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Family Law

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Court of Protection Practice and Procedure Conference 2016

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18 APR 2013



(PRFD, District Judge MacGregor, 4 May 2012)

When the child was 5 months old he was admitted to hospital and following a full skeletal survey it was discovered that he had sustained 17 fractures including to the skull, ribs and limbs. It was impossible to differentiate the timings of the fractures apart from saying that they were sustained on at least two occasions.

Further investigations revealed that the child suffered from vitamin D deficiency and rickets and that the mother and possibly other members of the extended family also suffered from vitamin D deficiency. The issue arose whether that diagnosis alone could account for the extensive fractures sustained by the child.

Following his discharge from hospital the local authority initiated care proceedings, the child was placed with foster carers and a fact-finding hearing was convened. Shortly before the hearing, Theis J gave judgment in a case which had similar facts: London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).

The parents were the only possible perpetrators and the local authority could not suggest that one parent was more likely than the other to have caused the injuries.

During proceedings evidence was presented in relation to the father from proceedings in respect of his other children. It was clear in earlier proceedings he had lied to the court and that serious allegations of violence and rape had been made against him. However, in recent years he had contact with his other children and no concerns were raised.

The expert evidence was clear that the child suffered from rickets but was not conclusive as to whether it had been congenital and whether the resulting bone fragility alone could account for the injuries. It was clear that the number and type of some of the fractures were extremely rare for a child of this age and even for a child with rickets.

Taking all of the factors into account including, the divergent views of the medical experts and the very positive evidence of the parents' care of the child it was not possible for the judge to make findings as to how the child sustained the injuries. In light of that, the local authority had failed to discharge the burden of prove and the threshold criteria had not been met.

In line with the reasoning of Hedley J in Re R, there were cases where there was simply no known aetiology and that served as recognition that there were limits to the state of current knowledge. The judge reinforced the view of Theis J in Al Alas that further research was needed in such a very important area.


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