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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> C (permission to withdraw; medical evidence; interim threshold not crossed), Re [2018] EWFC B37 (09 July 2018) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2018/B37.html Cite as: [2018] EWFC B37

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IN THE FAMILY COURT SITTING AT OXFORD
AND IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A (a girl)

		9th July 2018

Introduction and background

1. I am concerned with A, who was born on 5^th February 2018. She is the daughter of B and C, both 19 years old.
2. The parents met at college when they were both studying for A levels. The father's relationship with his family became strained and he was asked to leave by his mother. He and the mother then lived with her family. The maternal grandmother and her husband, and five of the mother's siblings also lived in that household.
3. A's birth was by ventouse and then by forceps. She had some marks on her head as a result but these disappeared quickly.
4. The mother joined in groups such as the teenage parenting group (TAP). All professionals who have observed her with A have been extremely positive about the care that she has given to her daughter, for example, the community midwife MB comments that, 'her baby was always clean, well dressed and B displayed appropriate and natural affection towards her baby. There was clear emotional warmth and I felt that B had transitioned into parenthood very well.'
5. The first visit by the health visitor after A was born was on 15^th February 2018. The mother pointed out 'purple spots' to the health visitor, who felt that they were 'a superficial blood vessel on A's forehead.'
6. On 10^th April 2018 the health visitor visited and 'noticed a small, roughly pea sized faint /purple yellow mark on A's left cheek'. An appointment was made to see a general practitioner that day; Dr G, who considered the mark to be a superficial blood vessel. Dr G suggested A come back for review in a week's time.
7. On 11^th April 2018 the mother told the health visitor that there was another mark on A's face. She took three photos on her phone during that day. The health visitor came round on 12^th April 2018 and noted a further purplish/yellow mark on A's right cheek, and a very small mark on the underside of the chin.
8. On 17^th April 2018, A was seen by a different general practitioner, Dr H. A did not have any bruises at all on examination, but Dr H looked at the photographs and felt they showed 'quite clear and different bruises'. Given that A had 'at least five separate bruises starting two weeks post-natally' she felt a referral to a paediatric radiologist was warranted. In her letter of referral, she notes that A is 'feeding and growing well and developmentally has beautiful interactions and social smile.' While she noted that there could be up to ten people in the household at a time including toddlers, Dr H said that 'A's mother was always in attendance when they are playing with her and there is nothing in the history to suggest that these are traumatic bruises.'
9. On 20^th April 2018 A was seen at hospital. Again, there were no bruises or marks to be seen on examination, but the consultant paediatrician who saw the photographs, Dr J, concluded that, 'the marks shown on the pictures taken by the mother are consistent with bruises.' A remained in hospital overnight and was discharged to the care of her parents the following day.
10. A was seen at the hospital again on 23^rd April 2018. By this stage concerns had been raised by Dr J that the marks seen on the photographs represented bruising, and bruising to a non-mobile baby were indicative, it was thought, of non-accidental injury to this child.
11. The LA made an application for an emergency protection order on 24^th April 2018. At a hearing before me the following day the application was not opposed by the parents and was supported by the guardian. The mother and A were placed in a mother and baby placement.
12. Proceedings were issued on 30^th April 2018 and I heard the application for an interim care order on 2^nd May 2018. By this time a viability assessment of the mother's grandmother, a local authority foster carer, had taken place, and I made an interim care order, neither consented to nor opposed by the parents, and again supported by A's guardian, on the basis of a plan that the mother and A moved to live with the mother's grandmother and be supervised by her. I found interim threshold to be crossed at that time, largely because of the report of A's treating consultant paediatrician, Dr J, and the evidence that the clinical safeguarding team at the hospital identified a risk of non-accidental injury.
13. There was a further brief hearing before me on 4^th May 2018 as an issue had arisen between the local authority social worker and the maternal great grandmother, but I declined to approve a change in the current interim care plan. A's father moved to join the family within a short time thereafter.
14. After the interim care order was made, on 3^rd May 2018, 9^th May 2018 and 29^th May 2018, A's mother, accompanied by her grandmother, took A to the hospital with marks on her face. On each occasion, the clinicians who examined her concluded that the marks seen represented blood vessels visible through the skin and there was no cause for concern. All of these marks disappeared within a short time.
15. On 24^th May 2018 the parties attended Court for a case management hearing. By this stage, and particularly in the light of the further trips to hospital, and all observations of the parents' interactions with their daughter to be universally positive, it was clear that the court needed to make a determination as to whether or not the interim threshold for making orders was crossed, and if so, whether an interim order was required.
16. Unfortunately, the packed Court lists meant that it was very difficult for me to list the hearing before me (or any judge) any sooner than 20^th June 2018, and in any event, it was planned that the clinicians in the case hold a meeting, and it was doubted that such a meeting could be convened very quickly. In the event it did not take place until 18^th June 2018.
17. On 20^th June 2018 I heard evidence from Dr G, and from Dr J.
18. Following Dr J's evidence the local authority took some time to reflect, and then sought the Court's permission to discharge the interim care order, and to withdraw its application for care or supervision orders in respect of A.
19. The local authority rightly anticipated that on the basis of the evidence I had heard, I would not have made findings on a balance of probabilities that the marks seen on the mobile phone photographs of A were bruises, and therefore that I could not be satisfied there were reasonable grounds for believing that A had suffered significant harm in her parents' care.
20. Although happily the proceedings have ended by agreement, the parties have all invited me to write this short judgment. I would like to make it clear that in doing so, it is not my intention to provide any form of general guidance to A's treating clinicians nor to social workers or legal representatives. I am satisfied that at all times, all individuals in this case have had only A's best interests at heart, have exercised their professional judgment to the best of their abilities, and have sought only for the issues to be canvassed before the Court in a fair way.
21. The purpose for this judgment is firstly, to explain the reasons that I have given permission to the local authority to withdraw its applications to the Court, and secondly, because the parties' legal representatives have together prepared a schedule of 'lessons to be learned' arising out of the circumstances of this particular case, that they would wish to be shared with A's treating clinicians. This is not to direct or instruct clinicians in how to manage such cases in the future, but by inviting the Court to share this judgment with them, to enable dialogue by which the treating clinicians may be informed about potential areas for improvement that have been identified.
22. I am grateful to all counsel and their instructing solicitors for their assistance in this sensitive and difficult case, and for their efforts in compiling an agreed note of the evidence and their schedule of points to be raised within a very short period of time.

Medical Evidence

23. In issuing the proceedings and preparing for this hearing the local authority had obtained medical evidence from the following treating medical practitioners working in the community and at the hospital, listed here in order of involvement in the case:

(i) JB (Health Visitor). I did not hear oral evidence form her, but noted that she carefully documented the marks she saw on A's face on 10^th and 12^th April 2018. At the meeting of professionals on 18^th June 2018 she said the images she was invited to look at, namely the photographs seen by Dr J showed, in her view, marks which were more pronounced than those she had seen and recorded;

(ii) Dr G (GP). She examined A on 10^th April. In her oral evidence she was clear that she had not identified any mark that could be identified as a bruise, more an area of faint discolouration, but not in a form that could be measured. She advised the mother to take photos of any further marks and made an appointment for a review a week later by A's regular GP. She noted she had seen neonatal acne on the cheeks and a telangiectasia; a small blood vessel close to the skin. In Court, when she was shown photographs which the mother had taken on 11^th April 2018 – the day after she had seen her – she said the images gave the impression of marks which were more significant than those seen by her during her naked eye examination. She was clear that these marks were positioned in the same place on A's face as those she had seen when she had conducted her examination the day before.

(iii) Dr H (GP). She was the doctor who saw A on 17^th April 2018 and made the referral to the hospital to the paediatric team. A did not have any markings on her face at that time. Dr H looked at the 11^th April images. Although she identified the marks on the photographs as bruises, her letter of referral does not appear to be raising concerns about possible non-accidental injury.

(iv) Dr J. Although he did not see bruising to A when he examined her on 20^th April 2018 the mother showed him the photographs she had taken on 11^th April 2018. From those photographs, produced on the mother's iPhone he felt able to make a diagnosis that the marks seen to A's face in the photographs were bruising – in his letter he one bruise to the left cheek and one to the right, each the size of a 10 pence piece.

Dr J gave evidence to the court by video link and acknowledged the following during the course of his evidence:-

at all times A appeared well cared for by her parents who were attentive to her needs;

he had not seen any marks on examination;

he was not aware of the date on which the photographs he viewed had been taken, nor the circumstances in which they had been taken;

in order to view them on the hospital photo web and place them onto the child's electronic medical records, the images had been transferred to another mobile iPhone by Whatsapp, and thereafter emailed onto the hospital internet system;

the quality of the image may well have been affected by its transfer and reproduction;

it is usual for the purposes of clinical photography at the hospital to use a specialised camera, in good light;

his description of the mark as the size of a 10p piece was only an estimate from looking at the iPhone image and not reliable. He had not taken any measurements himself and there was no scale ruler on the photograph he saw;

by only being able to view the photographic image he had not been able to perform physical tests of the affected area, in particular as to touch and measurement.

24. During his evidence the paediatrician was shown notes made by the health visitor who had seen A on the day before and the day after the photographs were taken and had made a contemporaneous note of what she had seen. The paediatrician acknowledged that her description differed from his and, having the advantage of the naked eye examination, was likely to be a better description. He also acknowledged that Dr G had seen A on 10^th April and had not diagnosed any marks as bruises.
25. However, Dr J maintained his view that in his professional judgement, the marks as seen by him on the photographs represented bruising to A's cheeks.
26. I had the benefit of two sets of printed copies of photographs, which were markedly different in quality and appearance. One set was rather murky and there was not much contrast in skin tone, the other was much brighter, with much greater contrast, and in some of these photographs small areas on the cheek appeared red and in the shape of a more distinctive mark, enhanced by being next to a patch of skin reflecting the light.
27. Photographs taken on 3^rd May show a slight discolouration on A's cheek that is recorded by one nurse as being like rosacea. Dr J said in evidence that rosacea is not a relevant diagnosis for a child of this age, but I can see why the nurse might have used that word to describe the appearance of a patch of heightened colour. The clinicians who saw A and examined her on 3^rd May did not regard this mark as bruising. There is to my mind a striking similarity between the 3^rd May photograph and one of the printed copies of the 11^th April phone photos (albeit the one with less colour contrast).
28. In her letter of referral, Dr H identified bruises, but I cannot tell from the letter which marks she had identified as bruises. She refers to previous marks seen as being bruises, but none of the health professionals who had seen A before that time had suggested that was the case. So her letter does not add any weight to the case for a finding of bruising.
29. So the case for bruising is based on Dr J's evidence. He is of course entitled to maintain his professional view that the marks on the images he saw look like bruises. However, the substantial weight of the evidence would suggest otherwise. In particular:

a) The printed images are of inconsistent quality and each one shows a very different picture;

b) No clinician who has ever examined A in person has identified a bruise, the only means of diagnosis has been the iPhone photographs;

c) there does not appear to have been a consistent means of retaining the image, so doctors did not have a single set of images to look at. At the meeting of treating clinicians there was a huge muddle over photographs, some had been emailed or scanned but some were provided as printed copies. From the notes of the discussion it is not clear that they were all talking about the same image;

d) Those same problems persisted at the Court hearing. It took a long time to work out. An electronic version of the images was not available;

e) Similarly, it did not appear that a single body of medical notes was available to clinicians at the meeting and this meant that there was some confusion between them over who had seen what;

f) In particular it did not appear that the crucial conclusions of the health visitor and the general practitioner around 10^th and 12^th April were followed through or else it would seem that the use of the word bruise found its way into the notes when there had been no such diagnosis by them;

g) A's mother has continued to give loving, consistent and careful attention to her daughter's every needs, as has her father. There are no concerns about their parenting abilities at this time;

h) The photographs of the May marks appear to be very similar to those taken in April and knowing that none of these were identified as bruises in circumstances where clinicians were able to carry out a full examination, it cannot be said that the April ones are bruises where the May marks are not.

30. In all the circumstances, and having regard to all the evidence I had seen and heard, I would not have been able to conclude that these marks were bruises, and I could not therefore have found that A had sustained an injury in her parents' care. Interim threshold has not been crossed.
31. Recognising this as the likely outcome of the hearing, the local authority sought the Court's permission not just for the interim care order to be discharged, but to withdraw its application for public law orders.
32. I gave permission to the local authority and made final orders in the case that day.
33. While no doubt this came as a huge relief to the parents, it remains the case that they have had much to endure over the seven weeks of the proceedings. This young mother who lives with anxiety, and has had much to cope with as a new parent, bravely went to live with a complete stranger for a week, her care of her child supervised at all times. She was separated from her whole support network; her partner, her mother and grandmother. The father was not reunited with his partner and their child until nearly three weeks had passed. All the time, they were very worried for A, who continued to have marks appearing on her face. The cause of those marks remains unexplained.
34. It is to their very great credit that despite their understandable fear, anxiety and no doubt frustration at times, they have behaved with courage and dignity throughout. They have co-operated whole-heartedly with the local authority, the medical profession, and the Courts, doing all that has been asked of them at every stage. They have never once let their worries, fears or frustrations interfere with their ability to put their daughter's needs first and foremost, for every minute of these long weeks.
35. In this they have been hugely supported by the generosity and understanding of the maternal grandmother and great-grandmother, who have put their busy lives on hold to ensure that A has been supervised at all times, and to give their full support to this young couple.
36. The local authority and the guardian have in my judgment done what they can to enable a full and thorough investigation of the injuries at the earliest possible stage and have conducted the hearing in a fair and open-minded way, not seeking to advance any particular agenda.

Lessons to be learned in cases of potential non-accidental injury

37. The legal representatives in this case have compiled a list of points they think may be helpful to share with the treating clinicians, and have asked me to endorse it and reproduce it within this judgment.
38. I am happy to do so, but once again make it clear that I fully understand that it is for those doctors and health professionals to come to their own conclusions as to what constitutes best practice, and the points below have arisen in response to the particular circumstances of this case, which may not reflect a general approach. The list agreed by the parties' representatives is as follows:

(i) In this case and no doubt in others an enhanced coordination and sharing of available medical notes would assist all attempting to make a diagnosis;

(ii) There is clearly a risk which needs to be guarded against that there are occasions when comprehensive sharing of medical data relating to a patient is not achieved;

(iii) The hospital treating physicians when provided with photographs of marks taken on a date on or close to a date when the patient was examined by other medical professionals, in this case a health visitor and a GP, ought to have had made available to them the contemporaneous notes of those medical professionals;

(iv) Those relying on the views of treating physicians, in this case social work professionals supported by their legal advisers, need to ensure that the core evidence (in this case notes of GP and HV) have been fully shared and considered by the treating hospital staff;

(v) It is important to be aware that photographic imagery taken at amateur level may misrepresent what is present in fact;

(vi) Other factors which affect the reliability of photographic imagery include the light exposure, and device used;

(vii) When examining photographic images of suspicious marks, knowledge of the date and time & circumstances in which the photographs were taken would assist and ought as far as possible be compared to any contemporaneous account of matters (marks) seen, whether by a medical professional or carer;

(viii) At any meeting of professionals only those whose attendance has been agreed by the parties (if the matter is before the court) may attend;

(ix) At any meeting of professionals only questions which have been agreed in writing in advance (if the matter if before the court) should be put to those attending and all attending need to be provided with the same documentary material.

Joanna Vincent

Her Honour Judge Vincent

9^th July 2018

Family Court, Oxford