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Re B (A Child) [2005] EWCA Civ 364

Judge’s finding of non-accidental injury in care proceedings upheld.

Re B (A Child) [2005] EWCA Civ 364

Court of Appeal: Smith and Wall LJJ (21 March 2005)

Judge's finding of non-accidental injury in care proceedings upheld.

This was an application by a father for permission to appeal against findings of fact made in care proceedings instituted by the local authority in relation to his daughter. The care proceedings were brought not because of anything that had happened to the daughter, but because she had a younger brother, born in May 2003, who had died at the age of five weeks.
At the end of a long and careful reserved judgment, the judge had concluded that the death of the younger brother was not due to natural causes or to accidental injury, but had been caused by a non-accidental shaking injury. The judge had found that the father was the perpetrator, although the likely scenario was that the fatal injury had been caused by 'an otherwise careful and loving parent in a momentary loss of control'.

The father, who was also facing a criminal trial, appealed on two grounds: first, that the judge had erred in his analysis of the medical evidence, particularly with reference to the standard of proof to be applied; and, secondly, on a pure point of law, that the House of Lords decision in Re H; Re R [1996] AC 563 was not compliant with Article 6 of the European Convention on Human Rights (ECHR) and, consequently, later decisions dealing with injuries and perpetrators, such as the Court of Appeal in Re LU (a child); Re LB (a child) [2004] EWCA Civ 567, had to be viewed with considerable caution.

The court reviewed the medical evidence that had been before the judge, and considered his analysis of the evidence; the court also heard submissions that the father felt that he was being judged against some abstract and conventional norm of behaviour, whereas parents react in different ways to different degrees of trauma.

Held, refusing permission to appeal, that the judge's analysis of the evidence was immaculate: it considered carefully all possibilities; it applied the law correctly to those possibilities; and it reached a conclusion with which the court could not possibly interfere. In particular, the judge had examined the medical evidence with some care and had come to the conclusion that, applying the Re H; Re R standard, the injuries were non-accidental.

As to the Article 6 compatibility, there was no breach of that provision in Re H; Re R.

Read the full text of the judgment