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) https://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/
or where the Judge didn’t like either of the competing theories and fell back on the burden of proof, https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/
or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained https://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/
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 take. One 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.