IN FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF CHILD A (dob 2019)
B e f o r e :
BETWEEN:
Applicant
Respondents
Intervenor
Child A has suffered 20 fractures, namely 16 rib fractures of which 7 are close to the spine, a fracture of the shaft of the right thigh bone, and a total of 3 metaphyseal fractures (fractures between the shaft made of bone and knuckle made of cartilage in infants) around the knees.
a. Timings are provided for each set of fractures accurately. Dr O confirmed that it is not possible to date the fractures individually.
b. In his opinion there is no radiological sign of any underlying condition
c. In his opinion on the balance of probabilities:
i. The injuries had been caused by more than one event
ii. The rib fractures required very significant trauma
iii. The 7 rib fractures close to the spine had been caused by squeezing of the chest with forces in the region seen in road traffic accidents or by violent shaking. He felt because there was no bleeding on the brain or in the retina that violent shaking was a less likely cause of injury.
iv. The fracture of the shaft of the right thigh bone had been caused by twisting of the right thigh with forces similar to those arising in moderate sports trauma in older children; and
v. The metaphyseal fractures had been caused by pulling/twisting/unnatural bending of the knees with forces in excess of those arising from rough handling
d. In his opinion the father's sitting down on child A's legs is unlikely to have caused the fracture of the thigh bone although it was possible and he couldn't completely exclude it he said it was not probable that it occurred as the father had said.
a. None of the rib fractures are explained by the explanation of the Father sitting on child A.
b. The fracture of the right thigh bone is on the balance of probabilities not explained by the event since it is unlikely any significant twisting of the leg resulted from the event; but
c. It remains possible that some or all of the metaphyseal fractures around the knees may have been caused by the event in case there might have been over extension of one or both knees.
(i) The burden of proof is on the Local Authority, who make the allegations. The parents do not have to prove anything. They have both been asked to explain how child A came to sustain his injuries, which both deny inflicting. It is accepted that there is no burden of proof on them to prove that the injuries are non-accidental in origin. However, I am entitled to take their evidence into account as part of the overall picture.
(ii) The standard of proof is the balance of probabilities. (Re B [2008] UKHL 35). If the Local Authority proves on the balance of probabilities any of the items within the Schedule of Allegations, the Court must treat those facts as established and all future decisions concerning the children's future will be based on those finding(s). Equally, if the Local Authority fails to prove any or all of the allegations, the Court should disregard them completely. As Lord Hoffmann observed in Re B:
" If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1."
The Court should take into account the inherent probability or improbability of the relevant alleged incidents. The Court must not, guess or speculate or draw inferences from what are still only suspicions rather than proven facts.
"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the Local Authority has been made out to the appropriate standard of proof."
"What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
135.With regard to this latter point, recent case law has emphasised the importance of taking into account to an extent that is appropriate in any given case the possibility of the unknown cause. That was articulated by Lord Justice Moses in R v Henderson and Butler and others [2010] EWCA Crim 126 at paragraph 1:
"Where a prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
"A temptation there described is ever present in family proceedings too and in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."
137.Later in the judgment at paragraph 19 Mr Justice Hedley added this observation:
"In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made."
I40. I bear in mind that a witness may lie for many reasons, such 'as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything' (see R v Lucas [1981] QB 720). I give myself what is now known as a 'Lucas warning'.
146.The parents in the position of this mother and father were clearly entitled to a second opinion: whilst it would be both unrealistic and unnecessary for the court to permit parents to obtain a second opinion in every discipline, such a second opinion should normally only be permitted where the question to be addressed by the chosen expert went to an issue of critical importance for the judge's decision in the case.
154.I have in mind too, in considering the evidence and reaching my conclusion, Article 8 of the European Convention on Human Rights. In considering which of the orders available to me is in the child's best interests I must have regards to the rights of the adult parties, the parents in this case, and the rights of the children under Article 8 of the European Convention on Human Rights, and in particular the principle of proportionality, namely that the means employed must be proportionate to the aim it is sought to achieve, in this case promoting and safeguarding child A's welfare. In considering the rights of the children I also have regard to the relevant provisions of the United Nations Convention on the Rights of the Child.
FINDINGS
155.I remind myself that the parents do not have to prove anything, and it is for the Local Authority to prove their case. In considering my findings, I have been asked by the father to consider the question of whether the metaphyseal fractures are fractures at all. The father, told me that if I find that they do exist, that they happened at the same time as the femur. On behalf of the father, it was said that because one expert was certain and one was equivocal this is not sufficient for me to say that the fractures existed.
END OF JUDGMENT