In A Local Authority v ID and others  EWHC 3075 (Fam) the High Court (Family Division) found that injuries to a child were non-accidental in origin and likely to have been inflicted by the child’s father in a momentary loss of self-control.
It is a judgment of Roberts J who, in a care case, conducted a second fact-finding hearing relating to a four-month-old baby who suffered a catastrophic collapse at the family home. At the first fact-finding hearing the judge, rather surprisingly, exonerated the father, and the applicant local authority appealed.
The case reiterates the importance of the ‘ten commandments’ set out by Baker J in Re JS  EWHC 1370 (Fam). This is a list of ten principles that should be followed by courts when dealing with a case of non-accidental injury. At para  of the judgment Roberts J set out those ten principles in full, stating that she found them to be extremely helpful as a distillation of the relevant law.
It means practitioners dealing with non-accidental injury cases must be familiar with the ten principles involved. They are:
It is very helpful. Two areas immediately spring to mind.
The first is the burden of proof. The burden does not change – it remains on the applicant for the care order, usually the local authority. It means that there should be an end to the idea that if the parents cannot come up with a plausible explanation for the injury then the case is proved. Often the parents are unable to explain the injury, but that does not shift the burden of proof on to them.
The second area is the status of the medical evidence. Almost invariably, the local authority calls one or more medical specialists to give evidence as to the nature of the injury, and who state that the injury must be non-accidental. The inference is almost always that the parent or parents have caused it. The court must guard against rubber-stamping the medical evidence. The medical evidence is only part of the evidence. It is for the court to balance that evidence against the rest of the evidence. It is for the court to decide the case, not the doctors.
Yes, there are, and to my mind they depend on the nature of logic.
Legal logic is binary. Something either happened or it did not. If there is a 51% chance that it happened, then it did, and that is the end of the matter. Medical logic is not binary. If the chance is 51% that it happened, then, arguably, there is a 49% chance that it did not happen, and we must act accordingly.
A doctor must bear in mind an alternative cause of the illness, and an alternative treatment. They do not have the lawyer’s luxury of closing their mind once the matter is decided. The courts may have to be more awake to those cases where, even after all the evidence has been given, doubts remain. Judges are trained to decide, and that is what they do. But life is not always binary, and neither are all non-accidental injury cases. Perhaps we should allow greater licence for judges to have reservations.
The third principle listed by Baker J is that ‘findings of fact must be based on evidence’. Whether the inquiry is within a public law case or a private law case, the gathering of good quality evidence is critical.
In the context of a care case, accusations of non-accidental injury are very dangerous for parents. They can lose their children. It means that solicitors acting for parents in such cases must be particularly assiduous in impressing upon their clients that they must strive to obtain the best evidence available. On the premise that medical experts are experts to the court, the scope for parents to obtain their own experts is limited. However, on the basis of the principles that the court must take account of the evidence as a whole, the medical evidence must be considered in that context and that the evidence of the parents is of utmost importance, lay evidence is very important to balance any adverse expert evidence.
Interviewed by Duncan Wood