In a recently reported Court of Appeal case the child’s mother, supported by the father, successfully appealed findings made against them that they had inflicted a fracture to their daughter’s right leg. The parents had provided two possible explanations. One was that the fracture may have been caused during a set of immunisation injections being administered. The other was that it followed an incident of apparent play with a child relation. The instructed consultant paediatrician opined that this incident could explain the fracture. However, the Family Court Judge discouraged the parents from pursuing this incident but in her final judgment, discounted this possible explanation.
The Court of Appeal criticised the Judge’s approach. The judgment was a narrative with no structure to allow the reader to know what findings had been made and how the judge had come to those conclusions. The Judge’s discouragement of investigating the incident had shut off a relevant line of inquiry. The parents’ account identifies the lines of inquiry, and each objectively relevant possibility should be properly investigated and assessed at the earliest time possible to give the court the necessary information. The local authority should have undertaken a neutral evidence gathering exercise. If it does not investigate and fails to provide a reason for not doing so, the court should make directions for evidence gathering. The child’s representative should also be proactive in the process to ensure the court has all the relevant information before making decisions.
The judgment also highlights how important it is not to assume that an investigation into an explanation involving a child will lead to the child being called as a witness. Parties need to keep an open mind about any explanation given and should work together to gather the necessary information for the court to make its assessment.
Cases involving the alleged infliction of injury upon a child are often legally, factually and medically complex. It is important to be represented by a member of The Law Society Children Panel. This firm has several such members experienced in these type of proceedings.