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Family Law

The leading authority on all aspects of family law

19 DEC 2006

CARE: Birmingham City Council v H

(Family Division; McFarlane J; 1 December 2006)

The couple's first child had died, aged 4 months. Following the birth of the second child, the authority brought care proceedings based upon an allegation that the mother had smothered the first child. Professor Meadow was one of the experts relied upon. The judge found as a fact that the mother had smothered the child on four separate occasions, on the last occasion causing brain damage and death. The judge referred to the medical evidence, but also to inconsistencies in the mother's evidence. The care order was made, and the child eventually adopted. At care proceedings in relation to a third child, the authority relied on the findings in the first care proceedings to establish risk of harm. The parents argued that the original findings could not be relied upon, following the discrediting of Professor Meadow as an expert witness. They also argued that the inconsistencies in the mother's evidence were attributable to the medication which the mother had been taking. There was a preliminary review of the medical evidence and of the mother's evidence given at the first care hearing, with fresh evidence from two new independent experts and a reconsideration of the mother's credibility.

The legal burden of proof remained throughout upon the local authority, but a party who challenged a previous finding of fact bore an evidential burden in the proceedings, ie, the burden of adducing evidence. The finding in this case could only have been made because there existed strong evidence in support of it; any fresh evidence must be sufficiently robust to challenge this hitherto strong material. In the present case, the parents had discharged the evidential burden of putting up a case to challenge the previous finding. Once the hearing in a review process of this nature had begun, the duty of the court was to look at the matter afresh. Issues of public policy relating to the priority to be given to earlier court decisions were relevant when considering whether the evidential burden had been discharged, but once that stage had passed, and the court was involved in evaluating the evidence itself, it would be wrong, and difficult, to afford some sort of priority during the review to the evidence given and findings made at the earlier hearing. The evidence on the memory issue did not come anywhere near establishing that the mother had been on a significant dose of the relevant medication at the time of the child's death, or that her memory was significantly impaired at that time. The adverse findings made by the judge as to the mother's credibility, motives and actions had to stand. Taking into account the new evidence, smothering by the mother remained the most likely cause of death. The court firmly concluded that no criticism of Professor Meadows role in this case could possibly be sustained; the passage of time and the exhaustive additional investigations had proved that, on the medical issues before the court at the first care hearing, he had been correct.

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