This case provides guidance for fact-finding hearings set to determine the perpetrator of inflicted injuries to children.

Background

The parents in this case had undergone an arranged marriage abroad. The father moved to the UK over 15 years ago with the mother joining him several years later. Together they had four children, two sets of twins.

The focus of this fact-finding was baby ‘A’ from the younger set of twins, born at the beginning of 2021. As a result of being extremely premature, both babies remained in hospital for one month following their birth before being discharged home to their parents and siblings, who were not yet of school age.

Following their discharge, the mother undertook the majority of the care for the four children, whilst the father returned to work after a short period of leave.

On 3rd April 2021, baby A was admitted to hospital after her father had found her struggling to breathe and with limited consciousness. It was found that baby A had suffered life threatening injuries whilst in the care of her parents. Baby A required emergency surgery and two blood transfusions and spent two months in hospital.

Baby A’s injuries were as follows:

·   Partial asphyxiation due to large quantities of blood soaked tissue being lodged in her throat;

·   Six rib fractures;

·   Metaphyseal fractures of the radius, ulna, both femurs and both tibias; and

·   Cystic lesions with blood staining within the parafalcine frontal lobes of her brain (chronic brain injuries).

The Judge’s Findings

In relation to the partial asphyxiation, the judge found that:

1. The mother had forced tissue paper into baby A’s throat to obstruct her breathing;

2. This was a deliberate act which could have been fatal; and

3. The parents had colluded to present a false account as to the circumstances of this injury.

The judge found that the chronic brain injuries and fractures had occurred earlier than the asphyxiation:

1. The chronic brain injuries resulted from a traumatic head injury which had been inflicted before 26th March 2021;

2. These chronic brain injuries were inflicted by either the mother or the father;

3. The metaphyseal fractures involved at least three separate applications of force;

4. The rib fractures involved at least two separate applications of force; and

5. Each of the fractures were deliberately inflicted by either the mother or the father on at least two different dates between 13th March and 24th March 2021.

The judge also found parental failings in that:

1. The perpetrator failed to seek timely medical attention for baby A once she was injured; and

2. In the event the injuries sustained were all caused by one parent, the other parent had failed to protect baby A.

The Appeal

The father sought to appeal against these findings on the following basis:

1. The judge had erred in his application of the law in relation to uncertain perpetrator cases and, as a consequence, was in error in finding that the father was within the pool of possible perpetrators; and

2. The judge was wrong to find that the father, had colluded with the mother and, if he was not the perpetrator, had failed to protect baby A from her mother.

Maisie’s Takeaway Points

1. The Correct Approach to the Pool of Perpetrators

The court considered the correct approach to the pool of perpetrators in inflicted injury cases by applying the case of Re B (Children: Uncertain Perpetrator [2019] EWCA Civ 575, [2019] 2 FLR 211.

The court acknowledged that the maxim provided in Re B that ‘[the court] should seek but not strain to [identify the perpetrator of the injury]’ had provided ‘a convenient counterweight to any temptation on the part of a judge to seek to make a finding at all costs’. However, the repeated use of this maxim creates the risk that it will become a hardened formula which may lead to a misunderstanding as to how to apply the law correctly. The judge in Re A noted that the Supreme Court has been ‘unequivocal in its condemnation of an approach by the courts which allows for any form of gloss being added to a legal test’.

Instead of applying this ‘gloss’, the court affirmed the proper application of Re B to determine the perpetrator in an inflicted injury case:

1. Is there a list of people who had the opportunity to cause the injury to the child?

2. Within that list, can the judge identify the individual perpetrator by considering all of the available evidence and applying the balance of probabilities? 

3. If not, is there a real possibility that each individual on the list inflicted the injury?

2. Managing a Case in light of this Guidance

In order to apply the test above effectively, it is important that there is proactive management of an inflicted injury case from the outset. It is necessary that a clear timeline surrounding the injury is established with the client so as to facilitate the drawing-up of a list of potential perpetrators. Further, considering and locating evidence in support of those placed on the list will avoid delay and is less likely to contribute to system pressures should a fact-finding hearing be deemed necessary.

3. Preparation of Judgments in Fact-Finding Cases

A 26 page document titled ‘Summary of the Applicable Law’ was appended to the original judgment. The court held that such a lengthy summary of the law is unnecessary. Instead, within their judgment, the judge should identify and apply the principles necessary to analyse the issue(s) before them only.

4. Reminder of Important Principles in Inflicted Injury Fact-Findings

The court draws on previous case law to remind practitioners that the standard of proof is always the balance of probabilities irrespective of the allegations made or the severity of the injury inflicted on the child.

Decision as to Appeal

The appeal was allowed on all grounds and was remitted to a different judge for a rehearing to determine the perpetration of the head injuries and fractures and the state of knowledge and actions of any non-perpetrator.

The full judgement can be found here.

Written by Maisie Carter, Pupil Barrister 

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