W (A Child) (Inflicted Injury) (Delay)

In care proceedings involving alleged inflicted injury, the court must assess the whole evidential picture. Medical evidence is important, but it does not take precedence over reliable lay evidence. Possible causes of bone fragility must be considered cumulatively, including prematurity, medication and a previous accidental fracture. The absence of a history of injury or observed pain may be taken into account, but it cannot reverse the burden of proof or operate as a hard and fast rule against carers. A finding of inflicted injury requires the evidence as a whole to establish, on the balance of probabilities, that inflicted injury is more likely than an innocent explanation.

W, a prematurely born child, was removed into foster care after a skeletal survey following an accepted accidental femoral fracture revealed older fractures to both tibias. The local authority alleged that the tibial fractures had been inflicted by one or more family members and sought findings satisfying the threshold under section 31(2) of the Children Act 1989.

The Family Court at Wolverhampton, in case WV21C00410, found that the tibial fractures were inflicted by either the mother or father, while exonerating the grandparents. The mother appealed, supported by the father. The central issues were whether the judge had properly assessed bone fragility, pain response, the accidental femoral fracture and the family’s evidence as part of the whole case.

1. Appeal allowed. The findings that the tibial fractures were inflicted injuries, and that the threshold criteria were satisfied, were set aside. The case was not remitted for retrial because, absent the findings concerning the tibial fractures, there was no other basis for satisfying the threshold. The interim care order was discharged and the proceedings discontinued.
2. The judge had analysed the medical evidence in closed compartments. He treated prematurity, feeding difficulties and Omeprazole separately, rather than considering their cumulative effect together with W’s highly unusual accidental femoral fracture. That fracture was particularly significant because the judge relied on evidence suggesting that fractures associated with Omeprazole would ordinarily occur at a later age.
3. The medical evidence was not directly applicable in important respects. The Malchodi paper concerned healthy children and excluded a child with W’s prematurity, neonatal history, prolonged Omeprazole treatment and early fracture. The judge nevertheless relied substantially on the pharmacologist’s conclusion without adequately evaluating those limitations or the evidence as a whole.
4. The judge was entitled to consider the absence of a history explaining the tibial fractures and the absence of observed distress. But Re BR [2015] EWFC 41 made clear that a carer is not invariably expected to explain how a young child was injured, since that would reverse the burden of proof. The absence of an explanation had to be assessed against all the evidence, including the reliable evidence of the grandparents that they had observed no distress during the relevant period.
5. The judge failed to assess or summarise the parents’ evidence and credibility before making the finding of inflicted injury. He also speculated about parental strain without a sufficient evidential foundation and without putting the proposed findings to the parents, contrary to the fairness guidance in Re G and B (Fact-Finding) [2009] EWCA Civ 10.
6. The Court of Appeal reiterated that medical and non-medical evidence are both vital contributors and neither has precedence. On a proper assessment of the entirety of the evidence, the local authority had not proved that inflicted injury was more likely than not. The threshold under section 31(2) of the Children Act 1989 was therefore not satisfied.
7. The court also emphasised the statutory expectation that care proceedings should be concluded without delay and ordinarily within 26 weeks, while recognising the difficulties of complex medical cases and overburdened courts.

• Court of Appeal (Civil Division): The appeal was allowed. The findings of inflicted injury were set aside, the interim care order was discharged and the proceedings were discontinued.
• Family Court at Wolverhampton: In case WV21C00410, His Honour Judge Weston KC found that fractures to both tibias had been inflicted by either the mother or father and that the threshold under section 31(2) of the Children Act 1989 was satisfied.