A and B (Children: Injury: Proof: Suspicion: Speculation), Re

Factual and Procedural Background

This case concerns two young children, a boy aged 4 years and his sister aged 2 years, who were removed from the care of their mother approximately one year prior due to suspicion of non-accidental injuries sustained by the sister. The suspicion arose after the sister was found to have a skull fracture and bruising to her ear, injuries suspected to be inflicted either by the mother or maternal grandmother. The initial removal was ordered following a hearing in May 2015 where the trial judge was satisfied the injuries were non-accidental. The mother and grandmother appealed that decision. The appeal was heard in August 2015, with an oral judgment delivered in September 2015, resulting in the children being returned to the mother as the appellate judge was not satisfied that the injuries were non-accidental.

Prior to the incident, there was no known involvement of social services with the family. A prior police investigation regarding alleged mistreatment of the boy had found no evidence of harm. The injuries to the sister were initially assessed at a hospital, where a skull fracture and ear bruising were identified. Medical experts provided differing opinions regarding whether the injuries were accidental or non-accidental. The children were removed from the mother and grandmother's care and placed with extended family members but separated from each other for approximately 11 months before the appeal decision.

Legal Issues Presented

1. Whether the injuries sustained by the sister were non-accidental in nature.
2. Whether the removal of the children from their mother and grandmother was justified on the basis of the injuries.
3. The proper role of expert medical evidence in determining whether injuries are accidental or non-accidental.
4. Whether the burden of proof was correctly applied regarding the non-accidental nature of the injuries.
5. The proportionality of the decision to remove and separate the children pending the court hearing.

Arguments of the Parties

Appellant's Arguments

• The injuries to the sister were not proved to be non-accidental on the balance of probabilities.
• The trial judge erred in concluding the skull fracture was non-accidental despite medical evidence indicating it was non-specific for non-accidental injury.
• The judge improperly reversed the burden of proof by placing emphasis on the lack of explanation from the mother and grandmother.
• The removal and separation of the children were disproportionate given the tentative nature of the medical opinions and the circumstances.
• Medical experts should not be asked to opine on whether injuries are accidental or non-accidental as this is a judicial determination.

Respondent's Arguments

• The injuries, particularly the bruising to the ear, were suspicious and more consistent with non-accidental injury.
• The lack of explanation for the injuries from the adult carers supported the conclusion of non-accidental injury.
• Removal of the children was justified to safeguard their welfare given the medical concerns and absence of a credible explanation.
• Expert medical evidence supported the trial judge’s conclusion that the injuries were non-accidental, especially considering the two distinct traumas identified.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the medical evidence, the factual circumstances, and the procedural history. It noted that the skull fracture was of a type that was non-specific for non-accidental injury and that the bruising to the ear, while suspicious, was not conclusively proven to be inflicted non-accidentally. The court emphasized the tentative and speculative nature of the medical experts’ opinions, particularly criticizing the practice of asking experts to opine directly on whether injuries were accidental or otherwise, which is a judicial function.

The court considered various contextual factors, including the absence of prior social services involvement, the well-cared-for appearance of the children, the prior police investigation that disclosed no concerns, and the mother’s proactive seeking of medical advice due to parenting pressures. These factors weighed against a finding of non-accidental injury.

The court also highlighted the importance of not reversing the burden of proof onto the parents by inferring non-accidental injury from the absence of an explanation. It underscored the need for findings to be grounded in evidence rather than speculation or suspicion.

In applying established legal principles from relevant precedents, the court found that the trial judge’s conclusion that the injuries were non-accidental was not sufficiently supported by the evidence. The court found the trial judge’s reasoning lacked consideration of positive factors pointing away from non-accidental injury and unjustifiably elevated suspicion to proof.

Finally, the court questioned the proportionality of the initial removal and separation of the children given the tentative nature of the medical opinions and the circumstances, cautioning against the loose use of the term "non-accidental injury" as a standalone justification for removal.

Holding and Implications

The appeal was ALLOWED. The court held that the Trust had not proved, on the balance of probabilities, that the injuries to the sister were non-accidental. Consequently, the children were returned to the care of their mother and grandmother.

The decision directly affects the parties by restoring custody to the mother and grandmother. The court did not establish new legal precedent but reaffirmed important principles regarding the evaluation of evidence in suspected child abuse cases, the role of expert witnesses, the burden of proof, and the proportionality required in removal decisions.