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Tag Archives: medical injury

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   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/67.html

 

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.

 

 

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Reversing the burden of proof – injury to a child

 

There have been a few reported cases where the higher Courts have said or hinted that a fairly traditional medical formulation “that in the absence of the parent providing a benign explanation, this injury was caused deliberately” is a reversal of the burden of proof and not acceptable in law.

 

The decision of the Court of Appeal in Re M (a Child) 2012 comes out very badly and explicitly says it, and the decision is exactly on this point, and for that reason I think it is the best authority for the principle.

 

[In fact, looking at this again, I think this is the exact very same case that established the point that I had come across in summaries, and we have waited 2 years for the actual transcript of judgment. That’s pretty shocking, given the importance of it as a principle for other cases. I had momentarily forgotten that we were STILL waiting for this judgment, because the original summaries came out 2 years ago.   This might be a big deal, because if it had been reported earlier other families might have made use of the principle]

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1580.html

 

The appeal begins with Ward LJ identifying that as ever, there was not an order produced following the finding of fact which was strictly capable of being appealed

 

 

As is so typical with fact-finding matters coming from the Family Division, no order has been drawn which is strictly capable of being appealed, because nobody bothers to formulate preliminary issues which the judge can then decide and encapsulate in an order which is the proper subject of the appeal. Instead, what frequently happens, and has happened, the order simply recites:

 

 

“And upon HHJ Hammerton handing down a written judgment following a fact finding hearing, in which the court found that the child had suffered non-accidental injuries and that the parents are both possible perpetrators of those injuries

The Court Orders…”

 

And then there were a series of directions being made. But I have said that before; nobody takes any notice. The rantings of an old man are simply passing into the ether

 

 

People do always seem to forget this, and Ward LJ is right to remind practitioners. What is appealed is the ORDER, not the judgment. The thrust and focus of the appeal might well be on why the analysis of the judgment shows that the Judge was wrong to make that order (or in these post Re B-S days does not show sufficiently clearly why the Judge was RIGHT to make the order, which itself is sufficient to make the order wrong)

 

There ought to be a draft order produced to the Judge (ideally one prepared by the LA at the outset of the hearing, but probably adjusted post judgment to reflect the findings that were made) setting out each of the discrete issues on which the Court was asked to make a determination and the determination that was reached. The findings need to be on the face of an order   (or more accurately in our new standard template order regime somewhere on page 6 of the order) not just tucked away in a judgment.

 

 

Anyway, on to the real matter. This was a case involving a total of nine bruises to a child, the child being around eight weeks old at the time.

 

Ward LJ summarises the basic legal principles in the crispest way I have ever seen it done. He should patent this.

 

I have no intention of elaborating on the law, because the essential propositions are self-evident. The burden of proof lies on the local authority to prove the case against the parents. The standard of proof is the balance of probabilities, and that means the same in this kind of case as in every other, a simply balance of probability. Suspicion is not proof, and the burden must always remain on the local authority and should not be reversed. Whilst it is necessary to establish that the injuries are, as has been described in this case, non-accidental, it is not necessary to identify the perpetrator, and it is permissible for the court to say that those who are within the pool of possible perpetrators remain possible perpetrators, and the local authority must then manage the case as best it can in the light of those findings.

 

 

The Court of Appeal summarise the medical evidence given by two experts in the case

 

 

  1. The injuries to the left forearm were really divided into three. There was, firstly, the circumferential mark around nearly all of the forearm, with two small, almost parallel marks perpendicular to it. Dr Essex said of that mark in his written report that it was:

 

 

“…consistent with some restriction or pressure effect from something causing pressure on the skin of the forearm. I cannot explain the two additional marks perpendicular to the circumferential mark. The linear and angular nature of the marks on the forearm looks like the effect of something ‘mechanical’. In other words, an object having pressed on the skin.” (His emphasis)

 

In an addendum to the report, he spoke of the child coming into contact with a firm/hard inanimate object. I interpose by stating the obvious: these are not marks consistent with finger pressure or the use of the hand, save perhaps for holding the object pressed against the child’s left arm.

 

 

  1. The second category of injury to the left forearm was the red, circular bruise below the elbow. Dr Essex did not know how that was caused. The third injury was the bruise to the left wrist, which again Dr Essex could not explain, save that he observed it was a very unusual place for a baby of that age to get a bruise. The judge recorded in paragraph 34 that Dr Rouse agreed with Dr Essex about the mark on the left forearm. He, too, was unable to explain the marks. He agreed they seemed to have some mechanical cause. Dr Rouse stressed these were an imprint type of injury. He agreed it was impossible to say how the bruise below the elbow had been caused. He agreed the bruise on the inside of the left wrist was a very unusual place for a bruise given that it is a naturally protected area, and that the underlying tissues are tightly bound down with little space for a bruise to develop. The judge noted that there was agreement in respect of the linear bruises to the right arm, and Dr Rouse emphasised that, where the general impact is with a body, a round or oval-shaped bruise will develop; where there is a pronounced V-shape, it implies something with an angled edge which must be mechanical, in other words man-made. In respect of the bruise on the inside of the left thigh, both experts agreed this was an unusual case for a bruise. Dr Rouse regarded it as a different type of bruise to the ones on the arm; he described it as being a more diffuse injury. He described it as having a pronounced rhomboidal outline; the straight line suggested more of an impact which is associated with a traditional bruise.

 

 10. Various explanations were proffered for those bruises, and the judge went through each and every one of them. First, it was suggested that M’s arms may have been trapped under the straps of the baby seat; for reasons given, that was rejected. It was suggested that swaddling may have been responsible; that, too, did not find favour. Although Dr Rouse felt that possibly the bars of the cot may have been responsible, Dr Essex did not. Both dismissed the baby bath as the object which could have caused the injury; it had been suggested that the baby had been thrashing around in the bath, which was highly unlikely. There was a suggestion that perhaps the family dog had jumped on poor little M, but nothing in the injuries was compatible with that. The judge’s conclusion was that, insofar as Dr Essex and Dr Rouse held different views, she preferred the evidence of Dr Essex. The possibility of some cotton thread explaining the injury around the child’s arm was raised; Dr Essex thought it unlikely and he did not agree about the cot being a possible instrument for harm.

 

 

11 So the judge came to the conclusion, which she expressed in paragraph 51 in these terms:

 

 

“Apart from the two issues identified above [that is the cotton thread and the cot], there was a consensus between the experts. In their view the injuries were unexplained. Dr Rouse described the injuries as being unusual for non-accidental injury [but] he confirmed to counsel for the guardian that they were unusual for accidental injuries.”

 

The judge recited Dr Essex’s view when asked for his overall conclusion. She said at paragraph 56:

 

 

“He said he reached this having looked at ‘all reasonable and unreasonable possibilities and explanations. It was against the overall picture, the age of the child, the number of injuries and the site of the injuries. Putting all these together he could not find a benign explanation.’ I found that his opinion was a considered opinion. I reject the submission that his conclusion was predicated on the fact that if there was no explanation, the injury must be non accidental.

 

57. The suggestion that Dr Essex has overstepped the line which demarcates the field of responsibility of the expert from that of the court is not in my judgment made out. Dr Essex was asked in specific terms whether the marks shown in the photographs are likely to be accidental or non accidental. He provided an answer that in his professional opinion they were non accidental.

58. I did not form the impression that there was a great difference between the evidence of the experts, it seems to me there was broad consensus. I am not persuaded that the evidence of Dr Essex was in any way unreliable, to the contrary I found his evidence compelling.”

 

 

 

[The underlining here is mine for emphasis – you will note that the trial Judge specifically considered whether Dr Essex had reversed the burden of proof in his evidence and concluded that he had not. This had obviously been an argument run by parents counsel at the time, and the trap had been set ]

 

 

Having then heard the parents evidence, the Judge reached the following conclusions about the injuries (again, underlining is mine for emphasis)

 

“86. Weighing all the evidence in the balance I return to the fact that the medical evidence is clear, the distribution and number of bruises could not have been caused by the baby himself and there was no medical explanation. It was submitted that unless the doctors can provide an explanation of the precise mechanism of injury, it is impermissible to infer that the injury must have been non accidental. I find that statement to be too sweeping. The doctors are agreed that pressure has been applied to the skin which has been sufficient to cause bruising. Whilst these are described by Dr Rouse as being towards the lower end of the scale for the amount of force used, the marks are to be distinguished from the superficial marks caused by, for example, the elasticated edge of a sock. The marks were described as vivid red; they remained clearly visible for 3-4 days. Further and importantly, the marks were unusual in their number, in their distribution and position.

 

87. In the face of medical evidence where there is no substantive disagreement between the experts, this is a case where I am satisfied that the injuries sustained by M were non accidental. I am not persuaded by the evidence of the parents. The impression I gained was that I was not being told the entire truth as to the events of Friday evening and Saturday morning.

 88. In terms of identifying the perpetrator I am unable to do so. There is evidence that the mother was the principal carer for M. She did the lion’s share of the tasks of feeding and changing and clearly took the lead in decision making. The father did some of the tasks, he would make up bottles and comfort M while bottles were being made up. He was responsible for swaddling. It was clearly the mother’s decision to delay taking M to the doctor until the Monday, having said that it was she who was proactive in asking questions and significantly providing photographs which showed the bruises as being more serious than their presentation on Monday. During the material time frame when the injury must have been sustained, both parents were present in the home. Save for the period during Saturday morning when M was downstairs in his baby chair, he was in the bedroom with his parents. The father emphasised there were no carpets upstairs and accordingly it was possible to hear what was happening downstairs. This is a case where if one parent injured M the other parent would be aware. Both deny there was any incident. In the circumstances both must remain in the pool of potential perpetrators.”

 

 

This is what the Court of Appeal had to say about the Judge’s reasoning (Ms Scriven QC was representing the Local Authority)

 

 

14…The harm must be attributable to the care given to the child not being what it would be reasonable to expect a parent to him. That is the language of section 31 of the Children Act. So Ms Scriven mounts a very persuasive argument that the constellation of injury, and site of the injury, the mechanism for the injury, and the narrow timeframe of perhaps up to 18 hours or less during which these injuries were inflicted, all lead ineluctably to the conclusion that this was non-accidental injury.

 

 

15. The elements I have outlined do give establish a case to answer that the care given to this baby was not reasonable care, but outside the ordinary course of events, and that justified the inference that the threshold had been crossed unless the parents could discharge the evidential burden which would have shifted to them. It was a persuasive argument, but the difficulty I find in accepting it is that that was not the case the court was required to consider. The judge was not considering, as might have been the case, whether there was some general failure to provide proper care. She was being invited to find, and she did find, that these injuries were deliberately inflicted by one or other, or both, of the parents.

 

 

16. On the medical evidence, at least some of those marks were imprint or pressure marks made by some inanimate object coming into contact with the child’s arm. But what object, or even what sort of object, remains unexplained. Also unexplained is how that pressure was exerted. Was it a hard jab, causing the momentary infliction of pain, which might have caused the baby to cry, or was it more sustained and consistent pressure, which may not have been as painful to M? The truth, as acknowledged by the experts, is that we simply do not know. This is not a case like a child with a broken leg, or a shaken baby, or a cigarette burn, or finger pressure marks. We simply do not know what happened to M and we do not know how it happened. The conclusion that it must have been non-accidental injury was formulated by Dr Essex, and it was that which was accepted by the judge and formed the basis of her judgment. Dr Essex put his case, it seems to me, at its best under cross-examination of Miss Topping for the guardian, and this exchange seems to me to encapsulate what this case is about, at page 25 of the transcript of his evidence:

 

 

“Question: You conclude, Dr Essex, that in the absence of any plausible explanation for the injuries you see on [M] you would have to consider them to be non accidental. You say, [and this is quoting from his addendum report] ‘As no satisfactory explanation has been put forward on the balance of probabilities I must consider these injuries non-accidental’, at E28.

Answer: Yes. I am afraid, having looked at the possibilities, at the explanations, and at the reasonable possibilities, and even the unreasonable possibilities, I cannot find a satisfactory explanation, your Honour.

Question: Are you fortified in that by the fact that there were so many suddenly presenting bruises?

Answer: Well, it is always the overall picture: the age of the child, the number of injuries, the site of the injuries, and so on, and the developmental stage of the child. Putting all those pieces together, I do not find a satisfactory benign explanation.”

 

That, too, was the effect of the judge’s view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury.

 

 

Poor Miss Topping, who was present at the Court of Appeal hearing must have been mortified that what seemed at the time to be solid sound questions ended up destroying the case that she had been building up. I feel for her, there can be no worse moment for an advocate than that.

 

 

With that paragraph ringing in people’s ears, Ward LJ went on to put the nail into the coffin

17. I fear therefore that in this case, despite her careful analysis of the evidence, the judge did fall into that error. The judgment on the lack of protection by the parties is so short of reasoning and in fact, with respect to her, here so difficult to understand that the local authority do not seek to uphold it. We do not know whether the child cried, whether loudly and at length, or whether this was a sustained injury which caused discomfort not noticeable to anybody else. So that part of the finding is, as Ms Morgan submitted, flawed, but in finding as she did that this was a non-accidental injury, I fear the judge has not properly respected the burden which is on the local authority to demonstrate that these parents had deliberately gone about in some unknown way, with some unknown implement, to inflict these injuries on the baby

 

 

This is not, bear in mind, a case being resubmitted for a re-hearing, but the findings just being overturned. That would effectively be the end of the case.

 

It is for the Local Authority to prove, on the balance of probabilities, that it is more likely than not that the parent injured the child and how; and that evidential burden is not satisfied by the absence of evidence of a benign explanation.