Tag Archives: non-accidental injury

Summary of the law to be applied in a finding of fact about suspected injury to a child

Burden and standard of proof

The burden of proof lies with the local authority. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred (Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph 15].  There is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not happen [Re B at paragraph 2]. The standard of proof does not shift according to the seriousness of the allegation, nor the inherent probability or improbability of an event occurring.  See Baroness Hale in Re B (Children)(Fc) [2008] UKHL 35:

The standard of proof is the balance of probabilities (Re B [2008] UKHL 35).

Do not speculate and do not reverse the burden of proof

Findings of fact must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation)[2011] EWCA Civ 12:

“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.”

Findings of fact must not be based on hypothesis. The Court must avoid speculation, particularly in situations where there is a gap in the evidence. As stated by Munby LJ in Re A (Fact finding hearing: Speculation) [2011] EWCA Civ 12 at (26)

It is for the Local Authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing and the court must be careful to ensure that it does not reverse the burden of proof.  

Lancashire v R [2013] EWHC 3064 (Fam), ‘there is no pseudo-burden upon a parent to come up with alternative explanations’ [paragraph 8(vi)].  Having heard all the evidence it is open to the court to conclude that the evidence leaves it unsure whether it is more probable than not that the event occurred and accordingly, that party who has the burden of proving that event has occurred has failed to discharge the burden – The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shiping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948.  The fact that  the local authority relies on the lack of a satisfactory explanation for the injuries does not amount to a reversal of the burden of proof – Re M-B (Children) 2015 EWCA Civ 1027, [2015] All ER (D) 135.

Consider all the evidence

When considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

Reliance on expert evidence

Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.

The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S[2009] EWHC 2115 Fam)

In Re U (Serious Injury: Standard of Proof): Re B [2004] 2 FLR 263 at paragraph 23. Butler-Sloss P –

The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

  • Recurrence is not in itself probative.
  • caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
  • The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.’
  • The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.’

As observed by Hedley J in Re R (Care Proceedings: Causation)[2011] EWHC 1715 Fam:

“There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.”

Evidence of the parents/carers and the impact of lies.

The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).   

As observed by Mostyn J in Lancashire County Council v R [2013] EWHC 3064 (Fam) (citing Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, per Lord Pearce and A County Council v M and F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939 at paras [29] and [30]) ‘The assessment of credibility generally involves wider problems than mere “demeanour” which is mostly concerned with whether the       witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actuallyhappened is unlimited. Therefore, contemporary documents are always of the utmost importance’.

It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720). In Re A-B-C (Children ) [2021] EWCA 451 Macur LJ provided updated guidance on the assessment of credibility.

That a witness’s dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments, and with respect to the Recorder as we see in her judgment at [40], in formulaic terms:

“that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything”. 

But this formulation leaves open the question: how and when is a witness’s lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire ‘Lucas’ direction as given, when necessary, in criminal trials. 

Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:

“1. A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt. 

The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D’s lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …”

56. In Re H-C (Children) [2016] EWCA Civ 136 @ [99], McFarlane LJ, as he then was said: “99 In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the “lie” has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100 … In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion

57. To be clear, and as I indicate above, a ‘Lucas direction’ will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe A or B on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in [40]. Conversely, an established propensity to honesty will not always equate with the witness’s reliability of recall on a particular issue.

58. That a tribunal’s Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis , or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.

Pool of perpetrators

When seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA[2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool. (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161)

The further point, made in Re D (Children) 2009 2FLR 668 above and endorsed by the Supreme Court in Re SB (Children) 2010 1FLR 1161 above that, in circumstances where it is impossible for a judge to find on the balance of probabilities that Parent A rather than Parent B caused the injury and neither can be excluded from the pool, that ‘the judge should not strain to do so’ was expressly rejected by the Court of Appeal in Re A (Children) (Pool of Perpetrators) 2022 EWCA Civ (decided on 17 October 22).

In Re A (Children) (Pool of Perpetrators) above, at pr. 34, King LJ says as follows:

‘I suggest, therefore, that in future cases judges should no longer direct themselves on the necessity of avoiding “straining to identify a perpetrator”. The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.’

In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 the correct approach to the concept of the ‘pool of perpetrators’ was reiterated. Jackson LJ says: 

48. The concept of the pool of perpetrators should therefore, as was said in Lancashire, encroach only to the minimum extent necessary upon the general principles underpinning s.31(2).  Centrally, it does not alter the general rule on the burden of proof.  Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did.  No one can be placed into the pool unless that has been shown.  This is why it is always misleading to refer to ‘exclusion from the pool’: see Re S-B at [43].  Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof. 

49. To guard against that risk, I would suggest that a change of language may be helpful.  The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury.  It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children) [2009] EWCA Civ 472 at [12].  Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list:  “Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?”  Only if there is should A or B or C be placed into the ‘pool’.

Finally, when the court is considering failure to protect there must be a connection between the facts found and the risk alleged in the form of evidence that the parents knew or ought to 

Further reading

W (A Child) (inflicted injury) [2024] – court fell into a number of errors in principle when assessing who was responsible for a child’s fractures.

Leeds City Council v A 2024] EWFC 242 (B) -a useful and comprehensive overview of the legal principles governing findings of fact in cases of injury and sexual abuse of a child

Procedures on Bruises in Pre-Mobile children

Notes from presentation ‘Procedures on Bruises in Pre-Mobile Children – why we need improved standards for policy making’ by Andy Bilson, Emeritus Professor of Social Work, University of Central Lancashire. 

AB requests that all local authorities review their policies and don’t make automatic section 47 referrals. Looking at bruising to a 4 week old baby. 2, 2cm bruises. What can have caused them? 

In this case, parent could offer no explanation. But these bruises were caused by baby suckling on his arm when hungry. Full child protection review, then baby was witnessed suckling his arm. This is not uncommon. 

Automatic investigation of any bruise under section 47, AB says is ‘not technically legal’. 

AB is going to

  • review the evidence base on accidental bruising,
  • review the procedures for pre-mobile children and
  • consider the impact of procedures. 

Impact on parent whose children was removed. Assumption that one bruise was good enough evidence to suggest child at risk of significant harm. ‘All I did was cry. I didn’t sleep’. 

Evidence base in RCPCH review – Pierce 2016. Under 6 months, 1.3% had a bruise (18/1395) – children seen at hospital. only one occasion of observation. Problems with research. Rates of bruising massively different between the 3 hospitals. 

Kemp 2015 – in Wales. Recruited people to report on weekly basis 1-12 weeks if their child had a bruise. Nurses visited to ensure accuracy.5.3% (7/133) had bruise. didn’t find any NA bruises. 

This was as high as 10.9% if baby rolling, 1.3% if not rolling. Longitudinal data. Over 7-8 weeks, 27% of babies had a non accidental bruise. Therefore 1 in 4 babies had a bruise over a period. 

Sugar 1999 – large study ‘children who don’t cruise, rarely bruise’. This has been disseminated widely. Pre-cruisers 2.2% (11/511). 0.6% ‘no upright ambulation’. Excluded abuse. African American children 3 times less likely to be bruised than white children. 

Carpenter 1999 – less than 6 months 4% 4/101. looked at a small number of children but over many occasions. Relies on parents reporting from local community. 

Challenge myths – accidental bruising in babies is NOT rare. Children can crawl from 4 months. ratio of accidental bruises to those leading to child protection plans is at least 1900 to 1. NO studies show bruising is ‘sentinel injury’. 

if ‘sentinel injury’ would expect Welsh study to show a higher number of children going on to be serious harmed. We orient to see bruises in a particular way. Expectation that parents will notice bruises. 

Causes in Welsh study – lying on dummy, children hit themselves in face with something. Toy dropped by sibling. 

Review of procedures – concern is that the wrong kind of policies and procedures will make parents more wary about seeking help. 

Since Dec 2010 AB has examined 147 Safeguarding Children Partnerships policies – 35 didn’t have ANY definition of ‘pre-mobile’. 12 treated rolling children as mobile, 25 did not! 74 included all children under 6 months. Big difference in Kemp study between rolling and not rolling. 

impact of getting this wrong in both directions is a problem – must avoid over and under reaction. 

Tendency to exaggerate – 20 LA procedures say any bruise is ‘highly predictive’ of child abuse. Almost all say that accidental bruises are ‘very rare’ – this is misunderstanding of statistics. 2% is not ‘rare’. 

Many procedures say ‘a small percentage of bruising in children not independently mobile will have innocent explanation or medical cause’ – they are trying not to miss anything but AB doesn’t think this is the right thing to do. 

18 LA ignore research and claim that infants do NOT bruise themselves by lying on dummy or banging themselves with rattles etc. and say that a self inflicted explanation should be rejected. 

Moving straight to section 47 investigation is therefore unlawful, as no reasonable cause. 

Almost all procedures require referral to CSC and a paediatrician. 27 LA required strategy meeting in all cases. That isn’t following national guidelines. 8 LA require immediate section 47 for bruises on any pre-mobile children. 

Bedford Borough – following 3 Serious Case Reviews, automatic section 47 for any child under 6 months who has any kind of physical injury. e.g. bruise, thermal injury, clinical or radiological evidence of fracture. 

Only challenge to section 47 is by judicial review and only one reported case – Judge commented on how significant a process this is 

What happens when a child gets hurt and we don’t know who did it?

In the light of concerns about the Ben Butler case in June 2016, this post by Sarah Phillimore attempts to explain the law that will apply in the family courts when a child has been hurt and there are a number of adults who could have done it – the so called ‘pool of perpetrators’.

If you want to know more about the practicalities of the court process from a parent’s perspective, please see this guest post by Suesspiciousminds  ‘The Social Worker tells me my child has been hurt’. 

There is often confusion expressed about why both criminal AND family cases can run together, based on the same concerns that a child has been hurt. In some cases, the criminal proceedings will stop or not even start and only the family case continues. This is because of the different roles and responsibilities of the criminal and family courts. Criminal courts, in essence, exist to identify criminals and punish them. As punishment can involve a deprivation of liberty by sending someone to prison, the standard of proof is high – ‘beyond reasonable doubt’.

Family cases however are about protecting children so the focus is different and the standard of proof is lower. There are many parents however who argue that it is simply wrong to make findings about children being injured and remove them from their families on the basis of that lower standard of proof. However, it will probably take an Act of Parliament to change this as Judges are now very clearly bound by decisions of the Supreme Court. 

 

The relevant law – general principles about establishing facts

The court should consider the following issues when it needs to make a finding about what happened in any particular case:

  • Articles 6 and 8 of the European Convention on Human Rights [ECHR] which means the court must respect the right to family life and the right to a fair trial.
  • A finding of fact by a Judge that someone hurt a child is a serious thing; therefore anyone at risk of such a finding being made against them must have a chance to be part of the court proceedings and be able to make their case. If someone is a vulnerable adult and needs help from, for e.g. an intermediary, this should be considered by everyone at an early stage
  • The ‘burden of proof’ lies on the person who makes the allegation, in this case the local authority. This means that it is not the adult’s responsibility to prove they did not hurt the child; the local authority must prove they did.

Burden and standard of proof in ‘binary’ system

  • The standard of proof is the ‘balance of probabilities’ – it must be more than 50% likely that something happened: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.
  • If a fact is to be proved the law operates a ‘binary system’ which means it is either true or it is not.
  • Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”.
  • The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.
  • If it is suggested that something is ‘very unlikely’ to have happened, that does not have an impact on the standard of proof. See BR (Proof of Facts) [2015] EWFC 41 (11 May 2015) where Jackson J commented at paras 3 and 4:
    The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
    Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observed:
    “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
    I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

What happens if a witness lies about something?

  • An important part of the assessment is what the court thinks about the reliability of the adult’s evidence. The court will be worried if someone is found to have lied about something, but that does not necessarily mean that person has lied about everything. The court will keep in mind the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert witnesses

  • With regard to evidence provided by expert witnesses, the court should consider the following:
    • First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370.
    • Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

Particular considerations in a case when a child has suffered injury

The court will consider the decision of the Supreme Court in in Re S-B (children) (non-accidental injury) [2009] UKSC 17.

Was the injury an accident?

  • If the court is satisfied that the child sustained injuries, the first question is whether they were caused ‘non accidentally’.
  • The court is reminded of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
  • For an example of an injury deemed accidental, see EF (a child), Re [2016] EWFC B107 (15 September 2016) the court accepted the parents’ account and thus the LA had not made out its case.

If it wasn’t an accident – who did it?

  • Having established the injury was not an accident, attention turns to whether or not the court can say who caused the injury. The ‘threshold criteria’ (what the court needs to find proved in order to make a care order) can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, it is clearly a good idea to identify who has caused the injuries:
    • to be as clear as possible about future risks to the child and how to deal with those risks.
    • The child has a right to know what happened to him, if it is possible to find out.

How hard should the court try to find out who did it?

  • However, the court should not ‘strain unnecessarily’ to identify who hurt the child. If the evidence does not support a specific finding against an individual(s) the court should attempt to identify the ‘pool’ of possible perpetrators. See Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849.
    • The identification of a pool of possible perpetrators is sometimes necessary in order to determine if the child’s parents or carers are to blame for the harm suffered by the child. If the child was hurt by someone outside the home or family – for example by someone at school or at hospital – then it would usually be unfair to say that this is the parent’s/carer’s fault.
    • In considering whether a particular individual should be within the pool of possible perpetrators the test is whether there is a real possibility that he or she was involved.
    • If the court identifies a pool of possible perpetrators the court should be wary about expressing any view as to the percentage likelihood of each or any of those persons being the actual perpetrator. (In the words of Thorpe LJ: “Better to leave it thus”).

What happens in the future if a parent is found to be in the ‘pool of perpetrators?’

As a parent, this could have a serious impact on your current or future family life. You may find that you need to submit to a risk assessment from the local authority if you want to care for your children.

However, if you become involved in care proceedings in the future, the court is clear that a previous finding that you were ‘in the pool’ can NOT be treated as simply ‘proof’ that you hurt a child and it cannot be used in this way as part of any threshold document to assert that your current children are at risk.

However, the fact that a parent was part of a household where a child suffered injury, cannot just be ignored and will need to form part of a careful assessment of current circumstances.

See In the matter of J (Children) [2013] SC 9 – the judgment of Lady Hale at para 52:

52. It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No-one has ever suggested that that fact should be ignored. Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child. How many injuries were there? When and how were they caused? On how many occasions were they inflicted? How obvious will they have been? Was the child in pain or unable to use his limbs? Would any ordinary parent have noticed this? Was there a delay in seeking medical attention? Was there concealment from or active deception of the authorities? What do those facts tell us about the child care capacities of the parent with whom we are concerned?

53. Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time? Did drink and/or drugs feature? Was there violence between the adults? How have things changed since? Has this parent left the old relationship? Has she entered a new one? Is it different? What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned? Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household?

54. Hence I agree entirely with McFarlane LJ when he said that In re S-B is not authority for the proposition that “if you cannot identify the past perpetrator, you cannot establish future likelihood” (para 111). There may, or may not, be a multitude of established facts from which such a likelihood can be established. There is no substitute for a careful, individualised assessment of where those facts take one. But In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

It is very important to investigate all the surrounding circumstances thoroughly and not to risk reversing the burden of proof. The Court of Appeal commented in B (Children : Uncertain Perpetrator) (Rev 1) [2019] EWCA Civ 575 (04 April 2019) that it might be better to talk more about a ‘list’ than a ‘pool’.

Further reading

Barristers at 6 Pump Court consider recent developments in the law relating to injuries to very young children, 22 March 2017.

We believe you harmed your child: the war over shaken baby convictions The Guardian 8 Dec 2017 






Fact Finding in Care Proceedings

What is meant by a ‘fact finding hearing’ ? What does the Judge have to do? What needs to be proved? This post appears at the Children In Law website, curated by barrister Jacqui Gilliat. This summary of the law relating to fact finding hearings was written DJ Simmonds at the Central Family Court in London, in collaboration with HHJ Hess. 

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

I should have in the forefront of my mind the provisions of Articles 6 and 8 of the ECHR. In particular it is important that I ensure that any person who might be affected adversely by my judgment, for example by being in the pool of possible perpetrators, has had the opportunity to be represented within the proceedings and been able to put their case.

The fact finding decisions need to be made in the context of the provisions of Section 31(2) Children Act 1989, the “threshold criteria”. This section reads:-

“A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to …the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.

 “Harm” is defined in Section 31(9) as meaning “ill-treatment or the impairment of health or development”.

The relevant date for assessing whether the child “is suffering” harm is the date of the care order application or, if temporary protective arrangements have been continuously in place from an earlier date, the date when the arrangements were initiated. In cases where the “is suffering” limb of the test is engaged (as in the present case) it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did, the court must be satisfied that the child was actually harmed: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.

Burden and Standard of Proof

The burden of proof lies on the party who makes the allegation, in this case the local authority.

The standard of proof is the balance of probabilities: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.

Binary system – it either happened or it did not happen

If a fact is to be proved the law operates a binary system. It is open to the Court to find on the balance of probabilities either that an allegation is true or that an allegation is false. As Lord Hoffman observed in Re B (supra) : “if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are nought and one”.

Evidence not speculation

Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”. The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.

One part of the assessment is an analysis of the credibility and reliability of the witnesses and potential perpetrators. I need to remind myself, though, of the important warning to be derived from R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert Evidence

Where, as here, an important part of the evidence is provided by expert witnesses I need to remind myself of two propositions in weighing the importance of that evidence. First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is ultimately the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370. [But note comment about ‘blind-siding’ below in Further Reading].

Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts and that scientific research may one day throw light into corners that are at present dark. There may be cases where criticism of even a clear expert opinion is more than fanciful. The case of LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) is a useful cautionary tale in this respect. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

When a child has suffered injury

In structuring my analysis in this fact finding hearing I remind myself of the Supreme Court decision in Re S-B (children) (non-accidental injury) [2009] UKSC 17. This decision informs the structure of the analysis, broadly encouraging the route set out below.

 If I am satisfied that the child sustained injuries I must first consider whether they were caused non-accidentally. In this context I remind myself of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-

 I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

Secondly, I must next consider whether I can identify the perpetrator of the injuries. A Court should not strain to identify the perpetrator, but to do so should promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them and there should be long-term benefits for the child in knowing the truth if it can be ascertained. Plainly, the threshold criteria can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, and for the consideration of a child’s welfare, it is desirable to identify who has and who has not caused the injuries.

Thirdly, if I cannot identify a perpetrator or perpetrators, I should attempt to identify the pool of possible perpetrators. In this context I remind myself of the decisions in Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849. The identification of a pool of possible perpetrators is sometimes necessary in order to fulfil the ‘attributability’ criterion – for example if the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. It is also generally desirable to identify a pool of perpetrators because it will help to identify the real risks to the child and the steps needed to protect him, it will help the professionals in working with the family and it will be of value to the child in the long run. In considering whether a particular individual should be within the pool of possible perpetrators the test is not whether that individual can be excluded as a perpetrator, but whether there is a real possibility that he or she was involved. An individual should not be expected to prove his or her innocence beyond reasonable doubt.

Fourthly, if I identify a pool of possible perpetrators which, ex hypothesi, will include more than one person, I should be cautious about expressing a view as to the percentage likelihood of each or any of those persons being the actual perpetrator. In the words of Thorpe LJ: “Better to leave it thus”.

Further reading

An appeal was allowed against a judge’s decision in Re A (no 2) (children: findings of fact) [2019] EWCA Civ 1947 where the Judge came up with his own ‘theory of the case’ that had not been argued before him and which was not supported by the evidence. The Court of Appeal commented:

The judge’s conclusion also faced insurmountable procedural objections.
He had revealed his thinking about FGM in general but at no stage had he unveiled the specific finding that he had gone on to make. The parties had been blindsided by a finding that not only departed from the way in which the case had been put but actually contradicted it (see [112], below).

See the case of D and A (Fact-Finding : Research Literature) [2024] EWCA Civ 663 (19 June 2024) which raised issues about the use of medical research literature as evidence in care proceedings. The Judge was critical of the parties for not addressing medical papers in depth in their submissions, despite cross examination that focussed on the similarities between this case and cases described in medical research. The Judge set out her analysis of the medical evidence in an Annex to the judgment.

The parents appealed on the basis that the Judge had acted as her own expert and made findings as a result of her analysis of the medical research. She made findings that were not explored with the parents in evidence or with counsel in submissions and ignored the findings of credible witnesses.

The Court of Appeal found that reliance on research literature is part of the evidence of such a case but the Judge must exercise caution and cannot use analysis of research as a ‘stand alone’ method of trying to decide what happened. There are also obvious difficulties with research in this field, such as the lack of empirical research and relatively few cases with unequivocal evidence.

The Court of Appeal found the Judge’s analysis of the medical literature unnecessary and disproportionate and she elevated this analysis of the research to such an extent that it became ‘the prism through which she assessed the rest of the evidence’.  The judge also failed to give proper weight to the ‘protective factors’ in the wider canvass of evidence, such as the parents’ prompt attendance at hospital.

Patterns of injury observed in research so far – see para 71

  • Subdural haemorrhages are statistically significantly associated with abusive head trauma.
  • Retinal haemorrhage[s] correlate strongly with abusive head trauma in children under 3 years old.
  • Falls in infants are common. Most falls result in no injury and serious injuries from short falls are very rare.
  • Subdural haematoma[s] arising out of short falls are low probability.
  • There is a significant association between spinal injury found on the MRI and abusive head trauma.
  • The two main theories that are set out in literature to explain spinal blood are tracking and direct injury and none of the literature or the experts set out a well accepted alternative explanation so any alternative remains in the realms of the unknown. This is an area which is contentious.
  • Symptoms are proximate to shaking injuries but dating them remains contentious and reliance on perpetrator statements (as with all witness reports) may not be reliable.






What if doctors don’t believe my child is really ill?

This is an issue that has provoked a lot of debate and comment; parents are concerned that they are being accused of hurting their children when in fact their children have serious medical conditions. Some parents feel that if they try to bring these conditions to their doctors’ attention, they run the risk they will be accused of ‘fabricating illness’. 

We agree this area needs debate. Here is a piece from a parent who has been involved in this scenario. We would welcome any other contributions from people with knowledge of these issues.

You may also find this post useful – the social worker tells me my child has been hurt.

 

A medical condition – or a non accidential injury?

I have a concern around the subject of rare genetic connective tissue disorders such as Ehlers Danlos Syndrome and the high levels of non accident injury and Fabricated or Induced Illness (FII) accusations made against parents with children of this condition. A ruling was made last year and published in Family law week I believe, regarding non accidental injury and EDS.

Having spoken in large group settings organised at the Ehlers Danlos Support UK conferences, there seems to be a large number of Mothers who also have the same condition of FII. The numbers of parents reported to social services, that have gone on to be seen one particular doctor are out of proportion for one small group of the population, the last quote was 50-60%. I can provide contact details for this doctor if you want to verify the information. There is I gather debate if FII even exists, or if the symptoms are of a personality disorder. I am sure that there will be in the EDS community the same levels of FII/personality disorders as there is in the rest of the population.

 

So why do I think there are so many reports of this by professionals to social services?

Well there is a high proportion of Autistic diagnosis in the community apparently.

There have also been brain scans showing that the Amygdala works differently in hypermobile people, where as someone with antisocial personality disorder would have not much going on we seem to have far too much going on here.

We have issues with pain, and Anesthetic not working.

There is still so much to be found out, there is some interesting work done by Dr Driscoll. She has theories about mast cells and pressure levels in the brains of EDS people.

The parents will have not had their medical needs met and once they understand what has happened they will be keen for the children not to suffer also as they have. When you discover the complexity of what has been going on in your bodies and written off for so long, you go through all the stages of grief for yourself and for your children.

There are often undiagnosed secondary issues, for example it was only in November 2013 there was a proven link between sleep apnoea and EDS. There are complex GI issues and Neurological /cardiac issues from our autonomic system not functioning properly. These will interfere with the cognative ability of the parents and children. They will make them appear to have a primary mental health issue which is a secondary mental health condition, heal the physical cause and they will not have anxiety and depression. We look like there is nothing wrong with us, we don’t complain and we get on with things.

We are not helped by the fact there are two names for what is through to be the same condition, some doctors seem to have different ideas and the two charities not working together.

Right now I understand the department of Health, NHS national genetic EDS clinic think EDS and HMS (Hypermobility Syndrome) are to be treated as the same condition along with EDSUK, yet some other high profile NHS hospitals along with HMSA have other ideas.

Here are some links

http://www.hypermobility.org
www.ehlers-danlos.org

You can also visit the author’s Facebook page for more information about EDS and hyper mobility.

Case Law

We think these cases will be of interest

The case of Devon County Council v EB in 2013 where the Judge rejected the LA case that the parents were responsible for inflicting non accidental injuries – the mother had Ehlers Danlos syndrome and the father joint hyper mobility.

But see also Re J & R, decided shortly after Devon County Council v EB where the parents were not successful on similar arguments – the Judge stressed the importance of taking into account ALL the evidence and was not so impressed by the parents’ evidence in this case.

In Re B 2014 the parents were reunited with their child after the court found that he probably had EDS Type III which would have made him more vulnerable to subdural bleeding.

 

Further reading

You may find interesting this article from Gene Reviews about diagnosing Ehlers-Danlos syndrome. Also this article from PubMed about sleep disordered breathing for those with the syndrome.






Overview of Medical Experts in cases of suspected non-accidental injury

 

Rachel Carter, a family law solicitor, writes a blog ‘Parents accused’ which offers help and advice to parents who are involved in cases of suspected non accidental injury.

In this post she gives a useful overview of the different type of medical experts you may meet in such care proceedings.