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26 NOV 2008

CARE PROCEEDINGS: Re B (Fact-Finding Hearing: Evidence)

(Court of Appeal; Thorpe, Lawrence Collins and Goldring LJJ; 18 November 2008)

The 3-month-old child had suffered injuries, including a fractured skull, a fractured rib and two fractured vertebrae. The mother had complained of the father's rough handling of the child, including occasions on which he had dropped the child. At the fact-finding hearing the judge stated that it was not correct to approach the case on the basis of whether the injuries had been 'accidental' or 'non-accidental'; rather, the correct approach was to consider whether 'the harm, or likelihood of harm, was attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him', under Children Act 1989, s 31(2)(b)(i). He went on to find that the father had injured the child accidentally, but in a way that could be described as gross carelessness or recklessness, and that his care for the child fell well below the standard of care expected of a parent. He went on to find that the father's account had been unconvincing, but considered that differences between the parents' accounts were not significant. He was critical of certain agreed expert evidence, stating that the report's findings were 'inherently unlikely'. He found the threshold criteria had been established. The local authority appealed, arguing that the judicial findings had been inconsistent.

The local authority appeal was allowed. The judge had exonerated the mother entirely and the father substantially without a clear picture of the parents' credibility, whereas it had been crucial to evaluate carefully the differences in the accounts offered by the parents. The judge's findings as to the child's fractured rib and vertebrae did not square with the evidence. His dismissal of the agreed expert evidence had been completely unacceptable; any queries about the experts' report should have been raised in the course of the trial.

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