M v Derbyshire County Council & Ors

B e f o r e :

MR JUSTICE KEEHAN ____________________

____________________

Mr J Tughan QC and Mr M Bailey (instructed by GT Stewart Ltd) for the Applicant Mr S Nuvoloni QC (instructed by Derby County Council) for the 1st Respondent Ms T Cook QC and Mr M Challoner (instructed by Venters Solictors) for the 2nd Respondent Mr M Johal (instructed by Smith Partnership Solicitors) for the 3rd and 4th Respondents Hearing dates: 31st August 2018 ____________________

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The Hon. Mr Justice Keehan :

Introduction

The applicant, M, seeks the court's permission to reopen findings of fact made by HHJ Watson on 6 January 2010. The application is supported by her husband, F, the second respondent. It is opposed by the local authority, Derbyshire County Council, and by the children's guardian.

The findings of fact which it is sought to re-open were made in the course of public law proceedings issued by the local authority in respect of the applicant's and the second respondent's two children X, who was born in 2005, and Y, who was born in 2007. (I shall hereafter refer to the applicant as 'the mother' and the second respondent as 'the father')

HHJ Watson found that the mother and the father could not be excluded from the pool of perpetrators in respect of two inflicted injuries sustained by Y namely a linear fracture to the right parietal bone and a metaphyseal fracture of the left femur.

On 7 February 2011 HHJ Watson made final care orders in respect of both children and on 4 October 2011 HHJ Orrell made placement orders. In consequence of which X and Y were placed together for adoption and subsequently were made the subject of adoption orders in respect of their prospective adopters.

Leading Counsel for both parents have made it clear and plain in their submissions that even if the application for permission to re-open the findings of fact made were ultimately successful and one or both of them were exonerated, neither parent would seek to challenge the adoption orders nor the placement of the children with their adoptive parents.

Background

For the purposes of this judgment I need go no further into the history of this matter than to consider the circumstances which led to Y's non- accidental injuries, as found by HHJ Watson, which I later refer to in this judgment when considering the expert medical evidence. The full history is set out in paragraphs 18 to 33 of the judgment of HHJ Watson of 6 January 2010.

The mother appealed the decision of HHJ Watson not to recuse herself from dealing with the welfare aspects of the case. On 11 January 2011 Wilson LJ, as he then was, viewed this application as a cynical attempt to obstruct the judge's ultimate disposal of the care proceedings. It was directed that the mother may not request that the refusal of permission to appeal be considered at an oral hearing.

On 7 February 2011 HHJ Watson made final care orders on the basis of her earlier findings of fact.

On 5 May 2011 Ward LJ refused the mother's application to appeal this decision of HHJ Watson.

On 23 September 2011 Munby LJ, as he then was, rejected the mother's application for permission to appeal the findings of fact made by HHJ Watson in 2010. He said the application was totally without merit and that the applicant may not request the decision to be reconsidered at an oral hearing. Further he noted it was yet another cynical attempt by the mother to obstruct and delay the proceedings.

As I have mentioned above, on 4 October 2011 HHJ Orrell made placement orders in respect of both boys and dismissed the mother's applications for

i) discharge of the care orders and;

ii) post adoption contact.

Finally, I note that the mother has brought applications for judicial review of

i) the local authority's refusal to change the social worker, and;

ii) alleged breaches of the Data Protection Act 1998 by the local authority.

Both challenges were dismissed.

I am invited by both leading counsel for the mother and for the father not to have regard to this litigation history of applications brought by the mother which, as I understand it, were supported by the father.

With the greatest of respect to leading counsel for the mother and for the father, I cannot ignore the litigation history. Where it takes me when I consider this application for permission to re-open the findings of fact is a different matter. It strikes me, however, that this mother, supported by this father, has at every stage not missed any opportunity to challenge, by whatever means, the findings and orders of the court or the actions of the local authority.

The approach made to various experts without any formal instruction of experts, only reinforces my foregoing views of the approach adopted by the mother, supported by the father. I refer to the seeking of opinions from the following experts:

i) Dr Ayoub;

ii) Professor Holick, a professor of Medicine, Physiology and Biophysics at the Boston University School of Medicine; and

iii) Dr Chapman, an eminent consultant paediatric radiologist.

These medical experts were consulted following the mother having been diagnosed:

i) in December 2014 with hypermobility type Ehlers-Danlos Syndrome, previously called Ehlers-Danlos Syndrome type 2 – by Dr Harrison, a consultant clinical geneticist; and

ii) with Vitamin D deficiency in 2016.

Law

There is a broad census between counsel as to the law I should apply when determining this application to re-open the findings of fact made in 2010.

In the case of Birmingham City Council v H, H & S [2005] EWHC 2885 (Fam) , Charles J said at paragraph 55:

This approach was endorsed by the President in Re ZZ and Others [2014] EWFC 9 when he further described the three stages as follows:

In considering the approach of the court to the first stage, the President referred to the observations of Hale J, as she then was, in Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 at pages 128-129 when she said:

The law relating to the re-opening of the findings of fact was recently summarised by Cobb J in Re AD and AM (Fact Finding Hearing) (Application for Re-Hearing) [2016] EWHC 326 (Fam) . He endorsed the approach of the President in Re ZZ and referred to the observations of Hale J in Re B . He continued as follows at paragraphs 14-16 as follows:

I respectfully agree with the approach and/or observations of Charles J, the President, Hale J, as she then was, and Cobb J as set out above. The essential features of these four cases appear to me to be, when considering the application at the first stage of the process:

i) whether the court will permit a reconsideration or review of or challenge to the earlier findings;

ii) whether there is any reason to think that a rehearing will result in a different finding from that in the earlier trial: is there any new evidence or information casting doubt upon the accuracy of the original findings;

iii) the test is not whether the applicant stands a real prospect of disturbing the original findings;

iv) rather there must be some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge;

v) the recognition of the tension between the powerful public interest in finality of litigation and the strong public interest in identifying accurately those who cause serious non-accidental injuries to children wherever such identification is possible; and

vi) the court must have regard to the extent to which, if at all, medical knowledge and expertise may have advanced in the years between the original findings and the application to re-open the findings.

In the course of his judgement in Re AD and AM when he referred to the strong public interest in identifying accurately those who cause non-accidental injuries, Cobb J, as set out above, had said,

I do not consider that Cobb J intended by that comment to convey that the mere fact of a strong public interest in identifying accurately the perpetrator(s) of non-accidental injuries to children would, of itself, provide a real reason for granting permission at stage 1. An applicant must go further beyond relying upon this important public interest consideration and demonstrate that there are solid grounds for mounting the proposed challenge to the findings of fact made or that there is some real reason to believe that the earlier findings require revisiting.

In between the first date of my consideration of stage 1 of this application and the adjourned date, my attention was drawn to the recent Court of Appeal of Re M (Children) [2018] EWCA Civ 607 . In the course of giving judgement Peter Jackson LJ made the following observations on the requirement of seeking permission to instruct experts in applications to re-open findings of fact, at paragraphs 26 and 27;

Later in the judgment he said at paragraphs 36-41 the following:

In relation to this decision Mr Tughan QC, on behalf of the mother, submitted that this authority did not apply to the instruction of Dr Harrison or Dr Saggar because:

i) Dr Harrison was not providing expert evidence she was in her letter of 17 th December 2014 providing a clinical diagnosis. Her subsequent letter of 16 th May 2018 was sought with the permission of the court; and

ii) Dr Saggar's report was sought with the permission of the court.

No party took issue with this submission. I agree, these experts' opinions were in a different category to that being considered by the Court of Appeal in Re M (above).

It is conceded, however, that the position is quite different in respect of the reports, letters and/or emails from Professor Holick, Dr Ayoub and Dr Chapman. Mr Tughan QC submitted, with which Ms Cook QC, leading counsel for the father, agreed, that to refuse permission for these experts' reports to be admitted would in this case and in applications to reopen findings of fact more generally, hinder or prevent a parent being in a position to mount an application to reopen findings of fact.

The local authority and the guardian did not support this submission. For reasons I shall give in a moment neither do I.

When considering whether I should grant permission for one or more of the reports of these three experts to be admitted in evidence I have regard to and take account of the provisions of:

i) s.13 of the Children and Families Act 2017, most especially the provisions of s.13(7);

ii) Part 25 of the Family Procedure Rules 2010; and

iii) Practice Direction 25.

The matters a court must consider are set out in s.13(7) CFA 2014 which are set out in paragraph 25 above.

For the purposes of this application the relevant provisions of FPR 25 are:

Similarly, the relevant provisions of Practice Direct 25B are as follows:

In respect of Dr Ayoub, I note there was no letter of instruction, it is unclear what material was provided to him by the mother, save for the imaging taken of Y's skull and left leg and there is no expert's declaration as required by FPR 25.10(2). The mother did not when referring this matter to Dr Ayoub comply with the provisions of FDR PD paragraphs 3.1 and 3.2 nor does it appear that the duties of an expert witness, as set out in FDR PD 25B were brought to his attention. There has been a wholesale failure to comply with the comprehensive requirements of PD25B.

When determining the issue of permission to admit Dr Ayoub's expert into evidence, I have regard to the decision of Peter Jackson J, as he then was, in St Helens Council v M and F (Baby with Multiple Fractures – Re Hearing) [2018] EWFC 1 . In respect of Dr Ayoub's suitability as an expert witness he said at paragraph 42,

Jackson J continued:

He concluded at paragraph 44:

In an email dated 24 th July 2015 Dr Ayoub set out his preliminary opinion as follows:

In a subsequent letter dated 18 th August 2015 Dr Ayoub set out his qualifications and his academic and clinical experience. He set out his summary of x ray findings, namely:

There are two important matters to note:

i) Dr Ayoub is not a qualified paediatric radiologist; and

ii) his opinion that the x rays did not demonstrate evidence of any fractures is completely at variance with the consensus of expert medical opinion before HHJ Watson in 2010 and is contrary to the expert opinion of Dr Chapman.

In light of the observations of Peter Jackson J in the St Helen's case (above), I would not have granted permission to seek an expert report from Dr Ayoub. In light of the breaches of s.13 CFA 2014, FPR 25 and PD25A, I am satisfied the opinion of this expert was irregularly obtained. There is other expert evidence available to me: s.13(7)(d) CFA 2014. In all of the circumstances I am wholly satisfied that I should refuse permission for this expert's report to be admitted in evidence.

The criticisms made in paragraph 35 above in respect of the instruction of and report of Dr Ayoub apply with equal measure to the instruction and report of Professor Holick.

Professor Holick's report is dated 18 th August 2015. In it he recorded the fact of a conversation he had with the mother but not the content of the same. He referred to having reviewed 'the information and medical records you provided me regarding your son (sic) Case" but does not specify the information he was given nor identify the medical records he received.

Professor Holick is, as set out in his report, a professor of Medicine, Physiology and Biophysics at the Boston University School of Medicine. He specialises in endocrinology, diabetes, nutrition, Vitamin D and bone fragility research. In his report he said of his clinical experience:

The opinion on Y set out in his report is as follows:

Mr Tughan QC and Ms Cook QC both submitted that the issues of Ehlers Danlos Syndrome and its potential connection with resulting bone fragility and/or fractures is a fast-developing area of medical science and is in some aspects controversial. It is, therefore with, real concern to read that Professor Holick expressed his opinion in the terms in which he did, namely 'It is with a high degree of medical certainty' etc. Professor Holick had not undertaken a medical examination of the mother nor a medical examination of Y, whom he referred to throughout his report as 'Case'. I know not why. Crucially there is no explanation, cogent or at all, in his report as to why he could express his opinion with 'a high degree of medical certainty' in what is asserted to be a fast developing area of medical science which is in some aspects controversial. Professor Holick provided no clinical, medical or factual evidence to support his opinion. There has been a wholesale failure to comply with the comprehensive requirements of PD25B.

In the circumstances set out above I am satisfied that Professor Holick's expert report was irregularly obtained. Professor Holick is not a paediatric radiologist. I am not aware of his expertise to provide an opinion on the interpretation of the radiographs as he purports to do. It may be he has relied on the opinion of Dr Ayoub. In light of my conclusions about Dr Ayoub's report in this matter, such reliance undermines the reliability of Professor Holick's subsequently expressed opinions.

In the premises I am satisfied I should not give permission to admit Professor Holick's report into the evidence in this application.

The position in relation to Dr Chapman is wholly different. He was not formally instructed as an expert in the original care proceedings. Prior to the issue of those proceedings Dr Chapman was asked by Dr Halliday, Y's treating consultant paediatric radiologist to give a second blind opinion on whether Y has sustained fractures. The mother had asked the treating clinicians to seek an opinion from an independent consultant paediatric radiologist. Dr Chapman responded in a report dated 7 th October 2008 in which he said:

In 2016 he was sent an email by the mother's solicitors asking a number of questions. Although not a formal letter of instruction, the email dated 2 nd August 2016, sets out the background, the findings of fact made by HHJ Watson, the update position in respect of the mother's health and then sets out a number of questions. Dr Chapman responded in an email dated 4 th August 2016. The relevant extracts are as follows:

A skull fracture with overlying swelling and haemorrhage deep to the fracture site. This could be accidental or non-accidental but the absence of a causative history in a non-ambulant infant raises a serious concern about an inflicted injury (or an accident that a carer is unwilling to disclose). The swelling and intracranial haemorrhage are manifestations of impact head trauma even if the line is excluded from consideration. It is illogical to suggest that the line situated between these two findings is something other than a fracture and even if the line could be shown to be not a fracture the conclusion that there had been an impact persists. I note the comment from Prof Auer (who, I believe is not a paediatric radiologist or a paediatric neurologist, although I am happy to be corrected) that the swelling was not at the exact site of the fracture. I do not recall there being a significant disparity in the relative positions, and it must be remembered that bleeding into the subgaleal space (between skin and bone) or into the space beneath the periosteum [lining] of the bone is bleeding into 'a space' and there is no reason why it had to be confined to the actual site it originated from.

Follow up X rays showed that the line resolved and this was believed to provide greater support for a fracture than a normal fissure. The absence of signs of healing e.g. callus, is what is expected for a healing skull fracture. Skull fractures never show callus. The membranous bone of the skull is different to the cartilaginous bone elsewhere in the skeleton.

A metaphyseal fracture of the lower end of the left femur. Metaphyseal fractures (classic metaphyseal lesions/CMLs) have a significant association with non-accidental injury and the presence of this fracture also has a significant influence on the likely cause of the skull fracture."

Children with radiographically [X-ray] confirmed rickets (not a feature of Y's X-rays) have an increased risk of fracture.

Children with simple vitamin D deficiency are not an increased risk of fracture."

The email from the mother's solicitors to Dr Chapman does not refer to PD25B and Dr Chapman's email does not contain the declaration required by FPR 25.10(2) and PD25B paragraph 9.1(j). However, Dr Chapman is an eminent consultant paediatric radiologist. I have read his reports and heard or received evidence when at the Bar or on the bench from him for in excess of 25 years. I am in no doubt that when responding in his email he had well in mind the duties of a forensic medical expert.

In these circumstances I am satisfied I should give permission for his report of 4 th August 2016 to be admitted in evidence.

Evidence

Dr Harrison, in a clinical setting, had, in December 2014, diagnosed the mother with hypermobility type Ehlers-Danlos Syndrome. In her letter, following a consultation with the mother, of 17 th December 2014 she concluded as follows:

(a) There is no specific gene known to cause this condition and there may be a number of different genetic factors that can contribute.

(b) Based on the history provided to her by the mother and the GP she stated:

(c) Her skin "did not have unusual extensibility" which is one of the diagnostic features of classic EDS.

(d) "It is not usually linked to bone fragility and a susceptibility to fractures."

Following the directions hearing on 1 st May 2018 Dr Harrison was asked a number of agreed questions. In a short report dated 16 th May 2018 she replied that:

During the course of the hearing on 27 th June 2018 she was asked a further supplementary question. In her absence a fellow consultant geneticist replied as follows

The mother was tested for Vitamin D levels, and other investigations, in 2016. The print out of the test results dated 21 st March 2016 records in respect of Vitamin "Below low reference limit. Vitamin D less than 30nmol/L [the mother's result was <12 nmol/L] are consistent with Vitamin D deficiency. Provided patient not hypercalcaemic, consider appropriate Vitamin D therapy."

There is no evidence before me explaining for how long a period before March 2016 the mother had been Vitamin D deficient nor for how long after March 2016 she continued to remain deficient.

It was submitted on behalf of the mother that if her condition of hypermobility type EDS had been passed onto Y and/or he too was Vitamin D deficient, this could provide an explanation for his fractures. Accordingly, it was submitted I should conclude the mother had satisfied the Stage 1 test and I should give permission for the instruction of Dr Saggar, the very experienced consultant geneticist, to investigate the mother and, possibly in due course, Y and to report on his opinions and conclusions. I considered it would be helpful to have an initial opinion from Dr Saggar before I decided the Stage 1 issue.

It was agreed by all counsel and advocates that Dr Saggar should be instructed and invited to answer the following three questions:

i) If a Mother is confirmed as having a diagnosis of the condition formerly known as Ehlers-Danlos Syndrome type 3 and that is passed on in full to the child (aged 9 months) might that cause the child to fracture more easily and/or with lesser force than a child without that diagnosis?;

ii) What tests or further information if any would be necessary to answer this question?; and

iii) Please can you let us know the timescale and cost of answering these questions.

Dr Saggar's report in response to the above questions is dated 2 nd July 2018. The relevant extracts from this report in response to question 1 are:

i) "In the question posed, it is stated that '…Ehlers-Danlos Syndrome type 3…is passed on in full to the child…' I have assumed therefore, that the mother has significant joint laxity and other features to establish such a diagnosis. If passed in 'full' to the child then I assumed that the child also has significant joint laxity which is over and above that seen in babies ages 9 months. This would be unusual in such a small child and suggests a significant connective tissue disorder.

ii) "Children with hEDS are prone to fall over more often and have poor balance. If a child is falling over, then a force is being applied and this may cause fracture. How much force and how this force is applied to produce the fracture is completely unknow in hEDS and or hEDS spectrum. In the child described, he is aged 9 months and so I doubt would be walking. This needs to be clarified.

iii) "It is possible therefore that a child with hEDS may fracture more easily after lesser force than a child without that diagnosis, if there are other factors or elements that might in themselves predispose to fracture."

In response to question 2, he said:

I note that Dr Saggar's views and opinions are based on the premise set out in question 1 namely that the mother 'has passed in full' to Y her condition of hypermobile EDS. There is no evidence that Y suffered or suffers from this condition or any other form of disorder of connective tissue.

Submissions

The principal submissions made by Mr Tughan QC on behalf of the mother may be summarised as follows:

i) "The evidence of an expert such as Prof Holick, with his direct experience of the impact of EDS is enough of a real basis for such a re-opening to be allowed, in the context of the EDS diagnosis being unknown at the time of the original fact-finding investigation. However, on behalf of M, her case does not rest there.";

ii) "Attached to this submission is a clip of research papers received from Dr Saggar in a case heard in the East London Family Court in early 2018. That clip of papers has a pagination that will be used as a reference point for this submission. The simple proposition that we contend for is that EDS type 3 (hypermobility) is uncontroversially recognised as causing a propensity to fracture and/or to weaken adult bones. We recognise and accept that there is less information available in relation to the interplay between EDS type 3 and the skeleton of a child.";

iii) "It will be well known to this Court that a large amount of bone mineralisation has to be lost before it is apparent on x-rays. We submit the figure is 40%. Accordingly, the Court must be cautious when evaluating the strident evidence of Dr Chapman as set out (above) in his e mail. In fact, the developing understanding of the inter-play between EDS and bone strength tends to a much more subtle approach than provided by Dr Chapman.";

iv) "We submit that the way forward is to ask the experts whether there is enough evidence to establish the link "on paper". Given the maternal and grand-parental diagnoses we posit that there may be enough to reach a conclusion about the presence of EDS in Y. We recognise that may be a submission too far but suggest that an answer will be readily available to the experts we seek to instruct. M does not have to establish such a link on the balance of probabilities now.";

v) "The interplay between a vitamin D deficiency or insufficiency and bone strength when there are no radiological signs is controversial.

vi) "The investigation that is required relates primarily to the force needed to cause the injuries seen. Both EDS and Vitamin D issues in a child can impact the skeletal strength of a child prior to any sign of such issues being seen radiologically.";

vii) "Y was an active, "cruising" child. This was the accepted evidence before HHJ Watson:

viii) "It follows from such evidence that the prospect of an un-witnessed accident was a serious possibility that HHJ Watson had to contend with. If the Court below had known that Y's bone mineralisation was less than might be expected ten the judicial analysis might have been very different. Un-witnessed accident is even more important as a hypothesis in a case of a classically silent fracture such as a metaphyseal fracture".

In light of Dr Saggar's report Mr Tughan QC made the following submissions:

i) "Dr Saggar asserts that:

Decreased bone density has been described in adults with hEDS

Decreased bone density had been described in very young children although children under the age of 5 have not been studied to my knowledge.

The association that any reduced bone density may have to actual fracture in children with EDS type 3 remains controversial

Patients with hEDS may also overlap at a genetic level with other forms of EDS or other connective tissue disorders. Some children with EDS may harbour a gene for mild OI

There are several genes identified that can lead to spontaneous fractures or fractures after lesser force but are not associated with the expected clinical features of OI

A recessive disorder whereby the parents are both carriers should be considered. There are circumstances where the parents will have no history of fracture but the child may inherit two copies of a deleterious gene and have a recessive form of OI

Spontaneous new mutations in the gene (COL1A1/COL1A2) need to be considered"; and

ii) "The ultimate conclusion of Dr Saggar is that:

Ms Cook QC on behalf of the father supports and adopted the submissions made on behalf of the mother. She made the following principal additional submissions:

i) "It cannot be emphasized enough that the medical field had moved on considerably since 2008; that until the case of Re EB (2013) attached, the courts and the medics were oblivious to the issues which may be caused by EDS alone or in combination with other genetic disorders. The landscape is now completely different, in a similar way to the evolution of cases where low level falls were previously ruled out as causative of head injuries, the medics and the courts now look at that which a much more open mind. World renown experts of the calibre of Mr Richards, now say "I never say never and 15 years ago I would have ruled it out". It is in that context that justice requires this case to be reconsidered."; and

ii) "Evidence of fall/symptom or memorable event.

Therefore, it is submitted that the mother has established solid grounds to challenge the earlier finding and/or established that there is some real reason to believe the earlier findings require revisiting.

Accordingly, I am invited to permit Dr Saggar to be given information as set out in his response to question 2 and to prepare and file a full and comprehensive report.

This course is opposed by the local authority and by the children's guardian. The submissions of Mr Nuvoloni QC, on behalf of the local authority, may be summarised as follows:

i) there was no lacuna in the expert medical evidence before HHJ Watson;

ii) Dr King, the consultant paediatric radiologist instructed in the care proceedings, observed in her report that "There do not appear to be any features in Y's bones that would predispose him to fractures and no particular features of brittle bone disease";

iii) The mother has not established solid grounds to satisfy the Stage 1 test nor has she established there is some real reason to believe HHJ Watson's findings of fact require revisiting; and

iv) Dr Chapman opined in his August 2016 report that "EDS type 3 [the former name for the condition now referred to as hypermobile EDS] is not a cause of fractures in infancy".

In his supplementary skeleton argument Mr Nuvoloni QC made two main submissions:

i) the thrust of Dr Saggar's report is that infants who have inherited hypermobile EDS do not suffer fractures absent a history of inappropriate force or trauma; and

ii) HHJ Watson's findings were based in part on findings of a lack of credibility on the part of the parents, especially the mother, the mechanism to cause a metaphyseal fracture, in a twisting and pulling action, and the absence of any reported accident suffered by Y.

Mr Johal, who appeared on behalf of the children's guardian, supported and adopted the submissions on behalf of the local authority and made a number of helpful submissions, all to the effect that there is no evidence that Y suffered from or suffers from hypermobile EDS or any other condition which might predispose him to suffer fractures more easily than another 9-month-old child.

In his supplemental skeleton Mr Johal emphasised the lack of any evidence that at the relevant time, Y had any or any significant joint laxity.

Analysis

Following the approach taken by the Court of Appeal in Re M , above, I propose to consider the evidence of Dr Ayoub and Professor Holick notwithstanding I have refused permission for their respective reports to be admitted in evidence.

Dr Ayoub asserted that the line seen on the x rays of Y's skull, which was interpreted by the medical experts in the care proceedings as a skull fracture, was in fact a normal developmental variant. To this assertion Dr Chapman responded that the follow up x-rays showed the line had resolved which provided greater support for it representing a fracture rather than a normal fissure. Further in response to Dr Ayoub's that the femoral fracture 'could have been a residual defect form earlier life rickets', Dr Chapman referred to a recent international meeting of experts on vitamin D deficiency. Their conclusions/recommendations included the following:

i) children with radiographically confirmed rickets [not a feature of Y's x-rays] have increased risk of fracture; and

ii) children with a simple Vitamin D deficiency are not at increased risk of fracture.

I prefer and accept the evidence of Dr Chapman which reflected the consensus of expert medial opinion before HHJ Watson namely:

i) Y had suffered a skull fracture and a metaphyseal fracture of the lower end of the left femur;

ii) there is no evidence that Y had radiographically confirmed vitamin D deficiency, i.e. rickets;

iii) Dr King was of the view that there did 'not appear to be any features in Y's bones that would predispose him to fractures and no particular features of brittle bone disease';

iv) the mechanism by which metaphyseal fractures were sustained has a significant association with non- accidental injury; and

v) there is no evidence that Y suffered any form of connective tissue disorder, still less joint laxity.

Even if there was evidence that Y suffered from hypermobile EDS and vitamin D deficiency, which there is not, Dr Chapman and Dr Saggar are agreed that, in the absence of an event of inappropriate trauma or force, these conditions singularly or in combination would not result in fractures or predispose Y to suffer fractures.

In his report Professor Holick made two strident assertions:

i) it is with a high degree of medical certainty that if your son Case (sic) has the same genetic disorder as you and several of your family members have this could help explain the soft tissue swelling observed over the right temporoparietal area of the skull and the symmetrical bilateral fissures that were observed." First no basis is given for the 'high degree of certainty' that Y suffered from hypermobile EDS. Second there is no explanation for the assertion that this condition could explain Y's radiological findings. Third there is no basis given for the assertion '[the femoral fracture] could be easily explained by the underlying bone fragility genetic disorder Ehlers Danlos/hypermobility syndrome that your son likely has". Why is it likely? Professor Holick does not explain.

Mr Tughan QC asserted that Dr Saggar's evidence that he did not have any clinical experience of children with h EDS suffering fractures with a history of trauma, did not achieve the gold standard of medical research and therefore I should attach little or no weight to Dr Saggar's evidence (whom I note is the mother's expert of choice) on this issue. I note no such submission was made in respect of Professor Holick's contrary assertion of his clinical experience. I reject this submission. Dr Saggar is an eminent and hugely experienced consultant geneticist. His clinical experience is not and cannot be determinative it it is an important piece of the expert evidence to which I am entitled to give weight and to take account

I entirely accept that medical knowledge in respect of incidence and consequences of hypermobile EDS has advanced greatly since 2010. The same observation can be made in respect of the potential adverse consequences of Vitamin D deficiency especially when found in conjunction with even a mild form of EDS. The interplay between the two and any resulting predisposition to fracture are rightly accepted to be controversial – I refer, for example, to the extract from Dr Chapman's report at paragraph 50 above.

I accept the mother, at Stage 1, does not have to establish she would succeed nor even would have a reasonable prospect of success at any Stage 3 rehearing. She only has to establish there is a solid ground for challenge and/or there is some reason to believe the findings require revisiting. The test is a relatively low one but the basis for a rehearing must go beyond mere hope and speculation.

At this stage I remind myself of the principal findings of HHJ Watson which were as follows:

Mr Tughan QC and Ms Cook QC submitted I should approach HHJ Watson's findings with caution because she may have arrived at very different findings if she had had before her the new evidence I now have before me. I accept there is some merit in this submission. There are a number of findings which are not materially affected by the new medical evidence and which, by the by, accord with my own assessment of the factual matrix of this case.

These findings are:

i) the inability of the adults caring for Y to recall any pattern of changed behaviour or changed mood apparent in the child during the preceding days and weeks despite very careful investigation and questioning;

ii) Y at the time he sustained the fractures would have been very distressed and his carer would be aware something serious was wrong;

iii) his carer forcefully pulled and twisted Y's leg in such a way that the carer would be aware that this was causing Y to suffer pain and distress (I note that the mechanism for a metaphyseal fracture is a twisting and pulling action.)

Neither Dr Ayoub nor Professor Holick have, on the face of their respective reports, taken account of nor had regard to any of these findings. Neither of them suggest in their reports that a child who, by reason of a medical condition, is predisposed to suffer fractures, would do so without suffering any pain, distress, discomfort and/or changed presentation in the immediate aftermath of sustaining the fracture or fractures.

I remind myself that I must be alive to a case built on smoke and mirrors.

I discount the evidence of Dr Ayoub because:

i) of the criticisms made of him by Peter Jackson J, as he then was, in the St Helen's case;

ii) the lack of any adequate explanation for his interpretation of the x rays;

iii) bearing in mind that he is not an accredited paediatric radiologist;

iv) the observations made by Dr Chapman set out at paragraph 50 above; and

v) his failure to take account of those findings made by HHJ Watson and referred to in paragraphs 79 and 81 above.

I reject the evidence of Professor Holick. In his report he makes assertions for which he gives no underlying reasons to support the same. He uses terms such as 'medical certainty' which are not justified in his report and have the character of a dogmatic response. No consideration is given to alternative or of, what one might term, 'mainstream' hypotheses or explanations. He, like Dr Ayoub, has failed to have regard to or take account of the findings of HHJ Watson referred to above.

Dr Saggar, faithful to the first question he was asked, proceeded to give an opinion on the basis that Y had inherited hypermobile EDS from his mother. Even on this unproven, unestablished basis, his clinical experience as an eminent consultant geneticist, was that this condition with or without Vitamin D deficiency did not result in fractures, especially in infants, without a history of inappropriate force or trauma. In terms, Dr Chapman agreed.

I accept Ms Cook QC's submissions that Y was a lively and active toddler but knowing of the same I would expect his parents and occasional carers, P & Q, to have been hypervigilant. The notion that Y at 9 months of age suffered one event of trauma when he sustained a skull fracture and a metaphyseal fracture of his left femur completely unwitnessed and/or without any adverse reaction from him, even if he did suffer from hEDS and/or Vitamin D deficiency, I consider to be very unlikely not to say fanciful. The idea that he suffered these injuries in two separate events, albeit close in time, unwitnessed and without any adverse reaction, I consider to be even more unlikely and fanciful.

The submission that if Y had hEDS and/or vitamin D deficiency he might have suffered fractures with the application, howsoever applied, of a lesser degree than would be required for a child without either of these conditions, does not overcome or explain the findings of HHJ Watson referred to in paragraphs 79 and 81 above. Even accepting Y might have sustained fractures with the application of a lesser degree of force as the mechanism, his bones were still broken. The notion that he suffered broken bones in an unwitnessed event or events and without any adverse reaction, I consider to be unlikely and fanciful.

Save for the submission that medical knowledge has advanced since 2010 on the conditions being considered in this case and that same aspects of the medical opinions are controversial, the whole of the mother's case for a rehearing is, I find, built on smoke and mirrors. I am satisfied that the mother's case does not advance beyond mere hope and speculation.

When I add in

i) A metaphyseal fracture results from a twisting and pulling action; and

ii) that HHJ Watson's findings were based in part on a lack of credibility in the evidence of the mother and the father,

I am satisfied that the mother has not established a solid ground for challenging the findings nor has she established that there is some real reason to be believe that the findings require revisiting.

Conclusions

For the reasons I have given I am satisfied that the mother has not established a solid ground for challenging the 2010 findings nor am I satisfied that a rehearing would not as observed by Hale K in Re B (above), result in any different finding from that made by HHJ Watson. On the contrary I am wholly satisfied that a rehearing would result in the self-same findings.

In the premises I am satisfied that:

i) a further report from Dr Saggar is not necessary for the court to deal justly with this application; and

ii) this application for a rehearing fails. It is without merit and it is dismissed.