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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (A Child : Finding of Fact) [2020] EWCA Civ 1382 (27 October 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/1382.html Cite as: [2020] EWCA Civ 1382 |
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ON APPEAL FROM THE FAMILY COURT AT HERTFORD
HHJ McPhee
WD19C01375
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE PETER JACKSON
and
LORD JUSTICE LEWIS
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S (A Child : Finding of Fact) |
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Grant Keyes (instructed by Family Law Group) for the Respondent Mother
Atim Oji (instructed by Davjunnel Solicitors Ltd) for the Respondent Father
Judith Charlton (instructed by Hameed & Co Solicitors) for the Respondent Intervener
Malek Wan Daud (instructed by Collins Solicitors) for the Respondent Child by their Children's Guardian
Hearing date: 21 October 2020
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Crown Copyright ©
Lord Justice Peter Jackson:
"On a review of the medical evidence I have reminded myself of the caution with which I should approach the uncertain testimony of the doctors in this case. That today's medical opinions could be found to be misplaced by future research and discovery. That factor is signally important in this case where the doctors acknowledge the unusual nature of this presentation, where they acknowledge a lack of expertise by a lack of clinical experience with this presentation and where they caution against reliance on the medical reports to which they have been referred. None of the expert evidence approached any level of certainty, in fact they all acknowledge, but consider unlikely or very unusual, that the injury could have been caused by a shearing blow when A was struck by the car door on the 21st October, within the likely timescale for the presentation of the injury on the evening of the 22nd October 2019, certainly none could discount that as a possibility.
When once again, against that background, I review the wide canvas to which I earlier referred I come to the conclusion that the local authority has failed to establish on a balance of probability that the subgaleal hamorrhage to A diagnosed on 23rd October 2019 was a non accidental injury as they assert. There is a real possibility which even with the view of the medical evidence cannot be discounted that the injury was caused by a shearing blow on 21st October 2019 when A struck her head against an opening car door. The burden of proof remains with the local authority and I am not satisfied that the allegation is proved to the Civil Standard. It is of course not for the mother or Mr T to prove that it was the car door which caused the injury. The aetiology is known in that I have accepted the medical evidence that this was a shearing injury caused by the application of some force. The local authority falls into the incorrect position of suggesting that the medical evidence proves the aetiology and so discounts other possibilities than non accidental injury, including but not exclusively so the car door incident, seeking to transfer the burden of proof to the mother and Mr T to prove their alternative explanation.
It follows that the suggestion of a failure to protect from non accidental injury also fails as pleaded."
Lord Justice Lewis
Lord Justice Underhill