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Strategy meetings


If you aren’t familiar with Strategy Meetings, they usually happen where there is a suspicious or unexplained injury to a child, and the medical professionals meet with the social worker and sometimes police, to gather together all of the relevant information and consider the options for going forward.


In this case, Re L  (application to withdraw ) (Head injuries : Unknown cause) 2015


they took on a particular significance.


A quick caveat – this case took place in my local Court, so of course I know some of the lawyers involved, and it was decided by my Designated Family Judge. I have had absolutely no involvement in the case (I never write about cases that I have had even a tiny part in) but of course it is much more easy to be dispassionate about the rubbish arguments deployed by Mr Edward Shirtsleeves and  Miss Rebecca Cufflinks of counsel when I’ve never met them and never will, rather than people who might concievably be in kicking distance of my shins from time to time.


Broad issues in this case were that in October 2014, a child presented to hospital with signs of head trauma. He was unwell at the time and has thankfully recovered.   A strategy meeting was held in November, and care proceedings were later commenced. The child was made the subject of an Interim Care Order and placed with an aunt.


At the final hearing, the Local Authority sought findings that the child had been shaken by one of his parents, suffering significant harm as a result.


After the medical evidence had been heard in those proceedings in June 2015, the Local Authority applied to the Court to withdraw their application.


  1. Essentially, the evidence of the experts and medical professionals was put to the test over those days, and by the conclusion of the medical evidence it had become clear to all those in this matter, including myself, that the local authority, who must prove their case against the parents, were in a position where it was highly unlikely that the evidence would support findings to the requisite standard against the parents and the threshold criteria would not be met in this single-issue case. I make it plain that there can be no criticism of the fact that the Local Authority issued proceedings here where there was clearly a prima facie case from the time L fell ill on the basis of the medical information which was supplied to them.
  2. Very properly in my judgment, and with exemplary good grace, the Local Authority made their application having taken stock of the evidence available to them at this point in the hearing.
  3. To found the basis for permitting the local authority to withdraw their application, I note the difficulties posed which have arisen in this unique case: some are serious, some perhaps less so, and some only visible with hindsight. There were gaps in the information available to the experts, and gaps in their own expertise as regards being able to come to clear understanding about what happened to L medically. There was, however, less uncertainty amongst the treating clinicians at Worthing Hospital as regards the cause of L’s head injuries at the critical point in time when life-changing decisions were to be made as regards his future, and I have concluded on all the evidence that this is something which requires careful exploration and recording in this judgment.
  4. L’s case and his long separation from the care of his own family will, I hope, contribute to a greater understanding of how the identified omissions which prevailed in this case might be avoided in future, though that may be poor consolation for his family.
  1. I have the weight of the expert evidence in this case as my yardstick to measure the identified omissions: it is difficult to imagine a more experienced and respected array of consultants with specialist knowledge, who have been stretched to and at times beyond their limits, but who have also provided valuable opinion in terms of their views of best practice. The case illustrates the position that there are limits to what can be achieved forensically.
  2. It is important that this judgment is seen as specific to the highly unusual case of L. Hindsight offers the court the opportunity to develop a counsel of perfection, but I am the first to acknowledge that this is unlikely to be achievable and practices vary and will always vary, and may be resource-specific. I can only do the best I can on what I have to go on in this matter with its very unusual features. The information about L which the experts had to go on was undoubtedly insufficient, and that in turn has left the court in the position where it cannot simply bypass their powerful evidence and return without more to the clinical picture available at Worthing Hospital to make findings, because such doubt has been cast upon L’s case as it was dealt with there. The information that there was what now appears to have been a very relevant differential diagnosis in relation to the cause of L’s injuries was available to the hospital, but it was not provided to the Local Authority at the outset of the case. The fact that there was a later differential diagnosis with a recommendation for further investigations related to L’s treatment was not fully conveyed to anyone in this case until the matter got to court.




If you are involved in a child protection case involving a head injury to a child or are a doctor who is involved in this area, I’d commend the entire judgment to you. It throws up a lot of really important practice issues, which are beyond the scope of this small(ish) piece.

You will see that although the Judge does not criticise the Local Authority for bringing the case to Court (and of course the Court when they made Interim Care Orders had to make the decision on the same information that the LA had),  we still end up in a situation where the parents were separated from their child for around seven months when they had done nothing wrong.


The mother was separated from her child for seven months. That is an almost unimaginable situation. I reaffirm the significance of this; of what she has missed out on in enjoying the first wonderful months of her child’s life and of what she must suffered as a result. She has lost her happy relationship with the father as well.


I think all of us could agree that this is intolerable. But what’s the solution?  One immediately cries out that the case must be heard more swiftly, but it is clear from reading this case that it was only by deploying a raft of very specialist experts that the true picture with all of its complexities emerged.  If someone had decided at the outset that the Court would reach a decision after say three months, those experts wouldn’t have reported and it is possible that the wrong conclusion could have been reached.


As Billy The Kid used to say,  “Speed’s fine, partner, but accuracy is final”

The other solution is not easy. Faced with an application for an Interim Care Order, with the treating medical professionals telling the Court that this child has been hospitalised as a result of one of his parents violently shaking him,  one is therefore asking a Court to take that risk on their own shoulders and keep the child and family together.  As we can see with the benefit of hindsight, that would have been the right thing to do on this occasion.  But ask yourself what would happen if a Local Authority (or a Court) decided that the medical evidence might later be proven wrong and left the child at home, where a second injury possibly more serious or life-threatening occurred?   How would Ofsted, the newspapers, the House of Commons, the public, react to that?

Part of the problem is that at the time when the social worker and then the Court has to make the decision about where the child should be whilst everything is investigated, that those cracks in the medical evidence haven’t yet appeared. It is only when ALL of the source material is available and looked at by people in painstaking detail, people with expertise, that you really get a sense of whether the evidence is unequivocal or whether this is a case with some real grey areas.

A Judge faced with an application for an Interim Care Order in those circumstances will know that there is a  risk of very serious injury but also that until all of the experts has reported we will not know whether the medical evidence is cast-iron or swiss cheese. Short of the parents going to live with another trustworthy adult or vice versa  (which is not really a practical solution for a seven month period of time), the risk can’t be absolutely protected against whilst the child is with the parents.  What’s the lesser of two evils here?

The way to keep the child at home with the parents is for the Judge to say “I know that there is risk here, I know that if it turns out that the medical evidence provided so far is right then these parents may have seriously harmed the child and may do it again, but experience has showed us that the only time one can be absolutely confident about the medical evidence is at final hearing when it is put to proof, so I am deciding that the risk should be taken in keeping this family with the parents, and I make that decision knowing that something could go wrong, no matter how much effort is put into a protection plan”.    And for a Court of Appeal to back a Judge up in that situation.

I would not pretend that this would be an easy thing to do.  If it goes wrong, the clamour would be for heads to roll and it would be a judicial head on the paraphet.


Anyway, back to the particular case.


Everyone was in agreement that the case should be withdrawn and the Court should find that the threshold was not met; but the issue was whether the Court should consider making a declaration under the Human Rights Act and possibly compensation   (although note that the Legal Aid Agency are currently stating that the Statutory Charge applies to such HRA compensation and it would all be swallowed up to repay legal costs)


The argument was twofold :-


1. That the medical professionals on the ground (not the Court appointed experts) had made serious mistakes which led to the child being removed and hence a breach of article 8

2. That the strategy meeting convened had been one at which a decision was made for the issue of proceedings, and thus was something that the parents should have been invited to, and failure to involve them was a breach of article 8 and article 6.


The Judge had been critical of some of the treating medical team on the ground, but was mindful that this was not, and could not purport to be a medical negligence case – the doctors had not been represented, nor had their Trust, and it was going outside the scope of the care proceedings to conduct that exercise.  The Court could go as far as it had, which was to identify practice areas for improvement and highlight failings, but apportioning blame was going too far.


The second point was developed more fully.


  1. I have been referred to Re R [2002] 1 FLR 755, Re L [2002] 2 FLR 730, Re G [2003] 2 FLR 42, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings. [4]Re M [2001] 2 FLR 1300; Re S (Minors) [2002] 1 FLR 815; McMichael v UK [1995] 20 EHRR 205 and the injunction that: “Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
  2. In Re G, the importance of full and frank disclosure by a local authority was emphasised:

    i) Informing the parents of its plansii) Giving factual reasons

    iii) Giving an opportunity for parents to answer allegation

    iv) Providing an opportunity to make representations

    v) Allowing the parents the opportunity to attend and address any crucial discussions.

  3. I have also been referred to Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 where parents were not present at a discussion where the decision was taken to place a child from adoption; Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 for the premise that the case must be viewed as a whole and exclusion may not in itself render the proceedings unfair.
  4. S 47 of the Children Act 1989 governs the duty of a Local Authority to investigate. The relevant aspects of this section are:
  5. S47 (1) 1:

    (1)Where a local authority—………………

    (b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

    the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.. . .

    (2)(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

  6. In addition I have been referred to the Sussex Child Protection and Safeguarding Procedures, published in March 2015. I have not been privy to this document hitherto. It contains a chapter on Strategy Discussions and Discussions, envisaged as a preliminary step before initiating a S 47 Enquiry, and when one is required, to plan how it should be undertaken. It provides guidelines for convening a strategy discussion or discussion. Discussions are advised in the case of serious physical abuse. It is identified as a “confidential professionals’ discussion” and participants are identified as a “professionals sufficiently senior to be able to contribute, although exceptional circumstances may arise where others may usefully contribute”. The relevant Consultant is highlighted as a required participant, as here.
  7. There is no requirement to include parents at such a discussion.
  8. In this case, I am faced with the tension between the need for a confidential professionals’ discussion to take place to which parents would not ordinarily be invited, and the argument that these parents should have been invited to contribute to that meeting, either for whole or part of it.


More detail about the Strategy Meeting followed



  1. (a) The Strategy Discussion
  2. In a case such as this, the decision to initiate a statutory s 47 inquiry (set out above) is taken following a strategy meeting held with relevant interested representatives of social services and external agencies such as the police, GPs and other medical personnel, schools, carers and, in appropriate cases, more specialised individuals. No more than and no less than that occurred in this case.
  3. The document generated by the meeting on 5th November is headed “Record of Strategy Discussion.” I see that It was called for as follows: “Referral from hospital this morning L had been admitted on two occasions. L has subdural bleeds of different ages. Suggestion non accidental injury. Possible shaken baby“.
  4. The proceedings hare was set running on what appears to have been the basis of the single clinical view provided at that meeting. There were a number of doctors at the meeting – Dr Cooke, Dr Kabole and Dr Shute in particular.
  5. These meetings are familiar to the Court. There is a protocol locally in operation across the three local authorities which sets out the normal parameters for such a discussion, which in short includes those who should “generally” be involved. It reads “all participants should be aware that a strategy Discussion/Meeting is a confidential professionals meeting and as such, notes of the meeting should not be shared within anyone without the permission of the chair”.
  6. It was chaired by Amanda Cole but I do not know who made the record. Its accuracy has been explored by the parties with Dr Hazell who gave her input over the phone. I have to say that the list of negatives does not quite coincide with Dr Hazell’s more nuanced evidence but I make nothing of that.
  7. The Social Worker Ros Sims told the court in her statement that L’s injuries were confirmed at the strategy meeting by the consultant paediatricians who attended as non-accidental injuries and consistent with L having been shaken and have resulted in the significant harm that has been medically evidence. The entire case stood on the information available to West Sussex County Council. It was the only thing which supported his removal. The initial stated belief of the local authority was that “L had experienced significant harm from one or more of his carers”.
  8. It was known that the parents were to be arrested and interviewed because it is recorded. The only planning in relation to further action by the local authority was that they were to make a decision regarding legal proceedings. In Re G [2003] 2 FLR 42 the first of the identified requirements upon a Local Authority is to inform parents of their plans. The recorded plan was to move to a decision in relation to legal proceedings. That is all.
  9. The issue is whether in this case, as distinct from other cases where parents would not normally be included in a confidential professionals meeting,[                 and                    ]should have been invited.
  10. Mr Storey argues that on the basis of Re G, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings, this particular strategy discussion should be considered as part of that inclusive roll call to say that he fact that the mother and father were not invited to the Strategy Discussion was an incursion into that right because to was a decision to separate the mother from the child.
  11. Looking again at that decision. I am mindful that what has to be determined is whether, having regard to the particular circumstances of the case, and notably the serious nature of the decisions to be taken, the parents were involved in the decision making as a whole, to a degree sufficient to protect their interests. If not this would amount to a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.”
  12. Mr Storey takes that decision at its highest, and sets it as the first rule in every case, to mean that this particular decision was part of the trial process and the parents were entitled to participate without qualification. If that is the case, then potentially parents would be entitled to be present at every strategy discussion, and the essentially confidential nature of the discussions would be lost.
  13. Like the experts in L’s case I am really hampered. All I have are the recordings. All I know is that the wheels had been set in motion prior to that meeting because there was a plan to arrest the parents and the social workers were going to refer the case to their legal department. It was technically not a decision to separate the parents from L, as far as I can tell from the notes. They are not likely to reflect the whole of the discussions. However I do not have the benefit of the evidence of those present: they have not been required to set out their evidence as to what occurred and why.



That did make matters difficult.  The Judge distilled the HRA argument into a central question


To reach any conclusion as regards an infringement of the parents’ rights due to not being invited, a court would at the very least have to ask the following question; Was the omission to invite the parents to a confidential professionals’ discussion, where the case was extremely serious in terms of what was being advanced medically, where their accounts appear not been given to the discussion, an infringement?


The Judge goes on to say, that understanding that the HRA point was developed once it became clear that the medical evidence was less solid than it would have appeared at the outset of the case, that there were important evidential matters which would have been needed to be obtained and put to witnesses before the Court could properly make that decision.


  1. The evidential basis for answering those questions with care and fairness is not available to me. To really understand what occurred and why, a court would at the very least need a detailed response from the local authority, and evidence from the key participants which could be fairly and properly tested. I cannot therefore take this point any further.
  2. What does concern me however is the medical information which was given then and later which tended so strongly to characterise this case as a case of inflicted injury as opposed to there having been another possible identifiable cause as of 4th November and indeed throughout. That alternative possibility has never gone away during this case. The Local Authority assumed that to be the only available diagnosis at the start of the case and the court only had the single view upon which to proceed.


The Court also expressed disquiet about the medical information provided at that meeting, most notably that it was not communicated to the Strategy Meeting that at least one treating doctor had considered that there was a medical explanation for the injury due to an unusual clinical feature that might give rise to a differential diagnosis  (i.e that there might not have been an injury at all, but rather some sort of medical episode)


I know not whether those involved intend to leave it at that, or whether a stand-alone HRA claim will be lodged.


For the moment, the answer to the question  “Is it a HRA breach to have a strategy meeting which might result in very critical decisions being made for a family if the family aren’t present?”   is  “it might be”  –  and at the very least, this case has made us all think rather harder about the issue.



Della was his secretary, Drake’s sat on the desk with Perry


In the High Court, in the case of Wirral Borough Council v KR 2015     some serious Perry Mason moves were pulled.

If you don’t know who Perry Mason is (hello Rachel Gymsocks) then I’m somewhat surprised that you are reading a law blog.  He is a fictional lawyer, American and suave, who had the inherent luxury of only ever representing people who were wrongly accused, and he would prove their innocence during the trial with some flamboyant move or surprise witness or dragging a confession out of a witness who had ostensibly only come to Court to say that “yes, they saw the rake that morning and it had some orange paint on the handle”.


[See also Johnny Cochrane, for a real world example, and his notorious “If the glove doesn’t fit, you must acquit” defence.  Of course, cough, in that case, perhaps he didn’t enjoy all the inherent luxuries enjoyed by Perry Mason. See also “The Chewbacca defence”  ]

You will see that in fiction, a Perry Mason move is a lawyer doing something outside the box that proves that their innocent client is innocent, whereas in real life, a lawyer doing something outside the box to get their client off is generally more of a Chewbacca defence.  This case is a Perry Mason move. There is a real, and important distinction. If the lawyer involved hasn’t been boring her clerks senseless with her tale of how she did this, I’ll be very surprised. I’d be telling this story every day for months if I’d pulled it off.

I suspect that the conversation from this point on will be


Barrister “Did I ever tell you about the time I….”


Clerk (wearily and quickly) “Yes”


This was a case involving alleged non-accidental injuries to a child.

To put the Perry Mason move into context, the LA turned up to the fact finding hearing with no case summary, no chronology and no schedule of findings sought.  One of the people under suspicion was the mother’s partner, JL, who did not have legal aid and was thus unrepresented.


  1. First, the bundle lodged by the local authority in this case failed completely to comply with the requirements of PD27A. In particular, it failed to contain any of the documents specified at paragraph 4.3 of the Practice Direction, the so called ‘Practice Direction documents’. Thus, until 9.00am on the morning on which the hearing commenced the Court was without an adequate Case Summary, a Chronology, any Position Statements and, most significantly given the Court was being asked to make findings regarding alleged inflicted injury to an 11 month old child, no Schedule of Findings. Further, in addition to the absence of these documents, JL, as a then litigant in person, had not been provided with any of the other documents contained in the bundle (save for some very limited documentation received from the mother’s solicitor at an earlier date).
  2. Whilst the failure to comply with PD27A was a plain breach of that Practice Direction, it is also the case that the failure of the local authority was of particular detriment to JL and placed his right to a fair trial in significant jeopardy.
  3. The absence of a schedule of findings meant that the respondents to this application did not have proper notice of the particulars of the allegations made against the mother and JL. In the mother’s case this difficulty was in part, but only in part, mitigated by the fact that she had lawyers to advise her. However, as a litigant in person, JL arrived at court on the first day of the hearing without any notice of the allegations made against him or of the totality of the evidence on which the local authority relied to make good those allegations, and with no real idea that the local authority was that very day intending to invite a judge of the High Court to find that he had injured deliberately an 11 month old child. It was the most remarkable and unsatisfactory state of affairs.
  4. After the Court expressed its extreme displeasure at the approach of the local authority towards JL, and to avoid the need for an extended adjournment while he got to grips with the issues and, from a layman’s perspective, the relatively complex evidence in this case, the local authority agreed to fund representation for JL. The Court is grateful to Mr Jamieson of counsel and to those who agreed to come on the record to instruct him for stepping into the breach. The court is further grateful to Mr Jamieson for discharging his professional duties with evident skill notwithstanding the short notice given to him.
  5. Whilst the local authority is to be commended for agreeing to fund representation for JL, I must observe that such a step, whilst of course desirable, would not have been necessary had the local authority complied with the requirements of PD27A and provided JL with a properly constituted bundle.
  6. The requirements of the Practice Direction are clear and the President of the Family Division has recently reiterated in the strongest terms in Re L (A Child) [2015] EWFC 15 the need for it to be complied with to the letter. The requirement to give proper notice to respondents of allegations made against them, and of the evidence in support of those allegations is equally firmly established in law and applies with equal force to cases involving litigants in person. The local authority is under a heavy obligation to ensure that the procedure at all stages is both transparent and fair, both in and out of court. The fact that a party or intervener in public law proceedings may appear in person does not relieve a local authority of its responsibilities in this regard. Indeed, it requires the local authority to be even more diligent to ensure that those responsibilities are fully and properly discharged.


To be fair to everyone involved, I am asking myself what on earth happened at the previous court hearings in this case?  These were all blindingly obvious matters that the Judge who dealt with it previously ought to have set out in an order, even if none of the advocates had suggested it in their draft order. The Court have to own some of this screw up.


The Local Authority pay for the legal costs of their major suspect (and stretching their powers to spend money under the Local Government Act well past breaking point, like two hungry yard-dogs fighting over a Stretch Armstrong toy) and STILL get told off.

So that’s the context – before the hearing began, nobody had received the proper documents from the LA setting out precisely what findings were to be sought.

It was during the cross-examination of the paediatrician by mother’s counsel that the Perry Mason move emerged.


  1. Towards the conclusion of her cross examination of the consultant paediatrician, Ms Howe on behalf of the mother proceeded to produce a photograph which had been shown to the other parties and to the consultant but not to the court. The consultant had not been asked about the photograph during her evidence in chief. The photograph, which was undated and not exhibited to any statement describing the circumstances in which it was taken nor what it purported to show, appeared to show a bruise to the back of A’s thigh sustained, it was said by Ms Howe, when he sat down heavily on a toy whilst in his kinship placement with the maternal grandmother.
  2. This was the first time that the court had been put on notice that there had been an independently witnessed incident that was said to replicate the explanation advanced by the mother for the bruising to A’s thighs. The consultant paediatrician had received little better notice of it than the court and, as previously noted, had not been asked to comment on it during her evidence in chief.


I did wonder when I read this, whether Ms Howe of counsel was about to absolutely cop it from the Judge. It isn’t the done thing to produce material evidence during the course of cross-examination of an expert, having not shared it with the other side.

However, any criticism she was perhaps going to receive was completely forgotten about when THIS happened

  1. Upon the photograph being produced by Ms Howe, counsel for the local authority Ms Banks rose and announced to the court that the allocated social worker, Mr Morris had been present at the maternal grandmother’s property during the incident to which the photograph was said to relate, had witnessed A sit down heavily on a plastic toy and had observed a red mark on the back of A’s thigh resulting from that incident. As will become apparent, when giving evidence Mr Morris confirmed that whilst the mark had not developed into a bruise by the time he left the house, the bruise shown on the photograph corresponded to the location of the red mark that he had witnessed following A’s impact on the toy. Despite the obvious relevance of this evidence, the local authority had not prior to this hearing secured a statement from the social worker placing that evidence before the court.
  2. Thus it was that at the end of the cross examination of the medical evidence in this case the court was for the first time made aware of the existence of photographic and witness evidence central to the court’s determination of whether a mechanism advanced by the mother for some of the injuries to the child, which the local authority contended were inflicted by the mother or JL, could constitute a reasonable explanation for those injuries. I directed that a statement be taken from the mother exhibiting the photograph and that a statement be taken from Mr Morris detailing what he had witnessed.
  3. The mother makes clear in the statement taken from her at court that she had only appreciated the significance of the photograph when she spoke to Ms Howe at court. During closing submissions Ms Banks informed the court that the photograph had only been the subject of discussion between the parties at the outset of this hearing, at which point she was informed by the mother’s team that it was being said Mr Morris had witnessed the event. Ms Banks further submits that the mother did not raise the possibility of A sitting on his toys as a cause of the injury until her statement of 26 January 2015.


So there you go, a genuine Perry Mason move.

  1. It is nonetheless a matter of great concern that this evidence had not been identified well before the commencement of the final hearing and shortly after the mother advanced her explanation in the statement of 26 January 2015. Had it been identified, the evidence could have been produced before the court in form which complied with the rules of court and the consultant paediatrician could have been given proper notice of the evidence and a chance to consider and comment upon the same before attending court. Once again, it was an entirely unsatisfactory state of affairs.
  2. There is a heavy burden on those representing parties to care proceedings to ensure that their respective cases are rigorously prepared such that all evidence relevant to the advancement of those cases is identified and placed before the court in good time. This heavy burden applies equally to local authorities and includes a duty to identify and disclose evidence that may assist a respondent’s case. Discharging this burden effectively will often involve close questioning of clients in conference as parents and social workers may well not immediately appreciate the forensic significance of events, documents or photographs until advised by their lawyers.
  3. Whilst I am aware that it is, regrettably, less common than it used to be for the advocate who ultimately undertakes the final hearing to have an early conference with their client and thereafter continuing intimate involvement in each stage of the case management process, and acknowledging as I do the impact of an increasing scarcity of resources, such input is vital in circumstances where the early identification of issues requiring resolution at the IRH or determination at trial, and of the evidence relevant to the resolution or determination of those issues is central to our system of case management and to the just and efficient resolution of cases.
  4. This is not a case in which the making of a finding of non-accidental injury would have resulted in the children being permanently separated from their birth family by way of adoption. However, were I to have found that the local authority had demonstrated that the injuries had been inflicted to I, and had the mother refused to accept those findings, the local authority would have invited me not to return the children to their mother’s care. That this was a possible outcome had the advocates not discovered, at the very last minute, the evidence concerning the independently witnessed incident outlined above should serve to concentrate minds.


It will not surprise you to learn that on examining all of the other injuries and listening to the family members give evidence, the Court decided that no deliberate injuries to the child had occurred and no orders were made.



[There is a less polite term for when you as a lawyer ask a question and the whole case disintegrates as a result of that question having been asked, which would also apply here,  like when you say “Do you accept that you, Francis Black, struck the child with a toffee hammer?” and the witness says “Yes”.   It is called a “F**k me question” because it is really hard when you hear the answer, not to immediately say “F**k me, I wasn’t expecting THAT” under your breath]



[Have also just thought that “Wirral going on a summer holiday” would be a good headline for a blog post, so if you work at the Wirral, please can you engineer a law report that is about a conflict about whether a child can go on a summer holiday? Thank you! Ideally, the holiday will be where the sun shines brightly, and where the sea is blue]

Proof of facts – High Court guidance on disputed injuries

This is a very short judgment, with not a single word wasted, and it sets out not only a helpful summary of the state of the law on resolution of disputed injuries but clarifies some areas where there has been doubt and confusion.

It does not really need my ham-fisted attempt to summarise it, so I will simply alert you to its existence, and recommend heartily that you read it. [I am inferring that this judgment is setting out points of general principle arising from the Poppy Worthington case – that particular judgment of the facts in the case is not going to be published until the Autumn, when the re-hearing is underway]


BR (Proof of Facts) 2015

Mr Justice Peter Jackson

Mr Justice Peter Jackson:


  • A fact-finding hearing into how a baby came to have a very large number of fractures took place in March and in April I gave a judgment that cannot be published at this stage. This short published judgment touches on three topics of more general relevance, described below.
  • The context is that the local authority alleged that the injuries were inflicted by the parents. They denied this and relied on expert medical opinion that the injuries may have been the manifestation of a condition as yet unknown to medical science that caused transient fragility in the baby’s bones. Other expert medical opinion considered it more probable that the fractures and other appearances were the result of assaults. It was common ground that there is no known medical condition that might explain the fractures, but that the radiological appearances were highly unusual.
  • The topics that I extract from the fact-finding judgment are these:


(1) Proof of facts.(2) Evidence about a child’s likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015).

(3) An analysis of generic risk factors and protective factors.

Proof of facts


  • The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.
  • Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
  • The burden of proving a fact rests on the person who asserts it.
  • The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this.


(1) Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case. In my view, statements of principle (some relied on in this case) that suggest that an enhanced level of evidential cogency or clarity is required in order to prove a very serious allegation do not assist and may lead a fact-finder into error. Despite all disclaimers, reference to qualitative concepts such as cogency and clarity may wrongly be taken to imply that some elevated standard of proof is called for.(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same.

(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.

(4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:

“Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”

I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.


  • Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.
  • When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.
  • Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case.


Evidence about pain response


  • In the present case, the medical experts commented upon the absence of an account by the parents of any pain response at the moments when the multiple fractures must have occurred. All the doctors stated that fractures are painful, whether bones are normal or not, and that a distinctive pain reaction would be expected from a baby when a bone breaks. The nature of the acute reaction might vary depending upon the bone. The nature of the chronic reaction in the hours and days afterwards might be confused with other childhood ailments.
  • The cause of the fractures was undoubtedly the application of force to the baby by an adult, who must have been touching the baby at the moments when the bones broke. The fractures did not occur spontaneously and the baby did not cause the injuries to itself. The question was whether the bones could have been weakened so that they fractured on normal handling.
  • On behalf of the parents, reference was made to an aspect of the judgment of HHJ Bellamy in Re FM (above). In that case, the allegation was that a mother was responsible for causing bilateral leg fractures to a child of just under a year of age. Accepting the evidence of Dr Allgrove, who was also a witness in this case, the judge found it possible that excessive use of a mid-strength topical eczema cream might have led to bone demineralisation and a propensity to fracture in a child with some degree of hypotonia and hypermobility of her joints. He concluded that the local authority had not proved its case and dismissed the proceedings.
  • The relevant part of the judgment concerns the judge’s observations on the medical evidence about a child’s likely reaction to a fracture at the moment that it occurs. A paediatrician had given evidence that it must have been “a memorable event”. At paragraph 115, the learned judge said this:


“As I have noted, that opinion is frequently given by paediatricians in cases such as this. In my judgment the contention that there must have been a ‘memorable event’ is unhelpful and potentially prejudicial to carers. Not only is it a formulation which invites an inference as to the veracity of any carer unable to describe a ‘memorable event’ [but] in my judgment it also comes perilously close to reversing the burden of proof, suggesting that a carer should be able to describe a ‘memorable event’ if the injury really does have an innocent explanation.”


  • Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.
  • Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.
  • In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.


Risk factors and protective factors


  • On behalf of the Children’s Guardian, Mr Clive Baker has assembled the following analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.


Risk factors

  • Physical or mental disability in children that may increase caregiver burden
  • Social isolation of families
  • Parents’ lack of understanding of children’s needs and child development
  • Parents’ history of domestic abuse
  • History of physical or sexual abuse (as a child)
  • Past physical or sexual abuse of a child
  • Poverty and other socioeconomic disadvantage
  • Family disorganization, dissolution, and violence, including intimate partner violence
  • Lack of family cohesion
  • Substance abuse in family
  • Parental immaturity
  • Single or non-biological parents
  • Poor parent-child relationships and negative interactions
  • Parental thoughts and emotions supporting maltreatment behaviours
  • Parental stress and distress, including depression or other mental health conditions
  • Community violence

Protective factors

  • Supportive family environment
  • Nurturing parenting skills
  • Stable family relationships
  • Household rules and monitoring of the child
  • Adequate parental finances
  • Adequate housing
  • Access to health care and social services
  • Caring adults who can serve as role models or mentors
  • Community support


  • In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.


Doc, Doc,Doc Doc Doctor Beat


When Judges disagree with doctors  – I’ve been interested in this for a little while now, and another case of this type has just flitted across my screen, so,


a quick run down of the recent reported cases where the Courts have, in considering an NAI case, gone against the medical evidence (or at least some of the medical evidence)  to find that the parent had not caused the injury.


This is very unscientific, I have just gone to a well known caselaw database and looked for family cases under the topic “medical”, so some cases will not have come up. I’ve just looked over the last 3 years.


[I am not, in case you doubt, arguing that the Court was wrong to do so in any individual case.  There’s a wealth of strong law about it being a matter for the Judge, not the doctor and the other factors to be taken into account, but I had in mind that it seems to be an increasing trend for Courts to go beyond the medical evidence and to decline to make findings based on the wider evidence, including often entertaining the hypothesis that today’s medical certainty may be tomorrow’s grey area and I wanted to look at that. Again, whether that is a good or bad thing depends on the individual facts of the case and your viewpoint. It is overall, of course, the job of Courts in finding of fact cases to get as close to possible as they can to the truth after a forensic exercise marshalling as much information as possible.


All of these cases may be worth a look if you are representing a parent in an NAI case where the medical evidence is not promising]



This is the most recent one


 Re A (A child) 2013   – child of a year old, two rib fractures. Mother said caused by a fall on him by an older sibling, all medical evidence was that this was highly unlikely. Evidence in the case of mother having a loving relationship with the child, Judge found that the injuries had not been deliberately caused, Court of Appeal upheld this.


Re R 2013  – 14 month old boy suffered burns from scalding water in a bath. Mother said he had been left alone for a brief period with no water in the bath and had turned the taps on himself.  Judge found that mother’s explanation was not right and that the boy had not turned the taps on, but the water had been there due to mum’s actions, though could not explain why she would have done this.  An interesting one, as Court of Appeal were split. One of the Court of Appeal judges felt that the trial Judge was right to have made the findings (Thorpe, the family judge), the other two felt he was plainly wrong, and the decision overturned.


Re ED and JD sub nom Devon County Council  – there was a comprehensive family medical history, including mother being a sufferer from Ehler-Danhloss syndrome   (I have heard it floated in almost every NAI case I’ve ever been in, but this is the first time I have read of anyone actually having it). There were nine rib fractures and subdural haemorrhages. The Court found that it would be surprising, given the evidence about the parents loving relationship with the children, if they had caused the injuries although it was possible, and concluded that  the LA had not proven the allegations of Non Accidental Injury


Re M (children) 2012     – I have blogged about this one before, it is the case where the child suffered what were described as ‘spectacular’ head injuries, to the point where the eminent experts involved could only pull up one point of comparison, being a man who had walked into moving helicopter rotor blades. The Court found that the head injuries, being inexplicable could not be said to have been caused by the parents, and thus that the rib fractures (where there was no medical doubt about them being NAI in causation) could not be safely said to have been caused by the parents.



Re M (A child) 2012  – 8 separate bruises on the arm of a child who was just weeks old. The medical opinion was NAI, the Court considered that the parents had also been dishonest in their evidence and made the findings. The Court of Appeal overturned this, considering that although the parents had not provided an explanation which the medical experts considered could be consistent with an accidental explanation, it would be a reversal of the burden of proof to then move to a conclusion that this meant the injury was non-accidental.


London Borough of Sutton v G 2012    – seven week old child collapsed, and had previously suffered burns. The Court had mixed medical evidence and accepted the conclusion of the experts who said that the collapse and injuries were due to an obstruction of airways rather than any non-accidental explanation and the parents were exonerated.



And on the flip-side, and this is the first one I have hit upon on this unscientific trawl of reported cases  – I know that there have been others, the other Ricket cases amongst them, so my trawl has been unscientific     


Re C (a Child) 2012 – where a Judge made findings, amidst competing medical evidence, that a mother had picked up her baby and shaken the baby in hospital following an admission for an earlier trauma. The Court of Appeal considered that the finding was ‘surprising’ but not plainly wrong.



Re A A 2012  – the Local Authority had not proved that a mother had killed two previous children, although did satisfy the Court that the threshold was met on chronic neglect. There was some medical evidence about a particular gene that the mother had which might have accounted for the death of the children.


Islington v Al Alas Wray 2012  – which you all know very well by now, the Court determining that the injuries were as a result of rickets brought about by Vitamin D deficiency.



Another one which made the findings despite contested medical evidence


Re L (Children) 2011   – the Judge made findings that the deaths of two children were due to deliberate actions by the mother, not to cardiac arrest, and although the medical evidence was mixed, the Court of Appeal upheld the decision. Where there was any uncertainty in the medical or scientific field a judge’s appraisal and confidence in the parent’s credibility was crucial to the outcome.


A County Council v Mother and Father 2011   (The Mostyn J case previously blogged about)   – the injuries were severe and peculiar, resulting in death to one child. The Judge was unhappy with both the medical explanations for the injuries and the parents account, and effectively found that neither were accurate but that the LA had thus not satisfied the burden of proof.   [Still not sure why that one didn’t get appealed]


Re LR (A Child) 2011  – cuts and burns to an 8 year old, the Court found that they were self-inflicted, despite medical evidence being doubtful that this was the case and that there had been no documented case of such injuries being self-inflicted by a child of this age, Court of Appeal upholding the decision of the initial judge.


Re R (A child) 2011  – Hedley J. [The ‘we are fearfully and wonderfully made’ case]


 Leg fracture to a seven month old child, following an admission aged 3 months to hospital for subdural haematomas. Judge heard the medical evidence that both were NAI, and determined that there might be an organic cause for the head injury that were not yet known to medical science. Hedley J then went on to say that notwithstanding the inherent unlikeliness of the leg fracture having been incurred accidentally, that is what he found to have happened.  [This is an interesting case to read, to see precisely how a Judge finds that something he considers inherently unlikely was on the balance of probabilities more likely than not to have happened…]







What to do in the interim?

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases) 

 , a cyst 

 or where the Judge didn’t like either of the competing theories and fell back on the burden of proof,  

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained 

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.  

The Judge’s exact wording was

I make it plain that there are plainly on the evidence matters which might be going in the opposite direction.  But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute,  should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing.  The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court.  In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales  [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round.  I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could takeOne would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it.  The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents.  He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation.  Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case.  I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case.  I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course.  But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken.  That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.


That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action.  The risk of separation and the harm that might cause is not, in and of itself sufficient.

and said ‘oh oh, smother me mother’

Tasteless title, for which I apologise, but it is a Smiths song.  (the passing of time, and all of its sickening crimes, is making me sad again)

A consideration of AA (A Child) 2012 EWHC 2647 (Fam)  – especially for John Bolch, as I am now taking requests  (other than of the ‘why don’t you just eff off’ variety)

Firstly, either Justice Baker has had the most difficult caseload of all time, or (more likely) he’s had a pile of published judgments in his in-tray waiting to be signed off for a while and has done about six in a week, because this is him again.

Secondly, its another in the developing body of High Court caselaw where Judges who might have been accepting of medical evidence (particularly if it stood up to cross-examination) are now setting it in a broader judicial context of the totality of the evidence to be assessed, and recognition that today’s medical dogma might well be tomorrow’s “well, we USED to think”  – I have been told today of a very interesting judgment forthcoming on this topic where the conclusion is that an earlier fact finding on very serious injuries resulted in a miscarriage of justice.

But anyway, onto RE AA.

Here is the opening background, and one can tell immediately that the mother is going to be under pressure in the finding of fact hearing

    1. This is a tragic and extremely difficult case. On 6th January 2011, a little boy, whom I shall refer to as J, died while in the sole care of his mother. Twelve weeks later, on 1st April 2011, his older brother, whom I shall refer to as B, then aged four, was found in a state of acute collapse, also whilst in the sole care of his mother, and died three days later in hospital.


  1. Police began an extensive investigation, which is still ongoing, into the causes of those deaths. The local authority started care proceedings in respect of the surviving younger sister of the boys, whom I shall refer to as A, now aged two. The local authority contends that the threshold under section 31 of the Children Act for the making of care orders is crossed in this case and seeks findings, first, that the mother neglected her children and, secondly and more seriously, that she was responsible for the deaths of the two boys by asphyxiation. The proceedings were transferred to the High Court and listed before me for a fact-finding hearing held in Portsmouth. This judgment is delivered at the conclusion of that hearing.

Regardless of how things play out, it is plain to see that professionals are going to have high levels of anxiety about this case.  Particularly given the existence of a third child.

And here’s a warning that idle remarks, made without any malice, can take on horrible significance when looked at through the cold microscope of forensic analysis

On another occasion in November, the mother became drunk when caring for the children, who were taken round to DA’s house. There is evidence that on occasions the mother expressed frustration about the demands for caring for the children. She was a regular user of text-messaging and the internet MSN message service and, when chatting to friends by these means, she would on occasions grumble about the children. One example, on the evening prior to J’s death, contains the statement that she could have “fucking killed” B, because he had made J cry and been disobedient, and added an additional remark: “I wish I didn’t have fucking kids.”

The case sets out the detailed medical history, which I won’t go into – I couldn’t summarise it better than the Judge has already done, and if you want to read it, I would go to the source.

The Judge sets out the legal position on reliance on medical experts, with the Cannings case unsurprisingly looming large in that regard.

The approach to expert evidence

    1. It is particularly important to bear in mind the point just made above where, as is invariably the case in cases of suspected physical abuse, the evidence adduced includes the opinion of the medical experts. As Ryder J observed in A County Council v A Mother and others [2005] EWHC Fam. 31,


“A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”

    1. Whilst appropriate attention must be paid to the opinion of the medical experts, their opinions need to be considered in the context of all the circumstances. In A County Council v K D & L [2005] EWHC 144 (Fam) at paragraphs 39 and 44, Charles J observed,


“It is important to remember (1) that the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”

Later in the same judgment, Charles J added at paragraph 49,

“In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus  human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”

    1. In assessing the expert evidence, I bear in mind that cases involving an allegation of smothering involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others (see the observations of Mrs Justice Eleanor King in Re S [2009] EWHC 2115 (Fam).


    1. On behalf of the mother, Miss Judd and Miss Pine-Coffin invite me to bear in mind the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother’s two other children had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation.


    1. The impact of the Cannings decision on care proceedings was considered by the Court of Appeal in Re U, Re B, supra. Dame Elizabeth Butler-Sloss P identified the following considerations arising from the Cannings decision as being of direct application in care proceedings:


“(1) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

(2) Recurrence is not in itself prohibitive.

(3) Particular caution is necessary in any case where the medical experts disagree, one opinion declined to exclude a reasonable possibility of natural cause.

(4) The court must always be on the guard against the over-dogmatic expert, the expert whose reputation is at stake or the expert who has developed a scientific prejudice.

(5) The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.”

    1. Usually, it is unnecessary for the Family Court to go further into the analysis by the Court of Appeal in Cannings, but in this case Miss Judd invites the court to have regard to the whole of that decision. I remind myself that it was a criminal case involving the deaths of infants under the age of six months, whereas these are family proceedings involving the deaths of two children aged two and four. Nevertheless, I find the analysis by the Court of Appeal of what Judge LJ, as he then was, described as two critical problems, as relevant to the current case.


    1. First, I note the paragraphs specifically cited by Miss Judd, in particular paragraphs 10 to 13 of the judgment in Cannings, which amplify point 2 in Butler-Sloss P’s summary in Re U, Re B cited above.


“(10) It would probably be helpful at the outset to encapsulate different possible approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted, for example, indications of or admissions of violence or a pattern of ill-treatment. Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained and still, despite the known fact that some parents do smother their infant children, possible natural deaths.

(11) It would immediately be apparent that much depends on the starting point which is adopted. The first approach is, putting it colloquially, that lightning does not strike three times in the same place. If so, the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly or strangely or not in accordance with some theoretically “normal” way of behaving when faced with such a disaster, her behaviour might be thought to confirm the conclusion that lightning could not indeed have struck three times. If, however, the deaths were natural, virtually everything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief.”

Later at (13):

“Reverting to the two possible approaches to the problems posed in a case like this, in a criminal prosecution we have no doubt that what we have described as the second approach is correct. Whether there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition, as we shall see, at the very least, it appears to us to coincide with the views of a reputable body of expert medical opinion.”

    1. Secondly, in considering the Cannings judgment, I note the observations of Judge LJ at paragraph 22, which amplifies point 5 in Butler-Sloss P’s summary in Re U, Re B cited above.


“We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.”

    1. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1:


“Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.”

    1. In Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed,


“A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden

of proof is established on the balance of probabilities.”

    1. Later in the judgment, at paragraph 19, Hedley J added this observation:


“In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made.”

Long term readers of this blog will know that I am a huge admirer of Hedley J, and this observation is very well made. I think on shaking cases we are getting very close, judicially speaking, to a conclusion that we simply cannot be sure until all of the evidence is tested forensically whether a child is likely to have been shaken or not, and as a result, I suspect that we may relatively soon get an appeal on an interlocutory decision to place in foster care,  a child suspected of having been shaken.

The Local Authority had run their threshold in parallel – on neglect, and on the far more serious allegations that the mother had smothered and killed two children. The Judge found that they had proved the neglect allegations.

    1. The local authority alleges that the mother is culpable of serious and repeated acts of neglect of her children and has set out this allegation in the schedule of findings filed in these proceedings. In their response on behalf of their client, the mother’s representatives have very substantially accepted the allegations. Some issues, however, remained and they have formed part of the hearing before me.


    1. Having considered the evidence, written and oral, I make the following findings on this aspect of the case:


(1) There is evidence that the mother struggled to cope with all of the children. In the early days after B was born, she was unable to cope with his care and often left him in the care of other people, including DA. On one occasion, feeling unable to manage, she left him at the social project where she was receiving support. Later she found it difficult to care for J and A together. As a result she did not always provide adequate attention, stimulation or boundaries for the children.

(2) The mother failed to prioritise her children’s physical and emotional needs, on occasions putting her own needs and interests first. She spent significant periods of time on the internet, including extensive periods communicating with friends via internet chat rooms. The children were expected to fit around the mother’s own wishes and needs. This was a particular concern for the experienced health visitor who gave evidence before me.

(3)On occasions the mother was emotionally neglectful towards the children. On one occasion she announced that she was placing the children in care and packed their bags before being talked out of this by support and social workers.

(4)The home conditions in which the children lived were frequently poor. The mother struggled to keep her home clean and tidy, despite repeated reminders from others, including DA. The home was often left cluttered with rubbish.

(5)On a number of occasions the mother failed to protect and supervise the children so that their safety was at risk. In September 2009, B covered himself in bleach. In October 2009, he was found sitting in bleach. In October 2009, J was taking to hospital having ingested Sudocrem. Stair-gates were fitted but on occasions left open. On other occasions dangerous items were left within the reach of the children, cans of spray, loose wall sockets, paracetamol, scissors, cleaning fluid and medication. On one occasion, J was observed by a health visitor to be in a position to turn a fire on and off. The mother failed on occasion to supervise the children in the street, on one occasion allowing J to walk so far ahead that he was able to cross a road by himself.

(6)The mother struggled to manage the care of the children so as to ensure that they were kept clean and had their nappies changed with sufficient regularity. J was noted on occasions to have a very dirty nappy and to be dressed in dirty, wet and sometimes inadequate clothing. As a result on occasions J and A had very sore bottoms and nappy rashes.

(7)The mother struggled to provide the children with appropriate food. She delayed starting B on solid food. She would give the children inappropriate food on occasions and rely excessively on junk food. J would be fed chocolate biscuits for breakfast. The mother struggled to manage A’s feeding regime as a baby and did not always follow advice on this topic. She told the health visitor that she could on occasions put J straight to bed without giving him any meal if they were late arriving home.

(8)The mother found it difficult to manage the children’s behaviour. She resorted on occasions to harsh chastisement of the children that was both inappropriate for their age and generally excessive. She would smack the children, perceiving their behaviour as “naughty,” not realising that it was often simple normal conduct to be expected of a lively, inquisitive toddler. She would shout at B when he was a baby in a vain effort to keep him quiet. She would resort to corporal punishment to an inappropriate and excessive extent. In October 2010 she was observed to slap B on the legs. She would threaten to smack the children by raising her hand. On occasions she put J in his room for excessive periods and sent him to bed at inappropriate times. On one occasion, as I find, she slapped B on the back of the head after he had run off.

(9)In November 2010 the mother was found drunk in charge of J and A. There is no evidence that this was anything other than an isolated incident; nonetheless it is a matter for considerable concern and jeopardised the safety of the children.

(10)The mother was provided with considerable support throughout the intervention of Social Services. Whilst there is some reason to question the level of support provided, the mother was not always as cooperative with the support workers who asked to assist her. The health visitor felt that her failure to take her advice was wilful. I bear in mind, however, that this mother suffers from a learning disability and I am unsure about the extent to which this was taken into account by the professionals who were trying to help her.

    1. There is a further allegation which concerns the father of the two younger children, GM. The mother reported that she had seen him poke J’s genitals with his finger. Despite her concern about this alleged behaviour, the mother continued to allow GM contact with the children. She states that she found it difficult to say no to him and still had feelings for him. The father has played no part in these proceedings. There has been no oral evidence about this matter and I am not in a position to make a finding about whether he did behave in a sexually inappropriate way towards J. I find however that the mother, knowing of the allegation that the father had behaved in that way, failed to protect J from further contact with him.


  1. Taken together, these findings about the mother’s treatment amount to serious and chronic neglect at a time when she was receiving considerable support through Social Services, as well as from her own mother, DA, and from friends and neighbours. Miss Davis and Miss Dewhurst, on behalf of the local authority, have rightly taken the view that it would be disproportionate to conduct an enquiry into each and every allegation about which there is documentary evidence that the mother was unable to cope, but I have heard enough to reach a clear conclusion. I conclude that this mother was simply unable to cope with the demands for caring for her children.

But on the major allegations, that the two children had been smothered (even in the context of those findings that the mother was unable to cope), the Judge did not agree that this was proven.

There were several clinical features which the experts explored . This is the passage of the judgment specifically on the expert evidence as to whether there was evidence of smothering (as opposed to any other possible cause of death)

Evidence of smothering

    1. So far as B is concerned, Dr Cartlidge found no evidence of any general health problems, nor any developmental problems. B was a previously healthy child who died suddenly and unexpectedly at the age of four and a half. Dr Cartlidge described this as “very unusual.” J died suddenly and unexpectedly, aged 28 months. Dr Cartlidge described this also as “very unusual.”


    1. Dr. Cartlidge considered that the evidence of a possible intentional airway obstruction in B’s case included: the fact that B was a healthy child; the fact that he had been well no more than half an hour before his collapse; the fact that he had collapsed suddenly without explanation; and the fact that his brother, J, had also collapsed and died suddenly without explanation. On the basis (which I have rejected above), that the petechiae were present on B on arrival at hospital, Dr Cartlidge concluded that they were consistent with, rather than diagnostic of asphyxiation, but stressed that his conclusion did not turn on the presence of the petechiae. Dr Cartlidge concluded that it is most likely that B died unnaturally and “smothering is probable.” He added, however, that “the medical evidence for smothering is not specific and relies quite heavily on the exclusion of other causes and an assessment of the case as a whole.”


    1. So far as J is concerned, again Dr Cartlidge found no evidence of any general health problems, nor any developmental problems. Like his brother, J was a previously healthy child who died suddenly and unexpectedly, in his case at the age of 28 months. Once again Dr Cartlidge described this as “very unusual.”


    1. Dr Cartlidge considered J’s earlier hospital admissions on two occasions to be significant. On 1st January, J had been well when he went to bed, but two hours later found unresponsive and jerky, with blue hands, feet and face. On admission to hospital some 50 minutes later, he was fully conscious and afebrile, but with petechiae over his chest and upper neck. In Dr Cartlidge’s opinion, this episode considered in isolation would support a diagnosis of a fit, although he noted that the evidence of a fever was weak and the temperature taken in hospital over 37.9 degrees Celsius was not usually sufficient to trigger a febrile fit. So far as J’s second admission to hospital was concerned on 3rd January, Dr Cartlidge noted that once again J had been well or reasonably well at the time he went to bed. Several hours later, he was found pale with staring eyes and possibly twitching of his hands. On admission to hospital, J was found to be suffering from chicken pox, but was very energetic and afebrile. In those circumstances, Dr Cartlidge ruled out the possibility that he had suffered from chicken pox encephalitis on this occasion. Once again Dr Cartlidge considered that this episode, taken in isolation, would not be of significance. However, when considered in the light of the later events, he considers that the admissions to hospital on 1st and 3rd January were concerning. The events that are said to have taken place on those occasions were similar to later events in J’s and B’s lives that resulted in their deaths. However, J’s clinical features on both 1st and 3rd January were not typical of a cardiac arrhythmia. Dr Cartlidge thought that smothering could have caused the clinical features in J on both 1st and 3rd January, as well as those described in both children immediately prior to their deaths. He therefore concluded that smothering was a plausible explanation for J’s death, but added again that medical evidence of smothering “is not specific and relies quite heavily on the exclusion of other causes and the assessment of the case as a whole.”


    1. In his oral evidence, Dr Cartlidge said that in his clinical practice he had only come across two cases of children of this age dying without any known cause. He had no experience of two children from the same family dying in such circumstances and he was unaware of any epidemiological study of childhood deaths involving this age group. He was asked to consider a paper produced by counsel for the mother entitled, “Smothering children older than one year of age, diagnostic significance of morphological findings,” by Banaschak and Others (2003) published by Forensic Science International. This paper led Dr Cartlidge to reflect on how B, at the age of four and a half, would have been expected to struggle quite vigorously if an attempt was made to smother him. Cross-examined by Miss Judd, he acknowledged that it was more surprising that there were no marks on the four-year-old child.


    1. In his oral evidence, Dr White said that the presence of physical signs of smothering would depend on the size and strength of the victim, the size and strength of the assailant and the method by which smothering was inflicted. In the case of child victims, the older the child, the more likely he or she was to struggle and the greater the likelihood of physical signs. Dr White considered that it was possible that B would have scratched himself in an attempt to prevent suffocation, but the fact that there were no scratch marks observed on B did not rule out suffocation as an explanation.


    1. In passing, I remind myself that Dr White noted two small marks, bruises, on the top of B’s head during his post-mortem examination. He did not, however, suggest that they were indicative of a physical assault. The local authority did not ask the mother about these bruises, nor did they feature at all in the local authority’s case.


    1. The striking picture provided by the consultant in emergency care, Dr Beardsall, was that B looked like he was sleeping, rather than suffering a life-threatening event.


  1. Having found, as explained above, that the petechiae on B’s face were not present when he was admitted to hospital, I conclude that there is no clinical evidence of asphyxiation other than the fact that two children died suddenly with cardiac failure, for which no cause had been identified.

So, the Judge concluded that although the deaths had unusual features, there was not clinical evidence to show that they had been asphyxiated, other than that the deaths had no identified cause.  He reminded himself of the other evidence, the number of genetic factors that were particular to this family and the mother’s evidence (particularly that her emphatic denials were convincing) and that whilst he had found her culpable of neglect such that the threshold was made out, there was still a marked difference between that neglect and deliberate murder of two children.

    1. Miss Judd rightly points out that, whilst the various experts have pointed to the lack of evidence of any disease or condition that could have caused the death of either J or B, there is equally no evidence of smothering. She submits that it is no more likely that this mother smothered each child without leaving any signs, than that the child died of an unknown, probably as yet unrecognised, cardiac cause.


    1. This mother has a variety of conditions which are likely to be genetic in origin. Dr Newbury-Ecob accepted that the new variant found in the KCNH2 gene, whilst not a cause of LQTS, might lead to a susceptibility or risk of arrhythmia in the presence of other factors, either genetic or environmental and might be associated with his death in some unknown way. Dr Martin noted that “there are quite possibly a whole host of genetic conditions we know nothing about.” The clear impression from his evidence is that the genetic understanding of cardiac disorders is still evolving.


    1. I recall again the observations of Judge LJ in Canningsquoted above, in particular that “where there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm” and that “a great deal about death in infancy and its causes remain as yet unknown and undiscovered.” I also have in mind the observation of Butler-Sloss P in Re U, Re B cited above: “The cause of an injury or episode that cannot be scientifically explained remains equivocal. Recurrence in itself is not prohibitive. The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw light into corners that are at present dark.” Finally, I remember the wise words of Hedley J in Re R, also quoted above: “there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown …. a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism.”


    1. I have given extremely careful attention to the opinions of all the experts and Dr Cartlidge in particular. I acknowledge that there is a significant possibility that this mother was responsible for the deaths of the boys and my mind has fluctuated during the course of this hearing and in my subsequent deliberations. There may be in due course other evidence that bears upon this issue. Having considered all the evidence put before me, however, I find that the local authority has not proved on a balance of probabilities that this mother smothered either J or B.


  1. The consequence of my finding is that, for the purposes of these proceedings, the court and the parties will proceed on the basis that the mother did not smother the boys. For the reasons explained above, however, I have found that the mother was responsible for significant acts of neglect of all the children and on that basis the threshold conditions under Section 31 of the Children Act are satisfied.

This body of caselaw may very well be a watershed moment in care proceedings, where the Courts began taking a stance that the presentation of the parents in evidence can be as pivotal as the seemingly damning medical evidence laid against them, and that mere lack of an alternative plausible explanation than non-accidental injury does not necessarily equate to NAI.  It is liable to lead to the job of Local Authorities in such complex medical cases to be more akin to marshalling and testing the evidence rather than the quasi-prosecutor role that traditionally accompanies trying to prove threshold at a finding of fact hearing.  It is also liable to make senior figures in Local Authorities very nervous about fact finding hearings where the outcomes are now so hard to predict, and the costs so vast.

A County Council v M and F 2011

Although judgment was given in this case in 2011, following a finding of fact hearing in the summer of that year, the judgment has only recently been published. I would preface all of this by saying that the case, and this blog will deal with injuries to a young child which resulted in the child’s death, and it is quite likely that some readers might find this blog entry distressing and upsetting.  I don’t want anyone to read this without having that in mind.

I am likely to want to return to this and blog on it in more detail, as the judgment is significant, and very detailed. Mr Justice Mostyn conducted the finding of fact hearing, and the structure and methodology with which the Judge deals with the judgment is exceptional.  It would be worth reading in its entireity

Much like the recent case involving subdural haematomas, which I have already blogged about, this case involved the Court being asked to make a binary choice about whether a child in question was killed by his parents, or whether there was an accidental/organic explanation. It is the most serious type of finding of fact hearing which can ever occur.  The parents have either suffered the tragic loss of a child through organic reasons, or perhaps by an action which they could not have suspected would lead to harm and are safe around other children, or they have killed a child and concealed this and lied about it throughout a family court finding of fact exercise. There is either no risk at all, or a very high risk.

As indicated earlier, I think any reader who has an interest in finding of fact cases should read the entire judgment, as the entire thought processes, the analysis of the medical and other evidence and the law as it relates to each discrete point is mapped out with extreme care and skill by the Judge (notwithstanding that my gut reaction is one of some disquiet)

The child in question suffered injuries and died during attempts to resuscitate him. The parents explanation was that the father, a cyclist, had a small trailer or bike buggy which went behind his bicycle, which the child would sit in, and that whilst riding the bicycle at speed,the child may have suffered injuries as a result of going over bumps in the road, bouncing over tree roots and stones. There obviously questions about whether any of the injuries to the child could have been sustained during the resuscitative process.   (There is substantially more to the parental defence than this, and obviously if I could reduce the complexity of the case down to a page, it would not have taken 20 days of High Court time, nor required 13 bundles of evidence, so I apologise for the fact that this summary is by its nature not thorough)

Here are the injuries identified on the child :-


Of the Head Neck

1. On the right side of the occiput, there was a scabbed abrasion 1 mm in diameter.

2. On the right forehead, 45mm above the outer angle of the right eyebrow, there was a purple bruise 4mm in diameter.

3. A similar bruise was present approximately 45mm above the outer canthus of the left eyebrow.

4. There were two purple bruises on the outer aspect of the inferior margin of the left orbit measuring 5mm and 4mm.

5. There was scabbing of the posterior margin of the right nostril.

6. There was a recent tear of the frenulum of the upper lip which was associated with a little erythema but no significant haemorrhage.

7. There was a red mark 2mm in diameter posteriorily in the midline of the hard palate.

8. Within the upper helix of the right ear, there was a purple nodule 7mm in diameter which on sectioning showed a little haemorrhage.

9. There was a fluctuant swelling 25 x 20 x 7mm with overlying purple discoloration of the skin within the left upper pinna. Sectioning revealed an organising cystic haematoma containing some liquid blood.

10. There was a well circumscribed area of superficial haemorrhage in the middle lower left lip measuring 3 x 2mm in the midline.

Of the Right Upper Limb

11. There were two purple bruises on the ventral aspect of the lower right forearm just above the wrist measuring 3mm and 5 x 3mm.

12. There were scattered blue bruises up to 7mm over the dorsum of the right hand and over the back of the index, middle and ring fingers of the right hand

13. On the centre of the right palm and the palmar aspects of the index, middle and ring fingers, there were similar blue bruises up to 7mm in diameter.

14. There were scattered abrasions on the back of the index finger 3 x 2mm and overlying the proximal interphalangeal joint of the ring finger measuring up to 2mm.

15. There was a red/purple bruise over the metacarpophalangeal joint of the middle finger of the right hand measuring 10 x 5mm.

Of the Left Upper Limb

16. At the centre of the left palm, there were similar blue bruises up to 7mm in diameter with at the base of the index finger, there was a transverse apparently post-mortem skin split.

17. On the back of the left hand and on the back of the left index, middle and ring fingers, there were similar blue bruises up to 7mm.

18. Over the metacarpophalangeal joint of the middle finger, there were small scabbed abrasions.

19. Over the proximal interphalangeal joint of the ring finger, there was an abrasion up to 2mm in diameter.

20. An abrasion 2mm in diameter was present over the proximal phalanx of the index finger.

21. There was a red mark on the proximal phalanx of the index finger.

22. There were two purple/brown bruises on the medial aspect of the left forearm measuring 12 x 9mm and 13 x 9mm separated by 10mm. The bruises showed yellowing at the edges.

Of the Lower Limbs

23. Over the 5th metatarsal of the left foot on the dorsal aspect, there was a purple bruise 5mm in diameter.

There was a great deal of consideration about the medical evidence. It appears to me that the Judicial conclusion is that speaking from a purely medical perspective, the medics are in agreement that the injuries were non-accidental in nature.

[It is worth noting  Justice Mostyn’s comments about the Guardian’s stance – I believe that similar reservations have recently been expressed by Lord Justice McFarlane, though I am still waiting to read the transcript on that authority.  I could not agree more with what Justice Mostyn says here]

The argument on behalf of the guardian of D and S2

    1. Ms D QC and Ms R represent the litigation guardian of D and S2, Ms S. In her written final submissions Ms D QC wrote:


“In this hearing the Children’s Guardian takes a neutral and objective position. It is not her role to argue for or against any of the other parties.

Ms S has had the benefit of hearing most although not all of the evidence throughout the hearing. She has had the benefit of the transcripts of the experts and medical witnesses provided. She was represented throughout. She has had the benefit of reading the documentary evidence filed and she has met with and had discussions with the parties. She has met the children. If the Court makes any findings against M or F the Children’s Guardian will be in a good position to consider and formulate her recommendations to the Court for the welfare of the children.

To that end the Children’s Guardian has considered the oral evidence heard, the written evidence submitted and the expert opinion received in the context of the LA’s Schedule of Findings.”

  1. I was surprised to read that. Given that the outcome of this hearing could have a most far-reaching effect on her clients D and S2 I would have thought that I would be offered at least a steer as to what findings I should make. But no, I was firmly told that this is not the practice, and with my slender experience of this kind of work I am not in a position to argue. That said, approaching the matter with an open mind uncluttered by years of experience of this kind of work I would have thought that at the very least the role of the Guardian and those representing her should be akin to Counsel to a Statutory Inquiry, assisting the court in exploring complex scientific evidence and making suggestions to the court as to what findings should properly and tenably be made. The practice of sitting with an assessor has fallen into disuse (notwithstanding that the procedure for appointing an assessor has recently been reiterated in FPR 2010 r25.14), and thus the role of the representative of the Guardian in a case such as this cannot be overstated.

Having heard all of the evidence, the Judge sets out how he proposes to deal with the decision, and sets out this framework


    1. The business of judging in this case is peculiarly difficult.


    1. Yet, if I accept Mr S’s submission that there is little, if any, scope for me to gainsay the histological evidence, which must lead me inexorably to find that in the early hours of the morning these parents, acting together, meted out the most extreme sadistic violence to S which involved thrashing his little hands and punching him in the face with sufficient force to snap his fraenulum.


    1. The same point is to be made in relation to the allegations in respect of S when the photograph at Exhibit 7 was taken. Standing alone all the allegations suffer from obvious evidential weaknesses, but when viewed through the prism of the histological evidence they present an altogether different image.
    1. But I do not believe that I should judge the histological evidence in isolation. It is part of a wider canvas. This is a recurrent theme from the authorities. I must weigh it against my assessment of the credibility of M and F and the (im)probability, judged from a non-scientific stance, that this ghastly event actually took place. So as regards the components of the evidence the court is, up to a point, in a chicken and egg situation.
    1. What I therefore propose to do is to make judicial observations on:


i) The credibility, character and personality of M and F.

ii) The use of generalised empirical statistical paediatric evidence.

iii) The use of photographic evidence.

iv) The reliability of ageing bruises by visual observation.

v) The reliability of the lay evidence from the neighbours.

vi) The histological evidence.

I shall then stand back and pull all the threads together and make my findings applying the law as I have set it out above.

Respectfully, this appears to me to be an entirely sensible and solid approach, taking into account all of the relevant matters and not taking into account anything that is not relevant.

What really appeared to trouble the Judge was that on the binary version of events, either the medics were right and these parents had inflicted horrific injuries on their child resulting in the child dying, and had concealed it and had faked a 999 call;  or the medics were not right and that the injuries were caused in a way that could not be medically explained but was not a deliberate or violent act.

    1. In judging the truthfulness of the parents as to the events of the night one has to reflect on the implausibility of what the LA seeks to prove. Although the LA did not explicitly challenge all the elements of the parents’ account as set out by me above, it should not be taken as accepting any of it, save where it is incontrovertible. Its case is that for the crucial period only M and F can say what actually happened, and they say that they should not be believed. However, stripped to its core elements the sequence that they posit is this:


i) At about 3 a.m. one of the parents inflicted extreme injury to S’s palms by repeatedly thrashing them in some way with some weapon. S was also punched in the face with such force that his fraenulum snapped. This would have caused S to suffer extreme pain, and he would have been screaming very loudly. The other parent, if not participating in this awful act, was present and complicit.

ii) D either heard all this, but never mentioned anything to anybody, or slept through the whole thing, even though her bedroom is next to S’s in a very compact area.

iii) None of the neighbours heard anything in this compact estate.

iv) At 7 a.m., as I have found, S died. Either one or both of the parents smothered him, or, by an extraordinary coincidence, he died a cot death.

v) At 8.50 a.m. M dialled 999 and seemingly in great distress told the emergency operator that her baby was dead in his cot.

  1. Obviously, improbable things do happen, but this sequence of events seems very unlikely. It is against this unlikelihood that I have to judge the truthfulness or falsity of the parents’ denials.

[The one element in this that I find problematic, or potentially problematic, is that of course it is very unlikely that parents would do such a thing, but one has to take into account that it becomes less unlikely when faced with a child who HAS those injuries. As the House of Lords considered in Re H and R and  Re B, it may well be inherently unlikely that a parent would abuse a child and the average parent would not, but the unlikeliness of it reduces if the Court is faced with a child who has been abused. I am as certain as anyone could be, however, that Justice Mostyn gave every facet of the case a great deal of care and attention, and it is likely that it is my reading here that is at fault]

His comments on the injuries to the palms show as much

The injuries to the palms, which are the most serious of all, and which can be regarded as a touchstone, are shrouded in mystery. The surface area of the palm of a seven month old infant is very small indeed. No-one, apart from Professor H has ever seen anything like these bruises. He has only seen them twice in people with bleeding disorders. Although Dr L posited that they might have been inflicted by a ruler or cane he admitted that their appearance did not really fit with that hypothesis. In argument I pressed Mr S to advance a likely mechanism but he just fell back on “repeated application of significant blunt force trauma” and declined to be drawn into specificity. So I am being asked to conclude that the parents inflicted with some mystery weapon, which no-one can visualise, repeated beatings on these tiny palms causing bruising the like of which none of these experts, Professor H aside, has ever seen before.

In summarising the medical evidence :-

    1. This evidence leads the four experts to conclude, as confidently as they can, that, by reference to the telos of this science as set out by me at para 40 above:

i) All of these injuries were caused in life and not after death;

ii) The injuries to the ears and knuckle were caused about 3 days before death; and

iii) The injuries to the palms and fraenulum were caused about 4 – 12 hours before death (most likely around 4 hours).

    1. In judging these powerful conclusions, at this stage without reference to the wider body of evidence I have sought to set out and comment on above, I would make the following general observations:


i) This science is forensically untested. The reason that I have not been given any medico-legal papers detailing the results of legal cases where responsibility for injuries has been found based on this science is because there have not been any, apparently anywhere.

ii) The science is based largely on research conducted on animals. There is almost no published scientific research in this field performed on humans, and none at all on babies. While it is said that the cellular and vascular features of all mammals are identical, this is mere assertion. I do not have any scientific evidence that tells me that neutrophil and macrophage migration is the same in mice, sheep, human adults and human infants.

iii) Biological science is not nearly as certain or predictable as the science of physics or the laws of mathematics. As Dr L accepted “we have biological systems and so therefore you cannot automatically assume that every one of us in this room will have exactly the same rate of accumulation of polymorphs at the site of inflammation – it doesn’t work that way, and there are other factors that may influence that”.

iv) Science is always moving on. Scientific certainties of a past age are often proved conclusively wrong by later generations. In an address to the British Association for the Advancement of Science in 1900 Lord Kelvin, one of the greatest of all scientists, stated that “there is nothing new to be discovered in physics now. All that remains is more and more precise measurement” and in a 1902 newspaper interview he predicted that “no balloon and no aeroplane will ever be practically successful.”[5]. Thus the warning of the President in Re U, Re B at para 23(v) that “the judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark”.

And the final conclusions – I recommend reading these three or four times, to really let them soak in

My very final conclusions

    1. I conclude:


i) Based on my survey of the lay and psychological evidence it is extremely improbable that these parents have ever deliberately inflicted injury on either of these children. It is, however, possible. I do not accept the neighbours’ evidence as to observations of marks or bruises save as to the marks seen by N2 to the backs of S’s hands on the week-end before he died.

ii) However, I believe that injuries to S, were caused by F recklessly taking both children out in the buggy in disregard of plain safety warnings. M would have been complicit in this, up to a point. There was nothing malign in this. It was just stupidity born of an over-enthusiastic and over-energetic immaturity on the part of F, and, up to a point, M. Obviously, it must never happen again, and I do not believe that it ever will.

iii) Based on my survey of the scientific evidence it is extremely improbable that an innocent explanation for S’s injuries is furnished by the eventuation of those things mentioned above. It is, however, possible.

iv) The paediatric evidence from Professor S does not alter my conclusion in (i) above. Nor does the photographic evidence. It is consistent with my conclusion in (ii). The forensic evidence of FS does not alter my primary conclusion. There are perfectly innocent explanations for blood on the sheet, bib and grow-bag. We know that S suffered from nose-bleeds, that he had an erupting tooth, and had bleeding feet.

v) Although the orthodox histological evidence is powerful I am not prepared to rely on it to displace my conclusion in (i) above for the reasons set out by me above. I would venture to suggest that there needs to be consideration within the medico-legal community as to reliance on histological evidence such as this in the forensic process where there is such a dearth of research on humans, and, particularly, babies.

vi) I am not prepared to find that the parents neglected S in relation to his feet. They sought appropriate medical advice for what was certainly a fungal and possibly also a bacterial infection. It is clear to me that there had been a significant postmortem degeneration in S’s feet by the time the photographs of them were taken at the autopsy.

    1. I am therefore left with two improbable explanations namely that S was brutalised and murdered by his parents; alternatively, that he suffered a sequence of pathologically unlikely events that gave rise to his injuries and overwhelmed him. This is a Popi M case. Just as the decision of the House of Lords left no-one knowing why the vessel plunged to the bottom of the Mediterranean Sea, so we are left here with no explanations for the injuries and death of S, other than those I believe were caused in the bike buggy. This is one of those very rare cases where the burden of proof comes (as Baroness Hale put it) to my rescue and so the parents are entitled to the return of Lord Hoffmann’s value of zero, namely that they will be treated in law as if they did not deliberately inflict violence on and to these children.


    1. This is not to say that there is not the possibility, even the real possibility (to use the language of Lord Nicholls in Re H and R when discussing the test under the second limb of s31(2) Children Act 1989), that these parents did indeed so grossly mistreat their children. But a suspicion or a risk is not enough on a fact-finding hearing, as the House of Lords so emphatically confirmed in Re B.


  1. I appreciate that the parents, and indeed the LA, want definite answers and I am sorry not to be able to supply them. I am only prepared to find on the 51% balance of probability test, having surveyed all the evidence holistically as the authorities mandate I must do, that I am not satisfied that these parents deliberately abused their children (as opposed to treating them recklessly in the buggy), or neglected or murdered S. Thus far I am prepared to go, but no farther.

That is as close as I think one will ever come to seeing a Judge accept that there are limitations to what even the most exhaustive consideration of the situation, with the assistance of extremely able counsel and experts drawn from a range of disciplines can achieve. This was one of those cases where the Court simply has to say that it is impossible to say what happened – whether the medics are right and a child was effectively violently assaulted and died as a result, or whether there is some other cause for the injuries which exonerates the parents. Being unable to decide, the Judge went back to first principles – the balance of proof falls on the LA, and as they could not prove that the parents HAD deliberately abused their children or neglected or murdered one of them, he had to find that they HAD NOT done so  (the test being binary now – mere suspicion falls away – if it is not proved that a person did X following a finding of fact hearing, then it is proved that a person did NOT do X in the eyes of the law)

Read it again – the Judge is essentially saying that both possible versions – the deliberate harm and the accidental explanation are both highly improbable, but not impossible. He is unable, on that basis, to find that either is more likely than not to have happened, and as a consequence, has to resort to the burden of proof to resolve matters. I can’t ever recall seeing a judgment like this – we bandy around the phrase ‘finely balanced’ all the time (and often use it as a substitute for  ‘arguable’  or ‘with some merit’  or ‘not utterly hopeless’, but this really is the finely balanced case.

As I hope I’ve made plain throughout, whilst this conclusion left me very uneasy, I have nothing but admiration for the careful, logical, structured, considered and exhaustive way in which the Judge tackled this exercise. But it does leave huge question marks for the future of really serious injury cases.  There has been a tendency over recent years (and this may well be right considering how badly we now know that cases like Cannings were approached in terms of accepting medical assertions that have since fallen away) to question the medical opinion; not just as to the confidence of diagnosis and differential diagnosis, but that additional step of ‘what you say is consistent with what you currently believe, but it may not always be the case and in time to come, we may find that this medical opinion as to causation of injuries is wrong’

I don’t know what the answer is here  –  a Court choosing between two (or more) competing medical hypotheses each supported by a medical report is a tough situation and perhaps not the best way for a medical controversy to be resolved  (scientific fact isn’t resolved by cross-examination but by science and testing and Poppers falsifiability principles )  but a Court being driven to speculate about the current boundaries of what science believes to be the case is even more difficult.

A fascinating case, which must have been immensely emotionally draining for all concerned.


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