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Concessions and fact-finding

The High Court dealt with these issues in a case called Re AS (A child) 2014.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/606.html

There was to have been an 8 day finding of fact hearing. The central allegation was that the child who was six, had been given excessive doses of insulin, causing him to become very unwell.  Although he had diabetes, his condition and situation had been made worse by this over-medication, and therefore this was a case of Fabricated or Induced Illness.

It was also noteworthy that the mother had told the child, and many other people, that she herself had cancer, when it was clear from her medical records that she did not.

Before the finding of fact hearing began, mother’s legal team talked to her – what is said is obviously confidential, but the end result is that the Judge was told that mother did not make any admissions that she had administered the excessive doses of insulin to her son, but accepted that it was inevitable that at the conclusion of the finding of fact hearing that those adverse findings would be made against her, and thus if certain amendments were made to the Local Authority threshold document, there would be no challenge to the Judge making findings in accordance with that threshold document.

That’s quite a nuanced position, since mother was not making any admissions but simply accepting that the findings were inevitable and not wanting to put everyone through an 8 day process to end up at that result. It is also quite a smart way of avoiding the self-incrimination issue that I’ve previously blogged about, whereby if there were any criminal proceedings being considered the admissions if any made might end up being used in criminal trial as inconsistent statements.

The Judge obviously mulled over this position – on the one hand,mother was making no admissions , on the other there was the need to be proportionate given that the threshold was not actually challenged.

(a) I have read the papers in this case in great detail. I have formed exactly the same view as Ms Henke and Ms Japheth, namely that it was inevitable that I would find, on the balance of probabilities,, that the threshold criteria were established for the reasons given by the Local Authority and, in particular, that I would have concluded that there was induced illness in relation to AS by the Mother secretly giving AS excessive dosages of insulin. At this stage, I do not know why she did so. This will be a matter for the welfare hearing that is fixed for May.

(b) The binary system adopted in this jurisdiction means that my findings become a fact. In other words, it would no longer be open to the Mother to challenge those findings. The case would proceed on the basis that this is what happened. The assessment I have already ordered by Professor A Mortimer, Consultant Adult Psychiatrist will be conducted on the basis that the Mother has indeed induced illness in AS, which was, of course, extremely serious and potentially life threatening. The Mother understands and accepts this.

(c) I have already noted that the Mother has not been able to bring herself to admit to me that she did this. I wondered for a time whether it was therefore necessary for me to conduct a fact finding after all but I concluded that counsel were right when they said I did not need to do so. The Mother is prepared to accept today that I will make the same findings as I would have made if I had heard evidence over eight days. There seems absolutely no purpose therefore in doing so. I have to remember the overriding objective of dealing with cases justly. This includes ensuring that the case is dealt with expeditiously and fairly in a way that is proportionate. I must also consider the need to save expense. I cannot see that it would have served any useful purpose to proceed with a very emotionally draining hearing, which would inevitably have caused immense unnecessary distress to the Mother. I am quite sure there would be no material advantage in doing so as the findings of fact I would have made after a contested hearing would have been exactly the same as the ones I make now. I therefore approve unreservedly the course of action urged upon me.

(d) The fact that the Local Authority has proved its threshold document does not mean that there will inevitably be a final care order. I will have to consider that issue in May, acting on the basis of what is in the best interests of AS.

(e) Finally, I do accept that it has taken considerable courage for the Mother to accept the inevitability of my finding of induced illness. I have already indicated that I am sure she was right to do so. It follows that I commend her for the position she has adopted and confirm that the advice she has received was undoubtedly correct. She is to be praised for having accepted it and taken what I entirely accept will have been a very difficult decision for her.

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