Case No. WH21C00033

20.In the present case, during the four days between the baby’s profound collapse and his subsequent death, a broad range of assessments, tests and scans were undertaken. From these there is said to be evidence of the following:a)a torn frenulum in the front of his mouth;b)a petechial rash to his forehead, chin and right wrist;c)a healed fracture to the left 7th rib (confirmed on post-mortem survey);d)CT and MRI scans showing extensive subarachnoid, subdural and intraventricular haemorrhage and multifocal areas of loss of grey white matter in keeping with hypoxic ischaemic injury;e)Whole spine imaging showed areas of pooling of subarachnoid haemorrhage within the spine;f)Extensive retinal haemorrhaging to both eyes.21.Counsel have submitted that one option open to the Family Court where, as here, there is evidence which is gathered while the child was still alive and which is capable of supporting a finding of child abuse, is for the case to proceed on the basis of that material without the need for the court to go further and consider post-mortem evidence. 22.The two principal questions for the Family Court are:i)Whether the ‘threshold criteria’ in CA 1989, s 31 are established, and, if soii)What order to make on the basis that the surviving child’s welfare is the paramount consideration.The s 31 threshold criteria require the court to be satisfied, on the balance of probability, (a)that the child concerned is suffering, or is likely to suffer, significant harm; and(b)that the harm or likelihood of harm, is attributable to:(i)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; or(ii)the child’s being beyond parental control.Counsel submitted that, just as would be the case where a child, who has apparently been injured in this way, has not died, evidence of significant pre-death injury attributable to abuse is likely to be sufficient for the purposes of the Family Court in proceedings under s 31 in determining the threshold criteria and evaluating which of any competing care options best meets the welfare needs of any surviving child(ren).23.Counsel for the father summarised the situation with clarity:‘In a case such as this, involving what is a suspected inflicted head trauma to an infant, the Family Court does not necessarily require a completed post-mortem report in order to proceed to adjudicate upon threshold issues. Experts such as a neurosurgeon and neuroradiologist are regularly instructed in cases involving similar clinical presentations to those observed [here], but where the subject child survives the precipitating incident. Such experts would not ordinarily require tissue or other samples and usually prepare their reports based on the medical documentation and imaging. It is however, the case that any osteoarticular expert instructed by the Family Court would need to examine the necessary bone samples to provide a full report and specifically in order to provide an opinion in relation to causation and dating of any fractures and to rule out any underlying medical cause. That said, radiologists can examine x-rays and provide likely timeframes for the causation of fractures, such as those observed [here], whilst medical records including blood testing and analysis are often sufficient for paediatric and haematological experts to consider the issue of underlying medical conditions.’And later:‘Accordingly, in cases such as this, we submit that it is open to the Family Court to consider instruction of experts pursuant to Part 25 of the FPR at an early stage of proceedings, should such instruction be capable of providing the Court with the evidence necessary to determine threshold issues without having to await the full post-mortem report from the Home Office instructed pathologist. There is for example, the potential for a neurosurgeon, ophthalmologist and neuro-radiologist to be instructed, with those experts providing an opinion in relation to causation based upon the available imaging and medical records. Such expert evidence could allow the Court to consider the issue of causation and whether it is directly attributable to the actions of a parent, without needing to await the reports of any experts instructed by the police for the purposes of the completion of any final post-mortem report. Further to this, we submit there is no prima facie reason why any samples required by independent jointly instructed experts cannot be disclosed to the parties within the family proceedings by the police, subject to the caveat referred to above at paragraph 15 and in particular, the need to ensure for the safe carriage of any tissue samples.’24.In recent times consideration has been given to the circumstances in which it is, or is not, necessary for the Family Court to engage in fact-finding with respect to serious allegations made within CA 1989, s 31 proceedings. In Re H-D-H and C (Children: Fact-Finding) [2021] EWCA Civ 1192; [2022] 1 FLR 454 the Court of Appeal endorsed the approach that had been described in a judgment that I had given at first instance in Oxfordshire County Council v DP, RS, BS (By the Children’s Guardian) [2005] EWHC 1593 (Fam), subject to some additional considerations in order to meet the overriding objective.25.The overriding objective in all family proceedings is set out in Family Procedure Rules 2010, r 1:“1.1(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.(2) Dealing with a case justly includes, so far as is practicable –(a) ensuring that it is dealt with expeditiously and fairly;(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;(c) ensuring that the parties are on an equal footing;(d) saving expense; and(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.”26.The original (non-exhaustive) list of factors identified in Oxfordshire County Council v DP were:“The authorities make it plain that, amongst other factors, thefollowing are likely to be relevant and need to be borne in mindbefore deciding whether or not to conduct a particular factfinding exercise:a)The interests of the child (which are relevant but notparamount);b)The time that the investigation will take;c)The likely cost to public funds;d)The evidential result;e)The necessity or otherwise of the investigation;f)The relevance of the potential result of the investigation to thefuture care plans for the child;g)The impact of any fact finding process upon the other parties;h)The prospects of a fair trial on the issue;i)The justice of the case.”27.In Re H-D-H, Peter Jackson LJ suggested that these factors should be approached flexibly in the light of the overriding objective in order to do justice efficiently in the individual case as follows:“(i) When considering the welfare of the child, the significance to the individual child of knowing the truth can be considered, as can the effect on the child’s welfare of an allegation being investigated or not.(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.(iv) The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.(vi) The impact of any fact finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality ofthe case.”28.An example of how the approach endorsed by the Court of Appeal in Re H-D-H may be applied in a case of suspected child homicide is provided by the decision of Lieven J in Lincolnshire CC v CB [2021] EWHC 2813; [2022] 1 FCR 99 in which a delayed listing for a four-week fact-finding hearing was refused in favour of an earlier five-day consolidated hearing with more limited findings of fact. Lieven J identified the ‘true question’ for the court as being ‘whether the fact-finding is truly “necessary” for the ultimate welfare decision that the court has to make’.29.Whilst neither H-D-H nor Lincolnshire CC v CB dealt with the situation facing the court as a result of delays in the provision of post-mortem reports, evaluation of the case management options available to the court in such cases through the lens described in Oxfordshire CC v DP and H-D-H is likely to be appropriate. In cases where the death of a child is sudden, with little or no evidence of pre-death injury or symptoms, for example where the cause of death is suspected to be suffocation, there may be no alternative but to await receipt of the full post-mortem report. But in other cases, for example the present one, where there is apparently a range of evidence prior to death which, if established, would be sufficient for the court to determine both the s 31 threshold and the ultimate welfare decision, it may not be ‘necessary’ to await the full post-mortem report where the impact on the child’s welfare in postponing the process until that report is received may be disproportionate and unacceptable.