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Re N (A Child) [2011] EWHC 1156

Care proceedings case in which the subject child’s elder brother had died when he was a baby. The President determined that a fact-finding hearing to try to ascertain whether the elder brother’s death had been accidental or not would be disproportionate and would also be likely to be inconclusive.

Judgment by the President following an adjourned CMC in care proceedings. The principal question to be decided was whether or not there should be fact-finding hearing.

The subject child was N, a baby boy. He had an elder brother, MY, who died as a baby. The mother had been charged with murder but the case had not been pursued as there was a very significant divergence of opinion between experts as to whether the child's death was the result of an accidental fall from a bed, or a non-accidental head injury, and the area itself was a matter of medical controversy.

The local authority sought a fact-finding hearing to ascertain whether MY had died accidentally or not, which hearing the local authority believed would take some 3 weeks. The parents opposed this as a result of the likely delay and cost, and because it would be unlikely that the court could reach a conclusion as to the cause of MY's death. The Guardian was in favour of a further medical review before a decision was taken as to whether or not there should be a fact-finding hearing.

The parents had undergone psychiatric assessments, which were entirely positive. The reports from the residential unit where the parents were residing were also largely positive, and had recommended that with suitable combined professional and family support the parents could return to the community with N.

The President considered the recent Guidance in Relation to Split Hearings [2010] Fam Law 752 and Guidance on Case Management Decisions and Appeals therefrom [2011] Fam Law 189, along with case law on the standard of proof and the Overriding Objective. It was the President's view that no fact-finding was necessary for the case to be properly resolved, and a fact-finding hearing would not only be disproportionate but probably also inconclusive. In any event, any risk posed by the parents was, in his Lordship's view, capable of being managed.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


Neutral Citation Number: [2011] EWCA 1156 (Fam)
Case No: FD11C00006

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/05/2011


- - - - - - - - - - - - - - - - - - - - -
Between :

A Local Authority Applicant

- and - 

1. K
2. N
3. N (By his children's guardian MK) Respondents
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Katie Philips (instructed by the Local Authority) for the Applicant
Patricia McCarthy (Solicitor) for the First Respondent
Joy Merriam (Solicitor-Advocate) for the Second Respondent
Elizabeth Bendall (Solicitor) for the Third Respondent

Hearing dates : 20 April 2011
- - - - - - - - - - - - - - - - - - - - -
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


This judgment consists of 14 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Sir Nicholas Wall P:
1. This is an adjourned Case Management Conference (CMC) in care proceedings. The principal question I have to decide is whether or not there should be a discrete fact-finding hearing.

2. The child with whom I am concerned (N, a boy, who was born on [DOB] 2010) had an older brother, MY, who was born on [DOB] 2007 and who died on [DOD] 2008. The respondents to the present proceedings are the parents of N (and of MY).

3. The local authority has taken care proceedings (instituted in the Inner London Family Proceedings Court on 24 December 2010) in relation to N, /relying exclusively on what happened to MY. It says that before it can plan properly for N, it must know that happened to MY. It therefore seeks a discrete hearing in order that I should decide whether MY died as a result of an accident (his parents' case) or whether he was the victim of non-accidental head injury (NAHI).

4. There has been no contested judicial investigation into MY's death. His mother was charged with his murder, but the case against her was not pursued, and she was formally acquitted on 4 January 2011. The reason for this was simple. The doctors were divided. Some thought the parents' case plausible (that his injuries were caused accidentally by a fall from a bed), others thought MY had been the victim of NAHI. The resulting doubt was sufficient to make it inappropriate to continue with a criminal prosecution.

5. That, however, is not the end of the matter, because – as I have already indicated - I am now asked by the local authority to hold a discrete fact finding hearing in order to decide, on the balance of probabilities, what did happen to MY. That course is resisted by N's parents. On balance, and in default of any agreement between the parents and the local authority, N's guardian supports the local authority. I will rehearse the arguments later in this judgment.

How did this judgment on the point come to be reserved and published on bailii?
6. On 20 April 2011, the case (which. in accordance with the Public Law Outline (the PLO) is reserved to me. was, inexplicably, listed before another judge. By the time it reached me, I was already in the middle of another case. I had, of course, re-read none of the papers.

7. By the time I came to hear the case, it was plain to me (a) that I needed to read the fresh papers and re-read the old (in particular the medical evidence, which I had not previously seen); and (b) that I would be unable to do so that day in the time available. I therefore decided to make a virtue of necessity. I heard argument from each counsel, and reserved judgment.

8. I have decided to make this judgment public for a number of reasons, not least amongst them being that it gives me the opportunity to apply the Guidance which I have recently issued to the facts of the case.  

9. I need, however, to say at the outset that I recognise immediately that what I have been able to do is simply not possible for the busy circuit judge. I have reserved judgment and taken time to read the papers (which, in addition to the written position statements of the advocates,  comprised two arch lever files, one containing  459 pages and the other 374). The reading alone took me more than a working day, and even then I did not have time to read every word. 

10. The case is thus a good example of the pressures under which the circuit bench in particular have to operate. What busy circuit judge has a day or more to read papers and make up his or her mind?

The facts
11. N's parents are married, and originate from Bangladesh, although the mother was born in England. N,  to date, not been separated from them. As a result of a pre-birth assessment, the local authority social worker assigned to the case recommended that the parents undertake a post-birth residential assessment. They agreed, with the result that since 15 December 2010, N and his parents have been resident at  units  run by the R Homes (the Home). It is right to say that the parents  have throughout cooperated with the local authority, and this was the reason why, initially, the Family Proceedings Court (the FPC) declined to make an interim care order.

12. The "Preliminary Threshold Document" prepared by the local authority is dated 23 February 2011. It alleges the risk of future significant harm to N on two bases. Either the parents (or one of them) caused MY's injuries and were (was)  thus guilty of NAHI; alternatively there was "a clear failure" of appropriate supervision. However, in the findings which it seeks, the local authority in terms invites the court to reject the parents' account of what occurred, and says that "no accidental cause of sufficient severity" is likely to have caused the injuries suffered by MY. If one parent was responsible, the local authority suggests, then the other knows what occurred and is covering up.

13. The parents do not dispute that N suffered the injuries identified by the doctors. Their case is that the injuries  occurred as a result of M falling off a bed head first onto a carpeted  floor. 

The procedural history
14. The case first came before me on 2 March 2011. I made an interim care order on the basis that the parents would continue to live with  N within what had by then become "the stand alone accommodation" provided by the Home. I took the view that the threshold  criteria under section 38 of the Children Act were met. I stressed that I did not regard the interim care order as giving the local authority any form of "advantage" in the proceedings, but that I regarded it as essentially a neutral measure which reflected the seriousness of the case and enabled the local authority to share parental responsibility for N. I made a number of other directions (including giving the mother  permission to instruct a clinical psychologist to undertake a cognitive assessment of her). I adjourned the case to 20 April, and reserved it to myself. At that point, I had not read any of the medical evidence.

The Guidance
15. I have in mind the Guidance In Relation to Split Hearings [2010] Fam Law 752 and the Guidance on Case Management Decisions and Appeals therefrom [2011] Fam Law 189.

16. From the former, I take the following,  bearing always in mind that I must apply the Guidance to the facts of the case before me: (1) do I take the view that I cannot properly decide this case without a fact-finding hearing? (2) following the decision of Bracewell J in  Re S (Care Proceedings: Split Hearing)  [1996] 2 FLR 773 is the cause of MY's death a  fact the early resolution of which  will enable the substantive hearing to proceed more quickly? And (3)  Is there here a clear and stark issue the resolution of which will prevent delay and the ill-focused use of scare expert resources?

17. From the latter, I derive the proposition that I am exercising a judicial discretion which requires me to take a number of factors into account, including  the time-table for N. In this context, I remind myself, and will do so again later in this judgment,  that the issue I am being asked to decide discretely concerns the death of a non-ambulant child, and is thus a matter of the utmost seriousness. This is a factor which I need to bear in mind throughout.

The arguments advanced to me
18. I hope I will be forgiven if I say that these followed conventional lines. The local authority argued that understanding what had happened to MY was critical to its planning for N. In her case summary, the invitation to stage a "finding of fact" hearing was forcefully argued by Ms Katie Phillips in the following terms: -

"Without such a hearing, N and his parents continue in limbo with no way forward and no clear factual basis on which to plan safely for N. The risks in his case are amongst the most serious that come before this court. It must be a function of this court to determine where those risks lie and whether an accidental explanation is the likely explanation of the tragic circumstances of MY's death. To proceed without a fact finding in this case is either to expose N to an unacceptable risk in his parents' care or to allow the parents to face the potential injustice of continuing to live under a cloud of suspicion until this issue is resolved."

19. In her written submissions, Ms Phillips estimates that there would be a total of 10 "lay" witnesses, plus the parents and some 18 professional witnesses and 11 experts. She submits that it may not be necessary for all the witnesses to be called, but estimates that the "finding of fact" hearing will last some three weeks.  She puts forward three new experts – a consultant neuroradiologist (Dr. Stoodley) a consultant ophthalmologist (Dr. Elston) and a "paediatric overview" to be conducted by Dr Kate Ward. A curriculum vitae of each fresh witness accompanies her submissions.

20. For the mother. Ms Patricia McCarthy admits "a failure of momentary adequate supervision" but insists that the medical evidence is in conflict and that a discrete finding of fact hearing is justified neither by likely outcome not by its length and cost. The case can properly be decided without such a hearing. She points to the number of assessments which the parents have undergone, and to both the psychiatric and psychological evidence about the mother. Her client, she submits, has already demonstrated a positive engagement with all the professionals in the case together with an understanding of the concerns of the local authority.

21. Similar arguments are advanced by Ms Joy Merriam on the father's behalf. She argues that there is no need for a fact finding hearing. She points in particular to the cost of such a hearing. She also points to the "complex and diverse medical opinion" in the case of NAHI. Given the conflict in the instant case, she submits that the court is unlikely to be able to make findings. She submits that the only concern about the parents  is that they have not sufficiently grieved for MY and argues that the correct course would be "to move forward with the family going into the community with support and without "the delay and uncertainty" occasioned by a fact finding hearing.

22. The position of the guardian is somewhat Delphic. The guardian "would support the proposal for a further medical review of the current medical evidence" and following this review "there can be a further hearing to consider whether or not the matter should then proceed to a full fact finding hearing". This is not, as I understand it, what the local authority is proposing, but even if I am wrong about that this does not seem to me to be a case in which I could reach a conclusion about what happened to MY without hearing oral evidence.

The injuries suffered by MY and the conflicting medical evidence
23. There is no dispute that MY suffered trauma to his head of sufficient severity to result in his death. The question is causation.  For the local authority Miss Phillips identifies the injuries succinctly and in the following way: -

"He was found to have a large left sided frontal-parietal subdural haemorrhage, extensive bilateral retinal haemorrhages affecting all layers of the retina and extending within the optic nerve, and a boggy swelling of the scalp above the left parietal–temporal region with underlying haemorrhage. "

24.  The evidence of the treating doctors is summed up by one of the paediatricians, who concludes his statement with the words: "It is my opinion that a low level fall from a bed is not sufficient injury to have caused the extensive sub-dural bleeding and retinal haemorrhages".

25. In support of the argument advanced by the local authority a consultant pathologist concludes that the retinal haemorrhages "are features associated with significant trauma to the head" and concludes that, in the absence of any scalp injury or scalp fracture, "the generally accepted explanation for haemorrhages of this degree is a severe shaking injury".

26. A consultant neuro-surgeon concludes that "whether the impact was accidental or non-accidental cannot be determined on the basis of the medical findings" and that whilst it was possible MY had been the victim of deliberate injury, "it is also possible that he was one of the very unlucky few who sustain fatal head injuries as a result of a low level fall of the type described immediately prior to his acute collapse. I think the medical findings can only highlight the rarity of such a situation occurring but cannot say it is impossible."

27. A lecturer in neuro-pathology concludes that the head injury in this case is "incompatible with a fall of 2-3 feet and is more consistent with severe, inflicted head injury". A forensic pathologist concludes that the nature of the head injury is "in keeping with forceful impact" and that the nature of the head and spinal cord injury is "wholly incompatible with a low level fall".

28. That, I hope, is a fair summary of the evidence in support of the position adopted by the local authority. I also have the advantage of the Defence Case Statement in the criminal proceedings, and a number of reports prepared on behalf of  the parents. These comprise; (1)  a pathologist whose main area  of expertise is in disorders of the eye; (2) a bio-medical engineer; (3) a paediatric neuro-surgeon; and (4) a consultant neuro-pathologist.

29. The first pathologist finds little to support the proposition that MY was shaken. He recognises that the potential severity arising  from short distance falls is "controversial" but the fact that they are rare does not mean that they do not occur. In the instant case, he finds the pathological findings to be "compatible with the mother's account".

30. The bio-medical engineer, who asserts "a specific background and expertise" on the analysis and risk assessment of head injury in the infant and adult populations, makes the point that "since at most only minimal swelling was noted on MY's scalp and no other significant  external injury to the head or body was noted in the medical record", abusive trauma, if it did occur was likely similar in exposure to that which could occur as  the result of a simple fall off the bed.   He concludes: -

"Clearly, as evidenced in the variation of strongly held opinions in this case and other similar cases by a variety of well-educated and accredited experts the science distinguishing a head injury to be accidental in nature versus from abuse is still be disseminated, refined and tested. In general, rigorous application of the scientific method and additional evidenced based research is needed to evaluate and refine the current understanding of abusive versus accidental head injury identification."

31. The paediatric neuro-surgeon discounts a shaking injury but finds it impossible to distinguish between accidental and inflicted trauma. He concludes that "the story given by the mother is perfectly in keeping with the findings in this unfortunate child".

32. Finally, the consultant  neuro-pathologist. After a review of all the medical reports and opinions, she concludes that whilst the clinical, neurosurgical and pathological findings in this case all indicate severe impact head injury, it is not possible from a neuro-pathological perspective to tell whether the injury was accidental or inflicted. She adds, wisely, that is it not within her expertise "to assess the reliability of the mother's account".

The psychiatric and psychological evidence
33. Although not of immediate or direct relevance to the fact-finding on the medial issue, I have also read; (1) a psychiatric report on both parents dated 25 February 2011; (2) the report of the psychologist referred to in paragraph 14 above; and reports from the Home dated 9 February, 23 March and 5 April 2011.

34. The psychiatric report is entirely positive. Neither parent suffers from, any mental health problem or personality disorder. The mother did not minimise events related to MY and appeared to the psychiatrist "to have gone through a usual and normal grief following the death of. MY". In summary, the doctor did not have "any negative prognostic factors or concerns which suggested that the mother would be unsafe to parent N if an ongoing rehabilitation programme is recommended in the community".

35. The consultant clinical psychologist placed the mother's functioning "in the low average to borderline learning disabilities range, but also took the view that her actual level of functioning was more likely to be higher - i.e. more firmly in the "low average" range. She concluded her report with these two paragraphs: -

"From a cognitive perspective, functioning in this range, (the mother) should be able to provide good enough parenting, though there is an increased likelihood that she would benefit from skills training and support in order to provide improved parenting. There are a range of factors that can interfere with parenting ability and are therefore considered to be risk factors and similarly a range of factors that can minimise difficulties and these are considered to be protective factors. Risk factors include low IQ, social isolation, poor housing, mental health difficulties, substance misuse difficulties and poor financial situation. Protective factors include good social support, a good domestic relationship, absence of mental health or substance, issue difficulties in the parents and absence of difficulties (learning or behavioural) in the child. (the mother) appears to be in a supportive relationship with good familial support available. She is not presenting with any overt mental health difficulties. However she does present as rather disconnected from her experiences at times and she appears sometimes to come across as rather immature. For these reasons it will be important to ensure ongoing monitoring of her, especially when her son is still at such a vulnerable age.

When considering her mental health, she does appear to have developed an approach to managing and dealing with her distress, which involves seeking support and distraction from her family, and pushing feelings and negative experiences out of her mind (i.e. disconnecting from them). This strategy seems to be reflected in some of her responses on the projective assessment, and whilst in the short term she may experience greater difficulties as it becomes more difficult to disconnect from her experiences. At this point in time she does not see herself as needing psychological support, but she is at risk of experiencing psychological difficulties in the future so it will be important that both she and her husband know how to access professional support (for example through her GP) should any psychological difficulties become more apparent."

36. The reports from the home are also largely positive. The parents have been cooperative and polite, and regular  in their attendance at key work sessions, core sessions and workshops. They were able to demonstrate "good enough" parenting for N and were able to take on advice where necessary. They showed appropriate behaviour when it came to N's safety.

37. In the first report the authors noted a degree of "detachment" from N on the mother's part, the reasons for which were not clear. The parents had been receiving cognitive behavioural therapy (CBT) and it was recommended that this continue,

38. In the second report, the authors state that the mother appears to lack insight into MY's death and they express concern at what they describe as the mother's "apparent denial and indifference" in regards to MY's death. They also report that the father "has been unwilling to fully engage in the core meeting" and that "he does not appear to understand the importance of answering the questions and discussing the part and as such has answers are often short and evasive".

39. Despite these observations, the authors also note that the parents are able to meet N's needs in all areas and that they have "a secure and appropriate relationship".

40. The second report concludes with a recommendation that the family needs to be assessed in a semi-independent environment for a minimum period of six weeks   and that they should undergo a "Care index intervention plan".

41. In the third report the authors report that the parents have been able to maintain their "good enough" standard of care for N in the semi-independent assessment. No concerns are expressed in this regard. However, in the view of the authors, the parents "will need more support around the denial and accepting, that to feel remorse or grief is not a confession of guilt." They conclude that  "if the court sees fit to return N to the care of the community, they (sic) will need to be a robust monitoring care plan in place" in paragraph 127 of the final report the authors conclude: -

"Based on both the twelve week parenting assessment, and the six week semi-independent assessment, (the Home) are of the opinion that with a suitable combined professional and family support package in place, and (the father) being the primary carer both (the father) and (the mother) can return to the community with N. without placing him at direct risk of experiencing significant ham. It must be noted, however, that if (the father) is not able to recognise and understand the importance of him agreeing to the level of support and monitoring, the (the Home) would not be in a position to recommend a community package and would recommend separation."

42. I stress that at this case management stage I have heard no evidence. In particular I have not heard from the parents. No doubt in due course I will hear oral evidence from the Home and will need to consider its recommendations in the light of all the evidence I hear.

The social worker's statement and the local authority's care plan
43. The second statement of the local authority-s social worker is dated 21 February 2011. Paragraph 11 reads as follows: -

"The date of the fact finding hearing in regards to (MY) is yet to be confirmed. The fact finding is crucial in this proceeding and it will guide (the) local authority in formulating its final care plan. However, if the parenting assessment is positive and does not raise any concerns, the local authority will give consideration  to supporting a planned move back into the community for (N) and his parents. In consultation with other parties, a care package will be put in place to ensure ongoing monitoring and support."

44. The latest care plan is dated 13 April 2011. its second paragraph reads as follows: -

"The overall aim of the local authority is for (N) to remain in his parents' primary care. This would enable the Local authority to systematically monitor (N's) progress and to address local authority's concerns around any possible risk which the parents made pose to (N). The local authority is proposing that  (N) and his parents remain in the current assessment setting until a paper review of the medical evidence is obtained. Upon receipt of this the local authority will be able to establish permanency plans for (N). It is very important at this stage, given (N's) age; it is paramount that there is no delay to (N's) permanency planning."

Discussion (1) the burden and standard of proof
45. Since the decision of the House of Lords in Re B (Care proceedings: Standard of Proof) UKHL 35. [2006] 2 FLR 141. the position has been very clear. As Baroness Hale of Richmond stated in paragraph 70 of her speech: -

"70]   My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."

46. In my judgment, Baroness Hale's speech has to be read on the light of paragraph 2 of Lord Hoffman's speech in the same case, in which he said: -

"[2]   If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

47. Applying these principles to the case in hand, it is trite law that the burden of proof is on the local authority to prove the facts by means of  which it submits that the section 31(2) "threshold" is crossed. As a matter of law, MY's injuries were either  NAHI  or they were not. That is an issue which I am asked (and required by law) to decide on the balance of probabilities. If, at the end of the evidence, the local authority fails to discharge the burden of proof placed on it, then MY's injuries were accidental.     That is the law as I understand it.

Discussion (2) Guidance from the court of appeal
48. I have very much in mind the wise words of Butler-Sloss LJ (as she then was) in Re U (Serious Injury: Standard of Proof): Re B [2004] EWCA Civ 567. [12005] Fam 134. At paragraph 23, she said: –

"In the brief summary of the submissions set out above there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following:-

i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.
ii) Recurrence is not in itself probative.
iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
iv) The Court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.
v) The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark."

Discussion (3) The Overriding Objective and the PLO
49. The Overriding Objective is now contained not only within the  PLO but is also contained within the Family Procedure Rule 2010 (the Rules). As set out in  paragraph 2.1 of the PLO [2010] 2 FLR 472 at 473 it reads as follows: -

"[2.1]   This Practice Direction has the overriding objective of enabling the court to deal with cases justly, having regard to the welfare issues involved. Dealing with a case justly includes, so far as is practicable:

Ensuring that it is dealt with expeditiously and fairly;

Dealing with the case in ways  which are proportionate to the nature, importance and complexity of the issues;

Ensuring that the parties are on an equal footing;

Saving expense; and

Allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases"

Application by the court of the overriding objective
   The court must seek to give effect to the overriding objective when it:

Exercises the case management powers referred to in this Practice Direction; or

Interprets any provision of this Practice Direction.

Duty of the parties
The parties are required to help the court further the overriding objective." 

50. In my judgment, all the parts of paragraph 2.1 are relevant for present purposes.  In particular (3) would undoubtedly require me to ensure that the ECHR Articles 6 and 8 rights of the  parents were met and that they were in a position to call not just the experts who currently support their position, but any additional experts for whom they could make out a proper case.

Discussion (4) conclusions and reasons  
51. Having now read all the papers and heard argument, I have come to the  view (whether one is talking of a preliminary paper enquiry or a full blown finding of fact hearing)  that the answers to the questions posed in paragraph 16 above are all "no". In the exercise of my discretion, accordingly, I decline to order a "fact-finding" hearing, and the next hearing will, I hope,  be the Issues Resolution Hearing (the IRH) which will, I hope again, lead swiftly to the final hearing.

52. In my judgment, a finding of fact about what happened to MY (1) is not necessary for the proper resolution of N's case; (2) would not be "proportionate" within the structure of the overriding objective; and (3) might well, in my event, be inconclusive.

53. In broad terms, I prefer the submissions made by Ms McCarthy and Ms Merriam for the parents to those made by Ms Phillips on behalf of the local authority.

54. Applying  the overriding objective,  I must, of course, deal with the application justly. I am clear, however, that the application for a split hearing as suggested by Ms Phillips  does not sit easily with any of the five objective set out in paragraph 2.1 of the PLO. In particular, I take the view that a fact finding hearing – however set up - would not be a proportionate way of dealing with the case. It would not save expense and would, in my judgment, allot an inappropriate share of the court's resources to the case.

55. Were I to permit a paper investigation by the three fresh experts identified by Ms Phillips and were all three – for the sake of argument – to come to the conclusion that MY's death was more likely than not caused by NAHI, it is impossible to conclude that the matter would end there. The parents would be unlikely to  accept the experts' conclusion. I would, I think, be duty bound to allow them to challenge the fresh evidence and, if necessary to call additional expert evidence in rebuttal.

56. I also take the view that any contested finding of fact hearing may prove inconclusive.      In other words, it may simply not be possible to decide what happened to MY. If that were the outcome, NAHI would not be established. A great deal of time, money and emotional energy would have been expended achieving very little.

57. I recognise and repeat, of course, that MY's death was extremely serious, and that  if he was the victim of inflicted injury the threshold would be crossed in relation to N. I also recognise that it would be of assistance to the local authority to have a finding, one way or the other, about MY's injuries.

58. The local authority's care plan is, if possible, to keep N and his parents together. This, in my judgment, is right. N and his parents  have not been separated since his birth, and N is now some 5 months old. A final decision must not be unduly delayed, and even if there were a hearing in the autumn, N would be then be in the order of 10 months old. I accept that that the priority must be to protect him from the risk of significant harm. However, in my judgement, the time-table for N is important, and would be adversely affected by a fact finding hearing.  . 

59. I must. I think,  bear in mind that not only is there an acute medical dispute about the causation of MY's injuries, but that the causation of such injuries is, itself,  the subject of medial controversy. Were the issue critical to my conclusions about N, this would not, of course, be a reason for not embarking on  a fact-finding hearing. It remains my view, however, that it is not the function of the judge to become involved in medical controversy except in the very rare case where such a controversy is itself an issue in the case and a judicial assessment of it becomes necessary for the proper resolution of the proceedings. This, in my judgment, is not such a case.

60. I also bear in mind that MY died nearly three years ago - certainly it would be more than three years from MY's death before a fact finding-finding hearing could be set up. Once again, the mere passage of time would not prevent a fact-finding investigation were such an investigation crucial. As it is, however, I have to bear in mind the passage of time and the fixing of attitudes.

61. The critical area in which judicial expertise would be engaged would be that of credibility – particularly the credibility of N's mother. She believes firmly that MY's death was accidental, and I have no doubt that she would tell me so in the witness box. I would almost certainly have to take her evidence through an interpreter – interpreters  having been used at each of the hearings before me – and the scope for judicial assessment is thereby diminished. She will, inevitably, take refuge both in her own account and the corroborating expert opinion.

62. In summary, therefore, I think it at best doubtful and at worst unlikely that I will be able to reach a conclusion on MY's injuries. I fear that I am unlikely to be better informed at the conclusion of a fact-finding hearing. On the one hand, I will have heard the parents give evidence and be  cross-examined, I will also have heard the views of the various experts tested. 

63. On the other hand there is a real possibility that I will be none the wiser, and unable to reach a conclusion, even on the balance of probabilities.

64. None of this would, however, be conclusive were I to be of the view that I needed the answer in order to decide N's case. But as I have already said, I do not think I do.  I think it perfectly possible to decide N's case, and to protect him, on our current state of knowledge. This is that MY died at the age of 7 months in circumstances which his parents are convinced were accidental, but which has divided medical opinion, and thus required the local authority; (a) to become involved; and (b) to ensure, so far as it could, that N is protected from potential risk.

65. I do not accept the submission made by Ms Phillips that to leave matters are they currently stand is to achieve the worst of all worlds.  A finding of fact on the balance of probabilities that MY  was  a victim of NAHI could be an injustice to N's parents. A finding of fact on the balance of probabilities that MY  was not a victim of NAHI could be an injustice to N. A finding one way or the other should only be made, in my judgment, if it is  necessary to protect N.  As I hope I have made clear, I do not think it is.

66. I accept that because of the ultimately unanswered questions about MY's death, N needs  to be protected.  One does not, of course, protect a child by exposing him to risk. Is the risk – assuming it exists, which for this purpose I must - one that can be managed? I think it can.

67. I have read the psychiatric and psychological reports on the mother in particular. I have also read of the parents' progress under the auspices of the home. These matters lead me to the conclusion that the risk is one which can be managed, and one which is an area of social work specialism.

68. I appreciate, of course, that I cannot dictate to the local authority how it chooses to conduct its case. I can grant or refuse permission to instruct particular experts, but I cannot tell the local authority how to approach the question of threshold. That is why I used the word "hope" in paragraph 51 above. What I can decide, and I do, is that in my judgment, the case will not be advanced by a discrete finding of fact hearing.

69. Some of the directions for the next hearing are agreed. I should, however,  be grateful if counsel would draft the order to reflect this judgment. I also think it would be helpful if there could be a further advocates meeting in advance of the next hearing, which should be fixed for June. I hope at that hearing to be in a position to give final directions for trial.