(Family Division, Mostyn J, 11 October 2013)
The 3-month-old child sustained a serious head injury at home resulting in subdural bleeding and retinal haemorrhages. She also had a scratch to her eye and an abrasion to her chin. The father claimed he tripped and fell while he was holding the child which caused her injuries. The local authority did not accept that explanation and submitted that the father had assaulted her. Care proceedings were initiated.
Some of the medical evidence indicated that this had been an assault but there was also evidence that either explanation was possible. The absence of other injuries, often present in non-accidental injuries, was significant. The local authority put forward evidence that the father had prior convictions for unprovoked assaults and that he had assaulted the mother by placed his hands around her throat. At the time of the child's injury the father had lost his job and the family was living in cramped conditions.
The consultant paediatric ophthalmologist maintained a stance that the father's explanation for the injuries was unlikely. He submitted they were probably the result of violent shaking. However, under cross-examination he was unable to opine on the precise level of force required and could not exclude the father's account as a possible cause.
The judge found the father to be and intelligent, perceptive man who was capable of self-analysis. He recognised his flaws and was ashamed and embarrassed by his history. The judge did not place any weight on the father's criminal record as being suggestive of a propensity to assault his child. Those actions were of a wholly different character. If this had been an abusive assault then it would have involved shaking and hitting the child against a hard surface which took the theory beyond a momentary loss of self-control and was unlikely.
The father gave a very detailed account of what happened at an early stage. It was more likely than not that the child was injured in the manner the father described and not during an assault. This was not a borderline decision but it also was not beyond reasonable doubt. There remained a possibility that the father had assaulted the child but the standard of proof was satisfied.