Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services and Liam [2017] NSWChC 2 Hearing dates: 20, 21, 24, 25, 26, 31/10 & 1/11/2016 Date of orders: 17 January 2017 Decision date: 17 January 2017 Jurisdiction: Care and protection Before: Children's Magistrate E Ryan Decision: Finding the child is in need of care and protection Catchwords: Child in need of care and protection: establishment hearing – onus of proof on the Secretary – fractures in non-ambulant child – whether more probably caused by inflicted injury or bone fagility Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Evidence Act 1995 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 34 Category: Procedural and other rulings Parties: Secretary for the Department of Family and Community Services (DFaCS) The Mother The Father The Child Representation: Mr M Anderson of counsel for the Secretary Ms E Lawson of counsel instructed by Mr E Tabchouri, solicitor for the mother Ms K Renshall, solicitor for the father Ms S Shearman of counsel instructed by Ms Canning, solicitor for the child File Number(s): 2016/405 Publication restriction: None. Pseudonyms have been used in order to anonymise the child and parties Judgment 1. Liam is the only child of Gail and Barry Sykes. In June 2016 when he was six and a half months old his parents brought him to hospital where he was found to have two fractures of his right arm, a suspected fracture of his left arm, and some bruising. Despite an explanation offered by his parents regarding Liam's fractured right elbow, the hospital assessed this and the other injuries to be non-accidental, and he was assumed into the care of the Minister. 2. When he was discharged from hospital Liam was placed with his paternal grandparents where he has lived ever since. They supervise the parents' visits with Liam. 3. The Secretary of Family and Community Services is asking this court to find that a threshold test for court intervention has been met, namely that Liam was in need of care and protection when he was assumed into the care of the Minister. This is because according to the Secretary the most probable explanation for his injuries is non-accidental or inflicted abuse by either or both of his parents. 4. The parents deny ever having intentionally harmed Liam and want him to be returned to their care. They claim the medical evidence upon which the Secretary's case rests is unreliable. They say the evidence as a whole presents plausible alternative explanations for his injuries, such that the Court would not be satisfied they were non-accidental. Issues 1. This Court must decide whether in light of all the evidence, the Secretary has discharged the onus of satisfying the Court that the most probable cause of Liam's injuries was inflicted force. Factual findings are required in relation to the following issues: 1. Were Liam's bruises indicative of inflicted injury? 2. Did Liam have a fracture of his left arm? 3. Could the explanation offered by the parents account for his fractured right elbow? 4. Were Liam's bones more susceptible to spontaneous or low impact fractures such that the Court could not be satisfied that his fractures were the result of inflicted force? The Legal Tests 1. In making decisions in this matter the Court is bound to make Liam's safety, welfare and wellbeing its paramount consideration: s 9(1) of the Children and Young Persons (Care and Protection) Act 1998 (the Act) In addition in deciding what action, if any, is needed to protect him from harm the course to be followed must be the least intrusive intervention in his life and that of his family that is consistent with the paramount concern to protect him from harm and promote his development: s 9(2)(c) of the Act. 2. The Court is to decide whether Liam was in need of care and protection on the basis that he has been or is likely to be physically abused, and that his physical and psychological needs are unlikely to be met by his parents. The burden of satisfying the Court of these matters rests with the Secretary. The standard of proof to be applied is proof on the balance of probabilities: s 93(4) of the Act. 3. In proceedings such as this, when considering whether an allegation has been proved on the balance of probabilities the standard known as the 'Briginshaw' standard Briginshaw v Briginshaw (1938) 60 CLR 336 applies: Director General of Department of Community Services; Re 'Sophie' [2008] NSWCA 250. Thus it is necessary for the allegation to be made out to the reasonable satisfaction of the Court. It is appropriate to take into account the gravity of the allegations as required by s 140(2) of the Evidence Act 1995, and to bear in mind that findings of grave misconduct require clear and cogent proof and should not be made lightly: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at 171. 4. It is also to be borne in mind that the onus is a civil one. A finding that an allegation has been proved on the balance of probabilities does not require the Court to be satisfied that a hypothesis that is highly improbable has been excluded: Re 'Sophie' at par 67. Background Facts 1. Liam's parents are Gail, who is a lawyer, and Barry, an IT manager. Their extended families are close and supportive. They married four years ago and the evidence indicates their relationship is harmonious. There is no evidence that either suffers mental health problems, or abuse alcohol or illicit drugs. 2. Liam was born by caesarean section in 2015. Gail took extended maternity leave to care for Liam and to ensure she could breast-feed him. Liam's breast feeds were supplemented by formula milk feeds, and his parents started giving him solids at four and a half months. 3. By the time he was six months old Liam was able to sit up unsupported and he could roll from front to back and vice versa. He was not yet 'cruising', that is pulling himself up to a standing position and moving with the help of holding onto furniture. His parents moved him into his cot from his bassinette about one week prior to his admission to hospital in June 2016. 4. In June 2016 Liam's parents noticed his right elbow was swollen and they immediately took him to their GP and then to Westmead Children's Hospital. X-rays taken that day and subsequent x-rays showed a recent fracture of his right elbow and an older fracture of his right ulna, which is a bone at the lower end of the forearm. The appearance of Liam's left ulna and radius bones also suggested an older fracture. In addition he had a small bruise to his lip and his right elbow, and small red marks on the right side of his neck. 5. From the outset the parents offered an explanation for his fractured right elbow and the bruise on his lip. 6. They were in the habit of taking turns to sleep at night in a spare bed in Liam's room. On the night of 3 June it was Barry's turn. He said he awoke at about 4 o'clock in the morning to a loud cry from Liam. Liam appeared to be in distress, lying on his right side with his back against the cot slats and his right arm behind his back. The father lifted Liam out of the cot and began to settle him with a bottle of milk. In retrospect the father thought this might have been when Liam received his lip bruise, recalling that his head collided with the father's collar bone while he was reaching for the bottle. 7. Later in the morning the parents fed him breakfast in his high chair and then placed him on his play mat. Just before 1pm they noticed he had not been reaching for toys with his right arm. When they removed his body suit to look at that arm he became distressed and they saw his right elbow was swollen. 8. The mother immediately rang a physiotherapist who had been treating Liam and left her a message. They then took him to their GP practice, where he was seen by a doctor. The doctor initially thought Liam might have dislocated his right elbow and she attempted a manoeuvre to see if this was the case and if so to correct it. This was unsuccessful. On her advice the parents took him straight to Westmead Children's Hospital so his elbow could be x-rayed for a possible fracture. 9. Liam's parents told the GP they had found Liam in his cot with his right arm twisted behind his back between the bars of the cot. However at the hearing the father told the Court he had not actually seen Liam's arm stuck in the cot bars because of the angle at which he stood. It was a possibility he'd thought of later because, he said, they'd seen him in that position previously. In her affidavit the mother said the father had told her Liam 'seemed to have rolled on his arm'. 10. To the GP, the father also hypothesised he may have accidentally hurt Liam by picking him up out of the cot when his arm might have been caught between the cot bars. 11. Regarding the fracture of Liam's right ulna and possible fracture of his left ulna and radius, the parents cannot recall any incident which might have caused these. They do however point to an occasion in May when the father took Liam for a GP check-up and he was recorded as having been very 'whingey' that day and also the previous night. At the hearing most of the medical experts agreed this may have been symptomatic of discomfort Liam was feeling from his right ulna fracture. According to the appearance of the bone on x-rays, the right ulna may well have been fractured at that time. The Child Protection Unit Assessment Report 1. Liam spent thirteen days in hospital where he received treatment for his fractured elbow, and was assessed by the Hospital's Child Protection Unit (CPU) for risk of physical harm. The opinions expressed in the resulting report of the CPU informed the Secretary's position that the most probable cause of Liam's injuries was non-accidental or inflicted abuse. I will summarise its findings. 2. The CPU report was authored by Dr Susan Marks with the assistance of Registrar, Dr Sowmya Gandham. Dr Marks is a paediatrician and forensic physician, and since 2008 she has been the Staff Specialist of the Child Protection Unit at Children's Hospital Westmead. She has a Masters degree of Forensic Medicine and many years clinical experience in paediatrics, child protection and forensic medicine. 3. To compile the report Dr Marks had meetings over several days with the parents and with a joint investigatory team of police and caseworkers of the Department of Community Services. Dr Marks also spoke with medical professionals involved in Liam's care prior to and during his admission, and consulted Children's Hospital specialists from a number of relevant disciplines. 4. The assessment report summarised Liam's injuries as follows: * A very recent fracture to his right elbow – specifically, to his distal humerus. The humerus is a single bone from the shoulder to the elbow. Liam's fracture was at the lower end of this bone. * A fracture to Lima's right distal ulna, which is a bone of the forearm. Liam's fracture was located at the wrist end of this bone. Signs of bone healing suggested he had received this fracture at least twelve days prior to its detection via x-ray in June 2016. * Bowing of Liam's left radius, and signs of long-standing healing to it and to his left ulna. Like the ulna, the radius is a bone of the forearm. Liam's x-rays did not show any fracture lines in these bones, but in Dr Marks' opinion their appearance indicated they were in the process of healing from a fracture. * A small bruise on Liam's upper lip, a bruise on his right elbow, and marks described as petechial bruising on the right side of his neck. 1. The right ulna fracture had been sustained at an earlier time than the humerus fracture, as had the suspected fracture of his left ulna and radius. 2. In Dr Marks' opinion none of these injuries could have occurred spontaneously and all were highly suspicious for inflicted injury. In her view the fracture to Liam's right humerus could not have been caused by him rolling with his right arm stuck under him, or wedged between the bars of his cot or in the space between his mattress and the cot bars. This was because significant force would have been required for him to have sustained this injury. This was also the case with the fracture of his right ulna, and suspected fracture of his left ulna and radius. As a non-ambulant baby he could not have generated sufficient force to cause these bones to fracture. 3. Dr Marks dismissed the possibility that Liam had an underlying bone disease which caused his bones to be more fragile and susceptible to spontaneous fracture. She thought that even if there had been an underlying bone problem, the fractures were the result of handling which was in excess of normal handling of a baby his age. 4. Dr Marks was called to give evidence at the hearing. She had read reports of doctors relied upon by the parents to provide an alternative explanation for Liam's injuries. These reports, which will be discussed further below, were prepared by Dr George Williams, Dr Julie Mack and Dr Jane Edwards. Their reports did not cause Dr Marks to alter her opinion that the injuries were inflicted injuries. She was asked whether x-ray evidence suggesting Liam had mild osteopenia (reduced bone density) in his right hand indicated he may have had an underlying disorder which caused his bones to be more vulnerable to spontaneous fracture. Dr Marks thought this unlikely. She thought the suggestion of osteopenia was more probably the result of Liam's right ulna fracture causing him to use that arm less, thus creating some bone demineralisation. 5. Nor did Dr Marks think it likely Liam had suffered a condition known as Erb's Palsy to his right shoulder and arm. An Erb's Palsy is a neurological condition which can retard muscle development and cause the bones in the affected area to become demineralised through disuse. Dr Marks thought this implausible in Liam's case first, because medical examinations in his early months had found no abnormalities in the movement of his right arm, and secondly, because there were reported periods of time when Liam's right arm movements were not restricted or reduced. 6. The Court must now determine whether in light of all the evidence, the Secretary has discharged the onus of satisfying the Court that Liam's fractures, suspected fracture, and bruises were most probably inflicted injuries. 7. I will commence by determining an issue which in my view is relatively straightforward: whether Liam's bruises are indicative of inflicted injury. Issue 1: Were Liam's bruises indicative of inflicted injury? 1. The CPU report concluded that all Liam's bruises were suspicious for inflicted injuries. These were the 2mm bruise on his lip, a small bruise on his right elbow, and red marks described as petechiae on the right side of his neck. 2. Having carefully reviewed the evidence, I accept submissions made on behalf of the parents and the Independent Legal Representative that there is insufficient evidence to establish these marks were inflicted injuries. 3. It was conceded by Dr Marks that none of the marks had been photographed, a procedure recommended in NSW Department of Health protocols for assessing suspected cases of child abuse. Dr Marks agreed the absence of photographs meant it was not possible for her findings about them to be independently reviewed. 4. In her evidence at hearing Dr Marks agreed the bruise to Liam's lip could have been sustained in the way explained by the father, but not, she said, if Liam was being handled with proper care. I agree that if the father's explanation for this injury is accepted, it suggests a level of care in handling Liam which falls short of what would ordinarily be expected in relation to a young baby. Nevertheless given the insignificant nature of this injury, and the momentary nature of the contact, I am of the view that as a matter of common sense it should not be characterised as physical abuse. 5. Regarding the petechiae on Liam's neck, Dr Marks considered these were caused by direct trauma or pressure to Liam's neck. However she was not willing to say the trauma was necessarily the result of an inflicted injury. As a result of this concession there is insufficient evidence to support a finding that the petechiae marks were the result of inflicted injury. 6. Regarding Liam's elbow bruise, neither Dr Marks nor Dr Gandham were able to examine it as Liam's right arm was by then in a plaster cast. Nor had any photographs been taken of it when he was admitted to hospital. Dr Marks relied upon the recorded observation of a triage nurse, to conclude its location on Liam's elbow was not sufficiently proximate to the fracture site to have been associated with it. In my view the absence of adequate records to support this conclusion means that the Court could not be satisfied to the necessary standard that the elbow bruise was the result of inflicted injury. 7. The finding I make is that none of the bruises can be established to be the result of inflicted abuse. 8. I turn now to the issues to be determined concerning the suspected fracture of Liam's left ulna and radius, and fractures to his right humerus and ulna. Issue 2: Did Liam have a fracture of his left ulna and radius? 1. One of the issues in dispute is whether the appearance on x-ray of Liam's left ulna and radius did in fact indicate he had been injured in that area. It is the Secretary's position that Liam's left ulna and radius had been fractured and that the most probable explanation for this alleged injury is, like the others, non-accidental or inflicted abuse. 2. No fracture of Liam's left forearm was visible on x-ray or any other scan. However an x-ray report in early June 2016 noted 'mild lateral bowing of the left radius with cortical thickening and intracortical lucency. The possibility of a stress reaction and longstanding periosteal reaction is raised.' In the CPU report Dr Marks concluded these features were reflective of 'healing trauma' following fracture. She maintained this view in her evidence at the hearing, describing the fracture as a 'bowing fracture'. 3. The parents dispute this interpretation of Liam's x-rays. They presented medical evidence of Dr Julie Mack to support their position that the Court would not be satisfied Liam's left ulna and radius had been fractured. 4. Dr Mack is an Assistant Professor of Radiology at Pennsylvania State University College of Medicine, and has a certificate in paediatric radiology. She has extensive qualifications and experience in radiology. She has no specialist qualifications or experience in paediatric bone health. 5. Dr Mack was asked to examine Liam's x-rays. She disagreed with Dr Marks' interpretation of the periosteal reaction evident in Liam's left forearm. In her opinion its appearance was consistent with what she described as a 'remodelling' response to the stresses imposed by increased use of the bone through normal childhood growth. 6. At the hearing the Court also heard evidence on this issue from Assistant Professor Craig Munns. Professor Munns is a paediatric endocrinologist, and since 2004 he has been the Senior Staff Specialist and Head of Bone and Mineral Medicine and Endocrinology at Westmead Children's Hospital. He is an Associate Professor of Paediatrics and Child Health at Sydney Medical School, has a PhD in genetic bone disorders, and has worked continuously in paediatric bone health since 1995. During the CPU assessment Professor Munns provided specialist advice on the question whether Liam's injuries might have been caused by an underlying bone infection, illness or disease. 7. Regarding the appearance on x-ray of Liam's left forearm, Professor Munns explained to the Court that periosteal reaction occurs when the bone reacts to stress or strain. This could be the result of the bone recovering from inflicted force, or merely from normal use. Having reviewed x-rays of Liam's left ulna and radius Professor Munns was unable to say which explanation was more likely. 8. The submissions on behalf of the parents and the Independent legal Representative were that the Court could not be satisfied that Liam's left ulna and radius had received inflicted or non-accidental injury. I accept these submissions. Professor Munns is a highly qualified expert in the area of paediatric bone health. In circumstances where there is no direct evidence that Liam's left arm had been fractured, and the acknowledged expert in this area thought it equally possible the arm had merely been subjected to the strains of normal childhood growth, it is not open to find on the balance of probabilities that it had been fractured. Nor is there evidence its condition was the result of inflicted injury of any other kind. 9. Accordingly I am not satisfied that Liam's left arm received non-accidental or inflicted injury. 10. However there is no dispute that Liam's right humerus and ulna had each received fractures, and not as a result of the same incident. 11. I will now consider whether the CPU assessment was justified in finding that the parents' explanation for Liam's humerus fracture could not account for it. I will then turn to the question of whether any conditions of underlying bone fragility could have accounted for this fracture, and the fracture of his right ulna. Issue 3: Could the parents' explanation account for Liam's fractured humerus? 1. The CPU report found that Liam's humeral fracture could not have occurred as a result of him rolling on his right arm, or getting it stuck between the bars of his cot or in the space between the bars and his mattress. Significant force was required to sustain this injury, which he would have been unable to generate himself. The injury was therefore non-accidental. 2. The parents' case is that the explanation they offered is plausible and as a result the Court could not be satisfied on the balance of probabilities this injury was inflicted. They relied upon a report and evidence of Dr Jane Edwards to support their position. 3. Dr Edwards was called to give evidence at the hearing. She is a forensic paediatrician and a Child Protection Consultant at Women's and Children's Hospital Adelaide. She has extensive experience in forensic medical assessments of children with suspected physical abuse. 4. In Dr Edwards' view the CPU report should not have excluded the possibility that Liam's humeral fracture occurred in the way suggested by the parents. This was first, because due to the absence of knowledge of infant bone biomechanics it is not known exactly how much force is required to fracture the average infant's humerus. And secondly, Dr Edwards described 'mounting evidence' that infants this age could cause themselves spontaneous fractures. She cited: 1. A 1995 case in which a child rolled an infant sibling from front to back, causing the infant a fracture to the humerus. This incident was captured on video. 2. Seven reported cases between 2007 and 2013 where infants sustained humeral fractures by rolling onto their arms without the involvement of another person. These were reported in a case study titled 'Humeral fracture in non-ambulant infants – a possible accidental mechanism' by John Somers, Katherine Halliday, Stephen Chapman. Paed Radiology 2014 October; 44(10); 1219-23. 1. On this basis Dr Edwards thought the parents' explanation might sufficiently account for Liam's humerus injury, without the need to demonstrate any underlying bone fragility. 2. However the evidence upon which Dr Edwards relied for her opinion that infants of Liam's age could cause themselves spontaneous fractures must be considered in light of the following: * none of the incidents said to have caused the seven fractures in the above case study were independently witnessed, leaving open the possibility the injuries involved were not spontaneous. * in all eight cases the fracture was to the middle part of the humerus and not the end of it, as was Liam's. 1. Dr Edwards thought the different location of Liam's fracture might be accounted for by the involvement of the cot bars, which may have changed the fulcrum about which his arm was rotated and levered. 2. However the authors of the case study cited by Dr Edwards themselves commented at p565 that: 'explanations such as the infant sustaining the injury by trapping the arm in cot bars …are usually dismissed as not credible'. 3. Further, the evidence does not go so far as to establish that Liam's arm was caught in the cot bars. His father thought this was only a possibility, saying they had seen his arm in that position before. However under cross-examination the mother conceded this was not the case; rather they had seen his arm positioned in the gap between the cot mattress and the bars. 4. Dr Edwards' position that it was possible for infants to have spontaneous fractures was therefore based on incidents which had resulted in fractures to a different area of the humerus, and in which it had not been established that the injuries were spontaneous. Further, the authors of the cited case study frankly conceded the speculative nature of their proposition, describing it at p566 as 'without definitive proof' by comparison with the 'widely accepted' position that 'non-ambulant infants cannot sustain such a fracture by their own actions or from minor domestic actions' (p562). 5. At best the cited case studies offer an unproven theory that injuries to the mid part of the humerus might be caused from infants rolling onto their arms. This proposition is at variance with what I understand from the evidence to be a widely accepted position that such a mechanism is unlikely to cause this type of injury. 6. In my view, and notwithstanding Dr Edwards' extensive experience in forensic paediatrics, these factors significantly limit the weight the Court could assign to her opinion on this issue. 7. When she gave her evidence in court Dr Marks had read Dr Edwards' report but adhered to her view that Liam's humerus fracture would not have been caused in the way suggested by his parents. She noted the fractures referred to in Dr Edwards's report were different to Liam's. Regarding the criticism that there was a lack of normative data about the degree of force required to cause such a fracture, Dr Marks agreed this was the case. However, she maintained her view that Liam's humerus fracture had not resulted from a low-force incident. She based this view on the 'moderately displaced' nature of the fracture and the degree of disruption to the bone. She said further, that if as proposed low-force incidents were able to cause this type of fracture in infants they would be seen more commonly. 8. The proposition that Liam's humerus fracture could have occurred spontaneously was also rejected by Professor Munns. His evidence on this and other relevant issues is discussed later in this judgment. His opinion was that Liam's fractures could only have occurred with an application of force to the bone outside of 'what would be normal handling'. 9. Having considered the evidence as a whole, I have concluded that the CPU report was justified in finding the parents' explanation could not account for Liam's humerus injury. The hypothesis that he could have received this fracture in the manner suggested by his parents is based on a theory which, on the basis of current scientific research, the Court can only regard as speculative and unproven. 10. The finding of the CPU report on the other hand is supported by the evidence of Professor Munns, an acknowledged expert in the area of paediatric bone health. For reasons which are explained later in this judgment, I found Professor Munns to be an impressive witness whose opinions merit substantial weight. 11. In contrast with her opinion regarding Liam's fractured humerus, Dr Edwards' opinion regarding the fracture to his right ulna was that without evidence of bone fragility this was not an injury an infant would be able to sustain by him or herself. 12. I turn therefore to the question whether Liam had an underlying condition which made his bones fragile and more susceptible to fracture. Issue 4: Did Liam have a condition which made his bones more susceptible to spontaneous or low impact fracture? 1. In reliance on the CPU report the Secretary's position is that Liam's fractures cannot be explained by any medical cause and that even if he had an underlying condition which weakened his bones, his fractures still required a degree of force to have occurred. The most probable cause of injury therefore was still inflicted injury. 2. The parents say there is cogent evidence that Liam had an underlying disorder which caused his bones to be weaker and more susceptible to spontaneous fracture, such that the Court could not find on the balance of probabilities his injuries were inflicted. This position is supported by the Independent Legal Representative. 3. The parents relied upon the following evidence: * The opinion of Dr George Williams that Liam suffered an Erb's Palsy of his right arm leading to disuse atrophy and consequent bone fragility. * The opinion of Dr Julie Mack that Liam's x-ray and bone densitometry results support a diagnosis of reduced bone density. * The evidence of x-ray reports showing abnormality of Liam's right humerus, and suggesting mild osteopenia of his right hand. 1. The parents say further that the existence of bone fragility is supported by the following: * Their observations that from his earliest weeks Liam suffered reduced strength in his right arm. * Videos Liam's mother took in May,and two in August, which show impaired movement of his right arm while he is rolling. 1. I will consider the evidence in relation to these propositions in turn. Issue 4(1). Did Liam suffer Erb's Palsy of his right arm leading to disuse atrophy and consequent bone fragility? 1. Dr Williams provided a report and gave evidence at the hearing. Dr Williams has substantial experience in paediatrics. He has no qualifications or experience in forensic medicine and he is not a radiologist, neurologist or bone density expert. 2. In Dr Williams'opinion it was likely Liam had suffered a condition known as Erb's Palsy which increased his risk of spontaneous fracture due to bone demineralisation. Dr Williams explained that an Erb's Palsy occurs when nerves supplying the muscles of the shoulder and arm become injured or paralysed. This condition leads to a much reduced use of the shoulder, or 'disuse atrophy', leading in turn to loss of bone density and hence weaker bones. 3. Dr Williams hypothesised that Liam had developed this condition as a result of his right shoulder perhaps having become trapped while he was in the womb. There is some evidence to support the proposition that in late term Liam's movement became restricted. Liam's mother has a uterine abnormality which can cause a baby's movements in the womb to be impeded. She reported that he did not move much at all in his last 6-7 weeks of gestation. An attempt by her obstetrician at 35-36 weeks gestation to turn Liam from his breech position was not successful, providing further evidence of entrapment. 4. In my view however Dr Williams' opinion that as a result Liam developed problems with the muscles and bones of his right arm is not supported by the evidence. Dr Williams offered a number of reasons to support his opinion. However, when these are examined in light of the evidence as a whole it can be seen that most are based on significant factual inaccuracies or are unable to be supported by evidence. Issue 4(1)(a): Did Liam have reduced strength in his right arm from his earliest weeks? 1. I will address firstly an important element of Dr Williams' hypothesis that Liam had an Erb's Palsy and consequent weakness in his right arm. That is, Dr Williams' acceptance of a history provided by the parents that from Liam's earliest days they had concerns about his use of this arm. 2. The mother reported to Dr Williams that 'two weeks after his birth Liam was not moving his right arm as well as his left'. During the CPU assessment both parents reported they had been concerned about Liam's right arm 'all along' and 'since birth'. In addition when he was examined in September 2016 by neurologist Dr Sachin Gupta the parents told him that since birth Liam's right arm movements had been less than those of his left. Dr Williams attributed these reports of Liam's reduced use of his right arm to the existence of an Erb's Palsy. 3. However, the clinical evidence does not support the history provided by the parents of problematic right arm use from an early stage. In his first six months Liam was medically examined on many occasions. He had daily examinations during his six-day stay at hospital when he was born, including one by a neurologist who did not report any concerns regarding his right arm. Further, in January, March and May Liam was examined at the parents' local GP practice, by the practice nurse and a GP at that practice. Their records do not report any problems with his use of his right arm. 4. However, during this period clinical records do show Liam's parents expressed concerns about his use of his left arm. Liam's paediatrician Dr Neil Ginsberg examined Liam's arm movements in January specifically because the mother had expressed concerns to him about his use of the left arm. Dr Ginsberg found no difference in the movement of either arm. [CPU Bundle 57-61]. Dr Ginsberg's conclusion that Liam's arm movements were normal merits weight not merely because of his paediatric expertise, but also because his examination was in response to a concern about this specific issue. 5. In February Liam's physiotherapist recorded the mother's observation that when Liam was on his tummy he was pushing up on his right hand more strongly than his left. And in June the practice nurse recalled the mother had previously voiced concern that Liam was getting his left arm stuck behind him when rolling. The practice nurse and the GP had examined him and found both arms to have full normal movement. 6. It is true that in late January Liam was referred to the physiotherapist for therapy, but this was not for problems with his right arm. The clinical notes show that physiotherapy had been recommended to treat Liam's mild plagiocephaly (misshapen head) and tendency to tilt his head to the left and hold his right shoulder in an elevated position. 7. In the period after April some problems were noted with Liam's right arm. In April the physiotherapist observed Liam's right arm to be 'a bit stiff'. Liam was by then 4.5 months old. Then in May the physiotherapist received a text from the mother stating: 'Liam used to pull his right arm out when he rolled from his back to his tummy but he doesn't do that anymore. His right arm is now behind his back when he rolls onto his side/tummy...' The description that Liam 'used to' pull his right arm out when rolling gives rise to the inference that prior to May he was not experiencing such difficulties. 8. In summary, aside from the physiotherapist's observation in April, until May 2016 there is no clinical evidence Liam was experiencing problems with the movement of his right arm, or that the parents had voiced such a concern. 9. On behalf of the parents it was submitted that where the above medical records noted concerns voiced about Liam's left arm these were likely recording errors, with the respective authors intending to refer to Liam's right arm. It was suggested that such mistakes are easily made, and that similar errors appear in some of Liam's records at the Children's Hospital. 10. It is true that two such misstatements appear in Liam's records on the date of his admission to hospital. The initial triage assessment form incorrectly referred to a 'left arm injury', and a note entered by a nurse shortly afterwards recorded swelling to 'the left elbow area'. 11. However, these errors are readily traceable to a single source, being the GP's referral letter to the hospital of the same date. This mistakenly described Liam's left arm as the swollen one. The erroneous hospital records are therefore plausibly explained by the reliance of their makers upon an earlier document which contained a mistake. 12. However, the theory of a recording error does not plausibly explain the references to Liam's left arm in the records of Dr Ginsberg, the physiotherapist and the practice nurse. Their consultations were unlinked and were in response to concerns expressed verbally to each of them by Liam's mother herself. 13. In her submissions counsel for the Independent Legal Representative described as 'contradictory' the medical evidence about Liam's use of his right arm in his early months. With respect, I disagree. The medical evidence plainly does not support the proposition that from his earliest weeks Liam experienced reduced strength in his right arm, or that from an early stage his parents voiced concerns about it. Issue 4(1)(b): Does other evidence support Dr Williams' opinion that Liam suffered an Erb's Palsy? 1. In his report Dr Williams advanced additional reasons for his opinion that Liam suffered an Erb's Palsy. These were: * That at Liam's six week check his paediatrician Dr Ginsberg found Liam had 'a less functional right arm'. This statement is simply incorrect. As noted Dr Ginsberg's examination found no difference in Liam's use of his arms. * That Liam was referred to a physiotherapist because of limited movement of the right arm. This too is incorrect. The physiotherapist's clinic notes confirm the referral was to treat Liam's mild plagiocephaly and tendency to tilt his head to the left and hold his right shoulder in an elevated position. * That in September neurologist Dr Sachin Gupta found Liam was 'still preferring to use his left hand'. This also is incorrect. Nowhere in his report did Dr Gupta make this finding. On the contrary he reported that Liam 'used both his hands equally'. * That videos of Liam show a discrepancy in muscle control and tone of the right arm compared to the left. This refers to three videos shown in court which were taken by the mother. Although they depict Liam rolling awkwardly on his right arm they do not provide cogent evidence that he suffered an underlying disorder which made his right arm weaker. All three videos post-date the likely time at which he had sustained his fracture of the right ulna. The second and third videos post-date the fracture to his right humerus as well. It is reasonable to assume these injuries could account for the awkwardness of his right arm movements. Further, in the second and third videos it can plainly be seen that Liam's right arm was impeded by external objects: in early August by the back of the lounge on which he was lying, and again in early August by a plastic bag in which his right arm had got stuck. * That neurologist Dr Gupta found Liam had Erb's Palsy. This is incorrect. Dr Gupta saw Liam in hospital in June but was unable to make a proper examination because Liam's right arm was in a plaster cast. Dr Gupta raised Erb's Palsy as a possibility when he was told by the parents they had always been concerned that his right arm was weaker. I have explained the reasons why I do not find their account of Liam's medical history to be reliable. When Dr Gupta reviewed Liam later in September he repeated it was 'possible' Liam had Erb's Palsy which had resolved with time. Again it is apparent this comment was based on the parents' report to him that Liam 'historically has had reduced movements in his right arm …since birth'. Dr Gupta's hypothesis was also based on his viewing of an unspecified video in which it appeared to Dr Gupta that Liam's right arm 'was in porter's tip deformity, seen in infants with brachial plexus injury'. It is reasonable to assume the video is one of the three shown at the hearing. I have explained above my reasons for finding the videos lack cogency. Overall I accord little weight to Dr Gupta's hypothesis of Erb's Palsy given it was based on an inaccurate history provided by the parents, and on a video which is of little relevance to the issues. * That Liam's DXA scans showed evidence of osteopenia. This proposition is not supported by the evidence, for reasons which are set out later in this judgment. * That Liams's follow-up x-ray of his right arm in early September showed improved levels of mineralisation. It is unclear why this would lead to the conclusion that his previous levels were abnormal. 1. I note the presence of an Erb's Palsy was considered unlikely by Dr Marks. Dr Edwards' opinion also was that the medical evidence for such a conclusion was lacking. According to submissions made on behalf of the Independent Legal Representative, Professor Munns 'notably did not discount' this possibility. On the basis of his responses however it would be more accurate to say he declined to comment on it, due to the fact he had never been referred a child with an arm fracture who was suffering such a condition. 2. The conclusion I reach is there is no reliable evidence to support the proposition that Liam suffered an Erb's Palsy which caused the bones of his right arm to be weaker and more susceptible to fracture. Issue 4(2): Do Liam's x-ray and DXA results support a diagnosis of bone fragility? 1. In further support of their position that Liam likely had an underlying condition of bone fragility which made him susceptible to accidental fracture, the parents relied upon the report and evidence of Dr Julie Mack. 2. Dr Mack's qualifications and experience have been summarised above. Dr Mack annexed to her report three research papers on measuring bone density in infants. One of these, titled 'Bone Density in Infants and Young Children: The 2013 ISCD Pediatric Official Positions' was discussed in evidence by Dr Mack and other medical experts in the hearing, and I shall refer to it as the Kalkwarf study. (Journal of Clinical Densitometry: Assessment and Management of Musculoskeletal Health, vol. 17, 243-257, 2014.) 3. Dr Mack was asked to examine the x-ray images of Liam's right arm taken 4 June, and those of his left arm obtained from the skeletal survey undertaken six days later. Dr Mack concluded these x-rays showed evidence of abnormal bone mineralisation, noting the image of Liam's right humerus appeared 'more lucent and less well mineralised' than his left humerus. 4. Dr Mack also examined Liam's results from a bone densitometry examination which the parents obtained for Liam on 21 July. This type of testing, known as 'dual-energy x-ray absorptiometry' or DXA, provides scores for a patient's bone mineral density and bone mineral content. Dr Mack examined Liam's scores for his lumbar spine measurements and concluded they too provided evidence of abnormal bone mineralisation, showing 'decreased bone density compared to age-matched controls'. 5. For these reasons Dr Mack found the evidence strongly supported a diagnosis of bone fragility. When she gave evidence via telephone at the hearing Dr Mack adhered to her position that Liam's DXA results and x-rays provided strong evidence of reduced bone density. 6. However this proposition was strongly challenged by Professor Craig Munns. In his opinion Dr Mack's conclusion could not be supported. His reasons were as follows. 7. Regarding the two x-rays, Professor Munns agreed the image of Liam's right humerus 'showed some lucency' compared with the image of his left one. However, he attributed this to the likelihood the x-ray had been over-exposed, commenting that everything in the image and not merely the bone appeared 'washed out'. This he said, gave a false impression that the bone was of reduced density. He stated further that subsequent x-rays of Liam's right humerus had the correct exposure. In his view therefore the image of 4 June could not provide evidence of reduced bone density. 8. Regarding Liam's DXA results, Professor Munns maintained these were not capable of interpretation. This was for two reasons. 9. First, Professor Munns queried the reliability of the data obtained from Liam's DXA testing, stating the bone density machine used had not been verified for use in infants. Professor Munns explained that inconsistent results were common in this area because each bone density machine has its own method of acquiring data. This caused different results to be obtained for the same subject. No infant reference data had been published based on results obtained from the type of machine used for Liam's testing. 10. Professor Munns' position on this point is consistent with that expressed by the authors of the Kalkwarf study. They noted that 'BMC and a BMD values differ between DXA manufacturers and from different software versions within a given manufacture', underscoring the importance of 'using reference data generated with the same DXA platform and software version' [at 248]. 11. Secondly, Professor Munns challenged Dr Mack's assertion that there exist appropriate reference data with which to compare Liam's DXA results. 12. The question whether appropriate data exist with which to compare DXA results for an infant of Liam's age was a matter of controversy in the hearing. The published Kalkwarf study cited an official position promulgated by the International Society for Clinical Densitometry. This was that reference data for children 0-5 years at multiple skeletal sites of the body were insufficient to enable interpretation of DXA measurements. Lumbar spine measurements for such children were feasible (p245); however the authors cautioned that: 'There are significant differences among published values for BMC and aBMD in healthy pediatric samples, in part due to differences in the machines and software used, as well as reported skeletal sites.' [at 253]. 1. In her report Dr Mack compared Liam's lumbar spine DXA measurements with scores found in two published studies for children of a similar age, those of Kalkwarf and of Xu. ['Bone Mineral Density of the Spine in 11,898 Chinese Infants and Young Children: A Cross-Sectional Study']. Dr Mack found Liam's lumbar spine values fell well below the means derived from each of those studies. 2. However, Professor Munns rejected Dr Mack's assertion that the Kalkwark and DXA studies were able to provide appropriate reference standards. He commented that Liam's total BMD score for his lumbar spine had been derived from measurements for regions of the spine that did not correspond with the skeletal sites used to derive the values in the Kalkwarf and Xu studies. As noted above, the Kalkwarf authors also highlighted this as a feature adversely impacting the reliability of such data. 3. For these combined reasons Professor Munns maintained that Liam's DXA data could not provide evidence of abnormal bone mineralisation. He said it was for this reason he had chosen not to conduct bone densitometry testing in Liam's case. A further factor in the decision he said, was that unlike adults and older children there was for infants a complete absence of data that correlated any given bone density score with risk of fracture. 4. This too appears to be the position taken by Dr Edwards, who agreed in her evidence that DXA was not a reliable method of measuring bone density in infants due to the absence of normative data. 5. In light of the evidence as a whole I do not accept Dr Mack's opinion that there are sufficient normative data to enable interpretation of Liam's DXA results. Professor Munns gave cogent and detailed reasons for his dissenting opinion, and from a position of at least equivalent expertise and experience in the interpretation of bone images. Further his opinions on critical points were supported by those expressed in the Kalkwarf study. 6. Counsel for the parents submitted the Court could not properly prefer the evidence of Professor Munns to that of Dr Mack. This was because Dr Mack was not afforded the chance to respond to Professor Munns' oral evidence challenging her conclusions about Liam's x-rays and DXA results. 7. However, part of the reason for this was that Dr Mack's report was only made available to the parties following the fifth day of the hearing. If it had been provided in a more timely manner there would have been an opportunity for Professor Munns' dissenting view and reasons to be communicated before the hearing commenced. This would have enabled Dr Mack to respond in the course of her oral evidence. 8. Furthermore no request was made to recall Dr Mack following Professor Munns' oral evidence. Regarding this omission the submission was made on behalf of the parents that only the Secretary could have made such a request because 'no other party was aware of what specific findings the Secretary would seek until receipt of the Secretary's written submissions'. That submission too is rejected. After hearing Professor Munns' oral evidence, counsel for the parents could not have been in any doubt that the Secretary would be asking the Court to prefer his evidence to that of Dr Mack. 9. The conclusion I reach is that no weight can be assigned to the DXA results as evidence that Liam had reduced bone density. Issue 4(3): Was there other evidence of bone fragility? 1. The parents asserted there was other evidence that Liam had reduced bone strength, making him susceptible to spontaneous or low impact fracture. This included a hospital x-ray report noting that part of his right humerus appeared abnormal, and suggesting the existence of mild osteopenia in his right hand. 2. During the CPU assessment Professor Munns had observed that on x-ray the right side of Liam's humeral cortex looked abnormal, appearing to be 'slightly thin'. The humeral cortex refers to the middle part of the humerus bone, an area above Liam's fracture. 3. Professor Munns' oral evidence about the thinner appearance of this part of Liam's humerus may be summarised as follows: * The likely cause of the thinness could not be determined. However Liam's fractured right ulna and subsequent reduced use of that arm provided a plausible explanation for it. * It was not possible to determine how long the thinning had been present, and whether it might have preceded Liam's right ulna injury. However Professor Munns noted that reports of Liam's lesser use of the right arm coincided with the likely timeframe of the fracture to his right ulna. * The thinner cortex could have made Liam's humerus weaker and easier to fracture. However, it was unlikely that any reduced bone strength could have enabled it to fracture as a result of normal handling. This was because spontaneous or low impact fracture would require a significant reduction in bone strength, which could only have occurred with significant reduction in arm use. This was contradicted by evidence that Liam was still using his right arm, albeit less frequently. In other words, the degree of disuse was not significant enough to impact on bone strength to the degree necessary to enable spontaneous fracture. 1. Professor Munns concluded therefore that the abnormal appearance of Liam's right humerus did not indicate reduced bone strength to the degree necessary for it to have sustained a spontaneous or low force fracture. 2. Professor Munns' opinion about the suggestion of mild osteopenia in Liam's right hand was likewise that it was not sufficiently severe to enable him to have sustained spontaneous or low impact fractures. 3. In her report Dr Jane Edwards raised the possibility that Liam suffered Osteogeneisis Imperfecta, a rare disorder which she described as a group of conditions with symptoms which can include osteopenia and unexplained fractures. Given that the mother suffers both scoliosis and osteopenia, Dr Edwards thought consideration should have been given to testing Liam for this condition. 4. However Professor Munns found no specific clinical or radiological features to indicate the presence of Osteogeneisis Imperfecta. This also appears to have been the preliminary opinion of Dr Mary-Louise Freckmann, a clinical geneticist whom the parents met for an initial consultation in August. For reasons which were unclear the parents decided not to pursue this line of medical inquiry. 5. I conclude on the basis of all the above that there is no reliable evidence that Liam suffered bone fragility which may have caused him to have spontaneous or low impact fractures. 6. I should note that this finding is strongly supported by the evidence of Professor Munns. Professor Munns acknowledged he did not know what had caused Liam's fractures, nor could he say they were deliberately caused. However he did not waver in his opinion that the fractures he observed were not caused by spontaneous or low impact events. They were the result of forces applied to the bone greater than those that would be used in normal handling of an infant. Professor Munns based this opinion on his extensive clinical experience, stating in his evidence: 'Having seen a large number of children with various severities of bone disease, and looking at Liam's x-rays, I don't believe that they are of a severity that would cause spontaneous or low trauma fracture ….[T]here had to be force applied to the bone outside of what would be normal handling'. 7. I found Professor Munns' evidence to be both reliable and credible. His expertise and experience in the area of paediatric bone health could not be challenged and it invested his evidence with a high degree of reliability. It was apparent that he brought an independent mind to the issues, evidenced by the fact that he did not concur with all findings of the CPU report, some quite significant. For example he declined to adopt the report's conclusion that Liam's left ulna and radius had been fractured. Furthermore his demeanour when giving evidence persuaded me that he brought a high degree of seriousness to the 'really important question', as he put it, of deciding whether Liam had any underlying bone disorders which could have caused his bones to fracture from spontaneous or low impact events. Professor Munns' conclusion was that Liam's injuries could not be accounted for in this manner. For the above reasons, I ascribe very substantial weight to his opinion on this question. Position of the Independent Legal Representative 1. I note the position of counsel for the Independent Legal Representative that the Secretary has not proved on the balance of probabilities that Liam's right arm fractures were inflicted injuries. Counsel submitted there was not sufficient evidence to reject the parents' explanation for the right humeral fracture, or to reject the possibility that Liam had reduced bone density making him susceptible to spontaneous or low impact fracture. Counsel based this submission on the following. 2. First, that in her report and evidence Dr Marks did not adequately explain possible discrepancies between the interpretations different radiologists gave to Liam's two x-rays in early June. However, if there was a difference of opinion among the paediatric radiologists about this, Dr Marks was clear in her evidence that her notes accurately recorded a consensus position on their part. That is, that notwithstanding the presence of lucency and the possibility the right arm was weaker than the left, some degree of force was still required to have fractured Liam's bones and this could not have occurred spontaneously. This position is also consistent with the evidence of Professor Munns. 3. Secondly, counsel for the Independent Legal Representative commented that Dr Marks and Professor Munns could not quantify the degree of force required to fracture Liam's right humerus and ulna. I infer the submission is that as a result, it was not open for them to exclude the possibility these fractures occurred spontaneously or as a result of a low impact incident. 4. It is the case that all experts agreed the degree of force required to fracture an infant's humerus and ulna is unknown. Similarly most, including Professor Munns, were reluctant to use the term employed by Dr Marks, being 'significant force' as it lacked specificity. Professor Munns preferred the phrase 'anything excessive to normal handling'. 5. However, it is not clear why counsel for the Independent Legal Representative considered that the unquantifiable nature of the degree of force precludes the Court from a finding that Liam's injuries were non-accidental. Notwithstanding the unquantifiable nature of the amount of force required, Professor Munns repeatedly asserted that normal handling of Liam was unlikely to have caused his right arm fractures. This was the case even in circumstances where he thought it possible Liam's right humerus was slightly thinner and hence potentially weaker than his left. The inability of Professor Munns and Dr Marks to quantify the precise degree of force necessary did not preclude them from finding, on the basis of their expertise, that Liam's injuries would not have occurred had he been handled with the degree of care expected in relation to an infant. 6. Lastly counsel for the Independent Legal Representative noted the inability of any of the specialists including Dr Marks to provide a hypothesis for the mechanism of injury to Liam's right arm fractures. It is not clear why counsel considered this significant. I do not understand there to be an onus of proof on the Secretary to satisfy the Court of a particular mechanism for Liam's fractures. The relevant question is whether the Court is able to be satisfied that notwithstanding uncertainty as to the mechanism, Liam's injuries could not have been sustained with normal handling by his parents. 7. It is of course true that the opinion of medical experts in this case must be weighed in the context of all the evidence. I have referred above to the absence of family risk factors that are commonly seen in cases of child abuse. There is no evidence that the mother or father neglected his care. Neither parent has criminal antecedents, drug or alcohol addictions, mental health issues, or a history of family violence. Nothing in the evidence suggests either parent had a propensity to harm Liam. 8. Notwithstanding the absence of evidence indicating Liam's parents had a propensity to harm him, there is sound and compelling medical evidence that he suffered injuries and that the most probable explanation for those injuries was the non-accidental application of force to the relevant areas. 9. A threshold case for intervention of the Court is established. The Secretary has satisfied the Court that Liam was in need of care and protection when he was assumed into the care of the Minister. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2017