Non-Accidental Injury: when to challenge interim threshold

The case of Re C (Permission to withdraw: medical evidence: Interim threshold not crossed) [2018] EWFC B37 raises the question of when it may be appropriate to challenge interim threshold following the making of an interim care order, writes Rebecca Kocerhan.

Rebecca Kocerhan

The case was in relation to allegations of non-accidental injuries on a non-mobile infant, and the challenge was initiated to the interim threshold prior to the instruction of any expert evidence. This was due to evidence being obtained which, in theory, should have been available to professionals prior to the initiation of proceedings.

The case highlights the necessity for all professionals to share information with each other within a timely manner, and to have a watertight chronology of events in such cases.

The case concerned a new born baby who had ‘purple spots’ on her face at 10 days old. These were pointed out to the health visitor from the mother, and the health visitor described them as being “superficial blood vessel on the child’sforehead”.

Two months later, at a further health visitor appointment, they noted a small, roughly pea sized faint /purple yellow mark on A’s left cheek”. An appointment was made to see the general practitioner, Dr G, on the same day, who also considered the mark to be a superficial blood vessel. They suggested a review appointment in a week’s time.

The following day, the mother telephoned the health visitor, informing her that there was another mark on A’s face. The mother took three photos on her phone of the marks. The health visitor came around the next day, 12th April 2018, and noted a further purple/yellow-ish mark on the child’s right cheek, and a very small mark under the chin.

Doctor and child
Image by skeeze from Pixabay

A week later, on 17th April 2018, the child was seen by a different general practitioner for the follow-up appointment. The child did not present with any marks or bruises at all on examination, but the GP looked at the photographs on the mother’s phone and formed the view that they showed ‘quite clear and different bruises’ and considering the amount of marks he had had post-natally, she referred the child to a paediatric radiologist. Within the referral letter, the general practitioner noted that ‘there is nothing in the history to suggest that these are traumatic bruises’.

The child was seen by a paediatric consultant, Dr J, on 20th April 2018, and again no bruises or marks were noted on examination, however the consultant saw the mother’s photographs and was of the view that ‘the marks shown on the pictures taken by the mother are consistent with bruises’. A was seen in hospital again on 23rd April 2018, where the paediatric consultant raised concerns about the photographs showing bruising on a non-mobile baby which in their view, was indicative of non-accidental injury to this child.

EPO application

This consequently led to the LA making an application for an emergency protection order on 24th April 2018, which was not opposed by the parents on the basis that the mother and A were placed in a mother and baby placement.

Proceedings were consequently issued and an ICO was made on 2nd May 2018 with the mother and A moving to reside with maternal grandmother. The Court was satisfied that the interim threshold was crossed ‘largely because of the report of A’s treating consultant paediatrician, Dr J, and the evidence that the clinical safeguarding team at the hospital identified a risk of non-accidental injury’.

Following the making of the ICO, the mother and maternal grandmother presented at the hospital with A on the 3rd, 9th and 29th May 2018, as A had marks on her face. On each occasion, the clinicians who examined her concluded that the marks represented blood vessels and were no cause of concern. All the marks disappeared within a short period of time.

Due to the subsequent presentations at hospital, and the fact that observations between the parents and A were very positive, the question was raised as to whether interim threshold was in fact crossed and whether an interim order was required. The matter was brought back before the Court on 20th June 2018, where the Court heard evidence from Dr G and Dr J. 

The medical evidence heard

Upon the evidence of Dr J, it was confirmed that they had only seen photographs of the alleged bruising, which were not clinical photographs but rather taken from a phone and transferred onto various devices; his estimation of the size of the alleged bruise was incorrect; he had not seen any bruises himself upon his own examination; A appeared well case for by her parents; he was unaware of the date of the photograph; and significantly, he had not had the benefit of viewing the health visitors contemporaneous note of her visit noting the bruises. Consequently, the Court concluded that, having regard to all the evidence available, interim threshold was not crossed and final orders were made.

The Court noted that, although this must have come as a huge relief for the parents, they had to endure much anxiety and stress over this period. It is regrettable that this situation arose due to a failure from medical professionals to share notes and the unavailability of these notes at the issue of the proceedings. Whilst the Court acknowledged that it is for the treating clinicians to form their own view on what constitutes best practice, the Court endorsed the suggestion that it is essential for professionals to communicate and share information with one another.

What can be learnt from this?

Of course, the usual approach in cases of NAI is erring on the side of caution until the relevant expert evidence has been obtained. However, this case demonstrates that there may be existing evidence more beneficial in proving or disproving allegations. There were available clinicians, in this case the health visitor and Dr G, who were in a better position to comment on the alleged bruises.

There was a clear timeline of events within this case, and due to the short time frame, it would have been relatively simple to obtain notes or letters from these professionals. It is therefore essential to thoroughly examine the chronology of alleged instances of NAI and note whether there are further sources of evidence e.g. family members; nursery; schools etc.

As soon as all relevant persons have been identified, particularly any health professionals, it is essential to determine whether medical notes/records have been shared between them. Of course, the local authority have a responsibility to obtain this information as well, as such information will inform the basis as to whether to initiate proceedings or not.

Scrutiny

The judgment concludes with a list of general expectations health professionals should consider when dealing with instances of alleged NAI.

However, the same rings true for those representing and working within the local authority. It is essential to have all relevant and recent medical evidence in cases concerning NAI, and indeed any ICO application. It is essential for there to be an open dialogue with all professionals concerned, to ensure that families are not put through the upheaval of proceedings if this can be avoided.


Central Chambers has an excellent team of family counsel with expertise in non-accidental injury cases.

If you would like to instruct Rebecca Kocerhan, please contact the clerks’ room by by calling or by emailing them.

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