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…]