Commentary

This case illustrates how the Family Court depends on expert paediatric and radiological evidence to decide when and how a child’s fracture was sustained. This summary does not include how the court used the evidence. Suffice it to say that the expert evidence was only a part of the evidence before the court.  

Case

At mid-day on Wednesday 27 December 2023 the parents took C1 to hospital. She was admitted at 12.49. The history given by the parents on 27 December 2023 is recorded as follows in the medical records:

• "C1 was looked after by her grandmother on Christmas Eve. Children were in their romper suits and grandmother was worried they were too warm. Gently took C1 out of the suit, when her R arm was removed she cried and is now reluctant to use right arm.

• Grandmother called parents immediately. Mum and Dad say that Grandmother is distraught that she might've hurt C1. She has worked with children and in schools and is a doting grandmother.

• Since Christmas Eve parents have noticed C1's R arm just hangs by her side. Today she has seemed uncomfortable/unsettled.

• They say something similar happened to C2 (her brother). Dad described a client telling him that if you lift the left arm during burping it opens the diaphragm and helps to burp. He tried this on C2 who cried when he elevated the arm. C2 then held the arm limp for a day or so and then it resolved. They thought this might happen with C1 hence the delayed presentation"

C1 had an Xray which showed an undisplaced right humeral fracture. She was admitted to the paediatric ward for management of her injury and for safeguarding due to the injury not being typical in C1's age group. C2 was also admitted on ground of safeguarding.

Children's Services and the Police were informed and the children underwent Child Protection Medicals on 28-29 December 2023:

...

C1 had a skeletal survey on 28th December 2023 which, according to a consultant paediatrician at the hospital, showed "a spiral fracture of the distal mid shaft of the right humerus with early periosteal reaction demonstrated medially" [C5]. The author of the CP medical's, the consultant, further opined that:

"Fracture of long bones needs significant trauma and is not consistent with normal handling and raises the clinical suspicion of non-accidental injury".

The law

In Re BR (Proof of Facts) [2015] EWFC 41, in relation to injuries, the court was referred to risk factors and protective factors. On behalf of the Children's Guardian, counsel had assembled an analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.

In this case, the judge referred to how:

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

Expert evidence

Dr Adam Oates (radiology) and Dr David Robinson (paediatrics).

Agreed facts

Timing of injury

Clinical dating established that C1's fracture was caused during the following window of time:

i. Radiologist: as of 27 December 2023 the fracture was between 3 and 7 days old (connoting causation within the period from 20 - 24 December 2023). (Dr Oates);

            ii. Paediatrician: as of 27 December 2023 the fracture was not more than 3 days old (connoting causation with the period from 24 - 27 December 2023). (Dr Robinson -).

Causation of injury

C1's bone fracture was a traumatic injury that was not self-inflicted or caused by birthing (Dr Robinson).

Causation of C1's fracture required application of a significant and inappropriate level of force, including rotational force, beyond normal childcare or rough handling (Dr Oates and Dr Robinson).

C1 would have cried out in a manner not heard previously and responded with noticeable distress in the aftermath of her fracture:

i) a perpetrator or observer would have been aware that excessive force had been applied and be on the 'look out' for injury.

Perpetration of injury

The person or persons responsible for causing C1's bone fracture know how her injury was sustained, because:

 

i)   they would know they had applied excessive force;

ii)  they would have observed C1's immediate and subsequent distress.

The expert evidence

Radiology

Dr Oates' evidence on causation was (judge’s emphasis):

“The oblique nature of the humerus fracture suggests that there has been a significant degree of rotational forces centred on the right humerus. However, while an infant sustaining a fracture is always a very concerning event (in the absence of clear history of accidental trauma), in my opinion a solitary non-displaced humerus fracture (as the type seen) is not suggestive of a highly aggressive act with overwhelming levels of force and may potentially occur accidentally in the appropriate context.

However very importantly, this mechanism (i.e. twisting) would have to be in conjunction with a significant and inappropriate level of force...”

Having watched the Paternal Grandmother's demonstration in police interview he said:

“I do not get the sense of a very significant level of force, but I believe the twisting/pulling mechanism of removing the arm may be compatible (if in conjunction with a significant force) to produce the fracture as seen.

I should add, in this context, I believe the key issue to sustain the fracture is that somehow the lower arm was forcibly "separated" (placed under stress) from the upper arm region i.e. either side of the fracture site. In theory this may be by either a pulling or pushing action from the standpoint of person responsible for the action but ultimately this resulted in a pulling action (from the perspective of the child) being imposed on the lower aspect of the arm relative to the upper arm.

...

However, I would like to reiterate, while a humerus fracture can never be considered an innocuous injury in an infant, and would likely require an inappropriate force, I do believe it is possible to occur in the scenario as described by Paternal Grandmother.  I believe this is particularly the case as she seems to accept that she used rather more force than she has intended, all be it accidentally.

In the course of cross-examination he confirmed more than once that the mechanism described by the Paternal Grandmother was consistent, in particular the described mechanism given by her would be concordant with the injury. He was clear that there had to be some twisting component but "there does not need to be a huge amount of that, just not completely perpendicular [to the bone]". He was asked if the absence of overt reference to twisting could still be consistent and he said he agreed, "things happen quickly, the Paternal Grandmother did not get the spirit level out" whether twisting was perceived it was still required.

As to force he gave some very helpful oral evidence about his use of the phrase "would likely require an inappropriate force" to put this into context:

A It's difficult to quantitate force but the action of dressing a child, an infant is a common everyday event, we don't see oblique fractures very often so the forces must be outside the normal spectrum of handling of a child.

Fracture of humerus in a child is not routine so force must be outside the spectrum.

Q Would it be right to say all that is required with that mechanism is a force above that which you would typically see but not necessarily inappropriate

A ...it has to be outside normal handling, not a normal level of force

Dr Oates discounted the Father's explanation of a burping manoeuvre causing injury "unless it was coupled with a significant and inappropriate level of force".

In relation to pain response in cross-examination he said that if the arm was moved post injury it would likely trigger a pain response but it depended on the extent of movement. The fracture was shown as un-displaced in the radiograph of 27 December 2023 but minimally displaced the following day. Dr Oates' evidence was that it was unlikely it became displaced prior to 27 December and reset and a displaced fracture would be, in general terms, expected to be more painful than un-displaced.

In his evidence in chief he referenced the development of periosteal changes on the x-rays between 27 and 28 December 2023 and when cross-examined by the Mother he was asked about the relevance of that to dating and said:

I thought carefully about the dating of the injury and slightly uncomfortable so specific but reason I could be was the really clear distinction between the appearance between 27 and 28/12/23 when I could see periosteal changes and that's quite an unusual scenario for radiologist.

The reason it was unusual was because it was rarely demonstrated in sequential x-rays and the court understood him to mean it assisted greatly in the dating of the injury. He was asked if a fracture after 24 December 2023 was highly unlikely and he again referred to the periosteal change demonstrated and said "If the fracture was on 25 December 2023...I cannot say with certainty that it didn't happen but I do believe it is unlikely, possibly very unlikely". The court understood all advocates agreed a summary of his evidence in this respect was that the fracture "most likely pre-dates 25 December 2023".

Paediatric
In relation to mechanism Dr Robinson's oral evidence was that he accepted the compatibility of the fracture with Paternal Grandmother's description of her actions on 24 December 2023, he accepted the immediate aftermath was partly compatible with the fracture (the scream of C1 and the reported inability to use the arm).

Dr Robinson's written evidence was (judge’s emphasis):

If on the evening of 24.12.23, C1 was moving her arm as normal with no pain this would negate against the actions of the grandmother having caused a humeral fracture .

The fact that on 25.12.23 she had no pain and was using her arm properly suggests that a fracture had not occurred up to this time.

            If C1 was changed by parents on 24.12.23 after the pram-suit event with no crying and normal movement and was fine on 25.12.23 an injury is unlikely to have occurred up to that point in time.

Grandmother reported she gently guided the right arm from her elbow to get it into the sleeve. C1 cried out straight away, her right arm had gone floppy.

Those actions if done gently are unlikely to have caused a fracture. If done with force in a momentary loss of control, a fracture could have occurred. The aftermath of crying and not moving her arm are consistent with a fracture or soft tissue injury having occurred

A soft tissue injury (muscle/ligament) may be very painful with a transient loss of function.

Both SH and CB examining the infant soon after the event found no discomfort or loss of function.

That would be inconsistent with a fracture having occurred. On the balance of probabilities the grandmother's actions caused a painful but minor soft tissue injury but not a fracture.

            The grandmother's actions may have included a rotational element but her reported actions and rapid resolution of symptoms favours a soft tissue injury not a fracture.

Opinion 

... There is no account of an event that could have led to the humeral fracture.

            1 Paternal Grandmother describes actions that could potentially have led to a non-displaced oblique fracture of the right humerus. The initial scream then an inability to use the affected arm are consistent with this.

2 However it is highly unlikely that soon after the described event, examination (CB) was normal, C1 had stopped crying and was able to grip fingers. That would be inconsistent with a fracture having occurred. She would not have tolerated an examination as described.  

3 Paternal Grandmother subsequently dressed C1 with no concerns and Father reported no pain or discomfort on his review. SH (nurse) found no pain or discomfort on examination with none observed at 5pm when C1 was dressed. Videos as above taken after the event show C1 content and moving her arms without or discomfort.

4 The above features are inconsistent with the aftermath of an arm fracture where pain on movement/examination and a reluctance to use the arm are expected (first report page 22).

If the accounts of grandparents are accepted, features described negate against the actions of the grandmother causing a fracture.

This evidence was explored at length in cross-examination and he summarised his evidence at the end of cross-examination on behalf of the Father saying there was a credible account of an accidental event that could have led to fracture but 3 examinations thereafter (CB, SH and Father) did not elicit the expected pain response but there was an expected pain response on examination on admission in that the admission note records (judge’s emphasis):

R arm not moving at fingers, wrist, elbow or shoulder. No visible deformity but crying ++ when moved.

In answer to a question from the Father about CB's report of examination to the police he agreed it was a "fair assessment" to say it was not a clinical examination, it was "a limited examination" and he agreed the need "to be cautious about placing too much weight on that" and later, when asked if the examination was "no more than gentle touching that would not elicit a pain response" he said "it depends how it is done" but "SH moved the arm and that would cause discomfort in the aftermath of a fracture" and "CB said she removed clothing and that would have caused severe distress" and "they were not nothing, the clothes removed and feeling around the arm [by Father] I would expect pain and distress in the aftermath of the fracture".

He also relied upon a video taken at 15.03 on 24 December 2023 which appeared to show spontaneous movement of the right arm, including upper arm, without apparent distress. Although the movement was more limited than the left he said that was not unusual in infants. He said a majority of infants would hold the arm "limply by side"; a different response is not impossible but he had not seen it. He made reference to Farrell et al (Paediatrics January 2012). In answer to a question from the Mother he said that a child could be comforted within a relatively short period of time post-fracture if the limb was kept still and that a carer might consider any crying there was as related to a pre-existing problem rather than attributing it to what turned out to have been a fracture such that "the pain response is not as accentuated as what I generally see in the aftermath of fractures".

He was referred to the triage note on attendance:

ED Triage - Patient in Pain: No

He commented that the baby was likely being held at that point so that would not be inconsistent with a fracture (or suggestive therefore of an unusual pain response).

He did however acknowledge a possible unexpected lack of response on the Trauma and Orthopaedic team ward round on 28 December 2023 (judge’s emphasis):

Seen with mum and dad. C1 sitting on mum's lap, child not distressed. Parents state she is feeding normally.

O/E alert, not distressed, moving fingers of right hand, NV intact, able to extend wrist and fingers.

He agreed that was at a time when paracetamol had not been administered for 6 hours and the first record of the arm being immobilised was not until 29 December 2023. The judge asked him about whether he could rule out the fracture occurring as described by the Paternal Grandmother notwithstanding the apparent lack of pain response later that day and he accepted, quite properly, that "nothing is impossible" but he had never observed it. He earlier said "the aftermath is not always as we expect...it's certainly the case infants differ in response to pain. If the radiological window is correct then the inability to use the arm is a sign of injury but the pain response is not as we would normally see". In relation to Farrell he caveated his response by saying it was a study of mean age children of 3.7 years (plus or minus 1.6 years) not infants but 9% of carers did not report crying after an extremity fracture and 12% reported normal limb use post-fracture. He later provided the paper and the paragraph he was referring to appeared to be:

However, our data demonstrate that a notable minority of children do not follow the pattern of expected behaviors. This finding is highlighted by the 9% of children who did not cry initially, 12% who continued normal use of their injured limb, and 15% who had no external sign of injury.

He concluded saying "I wouldn't exclude it [fracture on 24 December 2023 and abnormal pain response and some movement evidence on video] but from clinical experience it would be highly unusual".

On re-examination by the Guardian he was asked about fractures with the combination of lack of pain response and not showing lack of movement in the immediate aftermath (i.e. on 24 December 2023) yet lack of movement and expected pain response recorded a few days later (i.e. on admission 27 December 2023 [I529]) and said "that would not be clinically possible. Farrell has shown a small proportion who do not cry but no forensic information that tells us the child suddenly exhibited symptoms".

Conclusion

The Local Authority, upon whom the burden rested at all times, had not proved C1's carers non-accidentally inflicted a fracture on C1 and rather the Paternal Grandmother caused the fracture accidentally.

References

Farrell C, Rubin DM, Downes K, Dormans J, Christian CW. Symptoms and time to medical care in children with accidental extremity fractures. Pediatrics. 2012 Jan;129(1):e128-33. doi: 10.1542/peds.2010-0691. Epub 2011 Dec 5. PMID: 22144696.