W (A Child), In the Matter Of (Inflicted Injury - Delay)

Factual and Procedural Background

This is an appeal in public law care proceedings concerning findings of fact made by a High Court Judge on 26 November 2023. The judge found that fractures to both tibias of a 10-month-old female child ("the Child") were inflicted deliberately or recklessly by either the Appellant mother ("the mother") or the Respondent father ("the father"). Consequently, the judge held that the threshold criteria under section 31(2) of the Children Act 1989 ("CA 1989") were satisfied, warranting care orders.

The Court of Appeal found errors of principle in the judge's decision and allowed the appeal, concluding that absent the findings of inflicted injury, no other basis existed to satisfy the threshold criteria. The case was not remitted for retrial, and an order allowing the appeal was made on 10 April 2024. Following the decision, a rehabilitation process of the Child to her parents commenced.

Background facts include the parents' stable relationship of over a decade, the Child’s premature birth at 33 weeks, and her early medical history involving neonatal intensive care and prolonged use of Omeprazole for gastroesophageal reflux. The Child was cared for part-time by maternal grandparents and a step-grandfather during the mother’s working hours.

At 10 months old, the Child sustained an accidental femur fracture from a fall from a sofa while in the care of the step-grandfather. Medical professionals accepted this injury as accidental. However, a skeletal survey revealed older fractures to both tibias, unexplained by the family, raising concerns of inflicted injury. Care proceedings were initiated, and the Child was placed in foster care.

Expert reports from a paediatric radiologist and paediatrician were commissioned. Parental assessments and contact arrangements were noted as positive, and adoption was not being considered. The case management was delayed beyond statutory time limits, resulting in the Child being in care for over two years by the time of the appeal hearing.

The trial spanned three days, with evidence from medical experts and family members. The local authority contended the tibial fractures were inflicted injuries, implicating the mother, father, grandmother, and step-grandfather as possible perpetrators. The judge ultimately exonerated the grandparents and found the fractures inflicted by either parent.

Legal Issues Presented

1. Whether the judge erred in finding that the tibial fractures were inflicted injuries rather than resulting from bone fragility related to the Child's prematurity and medical treatment.
2. Whether the judge failed properly to consider the cumulative impact of medical evidence and the accidental femur fracture in assessing bone fragility.
3. Whether the judge improperly placed excessive weight on the Child's pain response and reversed the burden of proof onto the parents.
4. Whether the judge gave undue weight to the expert pharmacologist's evidence without adequate analysis of its applicability to the Child's specific circumstances.
5. Whether the judge failed adequately to assess the credibility and reliability of the parents and wider family, including their explanations and the absence of risk factors.

Arguments of the Parties

Appellant's Arguments

• The judge gave insufficient weight to the accidental femur fracture and failed to consider it within the overall assessment of bone fragility.
• The judge compartmentalised evidence rather than evaluating the cumulative effect of prematurity, medication, and prior injury on fracture risk.
• The judge placed excessive emphasis on the Child's pain response, effectively reversing the burden of proof onto the parents.
• The judge over-relied on the pharmacologist's evidence, which was based largely on research not directly applicable to the Child's prematurity and medical history.
• The judge failed to properly weigh the absence of risk factors and the positive parenting evidence, neglecting to assess the parents’ credibility in detail.

Appellee's Arguments

• The local authority maintained that the tibial fractures were inflicted injuries and that all four adults in the family were potential perpetrators.
• They argued the judge’s findings were supported by medical evidence and the lack of any credible explanation for the fractures from the family.
• The local authority accepted that the judgment’s structure could have been improved but contended the ultimate conclusion of inflicted injury was sound.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re S (Children: Findings of Fact) [2023] EWCA Civ 1113	Deference to trial judge's findings of fact unless there is a clear error of approach.	The Court acknowledged the high threshold for overturning factual findings but found errors of principle justified allowing the appeal.
Volpi v Volpi [2022] EWCA Civ 464	Emphasises careful consideration of evidence and the limited circumstances for appellate interference.	Referenced to remind the Court of the standard of review applicable to findings of fact.
Re BR (Proof of Facts) [2015] EWFC 41	Guidance on risk factors and the importance of considering the whole evidential canvas.	The judge considered absence of risk factors but failed to integrate this properly into the overall analysis.
Re W and another (Non-accidental injury) [2003] FCR 346	Evidence of parents and carers is of utmost importance; credibility and reliability must be assessed.	The Court found the judge did not sufficiently assess parental evidence or credibility as required.
Re R (Children: Findings of Fact) [2024] EWCA Civ 153	Medical and non-medical evidence both vital and neither has precedence over the other.	Used to underline the necessity of balanced evaluation of all evidence.
B-M (Children: Findings of Fact) [2021] EWCA Civ 1371	Credibility assessment requires consideration of consistency, probabilities, and witness demeanour.	Emphasised the need for detailed credibility assessment which was lacking in the judge’s analysis.
Cazalet v Abu-Zalaf [2023] EWCA Civ 1065	Assessment of credit is an important feature alongside objective findings.	The Court found the judge failed to incorporate credit assessment adequately in the decision.
Re G and B (Fact-Finding) [2009] EWCA Civ 10	Judges should avoid making findings not sought by the local authority without secure evidential foundation.	The judge’s speculative comments about parental strain were contrary to this principle.

Court's Reasoning and Analysis

The Court analysed the judge’s approach to the medical and lay evidence, identifying critical errors of principle. The judge considered the issues of bone fragility and the Child’s likely pain response in isolation rather than cumulatively, failing to integrate the significance of the accidental femur fracture with the risk factors of prematurity and prolonged Omeprazole use.

The judge placed substantial weight on the expert pharmacologist’s opinion, which relied heavily on research not directly applicable to a premature infant with the Child’s medical history. The Court found the judge’s acceptance of meta-analysis was misplaced given the limited and non-comparable data.

Regarding pain response, the judge overemphasised the expectation that the Child would manifest distress, disregarding the possibility of clinically silent fractures and failing to consider the lay evidence of the grandparents and parents adequately.

The Court noted a significant deficiency in the judge’s evaluation of the credibility and reliability of the parents and grandparents. Despite acknowledging the importance of lay evidence, the judge did not summarise or assess the oral evidence of the parents or grandparents before making the critical finding of inflicted injury.

The judge’s speculation about parental strain contributing to injury was unsupported by evidence and contrary to established guidance prohibiting findings not grounded in evidence.

Overall, the Court concluded that the judge’s fragmented analysis and failure to consider the evidential picture as a whole led to an incorrect conclusion that the tibial fractures were inflicted injuries. The burden on the local authority to prove inflicted injury on the balance of probabilities was not discharged.

Holding and Implications

The appeal is allowed.

The Court overturned the finding that the tibial fractures were inflicted injuries and held that the threshold criteria under section 31(2) of the Children Act 1989 were not satisfied. Consequently, the interim care order was discharged, and the care proceedings discontinued. The Child has commenced rehabilitation to her parents. No new legal precedent was established beyond the application of established principles regarding the assessment of evidence and findings of fact in care proceedings.