Non-Accidental Injuries to Children and Fact Finding Hearings

I recently represented a parent in a care case involving alleged non-accidental injuries (NAI) to a child. The local authority had brought care proceedings based on injuries the child had sustained, which were said to be non-accidental, and therefore inflicted deliberately.

Typically, applications for care orders are based upon neglect or abuse. “Abuse’ in this context can include either physical, emotional and/or sexual abuse of a child. This article will focus on allegations of non-accidental physical injury.

The usual scenario for such cases is that a parent or relative of a child discovers the child is injured, and takes the child to a doctor. The child is usually too young to be able to explain what happened. The doctor examines the child, and asks the parent/s or relatives how the injury occurred. The parent/relative may not know or may be unable to explain adequately. The explanation/s given are then considered by the doctor (or by now a consultant paediatrician), who gives his/her opinion as to whether the injuries match the explanations given. If the answer is no, then the injuries are likely to be considered to be non-accidental. The local authority and the police get involved, and pressure mounts on the family to explain exactly how the child was injured. The local authority issues care proceedings to remove the child from the family, sometimes on very short notice, while the child is in hospital, and the family have some soul searching to do, to discover who could have deliberately inflicted the injuries on the child. A ‘pool of possible perpetrators’ is formed from those who had care of the child during the time the child was injured, along with timelines for the days or weeks leading up to the injuries. Court hearings follow care proceedings being issued, eventually leading to a fact finding hearing to determine the cause of those injuries, whether or not they were accidental, and to identify of the perpetrator. These findings of fact are entirely separate from any criminal proceedings, where a higher standard of proof is required (beyond reasonable doubt).

The subject of this article is the law relating to non-accidental injuries and how judges approach the evidence at fact-finding hearings. This article is not intended to cover the difficult subject of estimating the age of various injuries, which can range from brain damage to broken bones to bruises. That is an area already the subject of much debate and research both inside and outside the medical profession. Rather, the purpose of this article is to consider how the court approaches the opinion evidence of the doctor or consultant paediatrician as to whether the injuries match the explanations given by the family when questioned at hospital.

When considering the medical evidence from the doctor or consultant paediatrician, and the explanations given by the family, there is a ‘natural expectation’ that the parents should explain the cause of the injury, and if they cannot or do not then they must have caused them. However, the legal burden of proof, that the injuries were non-accidental, rests on the local authority, although it often may not seem like it: In the case of M (A Child) [2012] EWCA Civ 1580, (, Ward LJ giving the judgment for the Court of Appeal stated:
“[The expert’s opinion] was the effect of the judge’s view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that it is not a non-accidental injury”.

A useful consideration of the terminology used in NAI cases was given in the case of Re S (A Child) [2014] EWCA Civ 25.
At paragraph 19 of the judgment the Ryder LJ said:
“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 Ryder LJ 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.”

At paragraph 24, Ryder LJ 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).”

Ten principles that the court should apply were helpfully set out in the case of Re JS [2012] EWHC 1370 (Fam)
The issues before the judge, Baker J, were (1) whether the injuries sustained by the child were non-accidental, and if so, (2) who was responsible for inflicting them, and (3) was there more than one incident that gave rise to the injuries?
The evidence presented at court included that of six medical experts in relation to the type of injury the child had suffered, as well as evidence from the parents, other family members and written evidence including transcripts of police interviews. The judgment is notable for how it summarised the law in relation to the evidence and the approach of the court. The judgment also helpfully summarises succinctly the court’s approach to medical evidence in this type of case.

“36. In determining the issues at this fact finding hearing I apply the following principles. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them.

37. Secondly, the standard of proof is the balance of probabilities (Re B [2008] UKHL 35). If the local authority proves on the balance of probabilities that J has sustained non-accidental injuries inflicted by one of his parents, this court will treat that fact as established and all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that J was injured by one of his parents, the court will disregard the allegation completely. As Lord Hoffmann observed in Re B:
“If a legal rule requires the facts to be proved (a ‘fact in issue’) a judge 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.”

38. Third, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12:
“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.”

39. Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:
“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

40. Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.

41. Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S [2009] EWHC 2115 Fam).

42. Seventh, the evidence of the parents 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 (see Re W and another (Non-accidental injury) [2003] FCR 346).

43. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

44. Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam:
“There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.”
The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.

45. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).”

Pool of Perpetrators: The Court of Appeal recently considered the issue of the pool of perpetrators further in the case of B (Children) [2019] EWCA Civ 575.
Jackson LJ said:
“46. Drawing matters together, it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill-treatment and where the only ‘unknown’ is which of a number of persons is responsible. So, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the relevant allegation can be proved to the civil standard against an individual or individuals in the normal way. Nor does it arise where only one person could possibly be responsible. In that event, the allegation is either proved or it is not. There is no room for a finding of fact on the basis of ‘real possibility’, still less on the basis of suspicion. There is no such thing as a pool of one.”

“47. It should also be emphasised that a decision to place a person within the pool of perpetrators is not a finding of fact in the conventional sense ….. the person is not a proven perpetrator but a possible perpetrator. That conclusion is then carried forward to the welfare stage, when the court will, as was said in S-B, “consider the strength of the possibility” that the person was involved as part of the overall circumstances of the case. At the same time it will, as Lord Nicholls put it in Lancashire, “keep firmly in mind that the parents have not been shown to be responsible for the child’s injuries.” In saying this, he recognised that a conclusion of this kind presents the court with a particularly difficult problem. Experience bears this out, particularly where a child has suffered very grave harm from someone within a pool of perpetrators.

48. The concept of the pool of perpetrators should therefore, as was said in Lancashire, encroach only to the minimum extent necessary upon the general principles underpinning s.31(2). Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to ‘exclusion from the pool’….”

The Court of Appeal considered matters further in Re R [2019] EWCA Civ 895,
“26. Given the state of the evidence, it is not surprising that the judge was unable to positively identify a perpetrator on the balance of probabilities. This court has recently considered the proper approach in such a case in Re B (Children: Uncertain Perpetrators) [2019] EWCA Civ 575. It emphasised that a decision to place a person in the pool of perpetrators is not a conventional finding of fact, but a conclusion that nevertheless has to be positively proved, and that there can be no reversal of the burden of proof. That is the way in which the judge correctly approached the matter here. The question is whether, taking the evidence as whole, her decision to move the grandmother from the list of people with an opportunity to have caused the injuries into the pool of possible perpetrators was one that was properly open to her. In considering that question, it is appropriate for this court to take the broadest view of the judge’s command of the case and to resist isolated arguments based upon logic or semantics, or criticisms of the precise way in which a small part of a lengthy judgement has been expressed.

27. Approaching matters in that way, I have nevertheless concluded that the judge’s identification of the grandmother as a potential perpetrator of injury went further than the evidence allowed. Mr Lord’s analysis of the limitations in the evidence relied upon by the judge is convincing. None of the five matters could properly be said to add significant support to the conclusion, and to that extent irrelevant or insubstantial matters were unduly brought into account. On the other side of the scale, the judge does not appear to have given any real weight to her findings about the character of the parents or their behaviour in relation to LM. Taking these matters together, the judgment does not in my view give adequate reasons for a conclusion of this seriousness. Mr Wilkinson’s argument, however persuasive, for upholding the decision on significantly different grounds requires the matter to be considered at an unduly high level of generality; it also depends heavily on the grandmother’s lack of credibility being deployed in a way that the judge did not herself deploy it, and without the safeguards that would be necessary before that could be done.”

A further decision was handed down by the Court of Appeal in the case of Re A (No. 2) (Children: Findings of Fact) [2019] EWCA Civ 1947. Peter Jackson LJ set out the questions for every fact finding hearing:

“100. The questions for every fact-finder are What, When, Where, Who, How and Why? Their significance and difficulty varies from case to case. Some answers will be obvious while other questions can be extremely hard or even unanswerable. Sometimes a question may not need answering at all. At all events the questions come in no set order and each inquiry will suggest its own starting point. It will no doubt find apparently solid ground and progress from there, but conclusions can only ever be provisional until they have been checked against each other so as to arrive at a coherent outcome. At each stage, regard is had to the inherent probabilities and improbabilities surrounding what are inevitably abnormal circumstances.”

Judges have to be sufficiently robust to question and if necessary reject findings of fact sought by the local authority against the parents where the evidence does not justify it.

In Re D (Care Proceedings: Preliminary Hearings) [2009] EWCA Civ 472, [2009] 2 FLR 668, at para 12, Wall LJ said judges should not strain to identify the perpetrator as a result of the decision in Re B (above):
“If an individual perpetrator can be properly identified on the balance of probabilities, then … it is the judge’s duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification.”

An example of this case be found in:
O (Minors) [2013] EWHC B44 (Fam)
This case involved, a young baby, L, who had been found to have a fractured clavicle and a fractured rib. The mother was unable to explain how L sustained the fractures apart from mentioning that she (the mother) suffered from epilepsy, and might have unknowingly had a seizure while caring for L. Six medical experts concluded that the fractures were 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 a care order. The guardian, however, although agreeing that L should return home, considered that L had suffered NAI. The judge concluded 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.

What facts should the court take into account?
B-T (A Child: Threshold Conditions) [2020] EWCA Civ 697:
Jackson LJ said a para 95 that:
“I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”

The same judge had heard a case five years earlier, Re BR (Proof of Facts) [2015] EWFC 41, when he was considering the lack of a history of an injury from a young child from their carer(s).
“[15] It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.

[16] Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.”

A cautionary tale: In the case in which I was recently involved, a single mother had met a man online a few months before the child was injured. They started dating and a relationship formed. He appeared helpful and caring, and the mother came to trust him, although she knew little about him apart from what he had told her. As the weeks went by he frequently stayed overnight with the mother and child, became involved in family life, and took it upon himself occasionally to chastise the child for misbehaviour. One day the maternal grandmother was looking after the child, and while bathing him found extensive bruises. Medical attention sought. The boyfriend disappeared, burgling the mother’s home and stealing the most valuable items before he left. At the fact finding hearing the court found as a fact that the bruising was non-accidental, and had been inflicted by the boyfriend alone, but that the mother had failed to protect the child. She is unlikely to get the child back.