Fact Findings in Public Children Law Cases

Hello. Welcome, everybody. My name's after my mood, and I'm pleased to welcome you to today's bite size session where I'm going to be taking you through somebody elements surrounding finding of fact hearings or fact finding hearings in public Children law cases S So this is, as of September 2000 and 17 on going to be looking at her very suspect surrounding what, first off, almost funny of fact hearings. Oh, how they operate on when they are useful will then be going through some of the major case law insofar as this is concerned. Particularly looking out, for example, alleged shaken injuries. I'm going to be taking me through somebody cases involving fabricated induced illness by cares, for example. I'll then be taken if you so many. But so any causation and really trying to ascertain whether it's necessary to determine who the perpetrator is will be going to the stained standard proof insofar as this is concerned and and some of the major case law so learning when and in what circumstances we should be having finding of fact hearings. So let me start with this time. Let's assume we're involved in a public child care case. And there is then this question mark does been Dossary ism as to whether or not to have a split hearing or a fact final finding of fact hearing not this is essentially considered very useful when it's necessary to establish a fact. And that fact could be this could be to determine us to where the injuries Let's say it's physical injuries to traverse sustained whether it also caused either by way of an accident or if they were caused by way of a non accident. And that could be as a result of being cause injuries, either deliberately, maybe recklessly. We even negligently in appropriate cases on dumbed. Therefore, it's necessary to consider that what Children have sustained injuries to then figure out as to whether, like, say, those were through an accident or other than went, it may be that it's also considered useful in safe sexual abuse. Cases were saved. A child has alleged sexual abuse. The alleged perpetrator is denying that, and therefore it may be necessary thing to have a finding of fact hearing to determine as to whether or not the sexual abuse did or did not. In fact, in the circumstances that take place. So let me then start with the position slang dys record alleged, shaken injuries. Now, historically, this used to be referred to as the some lawyers used to refer to. This is the shaken baby syndrome on bond, although that term is somewhat controversial on to put this into context. What we're really looking at is this. This would have a situation where, say, local thought You involved in Cape Sings were by, say, a six month old child has suffered serious head injuries On If you take her case where, say a child is shaken vigorously, then what is happening is one is shaking the child's body and effectively Charles head at the head, Dennis rocking back and forth on potentially, the brain is not fixed within the skull. And if there is vigorous shaking, dismayed and cause the brain to rock to and forth within the skull. And this is where it moves against the school at very high speed, damaging itself. So this is whether the brain itself can become damaged on a two membranes that surrounded brain under Scola Moore's a dearer on the Iraq, annoyed on the space between these two membranes is called a subdural space, and it's vest blood vessels around this. So what happens is this. If you imagine that somebody is vigorously shaking a child than those blood vessels, which are within the subdural space dividing the brain from the skull, those are stretched and beyond their natural elasticity, and a potentially could burst. And that's where there is bleeding in that sub D u of space known as a subdural hemorrhage. And that's often what we need referred to as a subdural hemorrhage. Also, if a child is shaken vigorously, sometimes you have what's called a vaginal hemorrhage, and this is where there's bleeding of the blood vessels into the veterinary area and also a different parts of the retina on you might find that vaginal hemorrhaging may occur. Sometimes secondary two subdural hemorrhaging on less force may be required to cause a new subdural hemorrhage because the blood vessels have already been stretched previously on their four day are more vulnerable, really and susceptible in that regard, and therefore that's where they may burst more easily in that regard. So you might find that typically in a case you might find a young child. Let's say out of noticed six months off, for example, is rushed off the hospital on these funds have fluid around the brain. What's normal City sub team? A subdural hematoma on. That's where the apparent Kevin used to be questioned as to how they think the child have sustained these injuries. Apparent, Maher said, that the child fell down, the child hit their head against something. But of course these injuries could also be caused by the child having got being vigorously shaken on. That's way if the local authority falling the child having had been seen by side. A treating clinician is concerned us to the explanation or lack of explanation that say, the parents have given on that the pediatrician who's seen a child or maybe the radiologist who seen a child is raising suspicion. The Nasreddin Local Authority main did commence cape sittings based upon the fact that this child has sustained these very serious injuries which are either unexplained or the explanations are not consistent with the with the injury that's actually sustained on that, this is where it's very important. Therefore, if the local thought to do commence, kep seems to think about a type of experts. They might well be extracted in these circumstances to be able to assist insofar as get the bottom of how these injuries were caused. Case are come back to the position with those types of injuries shortly, which made and potentially result in there being a finding of fact. Women listed on the other type of situation is where you've brought what used to record Munchausen syndrome by proxy cases. But nowadays we refer to this as the fabricated and induced illness by cares on that this is ready. Munchausen Syndrome proxy was used in the 8th 19 sixties to refer to case of child abuse, often with parents with mental health issues at the term battered baby was referred to in the 19 sixties, and it wasn't really until the 19 seventies. The term Munchausen syndrome by proxy was referred to by various doctors who referred later to this as being a fabricated illness to child abuse. And essentially fabricated induced illness can take one both forms. One is weird. Apparent order care is taken, a view that that they almost fabricating it once they're suggesting that the child has a condition which necessitates medical intervention or secondly, they made deliberately cause a child home. And if we do see is an illness which the necessitates medical interventions that could be one or the other. And sometimes you find out this would necessitate in a child being subjected to multiple medical procedures. Sometimes unnecessary medical procedures being administered ignore circumstances on bond. What's happened is in these types of cases, this pattern of behavior that's referred to is what it's referred to, as opposed to a Socratic condition is such that you find out it may be, as a result, off the parents are bringing themselves as a result of their own childhood experiences. So it's Seymour is a psychological state of affair, as opposed to a form of mental illness or mental health condition. In that regard on, um, it's very important, therefore, that with these types of behaviors, people made and take exaggerated accounts of genuine symptoms. Vitaly fabrication. So it may be that payment is suggesting that the child is cough constantly ill, for example, necessitating unnecessary medical intervention, sometimes very invasive procedures and investigations, for example, and that in itself does, of course, lead a child to suffer from emotional and psychological abuse at the hands of the care in those circumstances. So this also made Lee to finding a fact hearing with the local authority on in seeking findings to be made ast to whether or not at the parent is actually subject into child to fabricated and do stillness indulge circumstances. So let's say the matter is listed for finding of fact hearing to determine that fact, i e. Whether the head injuries as a mansion led to subdural hematomas would cause other than through an accident, or whether a child who is unnecessarily being brought to hospital finding is then being sort as to whether or not apparent he's fabricating illnesses with a view to the necessitating medical intervention. Therefore, by doing that in themselves, they are subjecting the child the emotional and psychological harm. Now, one of the difficulties in these areas is often going to be trying to identify who the perpetrator or perpetrators are, and this is where the lank she can't cancel be cases very useful. Yet the case of the year 2000 on this is read. A court recognized that it wasn't always possible to identify which care actually harmed a child, but as long as a care court satisfied that the harm was attributable to a failure by one or more of those identified. So on the facts here, there's a question mark as to where the dangerous to child were caused by either mother father. Indeed, the baby sitter and even though it couldn't be determined more likely to not as to whether it's the mother with the father of the baby sitter, because there was sufficient evidence to suggest that could have been any one or more of these three people and of course, satisfied that that in itself would be sufficient to make finals against them, and therefore none of them could be exonerated in those circumstances. And if on that basis, the court took the view that it would be unreasonable to expect the court to determine with some certainty as to whether the alleged perpetrator waas ah, particular personal circumstances on that done less, they could still make finals against all three of them on the basis that none of them could be exonerated from having got caused injuries in the circumstances. Now there was some doubt placed on this. In later cases, there was a case called old and end of 2002 whereby the court did say that if the local authority could not establish more likely than not, that it was, say, particular care, whether it's mother or father, Then on that basis you could not raised infants, that it was either or both of them, and they're for the findings could not be made, but on appeal on that matter, when to the House of Lords, as it was then the court took the view that it would be grotesque to proceed on that basis because it just because he cannot establish more likely not as to whether it was mother or father, but you knew that it was either or both of them. It would go test to suggest that fresh old were not met on that basis because, potentially that would result in a child and being returned home. It would be inappropriate to do so without further assessment by risk assessments or otherwise. Now let's this union that child has sustained a subdural hematomas. As I mentioned, the hemorrhaging order is the incidents related to the the fictitious illness or the induced illness. Now the question is, should the court actually be list in the matter for a finding off fact hearing on this is where the leading authority on this is the case of Ri s a child just 2014 case. This is a very important case handed down in January of that year, whereby the quarter peal said that there were essentially two situations Onley in public law cases where one should be listed, the latter for a finding of fact hearing, as opposed to hearing the evidence, if needs be at the end on day for dealing with this blob of a complicit hearing. So you're dealing with trying to determine who caused injuries and also the sure welfare walk together in the one here enormous constantly having at the end on the two situations were potentially in a public law case that could be a finding of fact hearing what would be less the first would be in a situation whereby it's what's known as a single issue case in that the fresher criteria would not be matter for finding could not be made in that case. So this is where in essence, is a single issue case. Unless their child has sustained multiple head injuries. And the only reason why the local authority of commence proceedings is because of the head injuries that effectively would be regarded as a single issue case. So if the court is satisfied that the hint had injuries were caused through an accident, of course threshold are not going to be met. That then brings a case to an end and therefore should be concluded at that stage last where it may Robin s. So to have a finding of fact living on the other is where you've got the complex medical causation cases where there is death or very serious medical issues that have arisen on on accurate medical diagnosis is integral to the future care of the child. So putting it another way, this is where you've got cases. Well, there are serious, uh, complex said causation. Cases where a child has died or serious medical issues have arisen. Then you're probably ended a multiplicity of experts to try and get back to a medical diagnosis in order to help with the future care. The charts about type of situation would also want potentially a finding a factoring been listed. The court made it very clear. Debris s case that are finding a factoring should not be listed to assist social work assessments, for example, because effectively, if there is a need for assessments, we've done looking potentially at issue risk than they should be done on the basis of what's called Aysel. So, for example, if say, the court is not going to relation to matter for finding effective, and instead they were deal with everything at the end by overcompensate hearing. And so Fars risk assessments are concerned. One should be looking at doodles by take into account. The eyes were all so effectively looking to assess the mother on the basis that you're assuming that the harm was caused by the father and you're looking at her ability to be able to protect the child and to have the insight in the future it finds are made against the father on a similarly you're assessing father on the basis that we're assuming that injuries are caused by, say, the mother, and looking at his insight and his ability to be to protect the child in the future indoors circumstances so effectively doing an either or risk assessment in that regard. Also in Re s the court did emphasize that the decision as to whether or not to have a finding of fact hearing is effectively case management decision. And this is where part one of the funding procedure rooms, as far as the overriding objective is particularly necessary and helpful, because that helps the court and to certainly save expense and keep delay to a minimum. And therefore we have yet further in the overriding objective, we have to make sure that we only have matters litigation which are necessary in the second stances That was done. The later case by the President of Fun Division who handed down the leading judgment in the case of Ri s. This was re s Children Wnt in April 2000 and 14 under president or funding divisions of James Mumby. Very mature iterated what was being said in Re s in terms of really, frankly very clear as too limited circumstances in which one should be having a finding of factories in public law cases. Now, there was a case pry to both the re s cases in 2000 mile, and this was a case of Ri S B, which I think is very useful case, which really sets out sometimes the benefits off having a finding of fact. Hearing it was a case of Ri USB was a Supreme Court decision. It is a case which related to a child who had unexplained bruising can up to find your fact hearing. The court decided that the injuries, of course other than through an accident but could not rely, tie the mother or father and therefore effectively Lancaster Findings were made. But to assist the parties and the assessments. The court did say that the likelihood of Mother having had beena perpetrate with some 40% and therefore by implication, that must have implied that father was about 60%. Mother was ruled out of the care, and her argument was on appeal that if it was satisfied that the father was about 60% likely to have been perpetrated and on a bunch of probabilities, that suggests that there wasn't enough evidence there to suggest more likely than not. But it could also be mother and therefore finding should not have been made. One of the key issues in this case, which the Supreme Court identified was that there are obvious benefits in identifying perpetrators through the balance of probabilities. It's helpful to identify perpetrators, but it's not always necessary. In fact, of course, specifically referred to Lankford decision in that on the standard proof, the court said, here is on a balance of probabilities as opposed to beyond reasonable doubt. The identification of perpetrators, of course, does have benefits that gives you a foundation to work with to them, build risk assessments on. So there are some benefits there on. If the court cannot identify perpetrator or perpetrators, it's still important to identify a pall of perpetrators and any from eso to make the lanktree firings. As I mentioned indoor circumstances or sold, the Supreme Court took the opportunity to say where court has been unable to identify a perpetrator that is positively unhelpful to have to type of percentages. That judge gave in this case, and this is where you have to be very careful about not relying upon percentages in this instance, because, of course, that in itself could then cause difficulties at going forward. And also, the court did say that Supreme Court said that prediction of future harm has to be based on findings of fact made on a balance of probabilities. It's a decision to remove a second child who had never been harmed, need to be remitted on that basis off example. If their language defines made only remember that shows that it cannot be showing more likely not as to whether it was mother or father that cause injuries, but neither of them can be exonerated. Those Langsdorf filings in themselves may not be sufficient to them form the basis of threshold for subsequent child that's born into second stances, for example, then there's also the other case of Ri BK s. This was a case in 2015 which very much lends itself to supporting the position set out in re S and re S W onder T. And essentially, this is one whereby leading judgments handed down by Lord Justice Rider on a paragraph 23 of judgment, for example, His Lordship did say that the decision to have displayed hearing by the trial court but tragic had not be necessary given the question is to who perpetrated harm as opposed to whether the harm suffered was caused to an accident. Otherwise, Onda under fact, see, it had been accepted that harm had been caused by the child of them through an accident through accidentally rather to ingesting at the drugs. And this is where the judge specifically referred to me. Yes, emphasize that it's not always necessary to have finding of fact hearings in public law. Cake is sold. So His Lordship took the opportunity to re emphasize what was said in re S and so far, limiting the type of situations where, by finding of fact hearing should be heard in public law. Proceedings on Data Court took the view that the social work assessments on on the facts here are, of course necessary. But of course, this could be dealt with without the need for necessarily findings having been made in the circumstances. When you deal with some of these cases involving finding of fact ings, it's very important to identify first of foremost, which experts are going to need to be identified with a view today and complying with Part 25 insofar as the procedure would instruct. In them, there are various practice directions as folks on perfect destruction. 25 b, which covers. He certainly did duty upon the expert in being instructed this practice direction 25 c, which sets that the position. So I mean the steps leading up to the instruction of the expert on Dave after. And it's also, for example, practice stretching 25 e, which covers the position with experts meetings with a view to having a meeting off experts pulled together with a view to then looking at issues which they agree and disagree on. So it's two now, it and issues to make it much easier for the court, not only at the fact finding hearing but also complicit hearing at a later date. Okay, so I hope that's been used for four year today and so far is really pulling together some of the key aspects only firstly, to benefit to finding of fact hearings and, secondly, the type of situations where the thieves may actually be ordered under limited situations where that, in fact, is the case. Can I thank you very much for listening? I hope has been useful. I'll speak to you next time. Thank you very much. Bye. For now