Legal Updates

The court of appeal affirmed again that judges should give reasons why they are setting aside strong expert medical evidence in favour of a lay opinion in a case concerning non-accidental injuries, in Re B on 29 May 2002.

A local authority appealed against a decision of Mr Justice Coleridge J made on 20 December 2001 in care proceedings in respect of a child (B) after B's half-brother (K) died of serious injuries. K had been born in November 1999 and in the spring of 2000 his mother met a new boyfriend, they lived together from September 2000. That month K suffered his first injury, a fractured left arm.

In the early hours of 15 December 2000 K was found dead on arrival at hospital. He had suffered extensive and appalling injuries which were medically recorded and identified numerically, totalling 94. Bruise 18 was a large bruise on K's back, which the judge found was significant in that its date was crucial to culpability. K's injuries had neither been reported nor treated.

The local authority made a care application in respect of B and the mother accepted that K died as a result of non-accidental injuries, but stated that she did not injure or see anyone else injure K, that she was unaware of any risk to K and that her boyfriend must have been responsible for the injuries.

The boyfriend did not make any specific allegations, but said that others had cared for K prior to his death and so he was not the only person who might be responsible. The judge found that the boyfriend had caused K's injuries, absolving the mother of blame, and finding that she had not failed to protect him at any time.

The local authority appealed, arguing that the strong medical evidence indicated that the judge should not have excluded the mother as a person responsible for the injuries or vindicated her from any failure to protect K on the basis of lay evidence.

Allowing the appeal, the three person court of appeal considered that that the judge's decisions were plainly wrong and held:

(1) The mother's claim that K had an unusually high pain threshold and had mixed reactions to harm was contrary to the expert evidence and indeed her own evidence showing that K was a baby who reacted normally to pain. She also said that she had not seen bruise 18 on K's back when she had bathed him and put him to bed on the night he died but this was against the medical evidence which established that bruise 18 was not fresh when K was examined at the hospital.

(2) The list of injuries sustained by K during November and December 2000 was unusually extensive and from that evidence it was clear how K would have reacted.

There was compelling medical evidence that children with those sort of injuries obviously needed medical attention and the mother's case had to be measured against this. The mother's argument that this was evidence of speculation was not accepted as it was in fact expert evidence of how seriously injured children reacted.

(3) The judge had mistakenly preferred the lay evidence of the mother to definite expert medical evidence. He should have given reasons why he set aside that strong medical evidence in favour of lay evidence under the current case law.

(4) In this case the court had no alternative except to conclude that the injuries to K had been caused by either the mother or her boyfriend, but had no evidence to indicate which of them was responsible.

(5) There was enough evidence to conclude that the boyfriend was a perpetrator but there was no evidence that he was the only one. The evidence would have to be of very strong for the judge to conclude that the mother could not have inflicted the injuries. This was not possible in this case because on her own evidence, the mother had left K in her boyfriend's care only once.

(6) Judges in care proceedings have to consider the whole case before them. Here the judge should have taken into account that fact that the mother had offered no convincing evidence as to how K's injuries were caused. The judge's findings of fact on the issue of failure to protect were relevant to his findings on whether the mother was a perpetrator. It was impossible to separate the mother in those two issues by dismissing the boyfriend's evidence. It could only have been the mother or her boyfriend who inflicted the harm on K, and the mother had failed to protect her child.

Comment: The court of appeal have yet again set out the criteria by which cases involving non-accidental injuries to children should be evaluated. Clear medical evidence should only be rejected if there is good and cogent evidence to the contrary, with reasons provided for the decision.

Bernadette Livesey

Walker Morris Solicitors