H (A Child), Re (Interim Care Order : fact finding)

In care proceedings, hearsay evidence is admissible, but its weight must be evaluated carefully in the context of the evidence as a whole. The court should consider reliability, the practicability of calling the maker, contemporaneity, multiple hearsay, possible motives and the opportunity for testing the evidence. A local authority need not call every professional who made a contemporaneous clinical record. It must nevertheless prove the facts relied on and explain how they establish the statutory threshold. Findings must be based on evidence and proper inferences, not speculation or suspicion.

Westminster City Council sought public law orders concerning H, a 15-year-old child with significant medical needs who was subject to an interim care order. The local authority alleged that H’s parents had exaggerated or fabricated symptoms, misled professionals, manipulated medication and treatment, interfered with medical equipment, obstructed physiotherapy and education, and thereby caused or exposed H to significant harm.

The 15-day fact-finding hearing concerned the reliability and admissibility of extensive medical, nursing, educational and other records, much of which was hearsay. The court also considered the quality of an independent paediatric overview and the parents’ responsibility for H’s medical and developmental harm.

1. Findings had to be based on evidence, including proper inferences, rather than speculation or suspicion. The local authority bore the burden of proof and the standard was the balance of probabilities.
2. Hearsay was admissible in family proceedings, but its admission did not determine its weight. Reliability and cogency had to be assessed by reference to the evidence as a whole, including contemporaneity, multiple hearsay, possible motives, the practicability of calling the maker and the opportunity for testing the material.
3. A local authority was not required to call every nurse, doctor or teacher who had made a contemporaneous note. Clinical records could provide important contextual evidence, particularly where entries from independent professionals displayed consistent patterns.
4. Evidence had to be assessed in overview, and the local authority had to explain the link between proved facts and the alleged significant harm. An independent paediatric overview required detailed and searching analysis of the medical records; the superficial report in this case attracted little or no weight.
5. The court found that both parents had contributed to a distorted account of H’s health, that M had bullied professionals and obstructed treatment, and that both parents had deliberately tampered with H’s TPN pump. These matters caused or contributed to serious physical and emotional harm, educational deprivation and a continuing risk to H’s life. The parents were to be distanced from involvement in H’s medical care, physiotherapy and therapeutic support.