England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		11 May 2015

Mr Justice Peter Jackson:

1. 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.
2. 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.
3. 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

4. The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.
5. 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.
6. The burden of proving a fact rests on the person who asserts it.
7. 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.

8. 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.
9. 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.
10. 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

11. 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.
12. 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.
13. 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.
14. 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."

15. 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.
16. 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.
17. 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

18. 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

19. 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.