(Court of Appeal; Ward, Laws and Longmore LJJ; 21 June 2006)
The child had been dropped in what was acknowledged to be an accident, by a third party. During the investigation into the child's health, experts identified other injuries associated with shaking. On the basis of the medical evidence, the local authority brought care proceedings. At the hearing there was considerable evidence of very good parenting generally. The mother gave evidence of a different earlier accidental injury to the child as a possible explanation for the medical evidence. The judge rejected that evidence, commenting adversely on the mother's credibility on this point, and made findings that the child had suffered non-accidental injury at the hands of one of his parents.
The mother's credibility had been questioned by the judge in the absence of any cross-examination of the mother as to the truth of her account by counsel or by the judge. It was wrong for serious findings of this kind to be made without the witness having had opportunity to deal with the allegation of dishonesty. It was unclear to what extent the judge had taken into account his own earlier findings, favourable to the parents, in reaching the conclusion that there had been a non-accidental injury. The burden of proof was on the local authority, and with a serious allegation like this, cogent evidence was required to overcome the unlikelihood of what was being alleged. When the family history was put into the balance, as it should be, the court could not be satisfied that non-accidental injury of the child had been established.