The use of medical research literature as evidence in care proceedings

The Court of Appeal has allowed an appeal by a mother and a father against findings made by a Family Court judge. Gemma Farrington KC explains why.

Sitting at East London Family Court, HHJ Suh had made findings in respect of injuries suffered by A, a baby who had fallen back against the arm of a sofa which was padded but had hard wooden slats beneath it. This was a fall witnessed by four adults.

A had been immediately taken to hospital and later discharged home.  Following an unsettled night where A vomited, the mother returned him to hospital. The ensuing investigations revealed various injuries – intracranial bleeding, spinal bleeding and retinal haemorrhages. Proceedings were issued and A and his half sibling, D were removed to a family placement away from the parents of A.

The fact-finding hearing took place in October 2023. Five experts gave evidence and were cross examined. The family also gave evidence. At the conclusion of the evidence, the LA sought permission to withdraw proceedings. The application was supported by all parties including the Children’s Guardian. The Judge refused that application and indicated that she wanted to go on to hear submissions. All counsel agreed to provide the Judge with written submissions but also sought a further hearing after written submissions to allow them to make supplementary oral submissions. The Judge said that there was no free time in the diary and she would reflect on this proposal after reading the written submissions. All parties duly provided written submissions.  No party invited the Court to make findings. No further hearing took place as the Judge indicated that she understood the position of the parties and the ‘nature of the parties’ positions did not necessitate giving anyone the right of reply because they all broadly adopted the same position’.

The Judge delivered a lengthy Judgment accompanied by three annexes: a summary of the various research papers cited by the experts; a note of the law for fact findings agreed by counsel, and a plain English summary of the findings.

The Judge made findings on the basis of which she concluded that the threshold criteria were satisfied and she subsequently refused applications for permission to appeal.

Permission was sought from the Court of Appeal and was granted. A hearing took place on 26 March 2024. A final hearing in the care proceedings took place on 28 March 2024. A and D were returned to the care of A’s parents after that hearing with no order. A Child Arrangements Order was made in respect of D.

The appeal was not considered academic as ‘the Judge’s findings, if left undisturbed would have relevance if there were any further child protection concerns about them and for any further children born to these parents’.

In D and A (Fact-Finding: Research Literature) [2024] EWCA Civ 663  Baker LJ gave the lead Judgment and accepted the submission made on behalf of the mother that the ‘judge elevated her analysis of the research to such an extent that it became the prism through which she assessed the rest of the evidence’ [para 91 of the Court of Appeal Judgment]. In addition, the Judge failed to reach her decision on the basis of the totality of the evidence. She listed a number of ‘factors that might increase risk’ and then identified ‘many protective factors in this family’ but did not consider the relevance of any of those to the central issue of whether A’s injuries were inflicted non-accidentally, setting them aside as ‘the presence or absence of a particular factor proves nothing’ [para 106 of the Court of Appeal Judgment]. In addition, the Baker LJ noted that the important elements of the Judge’s findings were never explored with the parents in evidence nor with counsel in submissions. As the Judge was considering making findings that were materially different from the case advanced by any of the parties, the right course would have been to give counsel an opportunity to make submissions about them [para 110 of the Court of Appeal Judgment].  

Finally, having concluded that the injuries occurred through an acceleration/deceleration event that occurred prior to the sofa incident, she was unable to reach any conclusion as to whether it was accidental or non-accidental, ‘it was either deliberately inflicted, accidental, or negligently arising’. She made no finding either way. There was no consideration of how an event involving the child suffering trauma involving acceleration/deceleration could have come about without human agency being involved and at least one parent knowing and failing to seek medical treatment for the child [para 111 of the Court of Appeal Judgment].  

‘At no point did the judge stand back and consider the implausibility of the scenario she eventually concluded had happened - that the child, living with parents about whom there was no other material concerns and who had demonstrated a close and loving relationship with their children, had suffered an earlier incident that day, either accidental or deliberate; that following that incident he had not displayed any symptoms that were noted by any of the adults; that he had been seen by his grandmother to be playing happily with his toy octopus; that in the presence of four adult family members he had then suffered a fall onto the hard arm of the sofa after which he developed clear symptoms of encephalopathy, which led his parents to take him to hospital immediately and thereafter to co-operate entirely transparently with the professional agencies’ [para 112 of Court of Appeal Judgment].

The appeal was allowed and the findings set aside.In addition, the Court of Appeal considered that it would be plainly disproportionate to order a rehearing. They proposed allowing the appeal and substituting an order granting the local authority leave to withdraw its application. This approach was subsequently agreed by all parties.  

Gemma Farrington KC is a barrister at 42BR. Leading Alexa Storey-Rea, she represented the mother in this successful appeal.