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Ryder LJ gives guidance on split hearings in public law children proceedings

Lord Justice Ryder considers use of the term ‘non-accidental injury’

In S (A Child) [2014] EWCA Civ 25 Lord Justice Ryder has considered the appropriateness of split hearings in public law children proceedings. He said:

In this case a fact finding within public law proceedings was held following the admission to hospital of a child with a serious head injury. The local authority presented its case that the injury was non-accidental, deliberately inflicted and had occurred whilst the child was in the care of the parents. The local authority alleged that one of the parents had caused the injury and the other had failed to protect the child from that harm. The judge concluded that the child had suffered significant harm whilst in the care of the parents and that the harm was caused by an injury. He was not satisfied that either parent had deliberately inflicted the injury.

The Court of Appeal found that the judge cannot be said to have been plainly wrong in the findings he made or in the inferences he drew or declined to draw and his reasoning was sufficient given that he had the benefit of hearing the oral evidence.

In his judgment Lord Justice Ryder also considered the use of the term 'non-accidental injury' stating:

"I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2)."

Ryder LJ advised that when a clinical expert makes reference to 'non accidental injury', the range of factual possibilities should be explored with that expert and the witnesses.

Debra Gold of Fenners Chambers (instructed by Cambridgeshire County Council) represented the appellant. Christopher Bramwell of Regency Chambers (instructed by CB4Law Solicitors) represented the first respondent. Margot Elliott of Regency Chambers (instructed by TV Edwards LLP) represented the second respondent. Eilidh Gardner of 42 Bedford Row (instructed by Janet Thompson Solicitors) represented the third respondent.

For the judgment and summary by Laura McMullan of Coram Chambers, from which this news item is derived, please click here.

2/2/14