B (A Child)

In care proceedings following non-accidental injury, a parent’s failure to recognise responsibility is an important factor in assessing safety, but it is not an automatic or permanent bar to rehabilitation. The decisive question is whether the child can safely return. Where the cause and antecedents of injury remain unknown, the court may be unable to conclude that recurrence risk is acceptable. A court may refuse permission for an additional expert where existing reports address the relevant welfare and safety issues, the proposed work substantially overlaps, further evidence would cause material delay, and the parties can test the existing evidence by cross-examination. In those circumstances, the additional instruction may be disproportionate and the parents are not forensically disadvantaged.

The parents of S appealed against a decision of Reading County Court refusing permission to disclose the care papers to, and instruct, Resolutions and Mr Gumbleton for a further assessment of their capacity to care for S. S had suffered a skull fracture and a shinbone fracture. The fact-finding judge found both injuries non-accidental, caused while S was in his parents’ care, and held that the threshold under the Children Act 1989 was satisfied.

At the welfare stage, the parents argued that an assessment should not proceed on the assumption that denial of responsibility precluded rehabilitation. The court had existing reports from Dr Williams and Dr Bentovim. The central issue was whether a further expert assessment was necessary and proportionate, or whether the existing evidence adequately addressed attachment, safety and the possibility of future rehabilitation.

Both appeals were dismissed. Permission to appeal was granted in each matter, and an extension of time was granted in B4/2006/0268.

1. The threshold under section 31 of the Children Act 1989 had been satisfied by the unchallenged findings that S’s injuries were non-accidental and had occurred while he was in the care of his parents. The appeals concerned the subsequent welfare stage.
2. In deciding whether a child can safely return to parental care, the inability of a parent to recognise responsibility for an injury is an important factor in the safety assessment. It is not, however, a doctrinal or permanent bar to rehabilitation. The court must be satisfied that the child will be safe. If the cause of an injury remains unknown, the court cannot readily exclude the possibility of recurrence.
3. The judge was entitled to refuse permission for a further expert assessment. Dr Bentovim had considered attachment within the wider family dynamic and had addressed safety, including the parents’ failure fully to recognise responsibility. His assessment substantially covered the proposed work of Resolutions.
4. The parents were not forensically disadvantaged. They could cross-examine Dr Bentovim about the Resolutions approach, and he could identify any further work that he considered appropriate. The volume and nature of the existing evidence were sufficient for the welfare decision, while involving another expert risked delay disproportionate to its likely evidential benefit.
5. The welfare decisions, including whether S should remain with his maternal grandparents and whether a care or supervision order was appropriate, remained for the first-instance judge.

May LJ agreed. He considered the refusal within the judge’s competence and proportionate, particularly because S’s welfare required the proceedings to move forward and the existing evidence could support the necessary decisions.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 486, permission to appeal was granted in both matters, an extension of time was granted in B4/2006/0268, and both appeals were dismissed.
2. Reading County Court: HHJ McIntyre refused the parents’ application to disclose the care papers to, and instruct, Resolutions and Mr Gumbleton for a further assessment of parental capacity to care for S.