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Non-accidental Injury and Re-balancing the Burden of Proof

Dr John Fox, barrister of Lamb Building, reviews some recent cases which may suggest a re-consideration of the burden of proof in cases of alleged non-accidental injury.

Dr John Fox, barrister, Lamb Buiding

Dr John Fox, barrister, Lamb Building

During 2013 over 92,000 children in the UK were in care.  In England the figure was just over 68,000.  Of these, 62% were in care due to abuse or neglect.  Accepting that there can be a political element in reviewing those statistics, nevertheless that seems a lot of children.  Should we be worried by the statistics?  Yes, we should.  Ideally, we would like to compare how any particular child would fare if taken into care or not taken into care, but as we are not able to do that, we must compare how children in care compare with children who are not in care.  Apart from the high cost of keeping children in care, it seems to be the case that children in care are twice as likely to be excluded from school, less likely to do well in their GCSE exams and  girls in care are three times as likely to become pregnant than their peers, with all the complications that entails.  Perhaps we should be thinking even harder about the way we run care cases.

Most applications for care orders are based upon neglect or abuse, either physical or emotional, but of all the allegations that should strike terror in the heart of all parents is the allegation of non-accidentaI injury (NAI).  The typical scenario is that the mother of a small child finds the child is weepy, or not crawling properly or whatever, and takes the child to the A&E department of the local hospital.  The child is examined, an x-ray is taken, and a broken bone is found.  "How did your child get a broken arm?" asks the paediatric consultant.  "I don't know," replies the mother, "I don't know," says father, and before you can say 'Jack Robinson' there is an application for a care order alleging NAI.

This is a very dangerous situation for the parents.  It is dangerous because, in my view, the courts have for years in effect operated a reverse burden of proof.  Despite the clear guidance given by the higher courts, recently restated in Re M (Fact-finding: Burden of Proof) [2012] EWCA Civ 1580, [2013] 2 FLR 874, that the court must guard against the danger of reversing the burden of proof, judges tend to the view that if there is no parental explanation which is benign, there must be an explanation which is malevolent.  Recently when representing a mother at a preliminary hearing I was told by the judge "you know if I don't get a proper explanation she'll lose the child".   And it is not easy for parents.  They frequently don't know the cause of the injury, and put forward the best explanation that they can.  These explanations are often inadequate, and are easily negated by the experts.  "I remember that I pushed the pram over a high kerb," says the mother.  "It takes a great deal of force to break a child's arm.  It couldn't possibly have happened in that way," says the expert, and so the parents are worse off, and are back to the no satisfactory explanation, NAI and care order equation.

However, at long last, one or two recent cases have shown signs that matters are changing.  Perhaps the phrase non-accidental injury is itself part of the problem, so it was salutary that the term was recently commented upon by the Court of Appeal in Re S (A Child) [2014] EWCA Civ 25.  This was a case involving a one year old baby girl, S, who was admitted to hospital with a serious head injury.  A fact finding hearing was held.  The local authority presented its case that the injury was non-accidental, deliberately inflicted and had occurred while the child was in the care of the parents.  The judge concluded that the child had suffered significant harm whilst in the care of the parents and that the harm was caused by the injury.  He was not satisfied that either parent had deliberately inflicted the injury.  The local authority unsuccessfully appealed that conclusion.  The case is mainly reported on the issue of whether or not to hold a split hearing, but Lord Justice Ryder had a number of significant things to say about non-accidental injury and cases based upon that allegation.

First at paragraph 19 of the judgment the learned Lord Justice said this:

"The term non-accidental injury may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a catch-all for everything which 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." 

Further at paragraph 23 the learned Lord Justice went on to say:

"In this case the judge was careful to sever the question of whether the harm was an example of a true accident ie a chance happening that is by definition unexpected and unintentional, from the question of attributability.....The local authority's case was of (deliberate) infliction by one or the other parent and that was the case they put.  They did not succeed in establishing that case.  No other possibilities were sufficiently examined to enable the judge to make conclusions upon them.  The medical expert had left open the possibility of an accidental cause, albeit that it was unlikely and in that circumstance anything between accident and deliberate infliction must also have been possible."   

Yet further, at paragraph 24, Lord Justice Ryder continued:

"The judge examined what were conceded before him to be false explanations for the injury given by those who took S to the hospital.....He directed himself to consider that there may be innocent explanations or explanations that do not attract responsibility for telling an untruth about a fact in issue: the so called Lucas direction (R v Lucas  [1981] 1 QB 720)." 

The Court of Appeal reiterated that in its review of findings of fact the appellate court's approach is to consider whether they are plainly wrong.  They were not, and the appeal was dismissed.

In R (A Child) [2011] EWHC 1715 (Fam) Mr. Justice Hedley was considering three possible causes of subdural haematomas found in a child.  The learned judge stated that a conclusion of "unknown etiology" was not a professional or a forensic failure; it simply recognises that there is much we do not know and it is dangerous and wrong to infer non accidental injury merely from the absence of any other understood mechanisms.  After reviewing all the evidence before him, Mr. Justice Hedley was able to make a finding that the cause of the subdural haematomas was one of unknown etiology.  Perhaps in this context we should note that legal logic and medical logic work on different principles.  Legal logic is binary.  Either something happened or it did not.  If a fact is 51% likely, it happened and that is the end of the matter.  Medical logic would take note of the fact that there is a 49% chance that it did not happen, and act accordingly.

In Re JS [2012] EWHC 1370 Mr. Justice Baker was concerned with head injuries.  He conducted a 15 day fact finding exercise, before coming to the conclusion that the father was responsible for the injuries.  However, in the course of his judgment he emphasised ten principles ("The Ten Commandments"?) to be followed in NAI cases, and in my respectful opinion they should be noted in all NAI cases.  Without mentioning all his principles, and to mention but a few, his first principle was that the burden of proof lies with the local authority.  They bring the proceedings and identify the findings they wish the court to make (that should mean that there should be no room for judges to make remarks such as "I need an explanation" or "Think of the risk").  His third principle was that findings of fact must be based on evidence, not on speculation or suspicion.  His fifth principle was that the opinion of medical experts must be considered in the context of all other evidence, and weighed by the court against all that other evidence.  His eighth principle was that it is common for witnesses in care cases to tell lies, and the court must be careful to bear in mind that a witness may lie for many reasons, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything else.  His ninth principle was there has to be factored into every case which concerns a disputed aetiology that the cause may be unknown.  The court must resist the temptation to believe that it is always possible to identify the cause of injury to the child.  His tenth and last principle was that although it was desirable for the perpetrator to be identified, the judge should not strain to do so.

The final case to which I would refer is the case of O (Minors) [2013] EWHC B44 (Fam).  This was an unusual case involving two children, one of whom L, a young baby, had been found to have a fractured clavicle and a fractured rib.  M was unable to explain how it was that L sustained the fractures apart from mentioning that she suffered from epilepsy, and might have unknowingly had a seizure while caring for L.  The first six medical experts concluded that the fractures were the result of NAI, but the last witness was a neurologist who thought that M could have had a partial epileptic fit during which she injured L but remembered nothing of it.  Because of this evidence the local authority reconsidered its position and no longer sought any public law orders.  The guardian, however, although agreeing that L should return home, considered that L had suffered NAI.  The judge therefore gave a full judgment, which runs to 25 pages.  His conclusion was that there were too many uncertainties.  The local authority had not discharged the burden of proof upon it to prove, on a balance of probabilities, the facts initially prayed in aid in support of the findings in respect of the threshold and still pursued by the Guardian.  He therefore dismissed the application for a care order.

In the light of these recent decisions I am hopeful that a new climate will filter down to the lower courts, and that magistrates and judges will remind themselves that it is always up to the local authority to prove its case, and not for the parents to disprove it, and that it is sometimes not possible to know the cause of a child's injury.  This would be one step towards ensuring that only children who ought to be in care are actually made the subject of a care order.