District Court dismisses HSE full care order for child, finding injuries likely accidental due to weak bone structure.

[2009] IEDC 2

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

BM & BM

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 1

12 March 2009

1. This matter came on for hearing lasting some nine actual days of hearing, with the other days dealing with, in the main, case-

management issues and the like. Not uncommon in these type of cases, there was a somewhat lengthy period between the conclusion

on one day and the resumption on another day over a period of time and this was no one’s fault but rather arose from the necessity

of affording reasonable time to all witnesses, both expert and ordinary, so that they could adequately place all their evidence before

the Court.

2. The Application by the HSE is for a Full Care Order in respect of Child 1. The hearing commenced on 24 September 2008 and

concluded on 12 March 2009. The Application was hotly contested by both the mother and the father. All parties were represented by

solicitor and counsel.

3. The Respondents are both from Country 1 and were married there in November 2006 and their daughter, Child 1, was born in

Country 1 in April 2007. The Respondents moved back to Ireland, they had been in Ireland before, firstly, mother and shortly

thereafter, father with Child 1, in or around 2007. Father has a brother living here in Ireland, who is married and has a daughter; his

father still resides in Country 1. Mother has a mother and three brothers living in Country 1. They are an ordinary, hard-working

family. Whereas on 1 October, at around 23:13, they were caused to visit the Hospital, with a very sick baby weighting 8.02 kgs and

having a fever with a temperature of 38.10 and a pulse rate of 167 and two bruises noted in the perianal area: per Emergency

Department Form. Later, the child’s temperature rose to between 390 to 400. Subsequently, it was discovered that this baby, Child 1,

suffered 4 fractured ribs and a fractured elbow. The evidence of the doctors is that this infant has been the subject of non-

accidental injury and all of the evidence, submitted by the Applicant, points to the fact that father was the perpetrator of the alleged

brutal assaults resulting in this child, on three separate occasions, sustaining the injuries just outlined.

4. It must be said that it is a most serious thing for a doctor to throw suspicion upon a family in respect of injuries sustained by a

child. A paediatrician usually finds him or herself in a position of very great delicacy and in a position where they can render

practically no assistance to the child until they boldly indicates their opinion which of course no person will do unless they are

possessed of the unlimited courage of their convictions in these litigious days. Even when a doctor becomes suspicious, when they

are assured in their own mind that the baby they are attending has been subjected to abuse or non-accidental injury, they report this

so that a full investigation can be conducted to ascertain the origin of the injury or injuries suffered by the child. The failure of a

doctor to detect such injuries or the failure to report suspicion of such injuries permits the actions of the perpetrator to continue

unfrustrated, sometimes with fatal consequences. If, acting under a suspicion that a doctor entertains, a report is filed and after an

investigation, it subsequently proves ill-founded, no reproof is occasioned and rightly so.

5. Thus, it was in October 2007 the Applicant, namely the HSE, applied for an Emergency Care Order on foot of concerns raised by

medical practitioners in respect of injuries to the minor, Child 1. A number of Medical Reports have been furnished to the Court and

the authors of these reports have given evidence to this Court and have been subjected to cross-examination on their findings. The

HSE called a number of witnesses including social workers and expert medical witnesses supporting their Application. The Respondent

mother and father, as well as some ordinary witnesses for the Respondents, also gave evidence.

Evidence of Doctor 1

6. The first witness called on behalf of the Applicant, in respect of the Full Care Order Hearing, was Doctor 1, Consultant Paediatrician

and Neonatologist. The Court had the benefit of reading his reports and opinions in respect of his examinations and assessments of

Child 1 and these documents were dated:

• Letter dated 5 October 2007 to duty Social Worker; and

• Letter dated 23 October 2007 to duty Social Worker.

7. Doctor 1 is one of the top Consultant Paediatricians in the country. Having examined the baby in this matter, namely Child 1,

Doctor 1 was concerned about certain physical features which presented upon this baby on admittance to the hospital. Accordingly,

Doctor 1 rightly voiced his concerns to the Duty Social Worker. Doctor 1 advised that this baby was five months old and at time of

admission there was bruising noted to the buttocks and also to the left side. Doctor 1 stated that:

“[t]he bruises which were faint in appearance appeared to look like finger marks. In view of these bruises a skeletal

survey was performed. A skeletal survey has subsequently been reported by our radiologist as showing four

posterior rib fractures and also a probable healing fracture of the elbow.

We have met with the mother this afternoon, 5th October 07 at 3:15 and explained the nature of our concerns. We

particularly emphasised that our first concerns were raised by the location and distribution of the bruising and

subsequently by the positive skeletal survey showing fractured ribs and a fractured elbow. Mother had no

explanation for the fractures. She did mention that she sometimes bolds the baby around the buttocks area and felt

that that could explain the bruising. The father wasn’t present during the interview. We explained to the mother

that in view of our concerns Community Care would need to be contacted.

Child 1’s history is somewhat complicated in that she has inter-current illness. She has a fever and a rash

associated with a condition called Kawasaki Disease. For this she requires gamma globlins (sic) [globulin]

intravenously. Kawasaki Disease however is separate from and distinct to the problem of the bruising and the

skeletal fractures.

I would be grateful if you could investigate this case for us.”

8. On 23 October 2007, Doctor 1 wrote again advising of progress in Child 1’s condition. He states that:

“[t]his skeletal survey subsequently showed radiological evidence of 4 posterior rib fractures and also a healing

fracture of the right elbow. On foot of these findings, brain and spinal MRI scans were performed. These were

normal. Baby had an Opthalmology examination by the hospital Opthalmologist and this was found to contain no

evidence of any haemorrhages.

Baby next had a bone scan performed. This indicated increased uptake at the right elbow in keeping with a healing

fracture. There was no uptake at the site of the ribs. We proceeded to a chest CT scan and this indicated a

pattern of healing fractures.

The parents were met with on a number of occasions. The nature and extent of these injuries and bruising were

explained to them. The mother had no explanation for the fractures. Mother initially mentioned that she sometimes

held the baby on the buttocks area and wondered if this could explain the bruising. With our concerns about non-

accidental injury the hospital Social Worker Department were involved and also Community Care were informed.

…In summary the bruising and skeletal x-ray findings are in keeping with non-accident injury.

The baby at present has made a good recovery from her inter-current illness and will be due to go home when the

case conference has met and reached its conclusions.”

9. On 24 September 2008, Doctor 1 gave oral evidence to this Court. His evidence elaborated his findings as set out in the

aforementioned reports. He told the Court that Child 1 had been admitted on 2 October with a fever in the early hours of the morning.

He described the bruising in similar terms as those in his reports. He said they were unusual in sight and nature and were possibly as a

result of a non-accidental injury. He said the photographs did not show the bruising well. He did not accept that such bruising could

not constitute a nappy rash.

10. Doctor 1 stated that bruising, generally, goes through phases or stages of colour, ranging from purple, that being the initial

colour, to yellow when the bruise is a number of days old.

11. After referring to a number of matters and tests which were normal he described the fractures to the right elbow and the four

ribs. He said it was unusual to get rib fractures posteriorly — “ribs get thicker at the back”. The isotope scan picked up the elbow

fracture and dated it a few weeks old. The rib fractures were at a later healing stage: approximately two months old. Doctor 1 said

that there were three events on different occasions, namely the rib fractures, elbow fracture, and the bruising and he felt that they

were non-accidental in nature.

12. Concentrating on the bruising, Doctor 1 indicated that the suggestion of sensitive skin was unsupportable as there was no

evidence of this and having regard to the buttocks it was an unusual site for a baby to injure here naturally. In his opinion, it seemed

a forceful or squeeze-type of injury. Doctor 1 was asked if such an injury could happen as a result of holding the baby and he said it

would be difficult to understand this given such clear bruising.

13. In relation to Kawasaki Disease, which this child was suffering from, he said it was a systemic virus which affects the body overall

and one would expect skin manifestation. It is an acute illness.

14. It was put to Doctor 1 that the rib fractures were as a result of the Respondent father accidentally rolling-over on the baby in

bed. Doctor 1 said this was unlikely quite an amount of force would be needed given that the fractures occurred posteriorly. The

elbow fracture was suggested as a result of the baby catching her arm in her cot or another child might have done it. Doctor 1 would

not accept this and was firmly of the view that the injuries were non-accidental.

15. Counsel for the Respondent father cross-examined Doctor 1. Doctor 1 did say that they had tested for vitamin D so as to exclude

rickets and an X-ray did not show any abnormality. Doctor 1 accepted that Kawasaki Disease exhibits a rash-type feature like

measles, swelling of the neck glands, and blood count changes, but he never witnessed a bruising condition as a result of the disease.

According to the doctor, if you did not completely strip baby you would not be able to see the bruising. The buttocks are an unusual

place for bruising. One would not be able to catch a baby in that area and so bruising would not be as a result of rough-handling but

rather evidence of an injury. Doctor 1 could not say who caused the injury. The “rollover theory”, that is the account given by the

Respondent father, could not account for the injury to the ribs. He said that ribs are quite think and robust and you usually do not

get fractures here.

16. When cross-examined by counsel for the Respondent mother, Doctor 1 told the Court that there were definite fractures and that

these occurred on more than one occasion. He was asked to place the gravity of the injuries on a scale of 1 to 10 and Doctor 1 said

that the bruising ranked 5 to 6; the elbow ranked 7; and the rib fractures ranked 9. Doctor 1 said he never came across this type of

case with other people from Country 1 and he said that the Respondent mother was shocked at what she was told.

Evidence of Father’s Aunt

17. The next witness, taken out of turn, was the aunt of the Respondent father. She said that father was, as a child, easy-going and

exhibited no problems or conflict. He has no problem with drugs or alcohol. He and his brother were not subject to a strict upbringing

and were good children. Father was very close to his parents and his father is presently suffering with heart problems and his mother

passed away in 2004. She said that father is a very responsible person for his family and that he is a good man. She said that father

was happy with his marriage and his child.

Evidence of Doctor 2

18. Doctor 2 gave evidence to this Court on 25 September 2008. She had submitted a report dated 15 October 2007. Doctor 2’s

assessment of the bruising is based on her observation of the photographs. On a review of the x-rays, Doctor 2 dated the rib

fractures at least two week’s old. Doctor 2 said in her report that the injuries raise a very significant concern of non-accidental injury.

In her evidence to the Court, Doctor 2 departed little from the report submitted. She too did not accept the “rollover theory” as a

cause for the rib fractures. She said it would require stronger compression to result in such fractures.

Evidence of Doctor 4

19. The next witness to give evidence to the Court was Doctor 3 on 10 November 2008 but I will return to his evidence in a moment

because I feel that it is more appropriate for me to deal with the evidence of Doctor 4, Consultant Paediatric Radiologist, who gave

evidence later in the afternoon of 10 November 2008 and her report was dated 24 July 2008. We will see from Doctor 3’s report of 3

April 2008 that he suggests the dating of the fractures and this has now been done and I note from Doctor 4’s report dated 24 July

2008 the following:

“[o]n the chest x-ray there is mild localized thickening of the posterior ends of the left 6th, 7th, 8th and 9th ribs.

The remaining ribs appear normal. The appearances are suggestive of previous rib fractures, which have almost

completely healed and are probably some where between 3 weeks and 6 weeks old.

On the x-ray of right upper limb there is an abnormality involving the lateral condyle of the distal right humerus, with

features suggestive of an undisplaced fracture, and a small joint effusion. There is no significant periosteal reaction

to suggest healing. The remainder of the skeletal survey appears normal.

...Follow up x-ray of both elbows dated 2.10.07 – the right elbow joint effusion has resolved…

As there would not appear to be a history of trauma appropriate to these injuries, I would have serious concerns

that Child 1 has been subjected to non-accidental injury.”

20. In giving evidence to the Court, Doctor 4 stated that the injuries were unusual. She said very often an explanation would be given

but fractures can occur without explanation. In the instant case, the baby was five months’ old and was unlikely to be walking around

and thus not falling to account for same and therefore would not be in a position to sustain these type of injuries naturally. She said

that ribs are quite robust and that it would take quite some force to result in these types of fractures and a row of fractures would

require excessive force. The rib and elbow injuries occurred on two different occasions.

21. The “rollover theory” was put to Doctor 4. She said it would be hard to imagine given that a bed is not a hard surface and this

would be an unusual scenario but she could not say it would be impossible. Doctor 4 stated that it was possible that the elbow injury

was as a result of the baby catching her arm in the cot. Her final response to counsel for the father on cross-examination was that it

was possible that the injuries were not intentional.

Evidence of Doctor 3

22. The next witness I wish to deal with is Doctor 3, Consultant Paediatrician, and after Doctor 1, he is probably the most important

medical witness in this case. He has had a long and impressive career: he has published a number of papers upon the subject of

paediatrics and has been involved in medico-legal work for in excess of 15 years.

23. Doctor 3 has furnished the Court with three reports dated 3 April 2008, 29 May 2008, and 3 August 2008. Doctor 3 also, which I

might say I found extremely helpful, précised the medical records of the Hospital in respect of Child 1. In his report of 3 April 2008, he

noted that certain details regarding admission had been incorrectly recorded. Above Line 140 in his report, he stated that: “[t]he date

of admission to the Hospital is documented as 02.09.07 in the medical records and paragraph 7 of Doctor 2’s report (15.10.07) but

these are errors.” Also Doctor 2 has the date of birth of Child 1 as 7 December 2006 whereas the correct date of birth is 18 April

2007. I am not sure if much turns upon these errors.

24. Child 1 was admitted to hospital at 03:10 am on 2 October 2007. At 03:10, there were blue marks to perianal region and buttocks

and upper thighs. By 04:00 am these had escalated to “multiple sites on upper thighs of light bruises.” Smaller more localised spots to

inner buttocks/perianal region — not bruises: 8–10 spots. Doctor 3 commented that Child 1 had been admitted with a febrile illness

and that there were concerns about the bruises on the upper thighs. At 14:15 bruises on the posterior aspect of the left thigh had

appeared. This was not present upon admission and there was no explanation for this. Doctor 3 also stated that: “[t]here was no

evidence of retinal haemorrhage, a manifestation of non-accidental injury which may accompany bruising in small children.”

25. In relation to the skeletal survey, Doctor 3 records that:

“[r]adiographs performed: skull, chest, pelvis and upper thighs, lateral whole spine, abdomen, frontal projection of

the distal lower limbs, frontal projection of the upper limbs and lateral elbows, frontal projections of both hands and

feet. Findings: the lateral supracondylar region of the right elbow is clearly abnormal and irregular in appearance on

both lateral and frontal projection. No clear fracture line is seen. There is no definite metaphysical lesion and no

definite periosteal new bone formation identified. Chest x-ray: there is broadening of the posterior aspect of the left

6th to 9th ribs (inclusive). This is seen lateral to the neck of the ribs in question. These appearances are suspicious

of healing fractures. In view of the suspicion of non-accidental injury axial imaging of the head is suggested.”

26. Doctor 3 said that there are three aspects of this case which require comment: Kawasaki’s Disease, the bruises, and the

suspected fractures. In relation to Kawasaki Disease, Doctor 3 relied upon two authorities in his report, and the citation of these are

found at the reference section of his report of 3 April 2008. He said that:

“Kawasaki Disease is also known as mucocutaneous lymph node syndrome and this term describes the salient

features of the condition. It is a disease of small children and is relatively uncommon with an incidence of about 1 in

25,000. The diagnosis is made on the demonstration of the characteristic clinical signs:

Fever lasting for at least 5 days although the diagnosis may be made earlier by experienced physicians.

Presence of at least four of the following five signs:

1. Bilateral bulbar conjunctival injection, generally nonpurulent.

2. Changes in the mucosa of the oropharynx, included injected pharynx, injected and/or dry fissured

lips, strawberry tongue.

3. Changes of the peripheral extremities, such as edema and/or erythema of the hands or feet in the

acute phase; periungual desquamation in the subacute phase.

4. Rash, primarily truncal; polymorphous but nonvesicular.

5. Cervical adenopathy, >1.5 cm, usually unilateral lymphadenopathy.

Illness not explained by other known disease process.

Although no laboratory test is specifically diagnostic, certain laboratory results are characteristic of the condition.

Raised CRP and ESR are seen in the early stages of the illness and the platelet count rises in the 2nd – 3rd week.”

27. The rashes in Kawasaki’s Disease, according to Doctor 3, are polymorphic although not typically purpuric (bruises) and it is

possible that the transient bruises were part of the Kawasaki Disease process rather than a manifestation of non-accidental injury. It

is my opinion that the evidence for rib fractures is indirect and the suspected fractures are clearly old no attempt has been made to

date them. It is my opinion that the evidence for a fracture at the right elbow is again indirect. At line 540 of his report dated 3 April

2008, Doctor 3 was asked for an opinion as to how the injuries may have been caused and he answered that it was impossible to say.

28. In relation to Doctor 3’s report of 29 May 2008, much is devoted to the “rollover theory” and the manner in which Child 1 could

have injured her elbow. I do not think it relevant to elucidate this report for reasons which will become obvious later.

29. In Doctor 3’s report dated 3 August 2008, he states that he has not seen any radiographs. Doctor 4 has taken a stab at dating

the injuries but such dating is imprecise and quite some time post event without being coupled with a timely observation of the

subject. Doctor 3 bases his conclusions upon a consideration of Doctor 4’s report and states that “…Doctor 4 is of opinion that the

fractures were due to non-accidental injury and I agree with that opinion…”. Yet that is not what Doctor 4 held in her opinion, in fact

no such definitive conclusion was given, her words were “…I would have serious concerns that Child 1 has been subjected to non-

accidental injury” — this is not the same.

30. In giving evidence to the Court, Doctor 3 echoed much of what has been said in his reports and did not to any material extent

expatiate upon his views. He emphasised that the “child abuse” allegation is raised primarily because of a lack of explanation for the

injuries which the child sustained over separate occasions. Previous evidence to the Court discussed a colour-based measurement to

establish the age of a bruise but Doctor 3 said this was not always the case and that in the instant case it was dangerous to call

them bruises rather than actual Kawasaki Disease. He accepted that the “bruising” triggered the investigation. On cross-examination

by counsel for the father, Doctor 3 said it was possible that a 7-year-old could inflict the elbow injury and it was extremely unlikely

that the injury was self-inflicted. He would not accept the “rollover theory” in relation to the rib fractures and said it was unlikely. On

cross-examination by counsel for the mother, Doctor 3 said it was possible for a 7-year-old to inflict the injury but it was unlikely.

Evidence of Doctor 5

31. Doctor 5 furnished a report to the Court and also gave evidence which in the main supports the finding that Child 1 suffered from

Kawasaki Disease. He accepted in his evidence that the parents were suitably concerned for Child 1. Doctor 5 furnished a report to

the Court but he could not be located so as to give evidence to the Court and accordingly this Court is not relying upon the contents

of his report.

Evidence of Doctor 2

32. On 21 January 2009, Doctor 2, a orthopaedic surgeon from Country 1, now practicing as a GP here in Ireland, gave evidence to

this Court. Doctor 2 said that his report dated 7 December 2007 was based on what he had on the clinic’s computer. Essentially, his

evidence to the Court was that the parents presented with their 3½-month-old child on 27 July 2007 due to left upper limb and left

side of back injury. The parents were advised to support the baby’s limb and side by means of a soft pillow in order to relieve the

afflicted parts.

33. The parents do not accept that they were advised to take the child for and x-ray; however, an x-ray would not have been

performed by the C Medical Centre given the very young age of the child. Doctor 2 did not accept the “rollover theory” as consistent

with the injuries sustained by Child 1. Doctor 2 said that the injuries “had to be consequence of an accident the type I could not

say.”

34. On cross-examination by counsel for the mother, Doctor 2 said that he no longer had access to his notes because he had

resigned from the medical centre. It was put to him that the Respondents maintain that the injury, that is, the injury which “during

the palpation examination of the left upper limb and the left side of trunk” were as a result of the Respondent father rolling over upon

the child in bed, namely the “rollover theory.” Doctor 2 said that it possibly was said to him but his memory of this is not great. He

said it is more important to heal the child.

Evidence of the Social Workers’ Reports

35. That concludes the evidence of the medical experts in this case. It is fair to say that the allegation of non-accidental injury is

based solely and exclusively upon the medical evidence. In that regard, I do not believe that I will have to go through the many,

many reports from the Social Workers in this case, nor their actual evidence, and the reason for this will become very clear, when I

address and analyse the actual medical evidence in this case. For the purposes of completion, the Social Workers’ Reports which were

submitted to this Court were as follows:

(a) Report of SW 1 dated 24 October 2007;

(b) Report of SW 1 dated 31 October 2007;

(c) Report of SW 1 dated 15 November 2007;

(d) Report of SW 1 dated 13 December 2007;

(e) Report of SW 1 dated 8 January 2008;

(f) Report of SW 1 dated 1 February 2008;

(g) Report of SW 1 dated 8 February 2008;

(h) Report of SW 2 dated 26 March 2008;

(i) Report of SW 1 dated 31 March 2008;

(j) Report of SW 1 dated 28 April 2008;

(k) Report of SW 1 dated 22 May 2008;

(l) Report of SW 1 dated 19 June 2008;

(m) Report of SW 3 dated 3 July 2008;

(n) Report of SW 3 dated 22 July 2008;

(o) Report of SW 4 dated 28 July 2008;

(p) Report of SW 4 dated 19 December 2008; and

(q) Report of SW 3 dated 21 January 2009.

Minutes of various meetings were furnished in a Blue Folder.

(I have read and considered all reports and also my notes of the various evidence given to this Court.)

DECISION OF THE COURT

1. Standard of Proof

36. The HSE, the Applicant herein, must satisfy the District Court Judge that one of the three available grounds for a Care Order, as

laid down by the Child Care Act, 1991, exists. Section 18 of the Act provides that:

“[w]here, on the application of a health board with respect to a child who resides or is found in its area, the court

is satisfied that—

(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or

(b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or

(c) the child’s health, development or welfare is likely to be avoidably impaired or neglected,

and that the child requires care or protection which he is unlikely to receive unless the court makes an order under

this section, the court may make an order (in this Act referred to as a “care order”) in respect of the child.”

37. In relation to the first of these grounds, Paul Ward stated that “actual proof of, as opposed to suspicions of, assault, ill-

treatment, neglect or sexual abuse should be presented to satisfy the District Court Judge of their existence” [see CCA – Paul Ward –

1997 at page 32]. Accordingly, before one contemplates or considers a Care Order itself “evidence presented must come up to proof.”

38. The Court must be satisfied not only that the particular threshold for making a Care Order has been crossed, but also that the

harm being suffered is attributable to the actual or anticipated care being received by the child while in the custody of a parent or

guardian. I have of my own industry tried to find Irish authorities regarding the standard of proof to be used in assessing whether the

threshold criteria has been met in relation to establishing the existence of harm or danger in respect of Child Care concerns, but alas I

could find no adequate Irish decisions upon the subject; however, a number of English decisions, especially those from the House of

Lords, were most helpful in assisting me in assessing the standard of proof required. This will require some elucidation.

39. The starting point in approaching a consideration of the evidence is set out in the case of In re O (Minors)(Care: Preliminary

Hearing) [2004] 1 AC 523 at 536 et seq [House of Lords], where Lord Nicholls stated that:

“I should make an introductory observation. Courts and tribunals constantly have to decide whether an alleged

event occurred. The general rule is that if the likelihood that a past event occurred is proved to the requisite

standard the law regards that event as definitely having happened. If not, it is treated as not having happened. In

deciding whether proof to the requisite standard has been made out, the decision maker normally has regard to all

evidential material which is of probative value … But the general rule does not always apply. Questions of proof of a

past event arise in widely varying contexts. Sometimes the law limits the matters the decision maker may take into

account. When this occurs, the reason is legal policy, not the requirements of logic. There may, for instance, be a

particular category of matters the decision maker is not permitted to consider. The most obvious example concerns

criminal trials. In general, evidence of previous misconduct is not admissible in criminal trials. Although such

evidence may have probative value, in general it is excluded from consideration by juries because its probative

value is outweighed by the risk of prejudice. This exclusionary rule is subject to exceptions in certain types of

cases, where the accused should not be permitted to present himself as a person of good character or where the

previous misconduct has particular probative value, for instance, as “similar fact” evidence … The same broad

principle is applicable when courts or tribunals peer into the future and assess the likelihood that a particular event

will occur. This is an inherently imprecise exercise, so far as human conduct is concerned. In theory it is a different

exercise from deciding whether somebody did or did not do something in the past. Whether or not an alleged event

occurred in the past raises a question of proof. In truth, the event either happened or not. That is not so with a

future forecast. The future has not happened, and future human conduct is never certain. But in practice, the past

is often as uncertain as the future. The judge cannot know for certain what happened and can only assess the

degree of likelihood that something happened. The same is true of the future. The decision maker has to assess the

degree of likelihood that an inherently uncertain event will occur. The degree of likelihood—beyond reasonable

doubt, more probable than not, real possibility and so on—required in any particular legal context raises a question

of legal policy … Here again, the policy decision on the requisite degree of likelihood is a separate question from the

policy decision on the matters the court or tribunal may take into account. As to the latter, the matters a decision

maker may take into account are normally bounded only by the need for them to be relevant, that is, they must be

such that, to greater or lesser extent, they will assist the decision maker in reaching a rational conclusion. The

context may, indeed, require that this principle should apply in its full width: see, in the context of asylum cases

and the difficulties of proof which beset asylum seekers, Karanakaran v Secretary of State for the Home

Department [2000] 3 All ER 449, especially Brooke LJ, at pp 458-470, and Sedley LJ, at pp 477-479. The legal

context may permit, or require, the decision maker to take into account a real possibility that a past event

occurred, or even a mere possibility. Rationality does not require that only past events established on a balance of

probabilities can be taken into account. Or the context may require otherwise. The range of matters the decision

maker may take into account when carrying out this exercise depends upon the context. This, again, is a question

of legal policy, not logic”.

40. Lord Nicholls implied that there must be “actual proof” the same phrase used by Paul Ward. In that case, Lord Nicholls stated (at

page 540) that:

“where the judge finds a child has suffered significant physical harm at the hands of his parents but is unable to say

which. I stress one feature of this type of case. These are cases where it has been proved, to the requisite

standard of proof, that the child is suffering significant harm or is likely to do so”. [emphasis added]

41. Proof in that sense confines a Court to making a finding of fact if evidence in relation to the existence or non-existence of that

fact has been adduced by the parties before the Court. Such evidence may be disputed by a contending party and as such it ought

to be ultimately decided upon by the Court. However, the Court, in relation to such evidence as is being challenged, must decide

upon it without importing extraneous matters. For example, in In re P (Sexual Abuse: Standard of Proof) [1996] 2 FLR 333, unlike

“uncertain perpetrator” cases, the allegation of sexual abuse was not proved. The lower Court, in refusing to order unsupervised

contact, took into account the substantial risk that sexual abuse by the father had occurred even though not proved. The Court of

Appeal allowed the father’s appeal. Wall J, at p 343, said that the judge committed a “fundamental error” in taking this risk into

account. He noted the undesirable practical consequences flowing from the judge’s approach, in stating:

“[i]t has also had the effect, in the instant case, of producing the worst of all worlds. The father remains under a

cloud. Abuse is not proved on the balance of probabilities, but he remains effectively branded an abuser: as the

judge himself said, ‘at the very lowest he will remain under suspicion until his daughters are old enough to be able to

cope with any risk of abuse themselves’. Furthermore, the mother's beliefs are reinforced. It thus becomes

impossible for the parties and the children to put the issue of sexual abuse behind them. The end result is highly

unsatisfactory.”

42. Moreover, if a child has allegedly suffered harm in the past, it does not allow one to leap to the conclusion that such harm is a

future danger. In In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, the Court of Appeal as well as the House of Lords,

cautioned that, as a matter of policy, the court may not infer the child is at risk of suffering harm in the future where the only

evidence that the child is at risk is an unproved allegation that he suffered harm in the past.

43. The Law Lord, namely, Lord Nicholls, warns that where there are mere allegations one must proceed carefully. I have included

here the dicta of Lord Nicholls in In re H & Ors. (Sexual Abuse: Standard of Proof) which is on point and extremely instructive given

that there is little difference between our provisions and those in England upon the threshold criteria and I make no apologies for the

very lengthy quotation, commencing at page 589 of the Report, where he stated that:

“[t]he starting point here is that courts act on evidence. They reach their decisions on the basis of the evidence

before them. When considering whether an applicant for a care order has shown that the child is suffering harm or

is likely to do so, a court will have regard to the undisputed evidence. The judge will attach to that evidence such

weight, or importance, as he considers appropriate. Likewise with regard to disputed evidence which the judge

accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proved on the

balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There

remains room for the judge to have doubts and suspicions on this score. This is the area of controversy.

In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the

second threshold condition in section 31(2)(a) has been established than they can form the basis of a conclusion

that the first has been established. My reasons are as follows.

Evidence is the means whereby relevant facts are proved in court. What the evidence is required to establish

depends upon the issue the court has to decide. At some interlocutory hearings, for instance, the issue will be

whether the plaintiff has a good arguable case. The plaintiff may assert he is at risk of the defendant trespassing

on his land or committing a breach of contract and that, in consequence, he will suffer serious damage. When

deciding whether to grant an interlocutory injunction the court will not be concerned to resolve disputes raised by

the parties’ conflicting affidavit evidence.

At trials, however, the court normally has to resolve disputed issues of relevant fact before it can reach its

conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals

throughout the country. This exercise applies as much where the issue is whether an event may happen in the

future as where the issue is whether an event did or did not happen in the past. To decide whether a car was being

driven negligently, the court will have to decide what was happening immediately before the accident and how the

car was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of

whether the car was being driven with reasonable care. Likewise, if the issue before the court concerns the

possibility of something happening in the future, such as whether the name or get-up under which goods are being

sold is likely to deceive future buyers. To decide that issue the court must identify and, when disputed, decide the

relevant facts about the way the goods are being sold and to whom and in what circumstances. Then, but only

then, can the court reach a conclusion on the crucial issue. A decision by a court on the likelihood of a future

happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom.

The same familiar approach is applicable when a court is considering whether the threshold conditions in section

31(2)(a) are established. Here, as much as anywhere else, the court's conclusion must be founded on a factual

base. The court must have before it facts on which its conclusion can properly be based. That is clearly so in the

case of the first limb of section 31(2)(a). There must be facts, proved to the court's satisfaction if disputed, on

which the court can properly conclude that the child is suffering harm. An alleged but non-proven fact is not a fact

for this purpose. Similarly with the second limb: there must be facts from which the court can properly conclude

there is a real possibility that the child will suffer harm in the future. Here also, if the facts are disputed, the court

must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide.

There are several indications in the Act that when considering the threshold conditions the court is to apply the

ordinary approach, of founding its conclusion on facts, and that nothing less will do. The first pointer is the

difference in the statutory language when dealing with earlier stages in the procedures which may culminate in a

care order. Under Part V of the Act a local authority are under a duty to investigate where they have ‘reasonable

cause to suspect’ that a child is suffering or is likely to suffer harm. The court may make a child assessment order if

satisfied that the applicant has ‘reasonable cause to suspect’ that the child is suffering or is likely to suffer harm.

The police may take steps to remove or prevent the removal of a child where a constable has ‘reasonable cause to

believe’ that the child would otherwise be likely to suffer harm. The court may make an emergency protection order

only if satisfied there is ‘reasonable cause to believe’ that the child is likely to suffer harm in certain eventualities.

Under section 38 the court may make an interim care order or an interim supervision order if satisfied there are

‘reasonable grounds for believing’ that the section 31(2) circumstances exist.

In marked contrast is the wording of section 31(2). The earlier stages are concerned with preliminary or interim

steps or orders. Reasonable cause to believe or suspect provides the test. At those stages, as in my example of an

application for an interlocutory injunction, there will usually not have been a full court hearing. But when the stage

is reached of making a care order, with the far-reaching consequences this may have for the child and the parents,

Parliament prescribed a different and higher test: ‘a court may only make a care order or supervision order if it is

satisfied ... that ... the child ... is suffering, or is likely to suffer, significant harm’. This is the language of proof, not

suspicion. At this stage more is required than suspicion, however reasonably based.

The next pointer is that the second threshold condition in paragraph (a) is cheek by jowl with the first. Take a case

where a care order is sought in respect of a child on the ground that for some time his parents have been

maltreating him. Having heard the evidence, the court finds the allegation is not proved. No maltreatment has been

established. The evidence is rejected as insufficient. That being so, the first condition is not made out, because

there is no factual basis from which the court could conclude that the child is suffering significant harm attributable

to the care being given to him. Suspicion that there may have been maltreatment clearly will not do. It would be

odd if, in respect of the self-same non-proven allegations, the self-same insufficient evidence could nonetheless be

regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm to the child in the

future.

The third pointer is that if indeed this were the position, this would effectively reverse the burden of proof in an

important respect. It would mean that once apparently credible evidence of misconduct has been given, those

against whom the allegations are made must disprove them. Otherwise it would be open to a court to hold that,

although the misconduct has not been proved, it has not been disproved and there is a real possibility that the

misconduct did occur. Accordingly there is a real possibility that the child will suffer harm in the future and, hence,

the threshold criteria are met. I do not believe Parliament intended that section 31(2) should work in this way.

Thus far I have concentrated on explaining that a court’s conclusion that the threshold conditions are satisfied

must have a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose.

Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event

happened.

I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be

relevant when the court is considering the threshold conditions. The range of facts which may properly be taken

into account is infinite. Facts include the history of members of the family, the state of relationships within a family,

proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably

have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a

child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial

if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The

court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the

crucial issue.

I must emphasise a further point. I have indicated that unproved allegations of maltreatment cannot form the basis

for a finding by the court that either limb of section 31(2)(a) is established. It is, of course, open to a court to

conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not

been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence

does establish a combination of profoundly worrying features affecting the care of the child within the family. In

such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is

yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the

future”.

44. If such a high standard of proof is required, does this render the functions and duties of the Social Workers as unobtainable

and/or impossible in the fact-gathering exercise? This point was dealt with in the House of Lords in In re H (Minors) (Sexual Abuse:

Standard of Proof) above cited. Again, Lord Nicholls stated that:

“I am very conscious of the difficulties confronting social workers and others in obtaining hard evidence, which will

stand up when challenged in court, of the maltreatment meted out to children behind closed doors. Cruelty and

physical abuse are notoriously difficult to prove. The task of social workers is usually anxious and often thankless.

They are criticised for not having taken action in response to warning signs which are obvious enough when seen in

the clear light of hindsight. Or they are criticised for making applications based on serious allegations which, in the

event, are not established in court. Sometimes, whatever they do, they cannot do right. I am also conscious of the

difficulties facing judges when there is conflicting testimony on serious allegations. On some occasions judges are

left deeply anxious at the end of a case. There may be an understandable inclination to ‘play safe’ in the interests

of the child. Sometimes judges wish to safeguard a child whom they fear may be at risk without at the same time

having to fasten a label of very serious misconduct on to one of the parents. These are among the difficulties and

considerations Parliament addressed in the Children Act 1989 when deciding how, to use the fashionable

terminology, the balance should be struck between the various interests. As I read the Act, Parliament decided that

the threshold for a care order should be that the child is suffering significant harm, or there is a real possibility that

he will do so. In the latter regard the threshold is comparatively low. Therein lies the protection for children. But, as

I read the Act, Parliament also decided that proof of the relevant facts is needed if this threshold is to be

surmounted. Before the section 1 welfare test and the welfare ‘checklist’ can be applied, the threshold has to be

crossed. Therein lies the protection for parents. They are not to be at risk of having their child taken from them and

removed into the care of the local authority on the basis only of suspicions, whether of the judge or of the local

authority or anyone else. A conclusion that the child is suffering or is likely to suffer harm must be based on facts,

not just suspicion”.

45. In seeking a Care Order the HSE, the Applicant herein, must satisfy the Court in respect of their concern that one or more of the

four components justifying the imposition of a Care Order exist as aforementioned. The components I speak about are assault; ill-

treatment; neglect; or sexual assault. An assault on a child will invariably amount to physical abuse manifested by bruising, fractures,

tender and swollen joints, burns, and scalds. Where non-accidental injuries are occasioned upon a child, as alleged in this case, it

would have to be shown that such were deliberately inflicted or that the parent or parents were grossly careless or reckless as to

safeguards an ordinary reasonable parent would adopt against such injuries occurring.

46. In a Social Work Report, dated 21 January 2009, and written by the team leader, Social Worker 3, it was stated in clear and

unambiguous terms that:

“Child 1’s parents have been reassured that good social work practice is to provide supports to families to enable

them to care for their children even when their children have presented with injuries. For this to happen the social

work department requires an explanation for the injuries that satisfies medical opinion”.

This may be the policy of the HSE and Social Work Practice but it is not the practice of this Court to be beholden to satisfying

medical opinion or satisfying that which cannot be satisfied. And I shall address this matter hereinafter [see paragraph 48 below].

47. In deciding whether the HSE has shown that one of the grounds for making an Order exists, the Court must have regard to the

evidence adduced. The evidence in this case is solely and primarily that of the medical professionals, namely the Medical Evidence.

Such evidence constitutes Expert Evidence and such evidence, if it is the sole and primary evidence which supports allegations of

non-accidental injury, must be given such weight as it deserves and no more. Sopinka J in R v Mohan [1994] 2 SCR 9 at page 21, said

that expert evidence can be:

“dressed up in scientific language which the jury does not easily understand and submitted through a witness of

impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having

more weight than it deserves.”

48. McGrath on Evidence (2005) at paragraph 6-13 states that:

“[d]espite the eclipse of the ultimate issue rule, the courts are still quite conscious of the dangers of uncritical

acceptance of the evidence of experts going to the issues in the case and it has been stressed in a number of

cases that a judge cannot abdicate his or her function to an expert, no matter how distinguished. For example, in F

(Orse C) v C [[1991] 2 IR 330], Keane J. said that while the evidence of psychiatrists could assist the court, ‘it is

the responsibility of the Courts alone and not of psychiatrists, however eminent, to determine [the issue]’…[Also in]

Murnaghan Bros v O’Maoldomhnaigh [1991] 1 IR 455], where Murphy J. accepted that the trial judge had been

correct in saying that the court must not abdicate to experts the role of the court in determining matters of law

and fact”.

49. Also, where there is a conflict of evidence between experts who put forward conflicting theories of how particular events may

have occurred, it is not the role of the District Court judge to resolve that controversy or try to reason why such controversy exists.

Instead, as pointed out by Finlay CJ in Best v Wellcome Foundation [1993] 3 IR 421 at 462: “[t]he function which the Court can and

must perform is to apply common sense and a careful understanding of the logic and likelihood of events to conflicting opinions and

conflicting theories concerning a matter of this kind.”

50. In McLoughlin v Minister for Social Welfare [1958] IR 1, O’Daly J held that a person may not abdicate his statutory duty. He

stated that:

“[t]hat duty is laid upon him by the Oireachtas and he is required to perform it…freely and fairly as becomes anyone

who is called upon to decide on matters of right and obligation.”

51. The Court must, therefore, have before it facts on which its conclusion can properly be based. There must be facts, proved to

the Court’s satisfaction on which the Court can properly conclude that the child is suffering harm or there is a possibility of it, and

because of the far-reaching consequences the Care Order, these must be based on proven facts rather than suspicions — however

reasonably based that suspicion might or might not be.

2. Application of Legal Principles to the instant case

52. Paul Ward in his Annotation of the Child Care Act, 1991, prefaces his annotation with the following remarks:

“[t]he main purpose of the Act is to provide a means by which the welfare and protection of children can be

safeguarded. In extreme circumstances the Act authorises the interference with familial relations whereby a child

can be removed from the care, custody and authority of his [or her] parents and delivered into the care of the

State Agency, namely the health board. Interference with fundamental constitutional rights, the rights of the family

under Article 41, is made legally permissible by Article 42.5 of the Constitution, which authorises the State to

intervene on behalf of children where parents have failed for physical or moral reasons in their duty towards their

children. In this regard, the application for any Order under the Act requires the Court to consider both the rights of

parents under the Constitution and otherwise and the welfare of the child. This express statutory obligation

safeguards the rights of all concerned. In addition, health boards are likewise obliged to consider the above rights in

relation to parents and children in the exercise of any of their functions under the Act”.

53. Accordingly, it is with great care and attention that decisions must be taken in the area of Child Care. Moreover, I found most

instructive the warning of the House of Lords in Lancashire County Council v B [2000] 2 AC 147, at page 149:

“ROBERT WALKER L.J. handed down the following judgment of the court. This is an appeal with the leave of the

judge from an order of Judge David Gee made in the Blackburn County Court on 28 April 1999. By his order (which

gave effect to what that experienced family judge described as one of the most difficult decisions he had ever been

called upon to make) the judge dismissed two applications for care orders made by Lancashire County Council in

respect of two young children. He did so because he was not satisfied that the conditions in section 31(2) of the

Children Act 1989 were satisfied in respect of either child. His anxiety arose from what he referred to in his

judgment as:

‘the obvious dilemma in human terms. If the criteria are met and orders are made I am exposing one

child to the possibility of removal from parents who are no risk and have done no wrong … If the

applications are dismissed then I will undoubtedly be causing one child to be returned to a parent, or

parents, one or both of whom are an obvious and serious unassessed risk’”.

54. I also have such an anxiety, inasmuch that the evidence is purely of a medical nature and at that, is not conclusive, this I shall

address in detail. The Applicant’s case in this matter is, and I hope I am not doing an injustice to them, but summarising their case

they submit that:

(a) the medical evidence is overwhelming and conclusive;

(b) the purported explanation offered by father that he, some months ago, whilst asleep in bed, rolled over on the

infant, Child 1, and that must be how she sustained the rib-injuries. This “Rollover theory” is not accepted by the

Applicants and certainly it is not supported by the medical evidence; and finally

(c) it is the Applicants’ view that the Respondents have been less than frank with them in their openness and

cooperation during interviews and they did not disclose certain matters and that the knowledge of their attendance

at the Clinic in Country 1 was as a result of their investigations and efforts.

55. Firstly, I cannot accept that the “rollover theory” happened in the manner stated or at all. Even if it did happen it was not the

cause of the “rib-injuries”. In relation to the rib injuries of Child 1, the medical reports say that such an incident is too far removed in

time to support such a proposition. Secondly, father offered such an explanation to mother as a likely cause of the “softness” of the

chest during the palpation examination by Doctor 2 (see his report dated 7 December 2007). Yet neither parent can say such an

incident did in fact happen. Clearly, when mother was leaving for work and placed the baby in the bed with her husband she would

have had no apprehension of risk or danger to this child. Such recourses are an inevitable feature of our lives nowadays where both

parents are working and some commencing work earlier than the other. Such an act, that is placing the baby beside her husband,

cannot be labelled irresponsible, reckless, or negligent per se.

56. The “rollover theory” was put to Doctor 4 (Paragraph 21 above). She said it would be hard to imagine given that a bed is not a

hard surface (mattress never assessed for protruding springs) and this would be an unusual scenario but she could not say it would

be impossible. Doctor 4 stated that it was possible that the elbow injury was as a result of the baby catching her arm in the cot. Her

final response to counsel for the father on cross-examination was that it was possible that the injuries were not intentional.

57. Doctor 4 states that “suggestive of previous rib fractures, which have almost completely healed and are probably some where

between 3 weeks and 6 weeks old” (see Para 19 above). Given that the Skeletal Survey Film was dated 3 October 2007, it would

place the rib injuries at approximately, at the earliest 29 August 2007 or at the latest 19 September 2007. I, having heard the

evidence, must make a call on these approximate timings of the injuries and say that any incident or happening prior to the latter

date is unhelpful in ascertaining the nature, cause, perpetrator, etc., and thus this has to rule out the “rollover theory”. The elbow

injury was dated at approximately 26 September 2007.

58. A non-accidental injury occurs where any act which intentionally or recklessly causes another person to apprehend immediate and

unlawful personal harm. In the instant case, father states that he was woken from his slumbers by the crying of the baby. He states

that he was probably lying upon her. A person who has just awoken from his sleep by an immediate action or reaction, such as in the

instant case, the crying of the baby, will suffer from an impaired consciousness or a deprivation of effective appreciation of his

surroundings which must render his recollection of events somewhat imprecise. Thus, this imprecision is magnified when some time has

passed from the occurrence of the event and an attempt to recollect resulting in such recollection being doubly defective. The point

is neatly canvassed by Francis L Wellman in The Art of Cross-examination (4th edn, Collier Books 1962) at page 160 to 161:

“[j]ust as distant objects are seen mistily our imaginations come into play, leading us to fancy that we see

something completely and distinctly, so when the images of memory become dim, our present imagination helps to

restore them, putting a new patch into the garment. If only there is some relic even of the past preserved, a bare

suggestion of the way in which it may have happened will often suffice to produce the conviction that it actually

did happen in this way. The suggestions that naturally arise in our minds at such times will bear the stamp of our

present modes of experience and habits of thought. Hence, in trying to reconstruct the remote past we are

constantly in danger of importing our present selves into our past selves”.

59. On this point also, Sir John Romilly, in an opinion published in 16 Beavan Reports page 105, says:

“[i]t must always be borne in mind how extremely prone persons are to believe what they wish. It is a matter of

frequent observation that persons dwelling for a long time on facts which they believed must have occurred, and

trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect

the occurrences of circumstances which at first they only begin believing must have happened”.

60. Accordingly, I too reject the “rollover theory” suggested by the Respondents. In relation to the other evidence offered by the

Respondents’ witnesses, this demonstrates that the Respondents are of good character with no blemishes whatsoever and that they

would have no reason to harm the infant Child 1.

61. In relation to the question mark placed upon the openness and cooperation and forthright candour of the Respondents, I say this:

having heard the evidence of the witnesses of the HSE, I formed the view that the HSE had reached a decision very early on in their

investigations. I do not intend to go down the route of fingering a particular individual or individuals because I do not see that that

would serve any function.

62. During the first interview with the Respondents, the Applicant, namely the HSE, requested one of the friends of the Respondents

to act as interpreter without even satisfying themselves that that person could so do. It is alleged that the Respondents conspired to

withhold information from the HSE. Yet I could not from the evidence, both on a perusal of the reports and on a reading of my notes

recording the oral evidence of the HSE witnesses, form a view that an environment conducive to a “fact-finding” exercise existed

even from the very outset. Clearly, the Social Workers had made up their minds. The environment is a very important feature of the

investigation. It should be conducive to allow people to feel safe in telling the whole story. The questions should be framed in such a

manner as to probe all aspects of the case and the parents should be put at their ease in relation to this and encouraged to tell all.

To embark upon an investigation akin to a cross-examination when dealing with non-nationals who do not speak fluent English and

who are understandably concerned about their sick child is not an investigation which is likely to result in helpfully concluding the

nature or providence of injuries sustained. Looking at the very first Social Worker’s report submitted to this Court, dated 24 October

2007, I do not feel that the report suggests an ideal situation in which to commence inquiries in relation to the injuries which this child

sustained and thereby foster openness and cooperation.

63. There can be many reasons why people are not open and frank from the outset; in the instant case, I do not feel that I need

embark upon such reasons here but to suffice to say that both Respondents did give reasons to this Court for their less than frank

cooperation at the start of the process.

64. I have above set out the legal principles which one must observe in analysing the medical evidence. I have above set out this

evidence in great detail as it is the primary evidence in this case and I have above stressed the cautionary rules one must abide by in

embarking upon this path. A number of years ago (I think it was 1994), the English television company Granada/ITV broadcasted a

production entitled “Incredible Evidence”. This production focused upon the theme of expert evidence and it warned that:

“[w]e all believe, judges; barristers; juries, alike that science can lift the veil of uncertainty and deliver the truth. It

is a dangerous illusion. Forensic science is usually portrayed as having an almost miraculous ability to uncover the

guilty – we surround ourselves with courtroom dramas and newspaper articles which tell and re-tell the same basic

tale over and over again, in which forensic science is cast as the hero. But there is another side to the story … [In

relation to a particular miscarriage of justice case, Baroness Helena Kennedy, Q.C., said] the evidence looked almost

conclusive. My concern is that the presentation of such undisputed forensic scientific evidence assumes this special

quality because it is presented by way of reports and articulate oral evidence and if accepted blindly we will rush to

judgement. 2+2 can equal 4; 2+2 can equal 3 or 2+2 can equal 5.”

65. I shall now analyse the medical evidence proffered and the conclusions reached by the doctors. At paragraph 7 of this decision

above, Doctor 1 noted: “[o]n examination the baby was found to have signs and radiological features indicative of non-accidental

injury.” At this stage, the injuries seemed to indicate non-accidental injury. This is not the same as saying that it is a non-accidental

injury. Assessment depends critically on the environment of the evidence. It is futile to ignore this. Imaging itself has had defects.

“[t]he reliability of an individual test can vary, not only through its intrinsic capabilities but also with the patient’s

condition, with the skill of the operator and with the quality of the equipment used … Doctors working in imaging

departments are trained to interpret the results in the light of the patient’s clinical situation as described by the

referring clinician. If the clinician does not crisply set the clinical scene and identify the questions to be answered,

the radiologist/nuclear physician will not review the images with such an informed eye, let alone choose the most

appropriate investigation and view” [Principles of Clinical Medicine, Rees & Williams, Publ. Edward Arnold, 1995 at

page 102].

66. Accordingly, when viewing the images, a ‘supposed accuracy’ creeps into the equation when considering certain radiological

features one does so with a view to seeking a match to that which the clinician has advised upon. The brain and spinal MRI scans

were performed (Paragraph 8 above). These were normal. The baby had an Opthalmology examination by the hospital Opthalmologist

and this was found to contain no evidence of any haemorrhages. Given that this is an alleged case of non-accidental injury, I would

have thought that there might have been some evidence of haemorrhages. At paragraph 24 above, Doctor 3 stated that: “[t]here

was no evidence of retinal haemorrhage, a manifestation of non-accidental injury which may accompany bruising in small children”.

67. I now deal with the alleged bruising. Mother did say both to this Court and to the doctors that, “[s]he did mention that she

sometimes holds the baby around the buttocks area and felt that that could explain the bruising (Para 7 above)”. On the evidence to

this Court, at no stage was it proffered that the child, other than when being bathed to reduce temperature, was without a nappy.

Accordingly, at all stages the baby was wearing a nappy. Therefore, the pressure would have caused such force through the nappy

to leave marks non-attributable to finger marks as such but greater thereto because the point of impact has a greater area than that

of a naked finger.

68. The photographs of the alleged bruising are not very clear. In fact Doctor, in giving evidence to this Court, said the photographs

did not show up the bruising well (para 9 above). Yet Doctor 2, in her report, states that on a review of the photographs there is

significant bruising her opinion being based upon visual inspection of the photographs. I agree with Doctor 1 that the photographs do

not show significant bruising and thus Doctor 2’s opinion in relation to the bruising is somewhat defective in not having conducted a

primary assessment of the actual locus of the bruising (see para 18 above). Accordingly, if Doctor 1 is of the opinion that the

photographic evidence is unclear, then this Court must accept that Doctor 2’s opinion suffers a similar imperfection in relation to the

alleged bruising. We must proceed here with caution. I have come across a case previously where parents have been accused of

inflicting cigarette burns upon a child’s body. Sometime later it was found that the alleged “burns” were not burns at all but rather a

medical condition known as bullons (bullous) impetigo which is an infectious bacterial disease affecting the skin. Accordingly, we must

consider the “bruising” in the context of the presenting illness, that is, Kawasaki Disease.

69. Doctor 1 stated that bruising, generally, goes through phases or stages of colour, ranging from purple, that being the initial

colour, to yellow when the bruise is a number of days old (para 10 above). But we must square this with Doctor 3’s findings of recent

appearances of bruising upon the body post admission. Doctor 3 noticed an increase in the amount of bruising since admission (see

paragraph 24). He stated that: “[a]t 03:10 there were blue marks to perianal region and buttocks and upper thighs.” By 04:00 am

these had escalated to “multiple sites on upper thighs of light bruises. Smaller more localised spots to inner buttocks/perianal region –

not bruises, 8 – 10 spots.” Clearly, the Respondents cannot be responsible for the increase in bruise-like features which occurred

under the management, control, observation and care of the Hospital.

70. Doctor 3 noted that: At 14:15 bruises on the posterior aspect of the left thigh had appeared (para 24 above). This was not

present upon admission and there was no explanation for this. Again, the Respondents cannot be said to be responsible for these. The

colouration of these later bruises ought to have been of the initial stage but we are not told of this.

71. Kawasaki is a systemic virus which affects the body overall and one would expect skin manifestation (see para 13 above). The

rashes in Kawasaki’s Disease, according to Doctor 3, are polymorphic although not typically purpuric (bruises) and it is possible that

the transient bruises were part of the Kawasaki Disease process rather than a manifestation of non-accidental injury (see para 27

above). At line 540 of his report dated 3 April 2008, Doctor 3 was asked for an opinion as to how the injuries may have been caused

and he answered that it was impossible to say.

72. I next turn to the fractures. Doctor 5 said it was unusual to get rib fractures posteriorly (see para 11 above). Such a rarity or

unusuality, in the context of the symptoms suffered by Child 1, must be further analysed. Doctor 5 said that ribs are quite think and

robust and you usually do not get fractures here (see para 15 above). Fractures here were healing fractures and it was not

established how deep the fracture went — if it was less than or greater than half the diameter of the bone. No attempt to establish

the depth of the fracture was made which might have given us an idea if a totally innocent act could have produced this type of

fracture because of the bone structure being temporarily weakened for some reason.

73. Doctor 2 said in her report that the injuries raise a very significant concern of non-accidental injury (see para 18 above). Doctor 4

stated that on the chest x-ray, there was mild localised thickening of the posterior ends of the left 6th, 7th, 8th, and 9th ribs (see

para 19 above). All the evidence given about the “crush-type injury” was with the doctors demonstrating or showing the manner the

child would have been held in the hands of the person injuring the child, that is in both hands as holding a chalice. I must accept this

because this is what the doctors believed how it could have happened. Yet, no explanation was offered to account for the fact that

the distribution of the force-like or “crush” action, as a result of the grip indicated, would not have resulted in fractures on both sides

of the body rather than one side only as in the instant case. So why was this? Was one side of the skeletal bone structure weaker

than the other? The crush-type injury as simulated by the medical witnesses would have or ought to have resulted in a symmetrical

injury to left and right ribs numbered 6 to 9. This was not the case and thus went without remark from the various doctors furnishing

reports and giving expert testimony.

74. Doctor 4 conducted her assessment based on reports and films which where somewhat dated at the time of assessment. No

attempt was made to date the injury before Doctor 3’s suggestion and I feel that the dating process which commenced some nine

months later and which is solely based upon the visual inspection of films is less than precise to draw conclusions when we are dealing

with such serious allegations as in the instant case.

75. Doctor 4 concluded her report: “[a]s there would not appear to be a history of trauma appropriate to these injuries, I would have

serious concerns that Child 1 has been subjected to non-accidental injury” (see para 19 above). Clearly, Doctor 4 is wrong in this

assumption because it totally disregards the findings of Doctor 2, a former orthopaedic surgeon from Country 1 now practising as a GP

here in Ireland. Although the symptoms presented to Doctor 2 did not result in the rib injuries, such symptoms were a precursor to

such injuries and thus these suggest a likelihood that some weakness existed in that area and thus trauma cannot be ruled out as

simply as that. Doctor 2 stated that “the parents presented with their 3½-month-old child on 27 July 2007 due to left upper limb and

left side of back injury…The parents were advised to support the baby’s limb and side by means of a soft pillow in order to relieve the

afflicted parts…” (see para 32 above). On the face of this report is a date stamp which shows that the HSE or one of its agents

received this report on or about 11 December 2007. This is prior to the retention or engagement of Doctor 4. Yet this report was not

furnished to Doctor 4. Nor was this report furnished to Doctor 1 and an opinion canvassed from him. Given the findings of Doctor 2,

the left posterior ribs and “the left side of back injury” are contiguous in proximity so as to satisfy oneself that some element of

weakness might have been present in the bone structure which could allow a normal reasonable grip to inflict what would otherwise

appear to be an injury from “excessive handling” because the bone structure, for whatever reason, was weaker than the robust

standard expected. This weakness may have commenced immediately prior to Doctor 2’s examination and may have continued up to a

point before the baby contracted the Kawasaki Disease which would account for the healing fractures on admission.

76. Doctor 4 stated that she said very often an explanation would be given but fractures can occur without explanation (see para 20

above).

77. In his report, Doctor 3 notes that “the lateral supracondylar region of the right elbow is clearly abnormal and irregular in

appearance on both lateral and frontal projection. No clear fracture line is seen. There is no definite metaphysical lesion and no

definite periosteal new bone formation identified…” (see para 25 above). Doctor 3 remarked that: [i]llness not explained by other

known disease process. Although no laboratory test is specifically diagnostic, certain laboratory results are characteristic of the

condition. Raised CRP and ESR are seen in the early stages of the illness and the platelet count rises in the 2nd – 3rd week” (see para

26 above). This would seem to concur in time frame with the time-span of injuries to the rib and elbow. For example, ribs may for

some other reason have been weak on the left side in keeping with the Echocardiogram. (See Line 280 of Doctor 3 ’s report of 3 April

2008, wherein he states that “Kawasaki’s Disease with mild diffuse dilatation of the left main coronary artery and proximal left anterior

descending coronary artery. Possible involvement of the circumflex coronary artery.” This may account for the lack of symmetry in

the injuries to the rib area which I have referred to above.

78. The hospital had tested for vitamin D so as to exclude rickets and an x-ray did not show any abnormality (seee Para 15 above).

Given that the present case concerns, inter alia, fractures, it is important to bear in mind that the injuries may have an explanation

not yet known nor considered. Bone strength and structure are importantly linked with calcium metabolism. Lack of vitamin D results

in calcium deficiency and may be due to a number of factors and it is not exactly clear if Kawasaki Disease can impact upon or inhibit

absorption of vitamin D resulting in a calcium deficit. Prior to me considering all the evidence in this case, this fact did not come to my

attention and so such a proposition was not put to the doctors in this case. X-rays will show loss of bone density with symmetrical

apparent fractures (pseudofractures may be seen radiologically) but in cases of doubt, a bone biopsy would confirm if underlying

conditions such as those of Kawasaki Disease or other disorders can be excluded. We know that symptoms, other than fever, of

Kawasaki Disease include, severe redness in the eyes, a rash on the stomach, chest, and genitals, red dry cracked lips, swollen

tongue with a white coating and big red bumps, sore irritated throat, swollen palms of the hands and soles of the feet with a purple-

red colour, and/or swollen lymph nodes.

79. The evidence in this case is less than conclusive in my mind. Is it likely that the injuries, given that they relate to separate

occasions, were as a result of ordinary handling of a temporarily weak structure, rather than accidental or non-accidental? As I have

no evidence that they are as a result of an accident, I therefore eliminate this from consideration. Accordingly, there remain two

possible explanations which are likely, naturally occurring injuries or non-accidental, and how is this to be assessed in the light of

potential risks. In assessing the evidence, in respect of Child Care proceedings, an interesting distillation of the standard of proof is to

be found in a case I have already referred to ad nauseum, the House of Lords case of re H & Ors (Sexual Abuse: Standard of Proof)

[1996] AC 563, at 568, the following synthesis appears:

“[d]eciding whether something is ‘likely’ involves assessing the risk or chance of it happening in the future, an

exercise which is wholly different from that involved in determining whether or not something has happened in the

past: Mallett v. McMonagle [1970] A.C. 166, 176E-G and Davies v. Taylor [1974] A.C. 207, 212B-213C. Whether or

not something has happened in the past is decided by the court on the balance of probabilities. It simply asks

whether, on the basis of the evidence, it is more probable than not that it did happen. In contrast, a quite different

approach is necessary when the court has to decide whether something ‘is likely.’ To determine whether or not

something ‘is likely’ to happen in the future the court must, of course, found itself on evidence. Mere concern,

suspicion or unsubstantiated fears are not enough: In re F. (Minors) (Wardship: Jurisdiction) [1988] 2 F.L.R. 123,

132C. But to find that something ‘is likely’ to happen in the future does not require the court to find on the balance

of probabilities that the same thing, or something else, has happened in the past: see H. v. H. (Minors) (Child

Abuse: Evidence) [1990] Fam. 86, 101F, 121C and In re W. (Minors) (Wardship: Evidence) [1990] 1 F.L.R. 203,

215C, 222C, 228E, 229B. Nor, to find that something ‘is likely’ to happen in the future, does the court have to find

that it is more probable than not that it will happen. In its ordinary dictionary meaning, the word ‘likely’ is sometimes

used to mean ‘more likely than not,’ sometimes as connoting a possibility which is ‘less likely than not:’ Davies v.

Taylor [1974] A.C. 207, 222F. Usually in a legal context, and certainly in section 31(2)(a) of the Act of 1989, ‘likely’

is used in the latter sense. ‘Likely’ in section 31(2)(a)does not mean ‘more likely than not.’ As the Court of Appeal

[1995] 1 F.L.R. 643, 650H, 654D, 657E, unanimously and correctly recognised, it is enough that there is a ‘real’ as

opposed to a merely ‘fanciful’ or "speculative risk’: Newham London Borough Council v. A.G. [1993] 1 F.L.R. 281,

286F, 288A, 288D-E, 289C-D”.

80. As I have said, the Social Workers followed and relied upon the medical evidence in this case. The doctors relied upon their

original assumption that the injuries were non-accidental and this finding supported by medical evidence is unchallengeable and has a

quality of certainty. This I cannot accept. The renowned trial-lawyer, Francis Wellman, in The Art of Cross-examination (above cited,

at page 159), states that:

“[d]esire prompts the will to fix the attention on a certain point, and this causes the emphasis of this particular

point or proposition to the exclusion of others. The will has the power of keeping some considerations out of view,

and thereby diminishes their force, while it fixes the attention upon others, and thereby increases their force.”

81. It is a rarity that a Court can act upon medical evidence alone in cases such as these. Some other factors must be present to

allow the Court to reach such an enormous decision which affects the family. I echo the sentiments of Lord Justice Walker where he

expressed his anxiety at making an incorrect finding and the ramifications which follow (see paragraph 52 above). Therefore, some

other factors must exist to allow a Court make a just finding which it feels is appropriate. In re H & Ors (Sexual Abuse: Standard of

Proof) [1996] AC 563, at 573, Lord Browne-Wilkinson stated that:

“[w]here I part company [with Lord Nicholls] is in thinking that the facts relevant to an assessment of risk (‘is likely

to suffer ... harm’) are not the same as the facts relevant to a decision that harm is in fact being suffered. In order

to be satisfied that an event has occurred or is occurring the evidence has to show on balance of probabilities that

such event did occur or is occurring. But in order to be satisfied that there is a risk of such an occurrence, the

ambit of the relevant facts is in my view wider. The combined effect of a number of factors which suggest that a

state of affairs, though not proved to exist, may well exist is the normal basis for the assessment of future risk”.

[emphases added]

82. The standard of proof is that based “on the balance of probabilities.” In re H & Ors (Sexual Abuse: Standard of Proof) [1996] AC

563, at 586, Lord Nicholls, in dealing with the standard of proof, stated that:

“[w]here the matters in issue are facts the standard of proof required in non-criminal proceedings is the

preponderance of probability, usually referred to as the balance of probability. This is the established general

principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that

family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the

Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of

civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on

the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will

have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the

allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the

court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than

negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually

less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some

occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous

degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of

proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to

be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The

more improbable the event, the stronger must be the evidence that it did occur before, on the balance of

probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow’s Will Trusts

[1964] 1 W.L.R. 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome

the unlikelihood of what is alleged and thus to prove it.’

This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J.

in Hornal v. Neuberger Products Ltd [1957] 1 Q.B. 247, 266. This approach also provides a means by which the

balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court

should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.

No doubt it is this feeling which prompts judicial comment from time to time that grave issues call for proof to a

standard higher than the preponderance of probability. Similar suggestions have been made recently regarding proof

of allegations of sexual abuse of children: see In re G. (A Minor) (Child Abuse: Standard of Proof) [1987] 1 W.L.R

1461, 1466, and In re W. (Minors) (Sexual Abuse: Standard of Proof) [1994] 1 F.L.R. 419, 429. So I must pursue

this a little further. The law looks for probability, not certainty. Certainty is seldom attainable. But probability is an

unsatisfactorily vague criterion because there are degrees of probability. In establishing principles regarding the

standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of

proceedings. Proof beyond reasonable doubt, in whatever form of words expressed, is one standard. Proof on a

preponderance of probability is another, lower standard having the in-built flexibility already mentioned. If the

balance of probability standard were departed from, and a third standard were substituted in some civil cases, it

would be necessary to identify what the standard is and when it applies. Herein lies a difficulty. If the standard

were to be higher than the balance of probability but lower than the criminal standard of proof beyond reasonable

doubt, what would it be? The only alternative which suggests itself is that the standard should be commensurate

with the gravity of the allegation and the seriousness of the consequences. A formula to this effect has its

attraction. But I doubt whether in practice it would add much to the present test in civil cases, and it would risk

causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law

on this subject. I can see no compelling need for a change.”

83. “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and

thus to prove it” [see paragraph 80]. “This approach provides a means by which the balance of probability standard can

accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations

proved than when deciding less serious or trivial matters.” These propositions I find very instructive.

84. Accordingly, I find that the marks on the body, which appeared upon other areas of the body under the observation of the

medical team when the Respondents could not have inflicted harm, on the balance of probabilities, were manifestations arising from

the Kawasaki Disease and not as a result of the alleged bruises which was confined initially to the genital area on admission to

hospital. In my opinion, on the balance of probability, the fracture injuries did not constitute non-accidental injury, but rather, were

more likely than not, having regard to my analysis of the medical evidence, injuries sustained to a weak bone structure from handling

in the ordinary course of parenting and thus were not deliberately inflicted upon Child 1.

85. I do not believe that the Respondents can come up with an explanation because such an explanation is beyond their ability to

account for, what is, I believe, a medical obscurity, and to force or compel them to provide an explanation, when such an explanation

is or was within the field of medical sciences is to ignore the deficits of the medical evidence which I have pointed out above and rely

instead upon demanding an explanation from those helpless to fight such bureaucracy.

86. I find that there is no basis upon which this Court can grant a Care Order and thus I decline to do so.

87. I must await the HSE’s proposals for the return of the Child 1, the subject of these proceedings, and details of the support which

must be offered to the Respondents to assist them in coping with an infant in the absence of acquiring the experiencing of her care

and attention to date to ensure a successful reunification.

88. That concludes the decision of this Court.