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(Family Division; Hedley J; 30 January 2009)
The father's older child had been taken into care on the basis that at the age of 2 months the child had suffered non-accidental head injury leading to brain damage while in the care of his parents. No determination was made as to which parent had inflicted the injuries. Subsequently both the child and a sibling were returned to the parents' care; after the parents separated the children lived with the mother, with unsupervised contact to the father. Later the father married again, and had a child with his new wife. Because of concerns about the injuries to the older child, this child was removed under an emergency protection order, followed by a series of care orders. The local authority decided on a plan for adoption. The judge made a placement order, on the basis of the original findings in respect of the older, injured child, but also on the basis of the father's vehement denials of responsibility, and his aggressive or uncooperative conduct towards professionals. Before the conclusion of the adoption proceedings the father obtained an opinion from a medical expert, suggesting that the original injury to the older child had had natural causes, and recommending that a formal opinion be obtained from an experienced paediatric neuroradiologist. This expert later had to discard her original hypothesis as to the cause of the injuries, but, nonetheless, maintained that the injuries had a natural cause. The local authority responded by obtaining an opinion from an experienced paediatric neuroradiologist, which confirmed the non-accidental diagnosis; the parents' expert persisted in her opinion that the injuries had natural causes. Relying on the opinion of his expert, the father and his new wife sought a residence order and a stay of adoption proceedings in respect of their child, who had not suffered any injury.
The real issue was confined to the reliability of the finding of non-accidental injury to the older child in the original care proceedings. The burden was on the father to the balance of probability to show that the original finding was wrong. The consequences of judicial error in these cases was calamitous: a false finding might mean the destruction of a family, whereas a failure to make a finding that should be made involved returning a child to face grave or even fatal risk. In this case the court rejected the evidence that the original injuries had an accidental cause. This was not because the parents' expert had changed her mind about the 'natural cause', although this did nothing to inspire confidence in her views, but because on the central issue the local authority expert was right, on the balance of probabilities. It was noteworthy that the parent's expert had strongly recommended a neuroradiological opinion, but had then rejected it when it was provided.
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