 8 minutes and 40 seconds of the recorded 999 call without any sign of respiratory distress. During this period I am confident that he was conscious, ‘near normal’ and not in any need of resuscitation.”

 

 

The conclusion that the Judge was inexorably drawn to was that the mother had made a 999 call when there was nothing wrong with the child, but during the course of the call had done deliberately to the child what she was claiming had happened accidentally.

 

About the only argument that mother could deploy is that this seems unbelievably improbable, and so she deployed it.

“I now turn to consider the final part of [the] jigsaw, M’s evidence. She deploys a number of powerful points before she even gets into the witness box. First there is the inherently unlikely nature of the allegation that a mother would drown her own child. Her father, for example, thought such a possibility here as absurd. That does not of course change the standard of proof but it is something I must have strongly in mind when considering the case. Next there is something called the wider canvass. Here I am dealing with the loving, kind mother who it is said was without external stressors and who gave a consistent account throughout.”

 

 

It was, of course, a very significant finding for the Judge to make, particularly in a case where there’s nothing in the background features of the case that would cast any light on why the mother would do something as peculiar and harmful as this.

The judge’s conclusion is in a passage which I must set out in full:

“The medical evidence all points in the same direction. The baby was normal until about 8/9 minutes into the 999 call. There is no reason related to an earlier drowning incident that would cause the post 10 minutes in collapse. The Mother’s evidence of what happened is not substantiated by any external matters eg a pan of burned food or a full baby bath, there is some evidence of what might be brown flecks of faeces in the bath but no other bit of the Mother’s story is supported The Mother’s evidence is shot through with so many lies and so much vagueness that I am forced to conclude she is trying to hide something. The only thing that she can possibly be attempting to hide is that there was no incident of drowning in the bath and that she is responsible for attempting to drown the child after 8 minutes and 40 seconds of the phone call for about 47 seconds. Most likely this was under the tap in the conservatory. I cannot speculate on why she made the call in the first place or why she did what she did. It seems to me that at the point where she seeks reassurance from Mr Mahony that the baby will be alright and he says the child is seriously ill she becomes hysterical because she realises what she has done. It may be that she did not intend to kill the baby. Until the mother tells the truth we are left with speculation.

I find [the] allegation proved on the balance of probabilities.”

The Judge added a clarification about the mother’s motivation for making the 999 call

“With regard to the 999 call I have to conclude that the 999 call was instigated for a reason I can only speculate about, and I do not think it is appropriate for me to speculate. My finding is that at the start of that call the child had not been subject to an incident of drowning. I made that finding specifically on all of the evidence that I heard; the medical evidence; the evidence from all of the parties who gave evidence; and the witnesses that were called. I do not know why the mother was distressed during the first part of the call. She was certainly at the time of the arrival of the paramedic in a calm condition, and became distressed – in fact hysterical according to the paramedic – after she was told, as I pointed out in my judgment, the condition of her baby was very serious. I rely on the totality of the evidence about the 999 call. I gave only marginal weight to the three paediatricians who were not jointly instructed experts and who, one of whom in Mr Kenny’s cross-examination, conceded that they were only again marginally connected with the case. I obviously give a great deal more weight to the jointly instructed experts, and I have listened to the call myself and read the transcript.”

This is one of the sad truths about Court hearings – sometimes even after every scrap of paper is obtained and every witness is scoured in cross-examination, the Court doesn’t get to the Truth, the Whole Truth and Nothing But the Truth.  We will never know what made the mother do what she did here, and speculation was quite rightly put out of the picture by the Judge.

The appeal was on the basis largely that the Judge had gone too far in making a finding that the mother had deliberately injured the baby by drowing it, after making a 999 call.

The problem that mother’s team had to overcome was that the 999 recording was not only compelling evidence for the medical experts, but that it was striking and easy to follow for anyone listening to it, including the Court of Appeal Judges.

  1. This appeal comes before us in forensically unusual circumstances. As I have already remarked, at the heart of the appeal is the question of what it is that can be heard on the recording of the 999 call; crucially, what exactly it is that can be heard of L. Each of us has listened to the recording. I have listened to the recording more than once. We are therefore in almost as good a position as the judge to come to a conclusion.
  2. The experts described what they had heard on the tape during the first nine minutes or so of the recording. It is apparent from his judgment and his subsequent clarification that their descriptions accorded with what Judge Marston heard. It accords with what I heard when I listened to the recording.
  3. Two points emerge:

    i) First, during the first nine minutes or so of the recording one hears what Dr Howlett and her colleagues described in their report as “Normal baby vocalisations”including “polysyllabic babble and normal multi-tonal crying.” Equally important is what one does not hear: coughing, grunting, wheezing or other sounds of respiratory distress.ii) Secondly, the layman’s impression is confirmed by expert opinion: what can be heard is not compatible – the words used both by Dr Howlett and her colleagues and by Dr Playfor – with a previous drowning.

    Put very simply, a baby who presented as L did to Mr Mahoney when he arrived, would not have been vocalising, indeed would not have been capable of vocalising, as L was during the first nine minutes or so of the recording, if he had drowned before the 999 call was made.

  4. It was this which drove Judge Marston to his conclusion as to the timing of L’s drowning. That was plainly a conclusion properly open to him. Indeed, I would without hesitation have reached the same conclusion. L was not drowned before the 999 was made; he was drowned some nine minutes or so after the recording began.
  5. That being so, the only remaining question is whether this drowning was itself accidental or, as the judge found, deliberate. Judge Marston inferred that it was deliberate. In my judgment hewas entitled to come to that conclusion. Mr Ekaney submits that the judge was here in the realm of mere speculation. I do not, with respect, agree. Two factors point compellingly in this direction. First, it follows from the ascertainment of the true timing of the drowning, that the mother’s 999 call was false. L had not at that time “fallen in the water”. There had been no negligence on the mother’s part. What an astonishing coincidence that, some ten minutes later, L should actually have suffered an accidental drowning, that precisely what the mother had fabricated should so soon become reality. Secondly, if this drowning was in truth accidental, then why on earth did the mother not say so? Why should she persist in her lies? It would of course expose her to the charge that she had made a false 999 call, and wasted the time of the emergency services, but surely better that than being found to havedeliberately drowned her own baby.
  6. Where Judge Marston did, correctly, say that he would be entering into the realm of speculation was in relation to two matters: first, the mother’s reasons for making the false 999 call and then deliberately drowning L; and, secondly, as to the mechanism she adopted. The fact that, in relation to these crucial matters, he could only speculate no doubt gave Judge Marston pause for thought, just as they have me.
  7. Given his, and my, inability to provide anything except the most speculative answers, could he be confident, can I be confident, in relation to the timing of the drowning? That, at the end of the day, as it seems to me, is what this appeal really comes down to.

 

The appeal was dismissed, but the Court of Appeal went further than saying that His Honour Judge Marston was not shown to be wrong.

 

  1. So far as concerns Judge Marston, I have no doubt that the appeal must be dismissed, essentially for the reasons so succinctly articulated by McFarlane LJ. Despite all Mr Ekaney’s very considerable and very skilful endeavours, Judge Marston’s ultimate conclusion is, in my judgment, unassailable. In the light of all the evidence, and in particular in the light of what he heard when listening to the recording, he was entitled to conclude as he did and for the reasons he gave.
  2. That suffices to dispose of the appeal, but in these very unusual circumstances I can, and should, go further. As I have said, having listened to the recording, I am convinced that the judge was right. What I was listening to during the first nine minutes or so was a baby who had not then been drowned. From this it follows inexorably, given all the other evidence, that the mother’s 999 call was false and that the drowning which took place at some point thereafter but before Mr Mahoney arrived was indeed deliberate. I have anxiously asked myself whether I can truly be that confident, given that I am left speculating, as was Judge Marston, on important matters to which such a finding necessarily invites attention. I can only say that, despite my inability to provide more than speculative answers to those questions, I am convinced by what I heard. The recording is, to anyone who has heard it, extraordinarily compelling. It drives one inexorably to the conclusion at which Judge Marston arrived.

 

This must have been a very terrible case to deal with. I’m sure that in order to deal with it properly, those involved had to listen to that harrowing tape many many times. Having had to listen to that sort of tape myself , I know that it stays with you very vividly for many years, and never completely leaves you.

 

Cases like this are of course, very very rare.  When children are injured, it is more usually a momentary lapse, a loss of self-control or careless handling without thought to the strength that an adult can bring to bear.  Sometimes, as in this case   Cumbria CC v Q 2015http://www.bailii.org/ew/cases/EWFC/HCJ/2015/59.html , something that looks like horrific abuse can actually have an innocent explanation.  That case took 18 medical witnesses to arrive at the juidicial finding that the baby had rickets and thus had a propensity to fracture more easily than an average child.  Up until that point, there had been features  that would have led anyone to be deeply suspicious (both parents had convictions for violent offences, the parents had given inconsistent evidence and lied about things, the injuries were multiple, serious and ‘classic’ nai type injuries)

 

It really is very rare, that as here, something happens that leads a parent to deliberately set out to harm their child.

 

From what is reported here, there was nothing that could have led anyone to predict that this might happen, and so we are fortunate that mother made the 999 call and that a paramedic arrived. This does not appear to have been something that could have been predicted or prevented before it happened.  If someone had ever alleged that such a risk was likely, or even theoretically possible, before it happened, they would have looked a fool.  Hopefully nothing like this will ever happen again.

 

 

 

 

 

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uncharted waters

Posted on February 3, 2014 by suesspiciousminds

The limits of current medical knowledge on fractures and rickets, discussed in the case of A Local Authority v M and Others 2013

 

http://www.familylawweek.co.uk/site.aspx?i=ed127031

 

This was a case where His Honour Judge Hayward-Smith had considered a fact-finding hearing about a child who had suffered multiple fractures, including a skull fracture. At that hearing, the medical evidence had been unanimous that the child had been suffering from rickets but that the injuries had been caused by the parents, and hence the findings were made.

 

Subsequent to that, the judgment in Al Alas Wray was published, and that obviously highlighted the possible connection between Vitamin D deficiency, rickets and fractures in children.

 

The case came back before the Judge, who authorised some fresh experts, to look specifically at whether the presence of rickets in the children might mean that the fractures were not caused deliberately by the parents.

 

The medical evidence here was not simple, and not agreed, and the Court had to not only address the conflict between the medical evidence, but also to address the fact that the issues in question were butting up against the edge of what was known medical science and attempting to extrapolate from that what might be learned in the future.

 In particular, it became clear that what was not known at this stage, and did not exist in the research was

 

(a)   Whether having rickets meant that a child could suffer fractures more easily or with less force than a child without rickets would require to cause the same injury; and

 

(b)   If so, how much more easily, how much less force?

 

(c) The extent to which rickets affected the healing speed of fractures, and thus the reliability of usual dating techniques to decide WHEN the injury happened where rickets is a feature.

 

On the first issue, the experts were agreed that the existing research on animals did strongly suggest that for animals there was a sufficient link between the presence of rickets and fractures occurring more easily or with less force to be confident that a causal relationship existed, and that this PROBABLY mean that the same was true of humans, and human children too.

 

On the second and third issues, there was no certainty at all and no research evidence yet to point clearly in either direction.  (Again, with animals, the research showed that rickets did impact on the healing rate of fractures)

 

One of the evidential issues that arose was whether, within the body of children who have rickets (and are known to have rickets) fractures and multiple fractures as in this case was a common feature, a fairly rare feature or an almost unheard of feature.

 

 The problem here was that although the Court had the benefit of two experts with a lot of experience on the issue, their experience differed, and neither had the raw data or research, just their own observations. One thought it was almost unheard of (and thus that with multiple fractures NAI was a more likely explanation for the injuries), the other felt that it was fairly rare but within his own experience.

 

Is the multiplicity of fractures significant?

33. As the evidence developed this issue appeared to me to lie at the heart of this case.  Professor Gardner went so far as to say that Professor Bishop’s experience in this area led him to conclude that this is a case of non-accidental injury.  There is no doubt that Professor Bishop is a very distinguished expert in this field.  He was described by one of the experts as knowing more about this field than anyone else in Europe.  Professor Bishop said during the course of his evidence:

“In Sheffield we see approximately 500 children in any one year.  The majority will have conditions leading to bone fragility, the majority being osteogenesis imperfecta [which is not rickets].  I have been involved in this area since 1987 with babies, including premature babies, and older children since mid-1990s.  I have seen cases of rickets and the number reaches three figures.  [He did not go further as to what he meant by three figures, but it is clearly a large number of children]. 

“Of the children that I have seen with rickets, as far infants are concerned and indeed older children, I have only had three or four with fractures and only one had multiple fractures.  The children, in my experience, with multiple fractures are mobile and not as young as M who would have been immobile, but in one case a child was so ill that the bones could hardly be seen on x-ray and there were multiple fractures; and in that child, indeed, the rib cage had fallen in, it was very severe de-mineralisation of the bones.” 

That evidence reflected what he had said at the experts’ meeting.  The transcript of what he then said reads as follows:

“My concern remains that I have seen a number of cases of rickets which are more severe than this where there has only been one fracture.  I have not seen any other child in my own clinical experience with this number of fractures with rickets or, alternatively, in the literature with a description of this number of fractures in the presence of clinically apparent rickets.  So to me, this is a disproportionate number of fractures and it was actually the reason that I agreed to take this case on in the first place because it was unusual and because I was expecting, when I reviewed the child clinically, to find evidence of some other underlying bone disease that would provide an explanation for the fractures not the rickets.” 

Professor Barnes then asked the question whether that reflected Professor Bishop’s experience in relation to children under the age of six and Professor Bishop said:

“Yes, certainly, it does reflect my experience that it is unusual to see this number of fractures in an infant with vitamin D deficiency, rickets, at this age and that is an experience that goes back over quite a large number of years.  Before I did bone disease I did a lot of neonatology for ten years and we did see from time to time infants in the premature baby unit who had fractures as well, although the aetiology there is quite different.  But this is a stand out from my perspective over that long period of time.”

Professor Barnes then asked him whether his experience had reached the literature and Professor Bishop answered: 

“No, it has not reached the literature because, as I say, it is a scattered experience over a long period of time and I have not kept the case notes of each individual child seen over that period so it is a cumulative experience.  I have talked as well with a number of colleagues about what their experience has been and the general agreement, I have to say, is that one fracture is not unusual in rickets, occasionally two, but, you know, more than that, four, no, we don’t see that.” 

He then said in further evidence:

“Even with that child that I referred to with very severe rickets, there were only three or four fractures.  The majority of rickets cases don’t have a single fracture.  Given the likelihood of multiple fractures in the context of rickets, it is more likely in this case that there has been a use of excessive extraneous force.”

He went on to say:

“There is no objective measure of force required to produce fractures.  In normal children, multiple fractures would indicate abuse.  Multiple fractures in rickets is not borne out on the evidence of my experience, but there is very little published evidence in relation to children under six months.  We x-ray babies all the time.  If rickets was responsible for a lot of fractures we would be seeing multiple fractures in children with rickets and we just don’t see them.  In some parts of the world many children have rickets and there are no reports of multiple fractures.  A fracture, and certainly multiple fractures, is uncommon in rickets.”

That is strong evidence from a distinguished source and I take it very seriously, as indeed I did at the last hearing.

34. There is no objective research and no literature to assist much in this field.  Professor Nussey told me that animal research indicates that rickets in animals greatly reduces the force required to break bones and all the doctors agree that that is likely to be so in humans.  Reference was made at this hearing, as at the last hearing, to the Chapman study, but it is of limited value because of the limited number of children involved.  Professor Nussey’s written report includes the following passages:

“The question as to whether the presence of several fractures rather than one is an indicator of abuse rather than general bone fragility is impossible to answer in the absence of any objective measure of the change in the tensile strength of bone in rickets.  Skull fractures are said to be unusual in rickets, but they have been reported.”

Professor Nussey said that he deferred to Professor Bishop’s experience in this area, but I did not take him to be wholly jettisoning his own evidence. 

35. Professor Barnes had much greater direct experience in this area than Professor Nussey.  In his hospital he treats approximately twelve children a year who have rickets, but in addition cases are referred to him and his unit from across the United States and he has seen a total of about thirty-six cases a year since 2008.  He is compiling a database of such cases.  Most of the children referred to him have fractures; that is usually why they are referred to him, as he put it, to sort out which are the cases of non-accidental injury and which are not.  He has a particular interest in children under the age of six months.  Most of them referred to him that he sees have multiple fractures, but by no means were all of them caused non-accidentally. 

36. Professor Barnes’ experience of children with rickets having multiple fractures differs from that of Professor Bishop. The reason for the difference in their experience is unclear, but it has been suggested that more x-rays are taken in the United States and so more fractures come to light.  In the United States most cases of rickets are referred to major centres, whereas in the United Kingdom they tend to be dealt with locally. 

 

 

 

In the concluding passage of the analysis of the medical evidence, the Judge said this:-

 

All experts agree that there has been little research into the nature of the issues in this case.  Rickets has been curable since the 1920s and there has, therefore, been no pressing need for such research.  All experts agree that the issues in this case should be approached with caution and that there were many unknown factors including the amount of force required to cause a fracture.  Professor Bishop said that he could not be sure to the criminal standard of proof that this was a case of non-accidental injury.  He put the balance of probability at about 75%.  Both Professor Nussey and Professor Barnes say that there is insufficient evidence to say whether or not non-accidental injury has occurred in this case and that the evidence is consistent with innocent parents. 

43. At the last hearing the medical evidence pointed inexorably to the findings I made.  This hearing has been very different.  I am now doubtful whether the parents would necessarily have noticed any of the fractures, apart from the humerus and the skull to both of which they reacted appropriately.  I have conflicting evidence as to the relevance of multiplicity of fractures.  I bear in mind that the parents have given no explanation for the injuries apart from a tight garment pulled over the head and a possible knock on the head in the car, but – given the nature of the rickets, the uncertainty of how bad it was prior to 2nd January and the lack of knowledge of how much force would be required to break a bone – it would, in my view, be wrong to draw the inference that a lack of explanation from the parents indicates non-accidental injury.  For all those reasons, I am not persuaded on the balance of probability that the parents did cause these injuries to M.  I do not find, therefore, that the section 31 significant harm threshold has been crossed. 

44. I add one final word about the medical evidence.  I have great respect for all the experts in this case. They are all very impressive.  I would not wish to be taken as criticising any of them or rejecting the expertise of any of them.  This case involves areas of scientific uncertainty where there has been a paucity of research for reasons I understand.  Medical experience differs and caution is required, as indeed all the doctors involved accept. 

 

 

The Judge could have done nothing other than this, I think. We have reached a point in determining non-accidental injuries where rickets is demonstrated to exist where we simply do not know, and are not likely to find out any time soon, whether it makes such a difference that injuries that appear deliberate are in fact caused by relatively minor trauma; and where such doubt exists, the benefit of it has to be given to a parent.

 

It is an invidious position for all involved to be placed in – for the parent who can’t find the definitive answer and might end up being separated from a child temporarily or permanently, for a social worker who is trying to make a decision about whether the risks mean that such a separation should be sought, for the doctors on the ground trying to reach a conclusion, and for Judges who are having to make a decision as to whether what on the face of it are awful and serious injuries may have their causes in biochemistry outside the parents control or responsibility.

 

One thing is for certain, in any case of suspected fractures to children, getting an answer as to whether rickets or vitamin d deficiency are a clinical feature and getting that answer early will be vital.

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“An unhelpful cocktail”

Posted on February 11, 2013 by suesspiciousminds

 

The interesting case of Re A (A Child) 2013.

 

The Court of Appeal dealt here with a case where some pretty appalling case management occurred with the appellants legal team, and whether a costs order should flow from that. They determined that in the absence of being able to show that costs had been incurred by the other parties for which they could be compensated, one could not make a wasted costs order purely as a punitive measure, no matter how awful the litigation conduct.

 

But it is worth looking at the litigation conduct, just because it is a dull day indeed when one isn’t interested when “I could a tale unfold whose lightest word would harrow up thy soul, freeze thy young blood, make thy two eyes like stars start from their spheres. Thy knotted and combined locks to part, and each particular hair to stand on end. Like quills upon the fretful porpentine…. “

 

 

Lo, the case is here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/43.html

 

 

The appeal related to a serious finding of fact hearing in care proceedings, a significant number of fractures on a very young baby, where the Judge found that these were caused non-accidentally.

 

Some time after those findings, the solicitors representing the parents became aware of the decision in London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam)    and legitimately considered the findings again in the light of that case, particularly whether there was an alternative medical explanation along the lines of vitamin D deficiency and rickets.

 

They sought leave to appeal from the trial judge, who refused.

 

They then applied to the Court of Appeal, primarily asking whether leave to instruct an expert to look at the case was required. The Court of Appeal considered the case, felt that a fresh expert assessment was desirable and granted that leave, then listing a Permission to Appeal hearing to take place after the expert assessment could be considered.

 

All of that is perfectly fine and proper.  

 

[I blogged about that appeal hearing HERE   https://suesspiciousminds.com/2012/11/22/more-on-vitamin-d-and-rickets/ 

 

In short, the Court of Appeal did not consider that the Judge at first instance was wrong, let alone plainly wrong, and that the medical evidence, including the fresh report came nowhere near substantiating a medical explanation for the fractures. ]

 

 

But this particular judgment comes about as a result of the Local Authority and Guardian feeling so aggrieved by the parents litigation conduct that they asked for a costs hearing.

 

This is why :-

 

 

  1. 6.       a) At the first, without notice, oral hearing the solicitors failed in their duty to provide the court with full and frank disclosure of all relevant material. In particular the bundle submitted did not include the original fact finding judgment or the section of the trial bundle that included the expert medical evidence;

b) The court was misled by an assertion in the grounds of appeal that the solicitors had had to prepare the case in a limited time period, whereas the reality was that they had the papers in the case for 18 weeks prior to filing their grounds of appeal;

c) After the September hearing the solicitors failed to disclose any relevant and necessary information to the Local Authority and the solicitors for the child until 16th October. The information withheld included a note of the 19th September hearing, the letter of instruction to Professor Nussey, Professor Nussey’s report (which had been received on 3rd October), the progress report sent by the parents’ solicitors to the Court of Appeal on 3rd October in accordance with my direction and any detail of the extensive supplementary questions and communications passing between the parents’ solicitors and Professor Nussey;

d) Professor Nussey was not instructed in a manner that would comply with the Family Procedure Rules 2010, Part 25 and the associated Practice Direction governing the instruction of experts. In particular, the Professor was not furnished with a copy of the 2010 fact finding judgment and/or the expert medical reports upon which the judge had relied. Instead the Professor was, for example, provided with the parents’ solicitors’ critique of that judgment setting out some 26 points which they said supported a benign medical explanation for the fractures that had been detected;

e) Once Professor Nussey’s report was available to the parents’ legal team, a clear view should have been taken that there was no longer any prospect of achieving permission to appeal. The decision to press on and mount arguments which this court ultimately found were unsustainable, went beyond the bounds of pursuing a hopeless case and amounted to an abuse of the court process.

  1. Ms Jo Delahunty QC, representing the child, supports the criticisms made by the Local Authority and seeks to stress the substantial degree to which, in her submission, the parents’ solicitors fell short of their duty to comply with the ordinary standards of transparency and co-operation required of those engaged in child protection proceedings in the Family Division. In particular, she points to the fact that the non-disclosure for nearly a month of information relating to the without notice hearing in September was not a result of inefficiency or incompetent administration, but arose from the deliberate assertion by the parents’ solicitors that the other parties were simply not entitled to any of this material unless and until permission to appeal is granted. She is also particularly critical of the way in which the expert was unilaterally lobbied by the parents’ legal team with, it is suggested, the aim of turning his initial adverse opinion into one which was more favourable to their case.
  1. In addition to the criticisms made of the litigation actions in the period between 19th September and 1st November, both counsel for the Local Authority and counsel for the child draw the court’s attention to the stance taken by the parents’ representatives at this hearing. Mr Prest drew attention to what he regarded was the startling difference between the world view in relation to these matters taken by the parents’ representatives and the reality of the approach required by the Family Justice System. In similar terms Ms Delahunty submitted that, in seeking to explain their behaviour and avoid adverse criticisms, counsel for the parents’ solicitors, Mr Michael Shrimpton, in his skeleton argument, was simply not speaking in the same language as the lawyers representing the Local Authority and the child. In particular Ms Delahunty points to the fact that, rather than offering an acceptance of poor case management and an apology to the court, Mr Shrimpton’s skeleton argument seeks to meet each of the matters raised head on and to question their validity. For example the case for the parents’ solicitors, who are a well known Birmingham firm of family specialists, questions the validity and legitimacy of FPR 2010 Part 25 insofar as it applies to Family Proceedings at first instance and asserts that, in any event, those provisions have absolutely no application to a pending appeal. They assert that the instruction of an expert in the course of an application for permission to appeal may be undertaken in total disregard of the Family Procedure Rules and the practice otherwise applicable to a family case.

 

 

 

Let me just flesh that out, because it may be so peculiar that it does not quite sink in – they obtained permission to appeal saying that they had had ‘limited time to prepare their case’ (when they had in fact had 18 weeks – some people, not me, but some other people, might actually go so far as to say that this is not a generous interpretation or disingenuous, or misleading, but a straight downright lie)

 

having obtained the permission of the Court of Appeal to instruct an expert, the parents solicitors then don’t give the expert the medical reports AND Judgment in the fact finding hearing, but instead a sprawling 26 point submission prepared by them as to why rickets is the cause of the injury, they don’t try to agree a letter of instruction or include any questions that the other sides would like asked, they don’t initially disclose the report of that expert to the other sides, they try to get the expert to change his mind after seeing his report, and when all of this is highlighted to them, they argue that the Family Proceedings Rules don’t apply to appeals in, erm family proceedings.

 

 

I also like this bit – the parents solicitors, in another case (oh my god) had gone off to get an overseas expert without leave of the court and then (once it was favourable to rely on it)

In January 2012 the parents’ solicitors acted for different parents in an application for permission to appeal which is now reported as Re McC (Care Proceedings: Fresh Evidence of Foreign Expert) [2012] EWCA Civ 165; [2012] 2 FLR 121. In that case, without the knowledge of, let alone the leave of, the Court of Appeal, the parents’ solicitors obtained a medical report from an American paediatrician and sought leave to adduce it as fresh evidence to support a proposed appeal. In his judgment refusing permission to adduce the evidence, with which the other two members of the court agreed, Thorpe LJ said:

 

“14. There are many reasons for refusing this application. It does not begin to satisfy the conditions identified in the well known case of Ladd v Marshall [1954] 1 WLR 1489. It is a report which is deeply flawed in the manner of its production. The respondents to these proceedings were given no notice of the intention to go elsewhere and to knock on another expert door. No permission was sought from this court either to instruct another expert or to release documents from the case to that expert and such documents as were released were not comprehensive and were apparently partisan.

15. I would have absolutely no hesitation in refusing this application but I do want to emphasise that there is, in my judgment, an obligation on an applicant for permission, or an appellant who has obtained permission, to seek leave from this court before instructing a fresh expert and releasing court papers to that expert for the purposes of the hearing of either an adjourned application for permission or an appeal.

16. I would also emphasise the importance of the Guidelines for the Instruction of Medical Experts from Overseas in Family Cases, endorsed by the President and published by the Family Justice Council last month. They must by extension apply to appellate proceedings although the guidelines are of course written specifically in contemplation of proceedings at first instance.”

 

  • Mr X submits that both he and his instructing solicitors were unclear as to the meaning of those passages from Thorpe LJ’s judgment in Re McC. He tells me that they did not understand whether or not it was incumbent upon them to apply for the leave of the Court of Appeal before seeking to instruct an expert to provide a report for use in support of their application for permission to appeal. In their minds, therefore, the purpose of the 19th September hearing was simply to seek the direction of the Court of Appeal on whether or not a full blown application for leave to instruct an expert, which Mr X tells me would have been on notice to the other parties, should be made. 
  • I confess that I am at a loss to understand that submission and ask, rhetorically, how Mr X and the Solicitors Firm could fail to understand the words “there is …. an obligation …. to seek leave from this court before instructing a fresh expert”. The account given in the Notice of Appeal to the effect that the Court of Appeal decision in Re McC, from which I have quoted, had simply ‘expressed some sympathy’ with the view that leave to instruct an expert was required and that the decision had not by that stage been reported is, on the facts, plainly unsustainable. 
  • The words of Lord Justice Thorpe are entirely plain and clear and, for the record, I regard his words as being entirely uncontroversial. The general approach, if not indeed the detailed requirements, of the Family Procedure Rules must, as Thorpe LJ holds, by extension apply to appellate proceedings.

 

So even though the firm of solicitors had been slapped by the Court of Appeal for getting a back door expert, and the Court of Appeal had given clear guidance on this exact point, they didn’t understand what it meant?

 

But all of that is okay, because the counsel representing them (although not a care lawyer, or indeed a family lawyer) is :-

 

 

a member of British Mensa and that he ‘by definition brings a Mensa-level intellect to the analysis of complex scientific and legal issues’

 

 

[If you are wondering, the quotation marks do indeed indicate that the Court of Appeal are quoting directly from counsel’s own skeleton argument. Yes, in a costs hearing in the Appeal Court, before Lord Justice McFarlane, this barrister put in writing that he was clever…. – not just in writing, but orally, and not just once, but “on a number of occasions”]

 

 

Oh. My. God.

 

If you aren’t cringing, writhing a tiny bit and dying a little bit inside on behalf of this man, you are a crueller person than even I am.

 

 

  1. Mr X’s approach to these proceedings readily supports the submissions that I have recorded from both of the opposing counsel to the effect that the case he presents comes from a totally different ‘world view’ and speaks in a ‘different language’ from that of the local authority and the child’s legal team. Mr X is a brave and confident advocate who gives the strong impression of believing the cause for which he advocates. These various factors, high intellect, a lack of understanding of the justification for the approach taken in family proceedings and the brave championing of a cause, are, in my view, the unhelpful cocktail of elements which have come together in counsel’s presentation of the parents’ case in these proceedings. The local authority seeks to hold the parents’ solicitors responsible for this on the basis that they selected the particular counsel for these hearings. That submission is, in my view, not sustainable when it is clear, as it is, that the argument that became the focus of the application and was then sustained on to the second hearing was crafted by counsel and not by the solicitors. Mr X told the court that, following receipt of Professor Nussey’s report, the solicitors sought his advice on the future viability of the application for permission and that as a result of that advice the case continued. An indication of counsel’s faith in his clients’ case at the second hearing was the very surprising information, as reported to me during the hearing, that Mr X had approach Ms Delahunty outside court to enquire if the children’s guardian was going to support the application for permission to appeal.
  1. My clear conclusion is that the manner in which the application for permission was pursued, after receipt of Professor Nussey’s report had removed from it any true validity, arose almost entirely from the wholly over optimistic judgment of counsel and not from any improper or unreasonable act or omission of the solicitors. By the end of the present hearing this understanding of events seemed to be shared by Mr Prest for the local authority when, after all of the submissions were complete, he made an application to include Mr X in the wasted costs application. I refused that application on the basis that the case had by then been heard and concluded on the basis that Mr X was not in the frame and that it would by that stage be oppressive to alter the focus of the application to include him.

 

 

Oh, I want to look at that again, let’s just do this one bit

 

Mr X is a brave and confident advocate who gives the strong impression of believing the cause for which he advocates. These various factors, high intellect, a lack of understanding of the justification for the approach taken in family proceedings and the brave championing of a cause, are, in my view, the unhelpful cocktail of elements which have come together in counsel’s presentation of the parents’ case in these proceedings

 

 

He was SO lucky to escape without a cost order.

 

 

It must have been fairly close as to whether the costs of the appeal hearing itself, were incurred as a result of advice which could not be sustained on the evidence.  It was in part, I think, the fact that it was counsel’s clear advice and driving of the process that absolved the solicitors from blame in not abandoning their appeal once the expert they had instructed (and attempted to nobble) hadn’t supported them.  If you can’t persuade an expert who you have blatantly tried to manipulate into supporting your case to support you, you really don’t  have a winnable case and that would be the time to abandon the appeal. They didn’t. They pressed on.  One can see from the previous blog and judgment just how much work went into that appeal hearing, particularly from leading counsel for the child, Ms Delahunty.

 

 

Of course, I could be wrong – perhaps the Mensa level intellect which counsel brought to bear in the case foresaw that as the Guardian and LA hadn’t included him in the wasted costs application, he could save his solicitors from a wasted costs order that was otherwise heading their way by convincing the Court that all of the faults were of his making. Perhaps he was nobly falling on his sword and was in reality blameless.

 

I would politely suggest that any counsel who are card-carrying members of Mensa to eschew the desire to flaunt this in front of the Court of Appeal in any future hearings.

 

 

[I’m sure 95% of Mensa members are witty, suave, urbane, good company, romantically successful, essentially happy, well-balanced, productive, helpful and fascinating, and that I have just been very  unlucky in meeting the small proportion who spoil it for them….   I did also remove an “a bit like the American Express advert – it’s four letters too long”  joke from this piece, but I’m sure you can work it out for yourselves]

 

 

If you are interested in instructing an overseas expert in care proceedings – perhaps you like paperwork, perhaps you enjoy the game of Russian Roulette that is incurring costs that the LSC might or might not underwrite, perhaps you just enjoy having telephone calls at 4.00am, there’s some guidance about how to do it, here :-

http://www.judiciary.gov.uk/JCO%2FDocuments%2FFJC%2Ffjc_guidelines_for_overseas_experts_Dec2011.pdf

 

 

 

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More on Vitamin D and rickets

Posted on November 22, 2012 by suesspiciousminds

 

A discussion of the Court of Appeal decision in Re C (A child) 2012  

 

The case can be found here – thank goodness for Bailii.

 http://www.bailii.org/ew/cases/EWCA/Civ/2012/1477.html

This was a case in which the parents sought to overturn findings made by Her Honour Judge Carr in relation to twelve fractures to a four month old infant, which she found to be non-accidental in nature and a result of trauma.  

 

  1. C was next presented at the hospital some four days later on 30th October 2009 at 22.14 hours with a swollen right leg. A subsequent skeletal X ray disclosed multiple fractures of ribs, fractures to his tibia and fibula which were metaphyseal in nature together with a transverse fracture of his right femur. There were twelve fractures in all which had been sustained by this four week old baby who was obviously not self-mobile.
  1. The fact finding judgment of 5th July 2010 records that the parents were given full rein by the court to identify and instruct whatever relevant medical experts they considered might be able to assist the court in understanding how baby C came to manifest the injuries and symptoms that I have described. In particular Professor Bishop, who holds the chair of Paediatric Bone Disease at Sheffield Hospital, and who is regarded internationally as an expert in paediatric bone conditions, was jointly instructed by all parties to the proceedings. It is a feature of this case that at the fact finding hearing each of the respective experts were unanimous in their conclusion that the probable cause for the groin symptoms and the fractures was trauma inflicted on baby C at some time after his birth. On the basis of that expert opinion, but also on the basis that the judge, for reasons given in the judgment, found that the parents’ evidence indicated fault lines in their relationship and in their credibility when giving evidence to the court, HH Judge Carr made a very clear finding that baby C had indeed been injured in the period between birth and final presentation at the hospital and that the only possible perpetrators of the injuries were the mother and/or the father.
  1. The parents’ application to the learned judge in June of this year was to re-open the whole fact finding process. The application was widely based and the skeleton argument on the parents’ behalf identified no fewer than twenty six factors which, it was submitted, now fell to be reconsidered in the light of suggested developments in medical understanding or which had not been given sufficient prominence at the original hearing. In a reserved judgment delivered on 18th June 2012 the judge reviews each of the points made to her on behalf of the parents and, in turn, rejects each one. Before doing so the judge noted that at the previous hearing “the court allowed the instruction of every expert/test requested by the parents, including, in particular – and contrary to medical opinion – genetic testing for possible bone disorder” and “even during the course of the hearing the court checked with those representing the parents whether there was any other expert evidence they sought – and was told ‘no'”.
  1. During the course of the June hearing the judge was taken to two recent decisions, London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) and A County Council v M and F [2011] EWHC 1804 (Fam). The first of these cases, which I will refer to as “Wray”, achieved national publicity. In the Wray case, Mrs Justice Theis held that bone injuries seen on a young child were the result of rickets rather than inflicted injury. HHJ Carr, in the present case, considered that neither of these two new authorities involved any new point of law, and did not necessarily assist her evaluation of Baby C’s case. She drew particular attention to the following caveat given by Theis J in the Wray judgment:

“It is important to remember that my conclusions set out below are entirely related to this case. Despite their differences of opinion, all the medical experts agree this case is extremely complex. By their very nature, cases such as this are very fact specific and great caution should be adopted in using any conclusions I reach to support any wider view outside the very specific facts of this case…”

  1. Despite the fact that it is possible to summarise the June 2012 judgment in short terms, concluding as it did that each of the points raised on behalf of the parents took matters no further, it is right to record that the judgment itself indicates a significant amount of time and consideration given by the learned judge in which she traces each of the factors relied upon back to the evidence and conclusions that were current in the 2010 process.

 

 

The challenge in the Court of Appeal was interesting.  It is quite precise, so I won’t try to paraphrase it before you have read the judicial summary

 

  1. 12.   “6. What is the point that the parents seek to make? It can be put in very short lay terms. They contemplate, understanding as they and their advisors now do on the basis of medical knowledge, that it is possible for an unborn child to develop a deficiency in vitamin D to the extent that their bones are unduly soft, or otherwise be symptomatic of congenital rickets. The baby is born, and this was a difficult birth which may have been beyond term, although as I understand it the dates were not precise; and it is possible, say the parents, for the birth process, without any negligence or rough handling on the part of the medical team involved, to have caused the fractures in this case. The child is then born, no doubt it is postulated as at that moment deficient in vitamin D, but the child is then fed either entirely upon prepared milk or a mixture of breast and prepared milk, the prepared milk having vitamin D supplement within it.

7. Baby C was born on 3 October 2009, and his vitamin D was not measured at all until tests were undertaken in November, a month or more later. Those tests were normal. The argument on behalf of the parents is that it is not remarkable that the child’s vitamin D levels, once he ceased to be dependent upon the mother’s system, were up at normal levels because of the supplement he had been obtaining in the milk, and it does not prove one way or the other what his vitamin D level will have been at the moment of birth. I use the phrase “once he has ceased to be dependent upon the mother’s system” because it is a fact established on the medical evidence in the case that the mother herself has a modest — and I think it is modest — vitamin D insufficiency, and that therefore she may have been compromised in her ability to provide through the placenta an adequate supply of vitamin D to her unborn child. That is the synopsis of the parents’ case.

 

 

 

In terms, what is suggested is that it would be possible for an infant to have Vitamin D deficiency, which could lead to rickets, which could lead to susceptibility to fractures without trauma  – but that a test of Vitamin D at a later stage would not necessarily show a deficiency, because the Vitamin D levels can recover quite swiftly once the baby starts feeding.

 

The Court of Appeal immediately hit upon the problem with that:-

 

  1. 12.   8. My concern on reading the papers was that, whilst it is possible to understand that process, it would be impossible now, three years after C’s birth, to have any firm clinical readings or tests which could prove one way or the other, or even indicate one way or the other, that what is put forward by the parents was anything more than an intellectual possibility. The way the case was put before the judge indicates that she was not given any firm clinical hook upon which to see that the parents’ case might hang.

 

 The Judge also touches on the very interesting dynamic of a group of lawyers trying to persuade a Judge of the clinical and medical significance of some liver function tests, when none of them truly understand them.

The submission is made by lawyers to a judge, therefore between people who have no medical background, that the liver function is important in the sequence of production of vitamin D, and these abnormal liver readings may provide some base of clinical evidence to give support to the process that the parents now contemplate may have been involved.

 

What happened thereafter was that the Court of Appeal allowed the parents to instruct an expert of their choosing  (Professor Nussey) to look at the totality of the clinical features and medical records, to see whether there was anything that pointed clinically to this child having – firstly a Vitamin D deficiency and secondly that this might have led to Rickets, and finally, that the rickets might have led to the fractures being caused non-accidentally.

 

Those representing the child simultaneously instructed Jo Delahunty QC to represent the child, knowing that she had at her fingertips, the wealth of information from Al Alas Wray about Vitamin D deficiency and fractures; to look at the case and advise on whether there was a problem here that needed resolution.

 

 

The conclusions of the expert are set out here

 

  1. The following would seem to be the important highlights from Professor Nussey’s reports.

a) Blood results for baby C’s mother during the period of pregnancy demonstrate vitamin D deficiency in her system. Professor Nussey therefore states:

“thus, it is likely that C was subject to vitamin D deficiency for the majority of his inter-uterine life”;

b) Haematology results for baby C’s mother indicate that:

“she became progressively iron deficient during pregnancy though this was not confirmed by formal iron studies and it seemed to improve without iron supplements between August and October 2009.”

Professor Nussey explains that iron plays a role in collagen (the protein affected in osteogenesis imperfecta) synthesis and is an essential part of the enzyme that converts inactive vitamin D to its active form in the kidney. The professor knows of no studies examining the effects of combined vitamin D and iron deficiency during pregnancy and infancy;

c) Whilst it is likely that C was born with vitamin D deficiency and low iron stores, it is clear that C was bottle fed with vitamin D and iron supplemented proprietary feed. By 6th November 2009 all readings relating to baby C reflected a normal serum vitamin D concentration.

d) Professor Nussey concludes:

“Thus, whilst it is recognised that the quantities of vitamin D in formula feeds are calculated to prevent rickets rather than to optimise bone mineralization it is, on the balance of probabilities, unlikely that vitamin D deficiency played a significant role in bone fragility predisposing the fractures which C presented”;

e) Later Professor Nussey also concludes:

“There appears to be no medical condition linking the presentations due to fracture and its sequelae on 2nd November and 4th December 2009 to that on 26th October 2009.” (The latter date being the day that C was taken to A&E with symptoms around his genitals).

f) The final question asked of Professor Nussey was “having considered the medical evidence available to you, please indicate whether or not you have sufficient material to conclude whether or not the child has a medical condition to account for his injuries and if not, what further evidence you would require to draw a conclusion”. To which Professor Nussey replies:

“From the material available, within my expertise in endocrinology, I do not think there is a medical condition to account for C’s injuries. “

 

 

None of which is probably what the parents were hoping for, and it seems to get worse and worse as you go down the list.

 

The Court of Appeal were greatly helped by the involvement of Jo Delahunty QC, and set out her useful interventions here

 

  1. Miss Delahunty is rightly critical of the way in which this matter was presented to me in September. The 2010 fact finding judgment and bundle of expert opinion was not then made available to the Court of Appeal. In view of the need for urgency in resolving this issue I was persuaded to grant the adjournment sought rather than take further time seeking additional paperwork. However, Miss Delahunty argues that the fact finding judgment, which was plainly in the possession of the solicitors acting for the parents, would have demonstrated that HH Judge Carr had before her experts who had a particular expertise in bone disorders and vitamin D deficiency. These experts had been particularly asked to consider the very points now being made relating to the mother’s vitamin D deficiency and the possibility that the baby may have had vitamin D deficiency at birth and that that in turn may explain some or all of the fractures. The experts were also asked to consider if the birth itself could cause fractures and a neonatologist was specifically instructed to address the birth process.
  1. Miss Delahunty took the court to the report of Dr Takon, a consultant paediatrician with expertise in rickets who confirmed (page E128) that “rickets does not resolve without treatment”. She also referred to the evidence of Professor Bishop (page E108) where he stated that “it would be difficult to see how C could have been severely deficient at birth, have normal-looking X rays and normal blood tests four weeks later without treatment-level intervention.”
  1. Having looked at this matter in depth Miss Delahunty summarises the position as follows:

“From different specialism the same answers were given: birth could not account for the fractures. Neither could vit D or bone density disorders. The experts gave clear answers to clear questions. Vit D deficiency, even had it existed at birth, could not account for the type and age of the fractures identified upon admission.”

  1. In dealing with the oral submission now made by Mr Shrimpton, Miss Delahunty challenges counsel’s assertion that the clinical consequence of vitamin D deficiency is rickets. She accepts that vitamin D deficiency at birth may progress to rickets, but it does not equate to rickets. Miss Delahunty challenges Mr Shrimpton’s approach of cherry picking small parts of the expert evidence from the fact finding process when the total picture presented by all of the experts was entirely contrary to the argument now made.
  1. Miss Delahunty characterises the mother’s vitamin D deficiency as “very minor” and therefore the potential for this factor affecting the child’s bones is remote. She describes the parent’s argument as “without hope” and the application for a further adjournment to disclose papers to experts as being totally unjustified.
  1. The point made is that vitamin D could go from being down at birth but normal at four weeks, but weakened bones could not go back to normal in that time. It is submitted that Mr Shrimpton seeks to conflate the former, which is established by Professor Nussey, with the latter, which was the position of the experts at the fact finding hearing. The experts’ position is therefore unaffected by Professor Nussey’s insight into the intra-uterine vitamin D levels and that is confirmed by Professor Nussey’s own opinion that the vitamin D is, on a balance of probability, not related to the fractures.
  1. I have been impressed by, and grateful for, the thorough process that Miss Delahunty QC and Miss Denise Marson, her junior, have undertaken. I propose to extract section E and F from their skeleton (pages 13 – 19) and publish them as an addendum to this judgment in order that both the thoroughness of the exercise and its clear conclusions can be understood.

 

 

My reading of this is that there’s a risk in assuming that a possibility of vitamin D deficiency amounts to There was a vitamin D deficiency, the Vitamin D deficiency caused rickets, rickets caused the fractures; and one has to be careful in establishing that there is a clinical and medical case for advancing from each stage to the next.  Even establishing a Vitamin D deficiency does not establish that the fractures were caused by rickets, merely that this needs to be explored.

 

 

The totality of the conclusions, and the decision of the Court of Appeal was therefore that the findings made by Her Honour Judge Carr were not only robust and properly formulated, but not overtaken by medical developments that were more widely disseminated by Al Alas Wray.

 

[My broader conclusion is that you want to get on the phone to Jo Delahunty’s clerks at 4 Paper Buildings as soon as you can if you have a case where there’s a suggestion of Vitamin D deficiency, before anyone else beats you to it. It might be a stretch to suggest that she is the Perry Mason of family law – as he never ever ever lost a case, but I’d certainly suggest that having her on your team is rather like picking Lionel Messi to be in your five-a-side football team – you certainly would come to regret the other side having them instead of you.   If  Ms Delahunty wishes to use  “She is the Lionel Messi of the family bar” as a quote for Chambers Directory or the Legal 500, she would do so with my blessing]

 

 

The Court of Appeal felt that there were portions of her skeleton which warranted broader circulation, and annexed them to the judgment. I would agree, so here they are:-

 

 

 

  1. EXTRACT FROM SKELETON ARGUMENT ON BEHALF OF THE CHILD FOR THE ‘PERMISSION TO APPEAL’ HEARING LISTED BEFORE McFarlane LJ ON THE 1ST NOVEMBER 2012

E THE MAIN ARGUMENT? VIT D DEFICIENCY AS A BENIGN CAUSE FOR THE INJURIES

This submission made on behalf the parents lacks a fundamental understanding of the interplay between Vit D Deficiency and rickets and ignores the following:

  1. The skull is one of the first bones to lose bone density as its supply of Vit D and the formulation of calcium is sacrificed to the brain, blood and nerves. Vit D deficiency affecting the bones can manifest itself by wormian holes or craniotabes (softening or thinning of the skull). Baby C was delivered by Forceps. Dr Takon (Consultant Paediatrician with specific expertise in Vit D deficiency) advised that ‘rickets result from deficiency in Vit D which affects adequate bone formation. This is a disease of the growing bone and does not occur in utero. It can be caused by nutritional causes such as when there is a diet deficient in Vit D. Rickets does not resolve without treatment. Children with malabsorbtion and abnormal renal function which affects Vit D can present with rickets. C’s kidney functions, liver function and blood results were all normal. C had normal Vit D levels. The classic clinical signs of rickets are bone deformity. In infants the skull, the upper limbs and the ribs are the most affected due to the rapid growth of these bones during this period (Kruse). Deformity of the skull bones and bulging of the ribs are some of the bony changes that can be seen in addition to abnormal laboratory results. C had none of these biochemical or clinical features. He had normal Vit D levels’.
  1. If baby C was born with congenital rickets derived from Vitamin D deficiency in utero, Vit D supply would have been its lowest at birth and from that point on would have robbed the bones of their supply before the Vit D supplements provided by the formula milk had taken effect.
  1. The dating of the fractures, in any event, takes the point of infliction of them from after birth: the oldest was the 6th rib. Even if we reject the expert opinion that this was not birth related and assume it may be ( because of problems with dating the healing rate of calcium deficient bones ) that leaves the

a. Posterior fractures of the right 10th and 11th ribs;

b. 8 metaphyseal fractures of both distal and both proximal tibiae, left proximal fibula; both distal tibiae and right distal fibula;

c. Transverse fracture of the right femur.

  1. These were all dated at less than 11 days as at 2.11.09 i.e.: sustained on or after the 22nd October 2009, Baby C’s date of birth being 3.10.09 (Dr Halliday Page E39 (paragraph 5.4).
  1. It is significant

a. that they were thus most proximate to the normal Vit D reading obtained from Baby C on 6.11.09. and

b. That they showed signs of healing (see the well formed callus on the Right femur between 30.10.09 and 4.12.09 and the signs of healing on other fractures between the X rays of 2.11.09 and 12.11.09). The healing process demonstrates that Baby C’s bones were capable of utilising calcium to regenerate and form new bone.

  1. This point was emphasised and addressed further by Professor Bishop (whose evidence was accepted by HH Judge Carr QC) at no. 7 page E108 “It would be difficult to see how he could have been severely deficient at birth, have normal-looking x-rays and normal blood tests 4 weeks later without treatment-level intervention (3000 IU vitamin D/day; milk formula contains 40IU/100ml)”;[1]
  1. Dr Takon agreed ‘calcium metabolism in the foetus usually involves transfer of calcium from the mother to the infant. The growing foetus does require increasing calcium requirements which continue to be derived from maternal supply through the placenta. During delivery , when the baby is born, there is an abrupt drop in the supply of calcium which then stimulates the baby’s calcium regulating hormones kicking in and gradual stabilization of the calcium levels in the new born. The calcium levels can therefore be low at birth and then trigger secretions of Vit D in the infant to help stabilize the levels’ … E 128)
  1. Prof Nussey agrees on this critical issue (@ CoA bundle 100) ‘whilst it is likely that (baby C) was born with vitamin D deficiency and low iron stores, it is clear that C was bottle fed with Vit D and iron supplemented proprietary feed. In a population study in Canada a small number of bottle fed children with rickets have been reported (Ward et al Ref 5). However, the serum 25 hydroxyvitamin D on 6.11.09 was 76.7nmol/l and the serum calcium, phosphate and parathyroid hormone were all normal reflecting this serum Vitamin Concentrate. This, whilst it is recognised that the quantities of Vit D in formula feeds are calculated to prevent rickets rather than to optimise bone mineralisation it is ,on the balance of probabilities unlikely that vitamin d deficiency played a significant role in bone fragility pre disposing to the fractures with which C presented’
  1. It is highly relevant that all bar one of the bony fractures were

a. of the same age ( less than 11 days old)

b. of which 8 were metaphyseal

c. posterior re ribs

The fractures (in position and type) were considered to be highly indicative of NAI

It is not just that those fractures which were present were characteristic of inflicted injuries but the absence of others which might tend to suggest rickets that is relevant

•    No multiple fractures of multiple ages;

•    No fractures where the majority were the oldest and most proximate to birth (before the fortified milk had ameliorated any deficiency);

•    No fractures to the skull or the shoulders during the birth process and applied forces within it ;

•    No fractures thereafter to those parts of the body most commonly handled in bathing, changing nappies and dressing / undressing.

We suggest that not only were the type of fractures sustained by Baby C most commonly associated with inflicted injury but he did not have those fractures which are suggestive of early onset of, and gradually resolving, bone fragility.

  1. Not only were the fractures not those of the type, distribution and multiple ages suggestive of rickets but there were also no radiologically evident signs of rickets

For example see Dr Halliday @ E 119 just as an example: who had looked at the x rays for signs of oesteopenia (where the bones appear less white on an x ray) and wormian holes (small bones within the sutures of the skull). Nor were there visible signs of widening and splaying of the growth plates or widened periosteal reactions.

By itself, it may be that this was not conclusive evidence of the absence of rickets, BUT it is to be seen in conjunction with the point above and the points below.

10 Bone Density/ Appearance. Baby C’s scans and x rays were examined by treating medics and experts for signs of any bone abnormality. This included the skeletal X rays and CT skull imaging.

None were found. Again, by itself it may be argued that this does not conclusively rule out rickets but it is highly relevant when considered in conjunction with the other matters in this section.

Dr West (Const Paed): ‘no radiological of any underlying bone abnormality’ (E3)

Dr Halliday (Neuro Rad) ‘there is no evidence of abnormality of C’s bones on the radiograph which make him particularly susceptible to fracture. In particular there is no evidence of osteogenesis imperfecta or brittle bone disease (E38) and again @ E119 ‘rickets is also associated with osteopenia. Together with widening and splaying of the growth plates (cartilaginous strips at the end of the bone) and some times a wide spread perisosteal reaction. These features were not present on C’s films’

Prof Bishop (Prof Paed Bone Disease) ‘the size and architecture of the bones looks normal to me. There is no evidence of loss of bone mass’. and then @ E108 ‘there is no evidence of any bone abnormality or bone fragility. The pattern of fractures is characteristic of non accidental injury rather than bone disease. In my opinion C’s bones are normal and he has been the victim of non accidental injury.

11 Vitamin D deficiency affects the whole of the central nervous system of a baby’s body, it is essential to feed the nerves and brain cells, it follows ( as Al Alas explored at length) that its absence makes the baby –

1. vulnerable to seizures ( prone to hypocalcaemic fits)

2. with an increased susceptibility to infection and

3. with a decreased ability to recover from infection

These are the clinical signs of Vit D deficiency. (see Dr Takon @ E47)

Baby C exhibited none of them either at the time of his admissions or on report of the parents between them. He did not have an infection. (see Dr Takon @ E48/ E 50/ E 55/ E 126)) If he did have an infection he had been able to fight it off.

Clinically Baby C did not show signs of Vit D deficiency

Conclusion: In Baby C’s case all the multiple ways of detecting rickets and Vit D deficiency pointed in one direction and away from it being a causal factor in the fractures he sustained:

•    The absence of the type, number and age of fractures more likely attributable to rickets

    • The presence of fresher fractures close to the normal Vit D testing and their type
    • the lack of radiological evidence of rickets
    • the lack of biochemistry results indicative of Vit D deficiency
    • the lack of clinical indicators of Vit D deficiency

These factors, individually and collectively demonstrate that whatever condition Baby C may have been born with, rickets and on going Vit D deficiency does not provide a benign cause for the fractures he sustained.

This is not news . Dr Takon in her report @ E 60 considered and pulled together the significance of the mothers Vit D levels, her bone density scan and concluded that baby ‘C does not show any physical, biochemical or radiological features of Vit D deficiency’ . As did Prof Wyatt @ E 100 and Prof Bishop @ E 107.

Moreover, Baby C did not only suffer from fractures found to have been inflicted, he also sustained genital injuries which were found to have been inflicted. There is no link identified by Prof Nussey between the genital presentations and the fracture related presentations.

F THE GENITAL INJURIES

Whilst baby C’s genital symptoms (injuries) seen by Mr Roberts on the 26.10.2009 were initially diagnosed and treated by him as an infection for which he prescribed antibiotics, there is in fact, no objective evidence of infection. There were no clinical signs of infection, C’s temperature was normal, C’s blood test results were normal[2]. (see Dr Takon @ E56) . Baby C had no other treatment or diagnosis for infection in the first four weeks of his life. The conclusion of those experts who considered Baby C’s genital injuries were that they were ‘unusual and worrying’ and the result of traumatic injury where no accidental explanation had been given by the parents (e.g.: see Prof Wyatt @ E 93)

With no evidential base for rickets/vitamin D deficiency and no evidential base for infection, there is no underlying reason why C should present with injuries to his genitalia.

Prof Nussey agrees and can see no linking cause between the presentations.

Ms Jo Delahunty QC
Mrs Denise Marson

Note 1   The jointly instructed expert , Prof Bishop , and his conclusions at E107: ‘ C underwent a number of blood tests including two bone profiles, and had his serum PTH measured twice and his serum Vit D level measured once. His levels of calcium and phosphate were at the upper end of normal range for age as is frequently observed following fracture. His serum alkaline phosphates was not elevated (272 and 260 IU/I) and his PTH was suppressed (&) probably because his calcium level was higher than average. His Hydroxyvitamin D level was very good (76.7 n/mol/l on 6.11.09: higher than is seen in infants at that age. These are normal responses following fracture in a Vit D replete individual; prior vitamin D depletion would be unlikely given the formula feeds he had been on ( which contain Vit D and his normal serum PTH and alkaline phosphates. His platelets were slightly elevated and on of the clotting test times were reduced, neither of these are associated with bone fragility. Maternal 25 Hydroxyvitamin D has also been measured and is sub optimal at 39 n/mol/l on 13.11.09 in association with a PTH is close to the upper limit of the normal range at 6.25 pmol/l; however this is not a particularly low level of Vit D for a pregnant mother and one would not expect it to impact on the Vit D status of the new born on transplancental calcium transfer (which is not dependent on Vit D).     [Back]

Note 2   It is of significance that the blood was taken from C whilst at Rotherham District Hospital (RDH) this was prior to antibiotics being prescribed at Sheffield Children’s Hospital (SCH), see F23 from the original care proceedings bundle re discharge from RDH, and F173 – F174 re admission to SCH. See also further reference at page 98 of Prof Nussey’s report. The lack of infection ‘markers’ was NOT as a consequence of antibiotics having been prescribed.    [Back]

 

 

 

 

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subdural haematomas, fractures and rickets

Posted on April 24, 2012 by suesspiciousminds

This is a case which has been in the news lately. I was tempted to write a blog on it, but I have to be frank and say that the summary prepared by Leading Counsel in the case which appears here :-

http://www.familylawweek.co.uk/site.aspx?i=ed97208

would be hard to be bettered.

I think that Islington were in an extremely difficult spot here. On the one hand, the case did not go before a Jury in the criminal trial because the trial Judge did not consider that it would be possible given the medical evidence for the criminal standard of proof to be met.  (It may have gone higher than that,  since it wasn’t even put before the jury with a direction to acquit, and it may have been that the criminal summing up went very close to saying that the defence were right)

But Islington were faced with medical professionals in their area saying that the injuries were as serious as it is possible to be, and were on the balance of probabilities caused non-accidentally, and faced with another child of the family.

They had a tough decision to make – either no intervention at all (since if the American experts were right, the parents had done nothing wrong and suffered a huge tragedy AND had that compounded by a criminal trial) or place the issue before the Court to establish whether it was more likely than not that the younger child was at risk.

It is of course, awful, that the parents had to go through not only their loss, but two sets of legal proceedings to defend themselves and reach the truth, and that this process was no doubt gruelling, distressing, arduous and all consuming.

But I think those who criticise Islington for bringing the case perhaps misunderstand the position that they were in – it wasn’t a second bite of the cherry, but an untenable position that was only capable of being resolved by either the Local Authority taking a gamble that the American experts had been right and there was no risk to this child (and who would have been defending them had they taken that gamble and been wrong) or saying to a Court – this is beyond our scope to decide which set of medics is right, and that’s what you’re there for.

The Court could have taken a very robust view of the case at a really early stage and said, having viewed the criminal papers, it is understandable that the Local Authority have brought this case but there is no need for a finding of fact hearing and the Court is satisfied that the threshold isn’t met. That would effectively have taken that burden of managing an unknown risk off the shoulders of the Local Authority. The Court did not do that. The fact that the Court decided that the issues in the case had to be resolved by a four week finding of fact hearing meant that the issues were difficult and needed careful thought and resolution.

It might be, I know not, that when the evidence was heard, it was all blindingly obvious what the correct version of events was, but it wasn’t blindingly obvious until that process began, and I think that everyone involved in this process was just in a really difficult situation.

 

[Caveat – there’s obviously a large range of nuance that can be applied by a Local Authority in this situation, from the extremes of “We don’t believe that these parents did anything wrong, and invite the Court to give a brief judgment to that effect” to “the LA firmly believe in the medical views expressed by the Great Ormond Street medics, and seek the highest findings” and where this LA positioned themselves on that wide scale is probably critical]

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