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Redbridge London Borough Council v B and C and A (Through his children's guardian) [2011] EWHC 517 (Fam) [2011] 2 FLR 117
10/03/2011
The case concerned a 15 month old child who presented with rib and acromion fractures. Janet Bazley QC and Sharon Segal acted for the mother from the institution of the care proceedings. The complexity of the case arose from the fact that during the likely window for the injuries, for part of the time, the child was in hospital, he having been very unwell since birth and having an undiagnosed neuro-muscular disorder. The parents estimated that approximately 100 medical personnel would have handled the child in the stated “window”. Because of the baby’s generally irritable presentation, no one other than the perpetrator would have had any reason to suspect that he had been injured. Because the baby had been an in-patient in hospital during part of the relevant time frame, there was a real possibility that the injuries had been caused by medical staff. The local authority eventually sought permission to withdraw the care proceedings, conceding that it would not be possible to prove that the injuries had been caused by either of the parents, and also on the basis that there was no question of removing the baby from the parents who, it was agreed, were providing an admirable standard of care.
The case involved conflicting medical evidence from the four radiologists instructed, and also involved the instruction of an overseas expert- no-one within this jurisdiction having the requisite level of expertise required.
One of the issues was whether it could be said that the threshold criteria was met, according to the “attributability” test, when the pool of potential perpetrators was so large.
Held :
(1) When a local authority sought to withdraw care proceedings because it was unable to prove the threshold criteria, the court had no alternative but to dismiss the proceedings; if, however, the threshold could be established, then an application to withdraw depended upon a conclusion under s 1(5) of the Children Act 1989 that no order was necessary, that is to say on the basis that withdrawal was consistent with the welfare needs of the child
(2) It was possible for the threshold criteria to be met even if no specific fact could be proved against a parent (applying Lancashire County Council v B [2000] 2 AC 147); attributability focused on care giving rather than parents specifically, with potential apparent unfairness to parents
(3) Had the matter been tried, it was highly probable that the threshold criteria would have been established, as required by s 31(2). The court could not exclude the possibility that either or both of the parents had caused the injuries, because it could not be shown that the injuries had been caused whilst the baby was not in the parents’ care. However, the case must in future be managed on the basis that the parents had not inflicted the injuries themselves, since their involvement could not be proved (applying Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35). The conclusion that the threshold might have been crossed did not imply criticism of the parents
(4) The question of withdrawal must, therefore, be decided on a welfare basis. The application to withdraw would be granted, not only because it was clear that, were the case to have been heard, the court’s conclusion would almost inevitably have been the making of no order; but also because it was in the baby’s interests that he be brought up by these admirable parents
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