Why is it important for practitioners?
It means practitioners dealing with non-accidental injury cases must be familiar with the ten principles involved. They are:
- the burden of proof lies with the local authority;
- the standard of proof is the balance of probabilities;
- the findings of fact must be based upon evidence;
- the court must take account of all the evidence taken as a whole;
- the opinion of the medical experts must be considered in the context of all of the other evidence;
- the court must be careful to ensure that each expert keeps within the bounds of their own expertise;
- the evidence of parents is of the utmost importance;
- it is common for witnesses to lie; bear in mind R v Lucas  2 All ER 1008, ie that because a witness has lied about some matters it does not mean that they have lied about everything;
- it may not always be possible to identify the cause of the injury to the child; and
- although it is desirable to identify the perpetrator the court should not strain to do so.
How helpful is this judgment in clarifying the law in this area?
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.
Are there any remaining grey areas?
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.
What are the practical implications of the judgment?
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
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