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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Medway Council v Mother & Ors [2014] EWHC 308 (Fam) (31 January 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/308.html Cite as: [2014] EWHC 308 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Medway Council |
Applicant |
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- and - |
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Mother |
1st Respondent |
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- and- |
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Father |
2nd Respondent |
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- and - |
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G (By her Children's Guardian) |
3rd Respondent |
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Mr John Vater Q. C. & Mr Simon Johnson (instructed by Gill Turner Tucker Solicitors)
for the 1st Respondent
Mr John Swales (instructed by Reeves and Co Solicitors) for the 2nd Respondent
Mr Philip McCormack (instructed by Davis Simmonds and Donaghey Solicitors) for the 3rd Respondent
Hearing dates: 23rd - 31st January 2014
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Crown Copyright ©
Mrs Justice Theis DBE:
Introduction
General Observation – delay in issuing proceedings
The Law
''It is important to remember
(1) that the roles of the court and the expert are distinct; and
(2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.'
'In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either
(a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury; or
(b) that a local authority has not established the existence of the threshold to the civil standard of proof …'
'Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.'
'A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.'
'In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made.'
Background
" [Mr A] just seen not classical multilayered haems so maybe a blood disorder but just spoken to him they could still be consistent with NAHI as you can get a spectrum Mr A. is interested in the big drop in Hb anaemia can cause retinal haems as well'
Expert Evidence
Peter Richards (Consultant Paediatric Neurosurgeon)
Philip Anslow (Consultant Paediatric Radiologist)
Dr Robinson (Consultant Paediatrician)
Mr Morrison (Consultant Paediatric Opthalmologist)
Professor Kinsey (Consultant Paediatric Haematologist)
Discussion and Conclusion