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I have just read the latest scandal piece about the family justice system by Christoper Booker.  Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published.  [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn't any of those - so will keep an eye out]

As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.

Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.

Here is his story


Let’s break it down into the core allegations that are made


1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.


2. Mother removed him from foster care

3. Mother was sent to prison for removing him from foster care

4. Whilst in prison, she was assaulted by prison staff and crippled


5. That she was then deported to America


6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought


7. At a hearing in April, at which her McKenzie Friends “could not be present”,  Mrs Justice Simler decided that the case was entirely without merit  (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )


7a  That Mrs Justice Simler is “the latest recruit to the High Court team”   [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely.  EDIT  - it does appear that she became a High Court Judge in October 2013, so I stand corrected.]


8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000


9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.



I am fairly sure that points 6, 7 and 8 ARE true.  We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing).  You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.


Well, not quite.

The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible.  One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order.  It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad.   That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk


Here is the deal


If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.

The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it

In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.

You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case.  You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.


So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court.  Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.


[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that's probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]




It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012


There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.


My previous piece   .


Mr Booker’s previous column about this woman ]

Withdrawing care proceedings


Re J, A, M and X (Children) 2013

Cobb J gave a judgment in this case which would now be your go-to place to see the law on a Local Authority’s application to withdraw care proceedings.  [There's a potentially important bit at para 63 of the judgment, where the Judge gives a view as to whether an injury deliberately caused by a sibling could be capable of crossing the threshold even if the parents had done nothing wrong]

The long and the short of the case was that it involved a head injury to X, who was 18 months old. This head injury presented with subdural haematoma and retinal haemorrhages.  That, ten years ago, would have had shaking injury written all over it. The Courts and experts are a bit more cautious these days, but it is still a concerning set of injuries and the possibility of deliberate harm is one that is explored by the Court.

The parents explanation is that they were in an adjacent room, J (their 16 year old) was in a room with the other children, and M who was 3 1/2 had pushed X, who had fallen over.

The medical opinion:



  • In this case, the parties have been fortunate to garner the expertise of some of the finest medical experts currently available to the family courts. I have read their reports with care, and the transcript of the meeting at which they were able to share their views. There is some measure of professional consensus about the medical evidence, and I attempt to do no more than to distil some of the key aspects of their evidence as follows.





  • Mr. E, Consultant Ophthalmologist, has opined that, taken with the other findings in the case, the retinal haemorrhages provide strong evidence that X was subjected to a shaking injury. He describes him fulfilling the “characteristic profile” and refers to the triad of features which includes encephalopathy and subdural haemorrhage; he considers that unilateral retinal haemorrhage is not unusual in NAHI. He concludes that by reference to his expertise on ophthalmological features alone, the fall described cannot be considered a plausible explanation for the retinal findings. I remind myself that I do not consider one aspect of the medical evidence in isolation from other aspects.





  • Mr. R Consultant neurosurgeon, suggests that on current medical understanding a low level fall of the type described would not be expected to cause an acute subdural bleed and that developing a subdural haematoma from such a fall would therefore be a very unusual event. The account of X being pushed over and hitting his head could explain the acute subdural haematoma although it would be an unusual event in these circumstances. The appearances of the bleeding do not assist in determining the explanation, and can be explained by a single localised impact to the top of the left cerebral hemisphere. He opines that the accidental event described causing this haemorrhage is a possibility although it would be unusual. Another event involving greater force that has not been reported remains a possibility but this cannot be definitively stated on the appearance of the subdural haematoma alone.





  • Dr. SA, Consultant Paediatrician, reminded the Court that there are exceptions to the rules that generally short falls do not give rise to significant cranial or intracranial injury whereas large falls and severe impacts will do. He considers that X did not simply fall to the ground, he was pushed and although this was by a small child this will have increased his velocity and impact. He concludes that the injuries found are consistent with the fall and that this is consistent with an accidental event. The injuries are more likely due to the reported fall.





  • Dr. ST, Consultant Neuroradiologist, concluded that on imaging grounds alone he could not exclude shaking as a cause for the subdural bleeding. The inter-hemispheric component and the bleeding in the posterior fossa are somewhat unusual in the context of being secondary to head trauma. However, because of the unusual nature of the fall in his view it is possible to explain the imaging features as having occurred as a result of that event. He does not exclude the event as a reasonable possible cause.





  • The experts have met, and I have a transcript of their discussions; this reflects the expert view that the constellation of injuries was caused by the same event which occurred shortly before X’s collapse; that there are a whole series of atypical features in this case; that the experts cannot from their respective areas of expertise reasonably exclude any of the possibilities that were debated, and that it is a matter for the Court to “put all the pieces of the jigsaw together”.





  • A Schedule of Concurrence (of expert views) has been helpfully prepared by Mr Rothery arising from the meeting. The Local Authority relies upon this analysis and summary of the expert medical evidence. The document summarises the nature of the injuries; there is agreement that the injuries are a result of trauma on a single occasion, and more likely to be impact than shaking alone.





  • The doctors conclude (para.4.1) that it is not possible on the medical evidence alone to determine whether the injuries were accidental or non-accidental. The summary discloses that the experts considered a range of possible mechanisms which may account for X’s injuries (para.2.4). Paragraph 4.2 reads:




“the explanation given by J that X fell over having been pushed by M is a possible explanation of all Xs injuries“.

What that means is that medically speaking, the experts considered that the accidental explanation could account for the injuries. What of course they could not say, is whether this explanation happened. That would be ultimately a matter for the Judge.  The Local Authority COULD have pressed on with the finding of fact hearing, and asked the Judge to hear the evidence and reach a decision. They decided instead that they would accept that the injury had been caused accidentally by M pushing X over.

The application for leave to withdraw


  • The Local Authority, upon whom the burden of proof falls at this essentially adversarial stage of these proceedings, does not seek to prove that the injury sustained by X was non-accidental.



  • It takes as its starting point the unanimous expert medical opinion that the accident described by J “is a possible explanation of all X’s injuries“.



  • The Local Authority has then weighed into the reckoning what the parents and J have said about the incident. Ms Cross and Ms Hobson have rightly in my view formed the view that where the medical evidence is poised so evenly on the fulcrum of possibility, it is necessary critically to evaluate the other aspects of the case and, in particular, what it is that the parents and J say about the events which may tilt the balance. Only, say the Local Authority, where the forensic process could significantly damage the credibility of the parents or J would the Local Authority be able to contend that the balance tilted against this being an accident. But, Ms Cross continues, there is little in the relevant lay accounts which gives cause for such a conclusion



  • Even the inconsistencies in the accounts, such as they are, lend weight to (rather than detract from) the conclusion that an essentially honest account has been given: there has been sufficient consistency about the incident: It occurred when X was trying to negotiate the sofa; X was not confident or steady on his feet; M ran at him and collided with him; M pushed him over and he fell to the ground; X hit his head and it ‘bounced’; X reacted adversely and immediately, developing symptoms consistent with a seizure; J shouted for her mother; all the children were together in the room; the parents were in an adjacent room; J alerted the parents immediately, indicating her distress and concern for X; upon arriving at the scene the parents witnessed X in a state of collapse.



  • Moreover I note as context to the key events that:


(a) No-one gives any hint that there had been any stress or tension within the home immediately prior to the incident

(b) J has never shown any aggressive behaviour towards her younger siblings;

(c) There been no particular health or behavioural issues relating to the children


  • If I were to embark upon a fact-finding enquiry, it seems to me that I would probably need to reach a position in which I was satisfied that J had been able to maintain quite a sophisticated lie in inventing an account which coincided in some important respects with the expert medical opinion as to key elements of causation of the injuries. I would further need to satisfy myself that J was prepared to blame her little half-sister M for injuring X to protect herself, and that the younger children were able to maintain a consistent and impenetrable wall of silence in relation to a different type of event causing the injury. While I cannot form a concluded view on this point on the papers, the indicators point the other way: I have noted the comments in Ms LM’s report, and note the comments of J’s guardian who (in her recent Analysis document) describes her as a “lovely young person”.

There is an issue of relevance here – the existing case law is that if the Judge is satisfied that the threshold could not be crossed, they can deal with the Local Authority’s application to withdraw on that basis alone (the statutory test for making orders not being met, the proceedings ought to end), whereas if the Judge considers that the threshold COULD be crossed, the Judge then has to consider whether the withdrawal of the proceedings is in the children’s best interests

28.  The Local Authority submitted – per paragraph 44 to 46 of its skeleton argument – that as this is an application to withdraw proceedings at the pre-threshold stage (because it says, it does not believe that it can cross the threshold), then I would be required to “evaluate the application” by reference to that “fact alone” (i.e. that the threshold cannot be crossed), without engaging any consideration of welfare; it is said that my compass of enquiry on this application is accordingly is a narrow one.



Reliance for this proposition was placed on a decision of Hedley J in Redbridge London Borough Council v B C & A [2011] 2 FLR 117 in which he said (at para.9 of the judgment) that:



If the local authority could not prove the threshold criteria, then of course, their application would succeed without more as otherwise I would have no alternative but to dismiss the proceedings. If, however, the threshold could be established, then the application would really depend upon the court concluding under s 1(5) of the Children Act 1989 that no order was necessary; that is to say on the basis that withdrawal was consistent with the welfare needs of A – see London Borough of Southwark v B  [1993] 2 FLR 559 and WSCC v M, F, W, X, Y and Z [2010] EWHC 1914 (Fam), [2011] 1 FLR 188.”

(emphasis by underlining added for emphasis).

 In this case, as it is presented before me, I am not in fact being asked to conclude (and indeed I do not conclude) that the Local Authority could not on any view prove the threshold. Plainly on one or more than one construction of events, the threshold could be crossed. To fall into the category of case envisaged by Hedley J in para.9 of his judgment, wherein the court would have no alternative but to permit the withdrawal, it seems to me that the inability of the Local Authority to demonstrate facts to cross threshold ought to be obvious.



  • The Local Authority here invites me to adopt their likely construction of the evidence, and on that basis they invite me to say that they will not be likely to cross the threshold. They further maintain that it is not in the interests of the children concerned that an enquiry is embarked upon to establish whether that construction or another construction should be preferred.



  • In a case where there is argument whether the threshold could be crossed, I have to remind myself that answers to the questions relating to threshold may also inform the answer on welfare. The crossing of the ‘threshold’ is simply one part of a two-stage process (and the court has two questions to ask i.e. has the threshold been crossed? If so, what will be best for the child?) The same factual issues are often relevant to each question. Just because a hearing is split, does not mean that the evidence relevant to stage 1 may not be just as relevant to stage 2: “the finding of those facts is merely part of the whole process of trying the case. It is not a separate exercise” (see Baroness Hale in Re B (supra) at para.74).



  • After oral argument before me, all counsel agreed that this was not such an ‘obvious’ case that the Local Authority could not prove the threshold; it was acknowledged by all that on the evidence there were plainly significant difficulties in them achieving this.

{i.e it is POSSIBLE that the Judge could have heard all of the evidence and found the parents and J’s account of the accident implausible, and made the finding. Well, actually, it goes even further than that, because of paragraph 63, which I think might come up again}

  • The Local Authority has further maintained (para.47 and 48 of the Skeleton Argument) that at its highest, the threshold may not have been capable of being crossed even if I were to be satisfied that J injured X (i.e. non-accidentally). I respectfully disagree with the analysis of the law set out in these paragraphs of the skeleton argument. If I were to have found that X had sustained non-accidental injuries, these injuries would unquestioningly have represented ‘significant harm’, and that harm would have been “attributable to the care given to X” not being what it “would be reasonable to expect a parent to give him”. The fact that X was at the critical point being cared for by J does not mean that the threshold is not crossed. I do not consider that there are grounds for distinguishing the situation relating to X (as the injured child) from the situation relating to the parents (as opposed to the childminder) of the parents’ child in the Lancashire v B case in respect; and given that the mother/father and J would all form part of the family unit hereafter, there is no proper basis for considering the other children differently either.

You need to read that carefully – what the Judge is saying is that EVEN if the finding was that it had been J who harmed X (rather than the parents, or the 3 1/2 year old M) the threshold could have been crossed, the Local Authority were saying that it would not have been.

If you do care proceedings regularly, you will come across the explanation that the injuries were caused by a sibling very often, and I think that this paragraph offers a suggestion that if the injuries were caused deliberately rather than accidentally, threshold might still be crossed  – even though the parents had done nothing wrong.   (It isn’t unreasonable, to leave a 16 year old in charge of younger siblings for a short period whilst the parents are in an adjacent room – if it was, there would be an intolerable number of care proceedings)

I’m not sure how I feel about this – my gut feeling was that I agreed with the Local Authority and that I wouldn’t have been saying that threshold was met if the Judge had decided that J (16 year old sibling) had caused the injury and lied about it. But having mulled for a few days, I can see what the Judge is getting at – if  J had injured the infant deliberately and was still going to be a member of the household, then the risk of future injuries isn’t one that could sensibly be ignored.  My suspicion is that if a Judge were to make a finding in relation to threshold on that basis, we would be finding out what the Court of Appeal think.

That’s all something of an academic sidetrack, since there wasn’t evidence that anyone sought to rely on that J had done anything of the kind.

But, having decided that this was a case where threshold COULD have been made out, the Judge had to then consider the application to withdraw on welfare grounds.

  • Given that this case does not fall into the realms of what I call the ‘obvious case’ (where I would have no option but to give leave to withdraw), the question of whether or not a particular fact-finding exercise is to be conducted within care proceedings is a question which requires me to look at the whole application. In this respect I have been particularly guided by the judgment of McFarlane J as he then was in A County Council V DP, RS, BS (By The Children’s Guardian) [2005] EWHC 1593 (Fam) [2005] 2FLR 1031 . He set out (in rather different factual circumstances) the factors which should weigh in the evaluation of whether it was right for proceedings to be pursued (see [24]):


(a) the interests of the child (relevant not paramount);

(b) the time the investigation would take;

(c) the likely cost to public funds;

(d) the evidential result;

(e) the necessity of the investigation;

(f) the relevance of the potential result to the future care plans for the child;

(g) the impact of any fact finding process upon the other parties;

(h) the prospects of a fair trial on the issue;

(i) the justice of the case


(a) The interests of the child (relevant not paramount) I have to consider whether it is in the interests of the children that the application is pursued. There is, I can acknowledge, nothing in the material which actively supports the contention that it is in the interests of any of the children for the fact-finding hearing to go ahead; I can say with reasonable confidence that it be contrary to J’s interests for it to do so;
(b) The time the investigation would take This fact-finding hearing is listed for 12 days – 10 further court days from now. If the threshold were established, there would be likely to be a second stage hearing some way down the line IF I were to find that the threshold were crossed
(c) The likely cost to public funds The cost to public funds would be highly significant given the estimate for the length of the hearing (above) and the fact that the parties are rightly (given the issues involved) represented by leading and junior counsel
(d) The evidential result It is difficult to assess the evidential result were I to conduct a factual enquiry; I have attempted no more than a rough forecast on the information available, and cannot say with any confidence at all that the picture at the end of a long enquiry would be any clearer from what appears now.
The key components of the account of the incident have been maintained by the protagonists up to now, and are broadly consistent; I would need to be satisfied that there was a real chance of a clearer evidential outcome.
(e) The necessity of the investigation I am not convinced that the investigation is necessary, given that it appears to be the intention of the Local Authority to reconstitute this family sooner rather than later;
(f) The relevance of the potential result to the future care plans for the child; The enquiry is unlikely to have any effect on the future care plans for the child; in this respect the situation can be distinguished from the decision of McFarlane J in A County Council V DP, RS, BS (By The Children’s Guardian)
(g) The impact of any fact finding process upon the other parties I am particularly concerned about the impact of the fact finding process on J. I am aware that only J can provide a direct account of the alleged events. The accounts of the Mother and the Father are, necessarily, secondary, rehearsing what J told them of the event itself and describing only the aftermath directly. The pressure on her of the process would be not inconsiderable.
J’s ability to give a clear and coherent account of the events may be affected not only by her own limitations – such as they are – but also by the shock and panic associated by being in the vicinity of the events.
I have been told that J has already been advised that she may well not have to give evidence; whether that was sensible is a moot point given that this decision was not yet available, but I nonetheless note that she was described as “buoyant” to discover that she may well be spared the process of recounting her events to the court, however sympathetically we were to arrange that for her
(h) The prospects of a fair trial on the issue; I believe that a fair trial is possible; arrangements have been discussed and agreed for J to give evidence
(i) The justice of the case The justice of the case lies in reaching a swift, reliable, welfare-based conclusion for the children.




  • Having reviewed the material carefully, listened to the views of the parties, their submission as to outcome and their reasons, I have concluded that the Local Authority should indeed be given leave to withdraw the application for a care order.




  • I have paid close regard to the checklist of factors set out above. Those factors, many taken individually but certainly taken cumulatively, point firmly against a fact-finding enquiry.




  • I have applied an overall welfare test to my decision, and have satisfied myself that it is not in the interests of any of the children to subject the family, the parents and J in particular, to this enquiry. Such a process would be neither proportionate nor in the children’s interests, it is a course which no party wishes, and which the guardians on behalf of the children discourage me from embarking upon.





  • Where does that leave the allegations of Non Accidental Injury? And how does that leave the parties?





  • I can do no better than to apply the principles most clearly set out in the speech of Lord Hoffman in Re B [2008] UKHL 35, [2009] AC 11:



If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury 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 zero and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”


  • By reason of the withdrawal of the proceedings, the allegation of non-accidental injury now scores a zero.





  • It follows that the lives of this family should now proceed on the basis that the injuries to X were no more or less than a terrible, fluke, accident. There is not even room for a suspicion that the injuries were caused in any other way. The family, and the professionals around them, should proceed now on the basis that no-one (and I include in this of course M) is to blame for X’s injuries.





  • For the avoidance of doubt, I wish to add that the application for care order was entirely appropriately made in this case on the basis of (a) the presenting features of X at hospital in April 2012 when viewed against (b) the backcloth of concerns about this family, and (c) the medical opinions early expressed about the aetiology of the serious injuries. It is apparent from all that I have read that the social workers have worked conscientiously, not always in the easiest of circumstances, in the interests of the children. The court is, and the family should be, indebted to them for that.


Justices reasons

Arising from Pauffley J’s decision in Re NL, which set out that it was no longer permissable for Justices Facts and Reasons to be drafted by the parties, or any of the parties, in agreed or not opposed cases, some guidance has been published by the Justices Clerks society, endorsed by the President of the Family Division.


It is fairly short, but in a nutshell


Under no circumstances should any of the parties be involved in drafting the Reasons.

The Court should never ask any party to supply draft Reasons to be adapted

It is fine for parties to provide their own position statements setting out their case, including submissions on the legal principles and how they say that that facts of the case relate to those legal principles

It is fine for the Court to refer to those position statements and as appropriate facts may be adopted  (they give as an example “The factual background of this case is as set out in the Local Authority position statement dated…”)

Any contested issues must be identified and the reasons for the Court deciding on a particular course of action or order arising must be set out

The length and complexity of the reasons will depend on the circumstances of the case

The guidance confirms that this applies to private law as well as public law.

“In every case, even when the order is said to be agreed or where there is no active opposition, there is still a judicial task to perform. Justices must ensure that not only justice is done but also that it is seen to be done”


Taken into care for being too fat


The Daily Mirror ran an interesting piece this week, as a result of Freedom of Information queries revealing that over the last five years, 74 children have been taken into care across the country for being too obese.

It is quite a balanced piece and has some interesting views within it – it is neither a hatchet job on parents who let their children get fat, nor on busybody professionals who interfere, but tries to look at both sides of the equation. It is probably the best article in a mainstream newspaper on child protection that I’ve read in a long while – recognising that these are difficult issues, hard choices and that there is no simple right answer either way.

From a strictly legal standpoint, it is worth remembering that a child can’t be removed from a parents care  (other than for a very short period by the police) unless a Court is satisfied that the child is suffering or is likely to suffer significant harm. Being a bit overweight (even quite a bit overweight) isn’t going to be enough for that.  In fact, these numbers tell you that – given the number of media articles bemoaning how Britain’s children are out of shape and obese, that’s quite a small number over a five year period. [If the NHS stats are right, ten per cent of children are significantly overweight]

In order to get anywhere close to meeting the significant harm test, a child would have to be massively overweight AND there would need to be some medical evidence about the harm that this would be causing the child.   (Mere common sense assertions that a child of eleven being sixteen stone is harmful won’t do – you need a medical opinion as to the damage that this is causing their health, their joints, their heart, their ability to participate in ordinary childhood life)


Even if a child does reach that level of obesity, the Court would still be carefully balancing the two types of harm in this case – that physical and medical harm that the obesity is causing against the emotional harm and trauma of removing a child from parents.  (I think the Mirror article covers that very well).  The Court would want to be thinking about whether there is anything else that can be done – better education, a dietician, stern warnings, therapy, putting the child on a prescribed diet – those are all things that would usually be tried before contemplating making an order to remove a child.  It would very much be the last resort when anything else one could reasonably try hasn’t worked.

And of course, the removal into care isn’t a magic wand – it isn’t a magic solution that will solve the problem. For some of these overweight children, there’s an emotional or comfort component to their over-eating and it might be that being away from the parents makes them far more unhappy and far more likely to eat more. The article, and the statistics, can’t tell us how many of those children went home again after their time in care, or how many had their problems addressed / made worse.

Split-hearings and “non-accidental injuries”

The Court of Appeal decision in Re S (A child) 2014.


 Very quick summary, to persuade you that this case is worth reading


  1. Guidance on whether split-hearings are needed and when (hint, the new Court of Appeal isn’t keen on them any more – expect to be taken to this case during any Case Management Hearing where the issue is physical injury or sexual harm)
  2. Confirmation that for “findings of fact” the appeal test is PLAINLY WRONG, not wrong.
  3. Really important stuff about threshold criteria and notably criticism of the phrase “non-accidental injuries” and the need to go to the statutory construction of the threshold criteria


If you aren’t familiar with the term, “split-hearing” is what happens when there is a narrow (although sometimes complex) factual issue to determine in a case involving children, and that resolving that factual dispute is done at a hearing with evidence and cross-examination and a judgment AND THEN the case goes on to a hearing to decide what the Court should do about those facts that have been proved or disproved (what is usually called the Welfare stage)


For the majority of children cases, the hearing about the factual dispute and the welfare dispute (What happened, what should happen next) are all dealt with together, but there are some cases where historically the hearings have been split in two (hence “split hearing”) and had a hearing to decide “What happened” first and then “What should happen next” later.


Indeed, for a while, split-hearings were very much in vogue and the higher courts were keen on them and critical where they had not happened. There are a few reasons for that


  1. If a parent is accused of injuring a child and it can be proved that they didn’t, the sooner that happens the better
  2. Everyone can plan for the future of the child KNOWING what happened, rather than speculating about what might have happened and ending up with plans that are “If X, then what should happen next is…. But if Y, then what should happen next is”
  3. If the Court finds that one parent injured the child and the other didn’t, then the parents have an opportunity to think about whether they want to stay together or split up
  4. If the Court finds that the parent injured the child, there can then be an assessment of whether that is likely to happen in the future – maybe there would be treatment, maybe having had the Court make those findings frees people up to talk about how the injury happened and those discussions can potentially identify the stress points and triggers and avoid it happening in the future.


Well, over the last year, it seems that the Courts have been getting cold-feet about split-hearings with hints being dropped that they were being used in too many cases and that Courts must be carefully to ensure that they are only used in cases where it really helps.


And of course, nobody has a real clue how a “split-hearing” works in the rigid 26 week timetable – the PLO guidance is clear that the fact that a split hearing is needed or the case involves physical injury isn’t itself a reason to go beyond 26 week. At the moment, it is a struggle to get ONE hearing done within 26 weeks, never mind two.

The Court of Appeal looked at this in Re S, and go the farthest that they have done since the concept of “split-hearings” was introduced to suggest that they have had their day.


To give the background, the care proceedings were issued because of an injury to the head of a one year old child, resulting in two skull fractures. The Local Authority considered that the parents had caused/contributed to the injury (more of this later), the parents saying that this was an accident or some other medical explanation.


In the case, there was an account of the evening leading up to the injury which was demonstrated to be false  (as the Judge and the Court of Appeal remind us, just because a person is caught out in a lie on one thing does not mean that they are lying about everything else)


This was an appeal by the Local Authority, because the Judge concluded this


The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury


They lost the appeal, the Court of Appeal found that it was misconcieved and there was no reason to interfere with the findings. [In essence, the LA had put all of their eggs in the "deliberate harm" basket and didn't satisfy the Judge of that, and hadn't sufficiently explored the possibility that there could have been some form of negligence or carelessness without a deliberate element] 


Guidance on split-hearings



  1. It is by no means clear why it was thought appropriate to have a ‘split hearing’ where discrete facts are severed off from their welfare context. Unless the basis for such a decision is reasoned so that the inevitable delay is justified it will be wrong in principle in public law children proceedings. Even where it is asserted that delay will not be occasioned, the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (i.e. whether a statutory order is necessary) to be made more expeditiously. The reasons for this are obvious: to remove consideration by the court of the background and contextual circumstances including factors that are relevant to the credibility of witnesses, the reliability of evidence and the section 1(3) CA 1989 welfare factors such as capability and risk, deprives the court of the very material (i.e. secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made. It may also adversely impinge on the subsequent welfare and proportionality evaluations by the court as circumstances change and memories fade of the detail and nuances of the evidence that was given weeks or months before.
  1. I ought to emphasise for the avoidance of doubt that although parallels can be drawn between the use of fact finding hearings in public and private law children proceedings, the appropriate and measured use of fact finding hearings in private law proceedings which are often safety cases, for example involving recent domestic abuse between parents, are not the subject of this court’s consideration in this judgment. An example of this court’s guidance in relation to those proceedings can be found in In the matter of C (Children) [2009] EWCA Civ 994. In private law proceedings it is the court that is defining an aspect of parental responsibility in its determination of the arrangements that are put in place for the child and findings of fact are appropriate, where necessary, to inform that process by reference to the factors in section 1(3) of the 1989 Act and in particular where safety issues have arisen which justify the court’s interference with the article 8 ECHR rights of the family members. In public law children cases where a care order is in issue, the court is being asked to sanction an agency of the state, namely the local authority, being permitted to exercise parental responsibility for a child. The jurisdiction in the court to undertake that task has to be based upon the existence of facts (primary and / or secondary) that satisfy the threshold in section 31 CA 1989. Accordingly, concessions or findings of fact relevant to the threshold question will always be necessary in public law cases alongside such further findings of fact as are necessary to inform the welfare evaluation.
  1. It ought to be recollected that split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is inappropriate. The oft repeated but erroneous justification for them that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice. The justification comes from an era before the present Rules and Practice Directions came into force and can safely be discounted in public law children proceedings save in the most exceptional case.
  1. Social work assessments are not contingent on facts being identified and found to the civil standard (see, for example Oldham MBC v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597 and Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776 per Scott-Baker J at [34] and [35]). That is the function of the court not a social worker (Dingley v Chief Constable of Strathclyde Police [2000] UKHC 14 per Lord Hope of Craighead at [120] and [122]). Social work assessments are based upon their own professional methodology like any other form of professional risk assessment. In care cases, an appropriate social work assessment and a Cafcass analysis should be undertaken at the earliest possible opportunity to identify relevant background circumstances and context. In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider (see, for example, In the matter of W (Children) [2009] EWCA Civ 644 at [33]).
  1. It may be helpful to highlight the fact that a decision to undertake a split hearing is a case management decision to which Part 1 of the Family Procedure Rules 2010 [FPR 2010] and Pilot Practice Direction 12A ‘Care, Supervision and Other Part 4 Proceedings: Guide to Case Management (the PLO)’ apply. A split hearing is only justifiable where the delay occasioned is in furtherance of the overriding objective in rule 1 FPR 2010, that is:

i) as a consequence of active case management by the court which includes in accordance with rule 1.4:

“(a) setting timetables […],

(b) identifying at an early stage […] the issues,

(c) deciding promptly (i) which issues need full investigation and hearing and which do not; and (ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;


(i) considering the likely benefits of taking a particular step justify the cost of taking it;

(j) dealing with as many aspects of the case as it can on the same occasion;

[…]; and

(m) giving directions to ensure that the case proceeds quickly and efficiently.”

ii) in accordance with the child’s welfare having regard to the timetable for the child within the meaning of that concept in para [5] of pilot PD12A; and

iii) in accordance with the timetable for proceedings within the meaning of that concept in para [5] pilot PD12A.

  1. On the alleged facts of this case, there was no discrete issue which was appropriate for trial without its social or welfare context and delay was the inevitable consequence of the decision to have a split hearing. Given that by rule 1.3 FPR 2010 the parties have a duty to help the court to further the overriding objective, it is all the more surprising that one of the submissions made to this court was that a split hearing was inappropriate. That professional analysis should have been offered to the court below. The benefits and detriments of such a course, if proposed, should be analysed by the children’s guardian. In future, a decision to undertake a split hearing should be reasoned in court at the case management hearing and the reasons should be recorded on the face of the Case Management Order alongside what has always been the good practice of the court which is to settle the issue to be tried on the face of the order



Of course it must be right that the Court ought to have clear thinking and rigour before listing a split hearing and deciding what the benefits are, that’s hard to argue against. But this seems to be a heavy hint that split hearings will rarely be effective.


I have to say that I struggle with this – there clearly was a discrete issue here. If the parents had done nothing wrong, there was clear advantage for everyone in deciding that as soon as possible. If there had been some wrong-doing, then it was important to determine what that was and allow the parents to make decisions about what they put forward as the best future care of the child at the earliest opportunity. 


This is exactly the sort of case that split-hearings were meant for, and one has to ask – if the Court of Appeal think a case like this isn’t right for a split hearing, is one left with any split-hearings in public law cases?


Probably not.


So, at a final hearing on week 26, when the Court decide that a child suffered a skull fracture and that this was caused by dad but mum didn’t know about it and did nothing wrong, what exactly is supposed to happen?


Are the Courts going to say that mum ought to have separated from dad and gone it alone months before the Court made its decision? Or is mum to be given half an hour with her lawyers to make a decision whether to leave dad or not?




Non-accidental injury


Another interesting and potentially important development in the case is the discussion about “non-accidental injury”.


What the Court was interested in was whether this term was being used in a sloppy, “catch-all” fashion, and indeed being used differently by the medical professionals and the social work professionals.


When the phrase “non-accidental” is being used, is what is meant simply that the injury is not a result of an action, or does it mean that the parent is culpable, or that the injury was caused deliberately? 


It seems that the Local Authority in the case were putting the case on the basis that if the medical evidence was that this was a “non-accidental injury” that the parents had thus inflicted the injury.


Going back to the judicial finding, it is obvious that the Judge at first instance (and the Court of Appeal did not interfere with his discretion) did not make THAT finding


The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury



On the face of it, that seems unsatisfactory to both sides. If there was an accidental or “innocent” explanation for the injury, then the threshold criteria ought not to have been made out -  whilst the skull fractures were significant harm, the harm is not attributable to the care given or not given by the parents not being what it would be reasonable to expect a parent to give. So  from the parents viewpoint, why did the Judge find that threshold was met? And from the LA viewpoint, if the Judge did not consider that there was an accidental explanation and found threshold met,  how had the injuries occurred? How can anyone plan for the future on that basis?




Is there anything else that the Judge found that helps in understanding what happened to this child, and from there to see whether there is any future risk?


  1. It was a conceded fact before the judge that a false history of how the harm occurred had been given at the hospital. The false history was subsequently repeated in various degrees of detail to suggest that the child had been in a bouncer suspended from a door in the flat at a height of about half a metre from the ground when a strap broke, the bouncer fell and the child hit her head. That false history was discarded by the family when the child’s father voluntarily went to the police and said that the history previously given was not true. It was also discovered that the strap had been cut (it is said by grandmother) to make it look like it had snapped. A new history was then proffered by the family which was given to the judge in evidence. The evidence was that father was standing holding S in the kitchen behind mother and grandmother when S wriggled and in some way fell to the floor.
  1. With the possible exception of grandmother’s partner, who was not said to have witnessed anything of relevance, the judge found the family’s account of what happened on the night in question including the timings to be wholly unconvincing. He regarded the grandmother as a particularly unconvincing witness and was satisfied that father, mother and grandmother had conspired to attempt to exculpate father from what had occurred.
  1. The judge’s ultimate finding was that the grandmother and the parents had lied to the hospital and again to the police and the court i.e. both histories were untrue. He found as a fact that the court had not been told the truth about what had occurred. He found as a fact that something happened to S in the care of her parents (i.e. that the harm was not a true accident) but did not find that either of the parents deliberately injured their child. Having read and heard the evidence he was not satisfied on the balance of probabilities that either parent had deliberately inflicted the injury. That was not a positive finding that exculpated the parents or indeed any other adult. The case management order which purported to record the findings is erroneous if it was intended to suggest otherwise.
  1. The judge’s conclusion left open the question of how the injury occurred. The judge put down a marker to himself for the future welfare hearing that what had happened “may well involve negligence”. It is clear from the terms of the judgment that he did not find that the parents or any of the adults had been negligent but he opened up that possibility no doubt for future examination in the light of any other evidence that the court may consider at a subsequent hearing.



This is what the Court of Appeal had to say  [underlining mine for emphasis]


  1. It may be obvious to the interested bystander that there was a theoretical range of possibilities relating to what had happened to S: from accidental harm through to deliberate infliction of injury, but that was not the way the case developed in evidence. The neuroradiologist who gave evidence to the court gave his opinion about the range of possibilities in the following terms:

“The skull fracture can occur as a result of accidental injury. In this context fracture most commonly arises from a fall from a carer’s arms and results in an un-displaced unilateral fracture most often of parietal or occipital bone. Skull fractures may also occur as a result of impact in the context of non-accidental head trauma. If the injury is non-accidental, a fracture may also be displaced, comminuted, involves (sic) more than one bone or if there are multiple fractures in the same bone, it is more likely that the injury is non-accidental in origin”

  1. The local authority chose to pursue deliberate infliction of injury with the witnesses at the hearing and both at that hearing and before this court equated the term non-accidental injury with infliction. The local authority submitted that infliction was not necessarily deliberate infliction, but it is by no means clear that anyone else defined the terminology in that way and that characterisation of the evidence ignored the statutory formulation that the local authority needed to prove. This court was helpfully taken by counsel to the questions put to the witnesses which appear to demonstrate that the local authority assumed that ‘non-accidental injury’ if proved would be deliberate. They did not adequately explore the circumstances of the adults’ care other than to cast doubt on both of the histories that had been given nor did they explore what has come to be known as the attributability element of section 31(2) of the Act. Whether there had been reckless or negligent acts and omissions or what the neuroradiologist meant by the terminology that he had used or the causative mechanisms he had described remain in doubt.
  1. This court has sympathy both with the judge and the advocates in a situation where the direct evidence from those who were present is false and the local authority rightly assumed the burden of demonstrating that. In doing so, however, they appear to have lost sight of the rest of the case and of the statutory formulation in section 31(2) of the Act.
  1. The term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and 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).
  1. The court’s function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, ‘accidental injury’ is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.
  1. The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.
  1. This court has not been addressed about the volume of guidance in materials issued by professional bodies (including the medical Royal Colleges) and Government which makes reference to ‘non-accidental injury’. Indeed, counsel for the local authority went so far as to submit that none of that material provided a generally accepted medical or legal definition of the term. Whether that is right or not, it is not necessary for this court to analyse that material because all that is required in a case of this kind is for the court, legal practitioners and experts to have regard to the statutory formulation with which the court is concerned. If other terminology is used in evidence its meaning should be precisely ascertained so that the court knows what is being alleged and advised.
  1. In this case, the judge was careful to sever the question of whether the harm was an example of a true accident i.e. a chance happening that is by definition unexpected and unintentional, from the question of attributability which in the circumstances of this case was said to include perpetration of harm and lack of protection from harm. The local authority’s case was of (deliberate) infliction by one or the other parent and that was the case they put. They did not succeed in establishing that case. No other possibilities were sufficiently examined to enable the judge to make conclusions upon them. The medical expert had left open the possibility of an accidental cause, albeit that it was unlikely and in that circumstance anything between accident and deliberate infliction must also have been possible. Accordingly, there was no inconsistency between the findings and the evidence and the local authority’s description of the findings in the grounds of appeal are misconceived.
  1. The judge examined what were conceded before him to be the false explanations for the injury given by those who took S to the hospital which were subsequently repeated by other members of the family and also what was said to be the true history of the events of the night in question which he decided was also false. He directed himself to consider that there may be innocent explanations or explanations that do not attract responsibility for telling an untruth about a fact in issue: the so called Lucas direction (R v Lucas [1981] 1 QB 720). Far from failing to consider drawing an inference of attributability from the repeated lies that were told, the judge overtly considered the options and having given himself a Lucas direction concluded that the lies were more likely to be related to their inexperience as parents. Having heard the parents in evidence the judge declined to draw the inference that they had deliberately inflicted injury but did draw the inference that they had failed to protect S by delaying the obtaining of medical treatment.



There is a big hint here for advocates, particularly Local Authority advocates that in any case where harm is disputed, one has to avoid tunnel vision and just exploring the binary possibilities  (the parents deliberately injured the child v this child had an accident which simply could not have been helped) and to explore all of the middle ground, and focus particularly on not just the harm but how that harm might, or might not, have been attributable to the parents care.

Children of parents who are in the UK unlawfully


  The Supreme Court considered this issue in Zoumbas v Secretary of State for the Home Department 2013,  handing down judgment this week. 

 although it chiefly deals with a judicial review of the Home Office decision that the children could be deported along with their parents to the Republic of Congo, it has some relevance for those advising Local Authorities or parents in care proceedings.


It has become less uncommon to be dealing in care proceedings with parents who are apprehensive at the words “Home Office” and often what one is trying to predict is whether the child would be able to remain in the UK once the Home Office have processed the case.  

As relatively few family lawyers are also specialists in immigration law (there’s a limit to how many grey hairs any one human can have at one time), that second-guessing process of the intricacies and innate peculiarity / perverseness of Home Office decision-making is not a very scientific process.


I’m afraid that this case does not give a definitive answer – in fact, the Supreme Court were very plain that it was not permissible to have a “hard-edged or bright line rule to be applied to the generality of cases” when considering proportionality under article 8. 


What the Supreme Court do say is that


“in our view, it is not likely that a court would reach in the context of an immigration decision what Lord Wilson described in H(H) (at para 172) as the “firm if bleak” conclusion in that case, which separated young children from their parents.”



And that whilst the children’s welfare is not PARAMOUNT, it is a primary factor and no other individual factor outweighs the children’s welfare (so the Home Office would need to stack against it a number of other factors to outweigh a decision which was contrary to the children’s welfare)


So, the Home Office is to consider the case, and it will decide either that everyone stays or everyone goes.  [This of course raises curious dilemmas of what happens if say a man comes to England from the Congo, and remains here unlawfully, and marries a woman who has come to England from Angola, and remains here unlawfully; and they then have children together. Where do the children get deported TO?]




Here are the key principles in that consideration :-




(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;

(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;

(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;

(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;


(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and

(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.




One can see, I hope, that predicting what the Home Office decision will be becomes tricky.  The best one can do is guess that the more troubled the country of origin, the less likely a decision to send children to it might be, and that the longer and more settled the children have been in the UK the greater the argument that it is in their best interests to remain in the UK.



If you are interested, the Supreme Court upheld the original decision of the Home Office, and refused the application for judicial review by the parents.



24. There is no irrationality in the conclusion that it was in the children’s best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision-maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country. They were part of a close-knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit. Such integration as had occurred into United Kingdom society would have been predominantly in the context of that family unit. Most significantly, the decision-maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well-being. We agree with Lady Dorrian’s succinct summary of the position in para 18 of the Inner House’s opinion.


            Finally, we see no substance in the criticism that the assessment of the children’s best interests was flawed because it assumed that their parents would be removed to the Republic of Congo. It must be recalled that the decision-maker began by stating the conclusion and then set out the reasoning. It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance. When one has regard to the age of the children, the nature and extent of their integration into United Kingdom society, the close family unit in which they lived and their Congolese citizenship, the matters on which Mr Lindsay relied did not create such a strong case for the children that their interest in remaining in the United Kingdom could  have outweighed the considerations on which the decision-maker relied in striking the balance in the proportionality exercise (paras 17 and 18 above). The assessment of the children’s best interests must be read in the context of the decision letter as a whole.


If one were of course armed with a Guardian’s report and leave to disclose that, and a judgment and leave to disclose that,  both setting out how settled and happy the children are in the UK, and the likely detrimental impact of moving them back to the Congo or wherever applicable, that couldn’t hurt…


Not binding on the Home Office of course, but it really couldn’t hurt.

Unravelling the Triad


The judgment of Mostyn J in Lancashire County Council and R 2013


This is an interesting one, particularly as it pulls together a body of medical thinking on the cluster of symptoms which normally end with a finding of a non-accidental “shaking injury”


The two features of the classic “Triad” which were present here were a subdural bleed in the brain of the child and retinal haemorrhages. One never wants to see those injuries in a child, and for a long time they have been warning indicators that whatever had happened to the child might require the Courts to become involved, not just doctors.


The judgment begins by saying that the LA involved were right to bring the case, that they would have been badly criticised if they had not done so, and though the Judge is disappointed that the fact-finding hearing took some eight months to get going he attributes no blame to any of the parties.




The local authority, who through Miss Heaton QC has conducted its case professionally, coolly, and responsibly, argues also that this was not a case of an assault coming out of a clear blue sky perpetrated by a man of unblemished character. Rather, they say that this father is a man with criminal convictions for unprovoked assaults who had at least once prior to the incident assaulted the mother by placing his hands around her throat. Since the incident he has done the same thing again. He had recently lost his job and they were all living in inadequate cramped accommodation. There were plenty of stressors here, it says, which in combination with the father’s aggressive and impulsive personality should lead me to disbelieve him and to conclude in conformity with Mr Newman (in particular) that this was indeed a case of abusive assault.


The medical evidence was not speaking with one sole voice


On the other hand, some of the medical evidence suggests that this was an assault, although it is fair to say that the experts do not speak with one voice. The expert consultant paediatric ophthalmologist, Mr Newman, believes it is very much more likely than not that these retinal haemorrhages, both in their type and plenitude, are indicative of non-accidental injury. The expert neonatologist, Professor Wyatt, believes it is more likely than not that this was a non-accidental injury, although his degree of certitude is far less firm. However each of these experts accepts that it is possible that the father’s explanation furnishes the true reason for the injuries. The expert paediatrician, Dr Samuels, and the expert paediatric neurosurgeon, Mr Richards, are more equivocal and each believes that the competing scenarios are equally likely.



The father’s account was that he had got up to tend to the child in the night and had tripped and fallen on the child.





It is agreed that the case really boils down to the question of whether I believe the father or not. If I believe his story that this was an accident where he tripped and fell when holding N then that is the end of it. That story is not incompatible with the expert evidence. Mr Newman, while believing it to be highly unlikely does not rule it out. The other experts, more or less, believe that it is about as likely as the assault theory.



The Judge summarised current medical thinking in relation to subdural bleeds and retinal haemorrhages, and this will be useful to anyone involved in such a case.  It has been some years since I was last involved in an alleged “shaking” injury case, and I cross my fingers that I never see another, but things have certainly developed very significantly since my last one. Underlining here mine for emphasis.


  1. Before I look at the individual contributions I wish to make some preliminary observations:-

i) The presence of subdural and retinal haemorrhages, and for that matter encephalopathy (which taken together constitute the famous “triad” referred to in the jurisprudence and the medical literature), do not of themselves prove anything other than the infliction of a head injury. As Mr Richards said, the triad is an indicator of injury only, not of how it occurred.

ii) Inasmuch as the presence of the triad is, or some of its components are, used in the process of forensic proof then this is based on statistical or empirical evidence, which states that there is a high prevalence of these features in many proven cases of abuse. However I was not given evidence as to how many of these cases were proven as a result of the presence of these features, as opposed to those which were proven to be abusive by reference to other evidence, such as confessions. If many were in the former class then of course the process of logical proof may be said to be circular, as Mr Richards pointed out. Further, it is a fact that very many children who present with head injuries arising from an indisputable accident such as a fall are neither scanned nor subjected to ophthalmological testing. They are just patched up and sent home. This is because a CT scan by definition irradiates the brain, which is something to be avoided wherever possible. For a child of more than three months of age a MRI scan requires general anaesthesia – again a procedure not be undertaken unless unavoidable. Ophthalmological testing requires awkward and unpleasant dilation of the pupils. These tests are only likely to be commissioned where there is either a suspicion of abuse or where there are clear symptoms of head injury, such as persistent vomiting. Therefore the data is compiled from a class which has a high prevalence of suspected abusers. Accordingly it might be said, and Mr Richards agreed, that the sample on which the empirical analysis is based is a false or skewed sample.

iii) In the realm of subdural bleeds there seems to have been a relatively recent shift away from the prevailing orthodoxy. Not so very long ago the presence of a subdural haemorrhage in a recently born child was taken to be strongly indicative of abuse unless the birth was especially traumatic. On the basis of this supposition very many children will have been permanently separated from their parents. Yet, authoritative research over the last decade has demonstrated that this supposition is false. The Rooks paper in 2008 was the last of three important pieces of research and showed that no fewer than 46% of normal births caused subdural bleeding. We now know that many appalling miscarriages of justice must have been perpetrated in reliance on the old, now discredited, orthodoxy. Further, current medical and clinical thinking is now prepared to accept that short falls can in many cases cause subdural bleeds; the view that this could only happen exceptionally is now regarded as outdated. As Mr Richards said to me (and this chimes with the judicial opinions cited by me at para 8(ix) above as well as with Secretary Rumsfeld’s famous apothegm about unknowns) “the more you know the more you know you don’t know”.

iv) The ophthalmological world has not undergone an equivalent shift in thinking. Here the view remains that multitudinous bilateral retinal haemorrhages are strongly indicative of abuse and that it will only be exceptionally that they will be the result of an accident. But this is not a unanimous view. Mr Richards told me of the work of Dr Gillian Adams at the Great Ormond Street Hospital who is apparently collating a body of material which she intends to publish which challenges this orthodoxy. Further he referred me to the work of an American pathologist called Dr Lantz who (among other pieces of similar work) has published an article in the Journal of Forensic Sciences in November 2011 entitled “Fatal Acute Intracranial Injury, Subdural Haematoma, and Retinal Haemorrhages Caused by Stairway Fall”. This was a case study concerning a 7¾ month old child who fell down a flight of six stairs through a vertical height of 1.42m at a pitch of 37°. Sadly he died. An autopsy established that he had not only suffered from subdural bleeding but also from extensive bilateral retinal haemorrhages. This led Dr Lantz to conclude:

“These published reports of original data are discordant and controversial, making the correct classification of a young child death following a reported short fall a diagnostic challenge. Most childhood stairway and low-level falls do not cause serious head injuries. Nevertheless, not all seemingly minor falls are minor. This case report refutes a pervasive belief that childhood low height falls are invariably trivial events and cannot cause subdural bleeding, fatal intracranial injuries, and extensive multi-layered retinal haemorrhages. The harmful and potentially devastating consequences for a caregiver or family facing a false allegation of child abuse obligate physicians to thoroughly investigate and accurately classify paediatric accidental head injuries”



There are a number of important things in those passages. Mostyn J makes the very good point that the CT scans and eye examinations tend to be done in cases where abuse is suspected or really serious injuries observed. One knows therefore that the symptoms are present in such cases, but what one doesn’t know is whether they may have been present in much milder cases, such as falls from short heights or accidents. 


Also that medical orthodoxy has shifted considerably in recent years in relation to subdural bleeds (the figure of how frequent these are in births made me blink, and I dare say it might make others do the same) and it seems that we may be at an early stage on the same path in relation to retinal haemorrhages.




The final expert witness was Mr Peter Richards, consultant paediatric neurosurgeon at the John Radcliffe Hospital in Oxford. In his written report he stated that it is generally considered by most paediatric specialists who deal with infant head injury that low level falls described here do not cause acute subdural haemorrhages, and that a similar thinking applied in the ophthalmological world to retinal haemorrhages. Tellingly he stated that 12 months ago he would have agreed with this view but now he has had cause to doubt it. Only a very small percentage of children who suffer low level falls undergo specialist neuro-radiological investigation. Therefore it is possible that the incidence of low level falls causing subdural bleeding has been underestimated. Indeed in his own practice he had a child who fell off a sofa and who was perfectly well but because that child had a shunt in place it was felt prudent to have a CT scan to make sure that the shunt was working properly. To everyone’s surprise the CT scan showed a subdural haemorrhage. This case, and other cases encountered by him in his medico-legal practice, have led him to question the view that low level falls of the type described here does not lead to subdural bleeding. While he defers to an ophthalmologist in relation to retinal haemorrhages he drew my attention to the work of Gillian Adams to which I have referred which apparently will show that low level falls may cause significant retinal haemorrhaging. In the circumstances from a medical standpoint he could not determine whether the history as given is true or false on the basis of the medical features alone



There were four very heavyweight experts in this case, drawn from a variety of disciplines. Their evidence was necessary for the Judge to reach a proper finding, and one hopes that the drive towards less experts and faster resolution (remember, this finding of fact hearing took two months longer than the entire duration of proceedings that we are meant to be aiming for) doesn’t end with investigations of this type in future not being sufficiently thorough.



The Judge then drew these strands together, and considered the totality of the father’s evidence


  1. I therefore now state my final conclusions. I am of the opinion that a schism is beginning to form between the subdural and retinal disciplines concerning the forces involved in low level falls. I agree with the submission made by Mr Storey QC that in some respects the medical evidence given on behalf of the respective disciplines is irreconcilable.
  1. I remind myself that medical science is always moving on. It was not that long ago that the bleeding of patients and the use of leeches was de rigueur. Given the striking differences of emphasis and approach by the two disciplines it would in my judgment be dangerous for me to judge this case predominantly by reference to the mainstream orthodox opinion of Mr Newman particularly where there is research in the wings which may question that orthodoxy. If Mr Newman had not made his contribution I doubt whether this case would have been pursued after the subdural reports were in. So my overall assessment of the medical evidence looked at in isolation is that it does not provide me with a sure or firm basis on which to conclude that it was more likely than not that these injuries were caused abusively.
  1. In my opinion the absence of any of the tell-tale concomitant injuries which so often feature in shaking cases is important in helping me to inform the judgment which I must make.
  1. I do not know how the medical profession will resolve the statistical conundrum to which I have referred. Obviously children who have suffered minor falls cannot be routinely scanned and tested ophthalmologically. But until the data referable to these minor falls has been assembled I do not see how a statistically valid survey can be undertaken which can authentically and rationally conclude whether such falls do, or do not, regularly give rise to retinal and subdural haemorrhaging. Further, in order for the empirical work to be sufficiently persuasive to lead to the very serious findings that are sought here there surely has to be a discrimination between short falls from a standing start and the sort of fall described here which must have involved considerable horizontal, vertical and rotational forces. Yet so far as I am aware no such discrimination is made in the medical literature.
  1. And so I turn to the credibility of the father. I do not form the same adverse view of him as a man and a parent as that advanced by the local authority. He has very obvious flaws; but he has qualities also. I judge him to be truthful in his evidence to me, but I have to be alive to the possibility that he is a highly accomplished liar capable of embellishing a pack of lies with convincing snippets of circumstantial detail and by affecting displays of emotion. However in this particular regard I am assisted by the stance of the mother who is represented by the highest quality counsel and solicitors. Having heard all the evidence, having received appropriate advice, and knowing the father better than anyone in the courtroom, she firmly believes that he is telling the truth.
  1. In judging the father’s credibility I do not place any weight on his criminal record as being suggestive of a propensity to assault his infant daughter. The crimes in question, while deplorable, are of a totally different character to the one alleged here. By the same token I do not derive any assistance in my task from the two ugly and unpleasant incidents where the father manhandled the mother. Again, this conduct, which is much to be deprecated, is in a class apart from the conduct which is alleged here. Further, I do not accept that this was a family beset by stress. In fact the evidence shows that the family was living a mundane quotidian existence where the focus of attention of the parents was their beloved daughter.
  1. If this was a case of abuse then it was a very bad case indeed because it would not only have involved a violent shaking but then the hurling of N, or the bashing of her face, against a hard surface. It would have been an assault in two parts. This takes the theory beyond a momentary loss of self-control into the territory of sheer malignity. I consider this to be unlikely. On the other hand the father’s account is perfectly consistent with both the haemorrhages and the facial wounds. Mr Rowley QC submitted, that when looking at this aspect the process of logical reasoning known as Occam’s Razor favours the father’s case. I agree. Further, there are aspects to the local authority’s theory that are problematic. If N was crying loudly and incessantly, so much so that the father snapped and brutally assaulted her in the manner alleged, then why did these cries not wake the mother up? If N was crying loudly and incessantly why did the father not simply take her upstairs to her mother? No satisfactory answers to these questions were given to me.



[Of course, being trite, the last two questions are true of almost every case of physical abuse that is actually proven. We will never know why the other parent did not wake up, or why the parent who felt that they were about to lose it faced with an inconsolable baby doesn’t just walk away. I didn’t feel, personally, that the last two questions really add much. Nor would I necessarily want to see Judges placing huge weight on the underlined passage – the fact that mum believes dad isn’t all that helpful necessarily.  I can see why in this case, they added to a preponderance of evidence that was pointing towards exonerating the father, of course]


Despite those slight qualms about the final summation, this is a very rigorous judgment, drawing together some important strands and highlighting the tension between medical thinking on subdural bleeds and retinal haemorrhages and that there is research around or forthcoming which challenges the orthodox view on the latter.


This case is likely to be a good starting point for any lawyer faced with a case involving such injuries.





Crunchy numbers

Bob Cratchit qualifies as a solicitor, and goes to work for Tim Tiny and Co. He specialises in care proceedings. He does nothing other than representing parents in care proceedings, that’s his speciality. He doesn’t do any advocacy, he just sees parents, goes through the papers with them, listens to their problems, gives them advice, and prepares any statements for them.

One idle day, Bob wonders about his long-term future in care proceedings. He didn’t come into care law to make lots of money, but he, like most people has bills to pay and wants to be able to have some fun after the bills are paid. He is also aware that his firm is a business and that at some level, the business will be interested in whether it is making money by employing him, or losing money. If what he brings in by way of income doesn’t pay his wages, they will let him go.

So, what Bob wants to know is – to cover his wages, how many care cases does he need to have going at any one time? He realises that off the top of his head, he has no idea. Is it four? Fourteen? Forty?  

Given that the case is a fixed fee, there must be a point at which for each case, he begins losing money for each additional hour he works on it. But where is that? After twenty hours? Sixty? A hundred?

[It may sound nasty and vulgar and ugly to look at things in this way, but given that Tim Tiny and Co is ultimately a business and not a charity, they would want to have some idea of whether the work Bob is doing ultimately covers his wages. If Tim Tiny and Co were in the business of selling doughnuts, they wouldn’t do very well unless they had an idea how many doughnuts they had to sell to break even, and how much they made per doughnut after covering their costs. And if firm after firm of Tim Tiny and Co’s end up having to let their Bobs go, who will be representing parents?


I’m not sure that any care lawyer has ever sat down to do these sums. You will see when you read this whole thing, that care lawyers aren’t sitting around on thrones made of gold, lighting Romeo y Julietta cigars with fifty pound notes. If they were any good with numbers, they’d be doing ancillary relief with Fiona Shackleton, charging £500 per hour - allegedly]

Five key numbers or assumptions, from which the rest of this is derived.

(1)   The fixed fee cost for representing a parent in care proceedings is £2907 (it is actually less than that in the Midlands and the North – £2256 and £2193 respectively) 


(2)   The duration of cases post the new PLO going live will be 26 weeks


(3)   In order for a solicitor as an individual real person to earn £100, they need to bill at least £300   (the rule of thumb being that of every pound billed, 33p is for the wages of the solicitor, 33p for the overheads and 34 p for the partners of the firm)


(4)   The minimum hourly wage in the UK is £6.19  


(5)   The notional hours per week worked by a person in England is 37, though a lot of people work more.   [For the odd situation of a fixed fee, working more hours is actually a BAD thing, since it makes the effective hourly rate go DOWN]

If you didn’t know, we moved a few years back from a system where a solicitor representing parents billed for their work for each hour they spent at about £65 per hour (up to a certain limit) and instead to a fixed fee system, where every case, regardless of how much time is spent on it, gets billed at the same amount.    [There’s a  complication to that where if you are able to show that you spent TWICE the number of hours on a particular case than the Government predicted the average case would take, you can try to claim an additional fee, but that is high risk and beyond the scope of this article]

Deep breath, maths time. Let’s start by chopping out the bit of the fixed fee which goes to overheads and partners. The bit that is in effect left for Bob is 1/3rd.  

That makes the bit of the fixed fee that covers Bob’s wages £969 per case.   [£2907 divided by 3. He won’t necessarily get all of this, what we are doing is working out whether the firm can afford to pay him £x, given that they use at most one third of his generated income to pay his wages]

[We can do this next bit really quite simply as a rough estimate – if Bob earns just under £1000 in wages per care case, he’s going to roughly need 10 care cases a year to earn £10,000, 25 to earn £25,000 and so on. ]


The minimum wage of £6.19 an hour, multiplied by 37 hours, multiplied for 52 weeks, works out at £11,910 per year. That’s 12 and a bit per year, if Bob works in London or the South of England, so it needs to be 13 cases [since you can’t take on ‘a bit’ of a case].

National average salary is £26,500, so Bob needs to run 28 care cases per year  – this goes up a LOT if he doesn’t work in London.

Where is Bob and what does Bob himself get per care case

Number of care cases to earn minimum wage

Number of care cases to earn national average salary

Weekly income for Bob per care case and

Notional hourly rate per care case (on 26 week cases)

Weekly income for Bob per care case and Notional hourly rate per case case (on 40 week cases)

“Break-even point?”

London/South (£969 per case)







70 or less

Midlands (£752 per case)








55 or less

North of England (£731 per case)







53 or less


Break-even point is based on Bob needing to generate income out of that fixed fee to cover his hourly pay (which on national average is £13.77 per hour). The more hours he spends on the case, the less profitable he will be, but if he goes OVER those hours in the column, the work he is doing will not actually be covering his wages.  [So, in the North of England, on a 26 week case, if a lawyer spends an average of more than 2 hours per week on each care case, they aren’t covering their wages]

The notional hourly rate, if you want to check it is   (amount for Bob per case / number of weeks the case will be running (26 or 40) / 37 hours per week).  Given that you don’t get paid per hour that you work on the case, the notional hourly rate is a way of looking at what, per hour, you effectively earn from HOLDING the case, given that the fixed fee can be averaged out over the hours the case is active in Bob’s caseload).


Bear in mind that the notional £1 per hour per case isn’t just earned  WHILST you are working on the case, but just whilst the case is going on, it is a way of smoothing out those days when you do 4 hours on the case and other days where you don’t need to touch it at all. 


 [Of course, the 10% cut proposed by the Ministry of Justice in their consultation means that Bob will be only be  earning 90p per hour for each care case he holds, AND the minimum wage is going up to £6.31, so from that point he will need to hold more care cases per year to get paid minimum wage. ]

So, to pay a specialist care lawyer (who doesn’t do advocacy)  the national average salary, they need to be opening 28 care cases per year. If they can’t open 28 care cases each and every year, then either they need to change their working model to start doing advocacy (which is billed separately to the fixed fee) or Bob will be ending up out of a job. That means, given how long proceedings last, in the new regime, you’d be wanting to have 14 or more in your cabinet at any one time.

(If you are in private practice, and you have not just rolled your swivel chair back to your filing cabinet to count whether you currently have more than fourteen care proceeding files, you have nerves of steel…)


That’s all a bit depressing. So here’s a positive way of looking at it, says Suesspiciousminds weakly, the 26 week PLO timetable will be making you nearly 50% more profitable per case per hour, and will be making the partners 50% more profitable per case per hour too.  You can say to your partner, “look, once the PLO comes in, every care case I have will be earning me 50% more per hour”      [£1.00 v 65 p in the South, 78p v 51p in the Midlands, 76p v 49p in the North].  How often do you get the chance to improve your hourly earning figures by 50%?

“Hey boss, I’m going to be 50% more profitable per hour on care cases after August, how about a raise?”

 (If you ARE planning to use that as an argument for a 50% pay-rise, I suggest that you don’t use the earlier part of this article or let the managing partner see it. Also, if you ARE working for the MOJ, don’t use this as a basis for cutting the fixed fees down by 35% of their current level)

If you are a specialist care lawyer, either start grabbing some private family work, or start doing advocacy, as otherwise you’ll be struggling to stay afloat, is my advice.

Quick ballpark figure, if Bob did all the advocacy as well, on a new PLO case being dealt with in the Magistrates Court, say 3 ½ day hearings, 2 advocates meetings  and a 3 day final hearing, that would mean  £2425 for the firm of which one third, or  £808.50  goes into the potential pot for Bob’s wages. Which is quite a chunk compared to what Bob would get for running the case or what the firm itself would get, and one can see why family solicitors are doing more and more of their own advocacy, since it nearly doubles the income per case for the firm.


Working all of this out for barristers is harder, since there isn’t the 1/3 Bob, 1/3rd overheads, 1/3rd Tim Tiny and Co rule of thumb, but the figures are all there to be calculated. It would be ludicrous to imagine that a barrister could run five day hearings in the County Court every working week of the year, so that’s the ludicrous notional highest GROSS earnings per year for solely publicly funded work £557 per day x 5 days=  £2800 in a week x 48 working weeks of the year.



If Bob specialises in representing children, the table is a bit different, since the figures depend on whether it is one child or more than one – don’t represent a baby in the North of England, unless you are doing quite a bit of the advocacy yourself…

Bob works in which area, representing how many children?

How much for Bob per care case?

Number of cases to earn minimum wage

Number of cases to earn national average

On 26 weeks, the weekly income per case, and the notional hourly rate

On 40 weeks, the weekly income per case and the notional hourly rate

Break even point

South (1 child) £745.67







54 hours or less

South (more than 1 child)









81 hours or less

Midlands (1 child)









47 hours or less

Midlands (more than one child)








71 hours or less

North (1 child)








39 hours or less

North (more than one child)








58 hours or less


And one final bit of cheery news. If you are representing a parent, you can console yourself when in the first two weeks of care proceedings you have to:-

See the client

Read the papers

Decide what, if any additional disclosure you need

Brief counsel for the contested ICO hearing

Decide whether you want an expert

Identify expert, ask them to complete the practice direction material

Make an application for the expert

Draft a letter of instruction for the expert

See the client again and prepare a statement

Get them to sign the statement

Brief counsel for the Case Management Hearing

That you will have, in doing so, earned £200 towards your cost target.

Request for help

#Hello all,

Newfound spirit of PLO positivity.

As you know, the revised PLO is rushing at us all like a big happy ice-cream truck, an ice-cream truck that is fuelled by bubbles of fizzy lifting lemonade, and as part of that, LAs will need to be using the new special and beautiful Form C110a to issue their applications.

Now, I can only find this form in PDF format, which although is gorgeous and lovely and just peachy, doesn’t actually let you bloody type into it, and you know then save it, email it to other parties, and use it.  I am selfish like that, which is my fault, not the PLO. The PLO is perfect, the PLO is kind to badgers, the PLO helps the sun shine even more brightly.

If any of my readers happen to have the new form that we need to use for every new care application in the sort of format that allows people to make use of it, I’d be grateful for at least twenty minutes…

The PLO is good, the PLO is kind, the PLO is the moon over Mae West’s shoulder, the PLO is a Waldorf salad, the nimble tread of the feet of Fred Astaire, tower of Pisa, the smile on the Mona Lisa, and is certainly not in any way shape or form like rain on your wedding day, or a free ride when you’ve already paid.

Suesspicious minds is away for two weeks, enjoy the sunshine readers


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