“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 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).”
“My Lords, for that reason [says Baroness Hale in that case] I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 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.”
“Seventh, the evidence of the parents [and she is referring to guidance given by Mr Justice Baker in a different case] and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.”
“I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the ‘fact in issue more probably occurred than not.’”
“One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the ‘lie’ is never taken, of itself, as direct proof of guilt.”
“The expert of ultimate referral was there to guide the judge as to the relevant medical and scientific knowledge, inevitably expressing himself in medical language. The judge’s function was a very different one. He had to consider the question posed bysection 31 of the Children Act 1989 as to whether [the child] was a child suffering or likely to suffer significant harm and whether that harm… was attributable to the care given to the child, or likely to be given to [them].”
“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.”
“The vast majority of accidental head injuries are minor and result in no or very little injury. 15 month old children can be dropped by carers or carers can fall when carrying them. They can also climb stairs and furniture and may subsequently fall. There is no minimum height below which a fracture never occurs or above which one always does. Experience suggests that falls under one metre are unlikely to result in skull vault fractures unless they are complicated by falls directly onto point surfaces such as a radiator valve.”
“Hence, low level falls are an uncommon cause of a fracture and most domestic impacts result in no injury. The fracture in this case is a linear parietal fracture. This is commonest [I think she says the commonest] skull vault fracture type from trauma of any cause. Some fracture patterns and complexity are uncommon in accidental trauma but even when such features are present, I make the point they are not pathognomonic of abuse much in the same way that just because a fracture is a linear one, it does not mean the cause was necessarily an accident. In other words fracture type does not infer or help with causation. There are no intracranial injuries but the presence or absence of such features correlates poorly with skull vault fractures and does not mitigate against the force needed to cause a fracture.”
“We return to the original comments I made. Skull vault fractures occur in memorable events. I accept a 15 month old child may not always be directly supervised but the force needed to cause the fracture and typical reaction of the child [just pausing to observe the word “typical”] would alert any nearby carer that there had been a significant head injury. If the court accepts the version that C was well and normal prior to going to bed on 24 June with no soft tissue swelling and became symptomatic with soft tissue injury in the early hours of25 June 2024 , then it would follow that there had been a traumatic event in that timeframe. Falling out of bed is being an occurrence which is not associated with injuries in the vast majority of cases. Hence, hitherto there is no adequate accidental explanation for these injuries.”
“The possibilities are that there has been a trauma which has not been witnessed or declared thus far, or that the injuries were inflicted.”
“As stated previously, the diagnosis is blunt impact cranial trauma. There are no imaging hallmarks of shaking. Any accidental trauma must have involved a forceful impact injury to the right side of the head, likely C falling against a hard surface or object. She would have been in pain following any such trauma. She goes on to talk about inflicted injury which is not relevant given the way this case is put. She then says: “The absence of any intracranial bleeding or brain injury would tend to suggest any following symptoms were at most mild, though periods of floppiness and unresponsiveness cannot be fully excluded.”
“Soft tissue swelling and skull vault fractures of this type would be expected to heal without complication.”
“C would have suffered severe pain following the injuries. She would have cried or screamed out in pain and would have continued to cry for several minutes before settling on comforting.”
“I would give anything to know what had happened but I don’t know and I can’t say something I don’t know.”
“I can’t explain it to you. It’s not the normal cry that she would do so we both went to look.”
“We are a house-proud community. We need our home to be clean when our family visit or it would be a source of shame and we knew that our family would convene with our daughter being in hospital.”
“She would have cried or screamed out in pain and would have continued to cry for several minutes before settling on comforting.”
“If I had known she had had an accident, I would have wanted to tell the hospital so that my daughter could get the treatment she needed.”
“There is nobody in the room who wants more than we do to know what happened.”