AD & AM (Fact-Finding: Re-Hearing)

On a rehearing of findings in child-protection proceedings, the court must consider the fresh evidence alongside the earlier material and assess the totality of the evidence. The previous findings remain the starting point, but the legal burden remains on the local authority to prove its case on the balance of probabilities. Expert evidence must be necessary, properly focused and evaluated as part of the overall evidential canvas. A medical condition may properly be found to have an unknown cause. The absence of an identified alternative mechanism does not itself prove non-accidental injury. Where the evidence does not establish that bone weakness materially affected the skull, the original assessment of the force required for a serious fracture may stand. Findings must nevertheless be withdrawn where the fresh evidence creates sufficient uncertainty, including uncertainty about the timing, mechanism or accidental character of particular injuries.

The proceedings concerned two children, AD and AM, who lived with their parents and paternal grandmother under a supervision order. In 2013 the court found that the mother had inflicted near-fatal head injuries on AD and made related findings concerning vertebral fractures. Following the discovery of a skull fragment and the obtaining of further medical evidence, the mother applied for a rehearing.

In February 2016 the court permitted the application to proceed beyond the first stage identified in Re ZZ & Others [2014] EWFC 9. The rehearing examined bone mineralisation, the possible effect of bone weakness on the skull fracture, the possibility of a lucid interval after an alleged fall, and the significance of scalp swelling. The central issue was whether the fresh evidence required the earlier findings to be revisited.

1. The court applied the staged rehearing approach in Re ZZ & Others [2014] EWFC 9. At the review stage, the fresh evidence had to be considered alongside the earlier evidence and assessed in the light of the totality of the material.

2. The earlier findings were the starting point of the local authority’s evidence, and the evidential burden fell on the parents in challenging them. The legal burden nevertheless remained on the local authority, which had to prove its case on the balance of probabilities: Birmingham City Council v H and others [2005] EWHC 2885 (Fam); Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35.

3. Expert evidence had to be necessary to resolve the proceedings justly. The court retained responsibility for weighing expert opinions against the factual evidence. The evidence had to be current, properly researched, within the expert’s field, and presented with appropriate objectivity: A Local Authority v K, D and L [2005] EWHC 144 (Fam); Re H-L [2013] EWCA Civ 655; Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567.

4. The court found that the osteopaenia in AD’s spine had no identifiable probable cause. It was therefore treated as being of unknown cause. There was insufficient evidence that the skull was abnormally thin or materially weakened. The extensive skull fracture required significant force, and the evidence did not establish that the alleged fall at 4.30pm could have caused it.

5. The court rejected the proposed lucid-interval theory. The clinical presentation, the severity of the injuries and the reliable evidence concerning the development of scalp swelling supported the conclusion that the significant traumatic event occurred shortly before the emergency call.

6. The finding that the mother inflicted the serious head injuries therefore remained. The earlier finding that the skull and vertebral fractures were caused in the same incident was withdrawn. Because the cause and extent of spinal bone weakness remained uncertain, the court was no longer satisfied on the balance of probabilities that the vertebral fractures were non-accidental.

The judgment describes earlier stages in the same family proceedings:

• 2013 fact-finding hearing: findings were made concerning AD’s head and vertebral injuries.
• 2014 welfare hearing: the children were rehabilitated to the care of their parents and grandmother subject to conditions.
• 2016 application for rehearing: the court permitted the matter to proceed beyond the first stage and conducted the present rehearing.