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K (Children) [2005] EWCA Civ 1226

A finding that a child has been deliberately injured by a member of his family means that other children in the family are also likely to be at risk of significant harm.

K (Children) [2005] EWCA Civ 1226

Court of Appeal: Laws LJ; Wall LJ; Lloyd LJ (16 August 2005)

Summary
A finding that a child has been deliberately injured by a member of his family means that other children in the family are also likely to be at risk of significant harm.

Background
This was a judgment by Wall LJ in a case where the local authority had appealed against the trial judge's finding that a child (X) was not likely to suffer significant harm even though his brother (Y) had suffered such harm. The appeal was allowed. As part of the judgment Wall LJ also provided reasons for declining the parents separate application to appeal the findings of the same trial judge in relation to Y.

In the original trial, which was a split hearing, the trial judge had found that Y had suffered serious brain injury caused by hypoxic-ischaemic damage (starvation of oxygen to the brain). He found that the injury had been caused by deliberate smothering but he could not identify who was responsible. Y was made the subject of an interim care order and placed with foster carers.

X had not been injured but the local authority argued X would be likely to suffer significant harm. The judge found that the s31 threshold criteria had not been met also dismissed the LA's application for an interim order pending appeal.

The grounds for the LA's appeal were that the judge was plainly wrong as: there were implications for X in his findings on Y; X had been exposed to domestic violence; and the parent's failed to ensure that X's regular attendance at school.

Judgment
Held, allowing the appeal, Wall LJ concluded that the first ground was satisfied and determined the outcome of the appeal. He disagreed with the trial judge's finding that the injury to Y could be regarded as a one-off, stating that, in cases like this, there would have to be 'highly unusual circumstances' or the judge must give a full and reasoned explanation of why the uninjured child is not likely to suffer significant harm. He then went on to consider the two other grounds and agreed with the LA on both counts that the threshold criteria had been met. He specifically directed that a new judge should be appointed to hear the second part of the split hearing.

In relation to the parent's appeal, Wall LJ set out his reasons why he had no doubt that the threshold criteria had been satisfied in relation to Y. The parent's had argued that the trial judge had considered that the injury to Y could only be caused deliberately or accidentally but not that it could be caused by a viral infection. Wall LJ rejected this argument as the judge had been careful in his analysis of the evidence and had also been entitled to discount the parent's account of how the injury had happened as he believed they were concealing the truth from the Court.

Read the full text of the judgment here