A family court judge made a care order against a mother after deciding she had inflicted non-accidental injuries to her baby, who is now two years old. In hearing the mother’s request to appeal, the Court of Appeal agreed with the lower court judge’s findings and dismissed the appeal.

This is a deeply concerning case, for several reasons including that:

• The judge failed to properly investigate the midwife’s claim that the baby had not been accidentally twisted during birth, after being born with a fractured clavicle and extensive bruising as a result of a potentially negligent forceps delivery;
• The judge and lawyers to the case were not aware of research on pre-mobile bruising which indicates that such bruising is more common in babies than government policy suggests;
• The judge and lawyers to the case were unaware of the Resolutions Model, which keeps families together and should be applied in cases involving non-accidental injuries
• The judge dismissed evidence which confirmed the baby had inherited a genetic disorder which could make a baby more prone to bruising and fractures and;
• The judge failed to understand the underlying reasons as to why the mother had lied during the life of the case and concluded that every lie was proof of the mother’s guilt.

Here is a quick summary of key facts taken from the judgment, with what we feel are critical issues highlighted in bold:

“C’s mother was born in Poland and moved to this country with her parents in 2008. In 2019, she started a relationship with the father and shortly afterwards became pregnant. The pregnancy was difficult as a result of various health problems suffered by the mother. On 17 June 2020, C was born in hospital with the assistance of forceps, which resulted in extensive bruising and a fractured clavicle.

At a routine immunisation appointment on 17 September 2020 when C was three months old, the nurse noticed a number of bruises on the baby’s back and torso, although there was no indication that he was in any pain. The mother told the nurse that he was bruising easily. The mother brought the baby to the surgery and after the examination the GP referred him to hospital. On arrival there, a number of marks and bruises were observed on the child which, as he was at that stage non-ambulant, gave rise to a suspicion of non-accidental injury.

A radiological examination revealed that C had suffered four fractures – a fracture to the 12^th rib, close to its articulation with the spine, and three metaphyseal fractures to the proximal end of the right tibia and the distal ends of both tibiae. A suspected buckle fracture of the left ulna was subsequently ruled out by further examination. The scans showed no evidence of any bone disorders and testing of his blood clotting system revealed no abnormality.

During his stay in hospital, C was cared for at times by his parents, either together or separately. At several points additional marks and bruises were observed on his body and face, although the medical records about these marks were incomplete and inconsistent.

On 21 October 2020, the local authority filed an application for a care order under s.31 of the Children Act 1989 and was granted an interim care order at a hearing two days later. On that day, C was discharged into the care of foster carers. Thereafter, he developed bruising on several further occasions, and was briefly readmitted to hospital again in November 2020, but there is no evidence that he has suffered any further fractures since being removed from his parents’ care.

Genetic testing carried out in Poland disclosed that C carried two variant gene sequences, one being a heterozygous variant within the TGFBR2 gene which was also found in C’s father. The variant is associated with a condition known as Loeys-Dietz Syndrome (“LDS”), a rare autosomal gene disorder, which causes a range of features including some connective tissue disorders similar to those found with Ehlers-Danlos Syndrome, a condition which has featured in a number of cases of suspected child abuse. Research studies have suggested that some patients with mutations in the TGFBR2 gene associated with forms of LDS may have a propensity to bruise more easily and may have greater skeletal fragility in childhood.”

When you get into the details of the case it becomes apparent that a great deal is wrong with the judges’ reasoning.

The first alarm bell for us was this sentence: C was born in hospital with the assistance of forceps, which resulted in extensive bruising and a fractured clavicle.

These kinds of injuries can occur during delivery, but they can also form the basis of maternity negligence forceps delivery claims.

When you read on into the judgment, you notice a comment by the judge about a midwife present and engaged in the delivery of the baby, and why the judge rules out any possible link between the injuries and what was by all accounts a questionable delivery in terms of its competence. This is what the judge says: “Furthermore, there was no known association between cephalic (i.e. head first) delivery and fractures to the head of a rib, in the absence of rotation during delivery, which the midwife confirmed had not occurred in this case.”

The judge clearly sets aside the possibility of delivery-related injuries, purely on the midwife’s own testimony that she, or the attending doctor, did not twist the baby during the delivery.

Given that this is a key moment in time for the case, where the baby’s injuries could have been caused by whoever was using the forceps, it seems almost incomprehensible to us that the judge took just the midwife’s word that no twisting took place. The odds that a person who may have committed medical negligence would admit to such negligence in this context — or suggest a medical colleague may have been negligent — is very low.

What makes this acceptance of testimony as fact all the more troubling, is that the injuries seem to fade not when the baby is removed from the parents’ care but some time after the baby is being looked after by the foster carers. In fact, the judgment tells us that the bruises continue to manifest after the child begins to live with the foster carers, and only some time later do they eventually stop.

This tells us that the bruises may have been caused by the delivery and that the initial fractures could well have made the baby’s body more prone to other fractures and potentially more bruising as the baby moved around perhaps to instinctively avoid placing pressure on the original fractures, which must have been painful for weeks after it had occurred.

The fractures could have affected the baby’s balance, even lying down as a pre-mobile baby, and his ability to remain stable physically.

This next sentence also concerned us: On arrival there, a number of marks and bruises were observed on the child which, as he was at that stage non-ambulant, gave rise to a suspicion of non-accidental injury.

Research by Professor Andy Bilson has suggested that bruising on pre-mobile babies is more common than we think and that most local authorities base their ‘baby bruise’ policies on outdated evidence which says such bruising is uncommon.

While judges instruct experts to advise them on these issues, this case shows a major flaw inside the system – the lack of awareness among legal experts about pioneering evidence which calls into question accepted wisdom on a child welfare issue.

The suggestion by the judge that the parents continued to inflict bruises on their baby son while caring for him in hospital also seems unlikely. Suspecting the parents of abuse as medical professionals in the hospital did at the time, nurses and doctors should have been monitoring the parents and would have seen anything untoward or heard the baby cry. And even if they didn’t, research tells us that abusers rarely harm their children in public, preferring the confines of the family home where no one can see what they are doing.

Then there are the bruises which continue to appear while the baby is being looked after by foster carers: “C was discharged into the care of foster carers. Thereafter, he developed bruising on several further occasions, and was briefly readmitted to hospital again in November 2020, but there is no evidence that he has suffered any further fractures since being removed from his parents’ care.”

The judge tries to brush away this inconvenient fact by suggesting the bruises here are unimportant because they appear to be less pronounced than the bruises that came before them, but this is just an assumption by the judge who is not medically qualified.

Perhaps an explanation for this could be that the bruising stopped only once the baby had healed fully from the initial injuries he sustained during the delivery — injuries which may have caused a cascade of further bruises while the baby tried, as best as he could, to instinctively avoid his fractures while lying down, and in other positions. Over time, as the baby healed, perhaps his tendency to move around and suffer bigger bruises reduced.

And finally, there is the discovery that the baby had Loeys-Dietz Syndrome (“LDS”). Could it be possible that as a result of this condition, the baby took longer to heal from the initial injuries and being more prone to bruising, developed those bruises during efforts to avoid placing pressure on the painful parts of his body?

We do not know if the parents inflicted the injuries in this case, but we are shocked by the lack of investigation into significant moments in this case.

As always we welcome your views, so please do let us know what you think in the comments section below.

A deeply concerning case for us.

You can access the judgment in full on BAILII.

For those with subscriptions, Lexis Nexis UK offers a good summary of the issues.