Re O and N (Children) (Non-Accidental Injury: Burden of Proof)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward |
| Judgment Date | 26 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1271 |
| Docket Number | Case No: B1/2002/0859 CCFMI |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 2002 |
Child abuse – Cause of injury – Child suffering serious non-accidental injuries – Father admitting causing one set of injuries – Liability for child’s other injuries determined as preliminary issue in care proceedings – Judge finding evidence not sufficient to exclude mother and positively identify father as perpetrator of injuries – Whether judge in error – Whether judge incorrectly placing burden of proof on respondent to application for care order.
In May 2001, the mother of a child, L, born in November 2000, took her to hospital as she was concerned about swelling to L’s head. Following examination, L was found to be suffering from a number of injuries and fractures, including a fractured skull. The medical evidence was agreed and the doctors were satisfied that there had been at least two separate occasions of non-accidental injury to L. The mother and father were arrested and interviewed and L’s father admitted losing his temper and punching L on the head some 48 hours before the child was taken to hospital. He subsequently pleaded guilty to the offence of causing grievous bodily harm with intent and was sentenced to a term of imprisonment. The father also admitted that he had punched the mother whilst she was holding L, so that L’s other injuries might have been occasioned in recoil from that blow. The local authority sought and obtained an interim care order in respect of L and she was placed with foster carers. On the birth of the mother and father’s second child, C, in October 2001, an interim care order was made in respect of her. The mother and father’s relationship ended after the father’s arrest and after C was born the mother and child were discharged from hospital to a mother and baby unit where they continued to live. The local authority sought care orders in respect of both L and C and at a preliminary hearing, prior to final determination of the children’s future, the judge embarked on an inquiry into the perpetration of the second set of injuries on L. The judge found, inter alia, that the injuries, on the balance of probabilities, had been caused whilst L was in the care of the parents and that whilst she might have had suspicions about which of the parties caused the injuries, she was not in a position to say with clarity which of the two parents had inflicted them. The judge concluded that the evidence was not sufficient to exclude the mother and positively identify the father as perpetrator of the injuries other than the fractured skull. The judge also found that the mother had failed to protect L from harm. The mother appealed against those decisions on the ground, inter alia, that the
judge had erred in law in placing the burden of proof of innocence upon her as the respondent to an application for a care order.
Held – It was clear domestic law that in an application for a care order, the burden of proof rested throughout on an applicant local authority to establish its case. If a local authority asserted whether for the purpose of the threshold criterion or for the welfare considerations that a child had suffered harm at the hands of his or her parent or that there was a risk of such suffering, it was for the local authority to establish that. There was no burden on the parent to disprove the case alleged against him or her. Although there was an evidential burden on parents to provide some explanation for the injuries to their child which must have happened whilst the child was in the care of either or both of them, that was not a legal burden of proof. In the instant case, the only finding open to the judge to have made on the accepted evidence was that the local authority had not established, on a balance of probabilities, that the mother had inflicted any harm. Moreover, the failure of the local authority to establish that the mother inflicted harm had the effect that the case had to proceed on the basis that she did not. The case against the mother could not be elevated beyond suspicion that she may have harmed her baby. Suspicions and doubts did not establish a risk of future harm by her. However, a finding of failure to protect was inevitable in the circumstances. Therefore, the appeal would be allowed, the order varied accordingly, and the appeal against the judge’s finding of a failure to protect would fail. Re H and R (minors) (sexual abuse: standard of proof) [1996] 1 FCR 509 considered.
Cases referred to in judgmentG (a child) (non-accidental injury: standard of proof), Re[2001] 1 FCR 97, CA.
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509, [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
Lancashire CC v A[2000] 1 FCR 509, [2000] 2 AC 147, [2000] 2 All ER 97, [2000] 2 WLR 590, HL.
M and R (minors) (expert opinion: evidence), Re[1996] 2 FCR 617, [1996] 4 All ER 239, [1996] 2 FLR 195, CA.
AppealThe mother appealed against the order of Judge Downey, dated 10 April 2002, whereby she gave directions for the final disposal of an application by the local authority for care orders in respect of two children. The facts are set out in the judgment.
Ernest Ryder QC and Jonathan Butler for the mother.
Margaret de Haas QC and Kevin Reade for the guardian ad litem.
Margaret de Haas QC and Malcolm Sharpe for the local authority.
Michael Sellers for the father.
Cur adv vult
26 July 2002. The following judgment was delivered.
WARD LJ. What is this appeal about?[1] That is a question I put to Mr Ryder QC who appears for the appellant. The answer is still far from clear, but let me elaborate. The order under appeal is the order of the late Judge Downey made on 10 April 2002. That was in form no more than an order giving directions for the final disposal of an application by the local authority for care orders in respect of two children of the appellant mother and her partner, the second respondent, namely L, born on 8 November 2000, and C, born on 22 October 2001. That order provided, so far as could possibly be material for the purposes of this appeal:
‘1. A transcript of the judgment given today be prepared at public expense and served on all parties.
2. ...
3. The mother LN do file a statement in response to today’s judgment by 1 May 2002.
4. The guardian do arrange for Dr Alvin to file an addendum to his report of 7 November 2001 dealing with today’s judgment and LN’s reaction to it by 8 May 2002.
5. The local authority do file a statement and care plan by 22 May 2002.
6. LN and LOS do file their statements in response to the care plan and local authority statement by 5 June 2002.
7. The guardian do file her report by 19 June 2002.’
One would not know from the form of order that the judge had in fact embarked on a hearing to find facts relating to serious injury suffered by L. The notice of appeal asks for the order (all of it) to be set aside and for the application, presumably for the care order, to be dismissed.
The sad factual background.[2] At about 1 am on 12 May last year L, then only six months old, was taken to Alder Hey Hospital by the appellant who was concerned about swelling to L’s head. Examination of L revealed a catalogue of injuries as follows.
(i) A complex comminuted fracture of the left parietal bone and an acute subdural haematoma frontally which was caused by very severe impact to the head, either a punch or a falling to the ground with considerable force between one and seven days before admission to hospital, that is to say between 5 and 11 May.
(ii) An undisplaced fracture of the mid-shaft of the left clavicle which was caused by dropping the child onto her shoulder or, alternatively, direct pressure by a thumb at the site of the fracture some seven to ten days before 14 May when the x-rays revealed the injury, so dating it between 4 and 7 May.
(iii) Fractures to the seventh and eighth left ribs and the fifth and sixth right ribs which were caused by a squeezing injury to the chest, compression of the rib cage with force far greater than that generated in normal handling which occurred two to three weeks before 14 May and so were caused between 23 April and 6 May.
(iv) A fracture to the tenth right rib again caused by forceful squeezing to the chest, again due to a force far greater than that occurring in normal handling which happened within a week of attendance at the hospital, that is to say between 6 and 12 May.
(v) A bucket-handled fracture of the lower shaft of the left tibia which was caused by twisting shearing force being applied to the ankle or by the child being roughly pulled and twisted by the limb sometime between 9 and 11 May.
The medical evidence was agreed and the doctors were satisfied that there were at least two separate occasions of non-accidental injury to this unfortunate child.
[3] Both the mother and the second respondent were arrested and interviewed at length. The second respondent after a while retracted his denials and admitted that on the Wednesday preceding the child’s admission to hospital, namely on 9 May, he had lost his temper and punched L once on the head. He accepted that in so doing he...
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