Judge was wrong to ignore medical opinion in favour of mother`s evidence

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