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Reported Case

A Local Authority v A Mother & Ors [2019] EWCA Civ 799 - non-accidental care case (18 December 2019)

Date: 18/12/2019
Duncan Lewis, Reported Case Solicitors, A Local Authority v A Mother & Ors [2019] EWCA Civ 799 - non-accidental care case

On the 3rd April 2019 in a non-accidental care case the Court allowed an appeal by a local authority against a finding that four rib fractures suffered by a baby were sustained accidentally by overlying while co-sleeping with her mother.


Background

A 2 month old baby (A) was taken to hospital by her parents after her mother observed bleeding in A’s mouth. On examination, A was found to have a number of injuries including a bruise on her left cheek, a petechial rash on her lower lip, a torn upper frenulum, a bruise on the outside of her right knee and four healing fractures on her ribs. An interim care order was subsequently granted following an application by the local authority and A was placed in foster care.

Two experts were instructed to prepare reports. Dr J, A consultant paediatric radiologist, advised that rib fractures were typically a result of “severe excessive squeezing/compression of the chest” and required “severe brute force”. Dr C, a consultant paediatrician, found that the fractures were most likely due to “abusive squeezing or gripping.”

The mother’s position at the fact finding hearing was that A’s rib fractures may have been caused accidentally by overlaying whilst co-sleeping. The experts were of the view that while overlaying was a potential cause, medical theory in support was insubstantial. Apart from the torn frenulum injury which the father admitted causing whilst bottle feeding A. both parents put forward accounts that the other injuries might have been caused accidentally. The judge agreed with the mother that the rib injuries had most likely been caused due to her overlaying whilst co-sleeping. In relation to the other injuries the judge accepted the father’s admission in relation to the torn frenulum and was of the view that the other injuries had been caused accidentally.

The local authority appealed against the finding in relation to A’s rib fractures. The grounds of appeal were as follows:


  1. The finding as to the rib fractures was against the weight of the evidence.

  2. The judge placed too great weight on the evidence that overlaying was a possible cause of A’s rib fractures and failed to engage sufficiently with the evidence that did not support his finding.

  3. The judge did not consider the evidence in its totality.

  4. The judge did not consider that the fractures may have been caused by A’s father in light of his admission in the witness box.


Outcome

Baker LJ gave the only substantive judgment, with which Peter Jackson and Moylan LJJ agreed, stating that the Court was compelled to intervene and finding as follows:

  1. “the judge’s assessment of the expert evidence was plainly flawed” [Para46];

  2. “the judge did not, in fact, consider the totality of the evidence” [Para 47], and

  3. “overlooked the fact that the father had admitted to an act of abuse when feeding the child” [Para 48].

  4. “the judge was plainly heavily influenced by the favourable impression he formed of the parties […] as a result, his balancing of the totality of the evidence was flawed” [Para 49].

  5. “the judge’s finding went beyond a rejection of the case presented by the local authority and extended to a positive finding that the rib fractures were caused by overlaying” [Para 50].

On the above the Court concluded that the rib fractures finding could not have been reached safely and did not consider it appropriate to set aside only this finding subject to challenge. All findings at first instance were set aside and the case was remitted for rehearing.


Representation

Children’s Solicitor, Giselle Townshend, represented the child through the Court appointed Guardian. Daniel Sheridan, counsel of Senate House Chambers was also instructed.

For more information please contact Giselle Townshend on: 07837 831 321 or at Gisellet@duncanlewis.com.

 

Find full details of this case on Bailii’s website here.
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