What do I do now?
This is a guest post from suesspicious minds, a family lawyer and blogger, whose post What should you do if social workers steal your children? was one of the inspirations behind our site.
You may also like to check out his other post – social services are asking to put my child into care and they want me to do it now.
You may also want to look at this blog Parents’ Accused by a family lawyer offering advice to parents involved in cases of non-accidental injury or NAI.
It isn’t ultimately up to social workers to decide whether someone hurt your child, and if so who. Nor is it ultimately up to them whether that means that your child can’t live with you.
These things can only be decided by a Court. And if you are a parent and you have to go to Court because social workers think you (or someone you know) hurt your child, then you are entitled to FREE LEGAL ADVICE.
You will be able to get a lawyer who will listen to you, explain what is happening, give you advice about what is the best thing to do, ask questions on your behalf and speak up on your behalf.
Read the post by Lucy Reed, a family law barrister, who explains her role.
If you are asked to make a quick decision about your child going into foster care voluntarily, you need to know that you cannot be made to agree to this and that you can say that you want to get legal advice before you agree anything.
Read our post about section 20 agreements.
Social workers don’t have power to take your child away without your permission – they would need to either go to Court to get an order (and you would be entitled to be there and to have your own lawyer) or a police officer can remove the child for 72 hours, at the end of which time either your child would have to come back or a Court hearing would need to happen.
The court can only make a care order and give permission for your child to be removed from your care if it is found that your child has suffered significant harm from the injury.
What is going to happen?
There may need to be a court hearing
Sometimes, the worry about the injury resolves itself in a few days. If there is a good reason why your child got hurt – an accident, or an illness that looks like an injury, then this may come out in a few days. It is important to tell the doctors who are dealing with the case anything that might help them to reach that conclusion.
If it doesn’t resolve itself in a few days and social workers are still suspicious about the injury, then it may be that the case goes to Court.
If that happens, eventually, there will be a Court hearing about the injury, to find out what happened and if something bad happened to your child, who may have caused it.
That sort of hearing can often take place quite a long time after the injury, so it is a good idea really early on to do the following things:
As soon as you can, make a list of what you can remember
Because the Court hearing about the injury can be months after it happened, your memory can fade.
It is important, while things are fresh in your mind, to get them down on paper, so you will be able to remember them later.
One of the important things will be to look at the period of time the doctors think the injury happened in. This will be in the medical report and your lawyer can help explain it to you if you can’t follow it.
For example, the report might say that the injury happened somewhere between 14 days and 2 days before the child was taken to hospital. That gives you the ‘window’ when the injury must have happened.
Some important questions
Who was caring for the child?
As far as you can, try to remember on each of those days, who was caring for your child? Did grandma help out? Were you there with your partner on some days? Who was caring for the child on their own?
Was the child in playgroup, or nursery, or with a childminder or a friend? For any of the time?
It will be worth talking to anyone who was caring for the child in that period. You don’t have to accuse them or point a finger, just ask if there was any sort of accident, or fall or bang or bump, or if there’s anything they remember that might be important.
It is very easy, when police and social workers and court are mentioned, for people to clam up and think “I don’t want to say anything about that fall” and the longer it goes, the harder that can be to say so later. Honestly, if there was an accident, even if the person felt they’d been a bit clumsy and feel guilty, it really is better that the doctors know this really early on. It might be the explanation they are looking for.
Can you remember any symptoms? Here are things that might be important, and might help in dating the injury.
- Did you see bruises? On what days? What colours were there?
- Was your child particularly grizzly or crying a lot?
- Did you notice an arm or leg being floppy? Did you notice that it was harder than usual to change the baby’s clothes or nappy, or that when you touched the arm or leg it made the baby cry?
- Did you notice a bump or swelling on your child’s head? If it was a skull fracture, this is often described as a ‘boggy swelling’ – if there was a day when you noticed anything like that, it could be important.
- Were there fits? Was there vomiting?
- Do you remember hearing any distinctive or unusual cries?
All of this information will be important, so whatever you can remember will help. If you think “I remember the arm being floppy one day, but I honestly can’t remember if it was the Tuesday or the Wednesday” it is fine to say that, much better to admit where you aren’t sure than to guess and guess it wrong.
Remember, and write down as much as possible that you remember, about when you first noticed that something wasn’t quite right with your child? What was it that made you think that you should go to a doctor or to the hospital? Did you wait a while to see if it got better on its own? Did you talk to anyone at the time about what you saw, did you ask for advice? Try to remember each step between you first noticing something wasn’t right, and ending up at the doctors or hospital with your child. This may become really important later on.
Any accidents you can think of?
Even things that seem very trivial or little to you might end up being important. Children are all different, and a slip down a few steps might make no difference to one child but cause an injury to another.
I once had a case where the mother had crashed her car into a bollard, but never mentioned it because she was worried her boyfriend would be cross that she had dented the car, and it came out months later. It could have saved her a lot of worry and stress if she had told the doctors at the time.
There are certain medical conditions that can cause what appear to be injuries to children, or can make injuries happen more easily. These are fairly rare, but some people do have them, and it is important to check out with your doctor and with your family whether there is a history of these in your family.
Very important ones to think about
- If the baby is very young, was the birth very difficult? Sometimes traumatic births can cause injuries.
- Is there any history of rickets, or vitamin D deficiency?
- Is there any history with you, or the other parent, or in their family of any clotting disorder, bruising disorder or any bone disorder? If they have a diagnosis for a condition but aren’t sure whether it covers any of those, get them to write down the name of it and let your lawyer know the list.
What will happen at the Court hearing?
There will probably be quite a few Court hearings before the big hearing to decide about the injuries. You should ask your lawyer about what might happen at each hearing and ask them afterwards if there is anything you need to do as a result.
Read our post about Going to Court?
At the big hearing, the Court will have all of the evidence about the injury. That will be medical reports, maybe GP records, maybe statements that the police obtained. Everyone with anything important to say will give evidence (that will be people who saw things or who were around at the time – it is unusual for the Court to want to hear what is called “character witnesses” – people who say that you are a good mother or father)
Your lawyer will get the chance to ask these witnesses questions.
It is likely that you will also have to give evidence. You will be asked questions about what happened, what you remember, what you saw and did. That is where having made the notes at the time will help you to remember things, rather than having to remember months back.
It is very important, obviously, that you tell the truth and answer all of the questions honestly.
How will the court deal with the evidence?
The court will need to look carefully at ALL the evidence, and consider each piece of evidence in the context of all the other evidence. See paragraph 22 onwards in Bristol City Council v A Mother and others in 2014, for further consideration of these general principles. This case was considered as very helpful in the later case of A Local Authority v ID and others  EWHC 3075 (Fam)
- The burden of proof is with the LA – that means you don’t have to prove you did not hurt your chid, they have to prove you did.
- The standard of proof is the balance of probabilities – i.e. is it more likely than not something happened.
- Findings of fact must be based on evidence and the court must be careful to avoid speculation.
- Experts must keep to their own expertise and defer to the expertise of others where necessary
- Expert evidence is important but it has to be weighed against all the other evidence, including the evidence from parents.
- Medical evidence is always evolving so the court always bears in mind that the cause of any injury could be simply unknown.
- For an example of a case where the court concluded there was not enough evidence to find that the parents deliberately hurt their children see, Devon County Council v EB or O (Minors) 
- Another example of a case where the court concluded that the LA could not make out their case of NAI due to evidence about the child’s bone density.
- Systematic review of bruising in children – last updated February 2016
What happens after the hearing?
At the end of the case, the Judge will decide what happened – was there an accident, is there a medical explanation for the injuries, did someone hurt your child? If so, who? Did you do anything wrong?
The judge will try very hard to make findings because it is in everyone’s interests, especially the child’s, to understand what happened and why. Sometimes it is just not possible for a judge to make any findings, because he or she can’t be satisfied on the balance of probabilities that something happened.
It will be very important to sit down with your lawyer and talk about what was decided by the Judge and what happens next. Sometimes a Court decides that one person hurt a child, and the other one didn’t know about it. That can sometimes end up with you having to make a very tough decision about whether to stay with that person and get them the help to make sure they don’t do it again, or whether you would leave them and care for the child on your own.
Don’t rush into any decisions like that – make sure you talk to your lawyer about what is best for you, and what the consequences might be.
And remember – even if the judge makes a finding that YOU injured your child, this does not automatically mean you will lose your child. Once the court has decided who is responsible for causing injuries, it then has to go onto the ‘welfare stage’ of the proceedings and decide what would be the best thing to do for the child. A lot will depend on the circumstances surrounding the child’s injury and how you react to the court’s findings.
For example, there is a big difference between a parent who is exhausted with lack of sleep looking after a newborn and who shakes the baby causing harm in a one off example of loss of self control, and a parent who deliberately choses to hurt a child over a long period of time and lies about it.
Even if you cannot agree with the Judge’s findings, this doesn’t mean that your child will automatically be taken away. However, it will make it more difficult for you to argue that your child would be safe in your care. The following factors will be positive, even if you don’t or can’t accept the judge’s particular findings:
- acknowledgment that professionals have legitimate concerns
- willing to work in partnership and be open and honest
- willing to examine the way you care for a child
- willing to accept professional support and monitoring
- you have a wide support network in the community