B (a child)

In care proceedings, the court determines whether non-accidental injury is proved on the balance of probabilities. Medical experts provide scientific guidance, but the court makes the factual determination. An expert’s inability to give a confident medical diagnosis does not prevent a finding where the condition is entirely consistent with non-accidental injury and no more probable explanation exists.

Relevant records concerning parental care of another child must be presented fairly. Where untested files are the best or only evidence of that history, inspection may be permitted so that the resulting assessment is balanced and commands the parties’ confidence. The disclosure decision remains fact-specific.

A baby suffered subdural haemorrhages without other physical signs of injury. In care proceedings brought by Peterborough City Council, the Peterborough County Court conducted the first stage of a split trial. On 17 December 2001, His Honour Judge McKittrick found that the condition resulted from non-accidental injury inflicted by one of the parents, although he could not identify which parent.

The parents appealed on the ground that the medical evidence identified non-accidental injury only as a possible cause and did not support the findings to the required standard.

On 21 January 2002, the judge also directed that a social worker’s summary of files concerning the father’s older son should be supplied to a psychologist conducting a risk assessment, while refusing the parents access to the full files. The parents separately appealed that refusal. The central issues were the sufficiency of the medical evidence and the procedural fairness of relying upon the summarised records.

1. First appeal dismissed; second appeal allowed to a limited extent. Thorpe LJ delivered the leading judgment. Buxton LJ agreed with both proposed orders and their reasons, adding observations on disclosure. Jackson J agreed with both judgments.

2. The medical expert and the judge performed different functions. The expert’s role was to guide the court concerning medical and scientific knowledge. The judge’s role was to determine the statutory questions under Section 31 of the Children Act 1989, including whether the child was suffering or likely to suffer significant harm attributable to the care given or likely to be given.

   The expert regarded non-accidental injury as the leading possible cause. The absence of other injury prevented him from giving a confident medical diagnosis, but all recognised medical causes had been excluded. The child’s condition was entirely consistent with non-accidental injury, and there was no more probable explanation. The judge was therefore entitled to find non-accidental injury on the balance of probabilities, notwithstanding the gravity of the allegation and the corresponding need for cogent evidence.

3. The parents were entitled not to give oral evidence, and the judge properly drew no adverse inference. Their choice nevertheless meant that the judge could not assess them through examination and cross-examination. Having stood aside from that part of the judicial investigation, they bore the practical risk that the medical evidence would remain without an oral parental explanation.

4. The older child’s social-services history was highly relevant to the forthcoming assessment of the parents’ capacity and responsibility. The county court had therefore erred in treating the underlying files as irrelevant to decisions about the baby’s future care.

   The records had not been tested in earlier proceedings and were probably the best and only evidence of that parental history. Even a careful summary might be incomplete or unbalanced. Given the gravity of the existing findings, fairness required the parents to be permitted to inspect the files so that the evidence could be presented in a form which commanded their confidence. This ruling was fact-specific and did not establish a general right of inspection. Directions were to regulate inspection without jeopardising the final hearing timetable.

1. Court of Appeal (Civil Division): Permission was granted on both appeals. The appeal against the non-accidental injury findings was dismissed. The appeal concerning access to the older child’s social-services files was allowed to the limited extent that the parents were permitted to inspect them. [2002] EWCA Civ 752

2. Peterborough County Court, 21 January 2002: His Honour Judge McKittrick directed that the social worker’s summary should be supplied to the risk-assessment expert but refused the parents access to the underlying files.

3. Peterborough County Court, 17 December 2001: At the first stage of a split trial, His Honour Judge McKittrick found that the baby’s illness resulted from non-accidental injury inflicted during the identified period by one or other parent.