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Dorset Council v M (Failure to prove non-accidental injury) [2019] EWFC B63

Fact-finding hearing regarding an injury to a new born baby to establish a pool of perpetrators and whether the injury was intentional, caused by recklessness or by delivery method.

HHJ Dancey heard a three-day fact-find in relation to proceedings concerning three children, A, aged 12, B, aged 11 and C. All three children are subject to ICOs in favour of the LA. The two elder siblings have returned to the care of their mother and her partner, the father of C. C remains with the maternal grandparents but has supervised contact with his parents regularly.

C was born by C-Section on the 24th June 2019; no concerns were reported about C's health at this time. He was seen by several healthcare professionals in the lead up to the 6th July 2019 when a swelling on his head was discovered at 6:00 to 6:30am. He was taken to later that day where it was confirmed that he had suffered a skull fracture and haematoma. There were some concerns about C's health prior to this, including the possibility of Cystic Fibrosis, but it is not suggested that these concerns are linked to the injuries he presented with on the 6th July.

The LA had sought to find facts the injuries C sustained; how this occurred and who was the perpetrator. It was accepted by the parents that the injury was unlikely to be a birth related injury based on the medical evidence available, however, they maintained that they were not the perpetrators and were unaware of how this injury was sustained. There was in their view no memorable event during which the child exhibited signs of pain nor any event in which the child could have been harmed.  The accepted that there was a possibility that one of the two sisters could have caused the injuries, although they had limited opportunity and the parents believed that should there have been an accident the children would have disclosed this to them or another adult, there was no such disclosure.

It was submitted that the pool of perpetrators should be the parents and both siblings, although it was made clear that the court were not being invited to make any positive findings against the siblings as should they have been the perpetrator the injury would have been caused by an accident and the threshold for any orders would not be crossed. The Court was also asked to decide if this was intentionally, accidentally, recklessly or negligently caused by the perpetrator.

The Court also had to make judgment on the meaning of any facts found in relation to the threshold. Both of C's sisters had returned to the care of the parents in the family home, however, the LA submitted that should there be findings made against the parent even of accidental harm, it would not be safe to return to their care and the threshold would be crossed. This was on account of them knowing that had suffered injury and failing to disclose this to any authorities; their openness and honesty as well as ability to protect would be drawn into question. This was contested by the parents.

The Law
HHJ Dancey commented that a fact find has two purposes; firstly, "to establish what happened so that a decision can be made whether the local authority has proven threshold", and secondly, should the threshold be proven "to inform assessment of risk for the purpose of the welfare decision." [30]. When considering the threshold parties and the Court should be cautious in findings of failure to protect, as the Court of Appeal said in Re L-W (Children) [2019] EWCA Civ 159, there must be a causative link between failing to protect and the threshold test. [57]

Reference was made to the judgment of Peter Jackson LJ in Re A (No 2.) (Children: Findings of Fact) [2019] EWCA Civ 1947 who said that in consideration of this the Court should be asking what, when, where, who and why? The Court also must be reminded that they may make findings which are not sought by the LA in the Schedule but if and when they do so caution must be taken to ensure that there is an evidential grounding as with any findings for this. [43] The evidence must also be considered in its totality and in context and in light of reliability and credibility issues. [46] and [51] There should be a consideration as to whether the injury is accidental or non-accidental, and should the latter become apparent on the balance of probabilities, the perpetrator should be considered. A pool finding should only be considered if the individual cannot be identified without strain, and the Court must be concerned with whether they should be put in the pool rather than whether they should be removed from it. [56-57] It is not necessary to consider the perpetrator if the injury is accidental.

Should any such findings be made they must be considered in light of the threshold, is there significant harm, is there attributability to the carer, is there a failure to meet the object standard of care which can be expected from a reasonable parent? In this case it will not be necessary to consider what type of harm (inflicted, negligent or reckless) should it be non-accidental, but the Court may do so to help inform the welfare decision. [38]

HHJ Dancey found that the Local Authority had not shown that C's injury was caused by the parents and so they had not met the threshold test set out in s31(2) and their applications must be dismissed. C will now be returned to the care of his parents. He accepted the medical evidence but noted that it does not indicate whether there is an accidental or inflicted injury. On balance it seems that inflicted injury is improbable.

It further seemed that the parents did not know what has happened to C and so not much weight was given to their failure to give an explanation in terms of threshold.  HHJ Dancey was unsure as to how in light of their lack of knowledge failure to give an explanation related to threshold in so as to prove it. Similarly, delaying presenting C for medical treatment at a sooner point would only be relevant to threshold if the LA proved that C suffered further harm on account of this. Failure to be open and honest, again, should only be considered so far as it causes or risks causing significant injury.

Summary by Molly Mifsud, pupil barrister, College Chambers

Read the full judgment of Dorset Council v M (Failure to prove non-accidental injury) [2019] EWFC B63 on BAILII