IA (a Child)(Fact finding; Welfare; Single hearing; Experts reports), Re

In care proceedings involving suspected non-accidental injury, the local authority bears the burden of proving the threshold facts on the balance of probabilities. A non-perpetrator parent’s alleged failure to protect is fact-specific and must be assessed by reference to what the parent knew, or ought reasonably to have known, at the relevant time. Hindsight must be avoided.

An innocent and genuinely ignorant parent cannot fairly be expected to reach professional conclusions immediately after a child’s death or before the court has determined the facts. Welfare decisions must give proper weight to the child’s upbringing within the natural family. Adoption is a measure of last resort, appropriate only where nothing else will secure the child’s welfare.

Expert evidence must be focused, analytical and confined to the questions instructed.

The local authority commenced care proceedings concerning an infant shortly after birth. The infant’s older sibling had died after sustaining fractures which were alleged to be non-accidental. The principal issues were whether the injuries had been inflicted, whether the father was responsible, whether the mother had failed to protect the child, whether the mother posed a continuing risk, and what contact should take place between the infant and his father.

The case was listed for a combined fact-finding and welfare hearing. During the hearing, the local authority and guardian changed their proposed welfare arrangements after hearing evidence from the maternal grandmother. The court therefore had to determine both the factual allegations and the appropriate long-term placement and contact arrangements.

1. The court found, on the balance of probabilities, that the older child’s fractures were inflicted and that the father was responsible. The medical evidence supported that conclusion, and the father’s earlier conviction, admissions and history of dishonesty were relevant considerations, although the earlier findings were not treated as the sole foundation for the finding concerning the older child.

2. Failure to protect is always a matter of degree and is intensely fact-specific. The court must examine what the non-perpetrator parent knew, or ought to have known, when the injury occurred, why relevant information was unavailable, and the circumstances leading to the harm. It is unjust to use hindsight by relying on information acquired only after the event.

3. The mother had been deliberately misled about the father’s history and had observed no conduct suggesting that he posed a danger to children before the injury. She was therefore not blameworthy and had not failed to protect. Her later conduct was also assessed in the context of bereavement, incomplete information and the absence of an earlier fact-finding judgment.

4. A non-abusing parent’s understanding may develop as a journey. It is unrealistic and unjust to expect an innocent parent to sever a relationship and determine causation immediately after a child’s death, particularly before the evidence has been tested. The consolidated fact-finding and welfare hearing should not impose on such a parent the standard of reaction expected of a professional possessing all relevant information.

5. The child’s welfare required a joint residence order in favour of the mother and maternal grandmother. Contact with the father was ordered twice yearly, supervised and in the West Midlands. More frequent contact was inappropriate while the father remained unable to confront his wrongdoing or undertake anger-management treatment.

6. The court criticised the local authority’s superficial and unbalanced assessments. It reiterated that children should, consistently with welfare, be brought up within their natural families, that local authorities should support and reunite families where safe, and that adoption is a very extreme measure to be used only when necessary and when nothing else will do, citing Re KD [1988] AC 806, Re W [1993] 2FLR 625, Re C and B (Care Order; Future Harm) [2001] 1FLR 611, Re B [2013] UKSC 33, Re P (a child) EWCA Civ 963 and Re G (a child) EWCA Civ 965.

7. Experts must comply with focused instructions and produce succinct, analytical reports. A report which provides an expansive overview and addresses matters outside the instruction is unacceptable and of limited utility.