Family Law – Challenging the Interim Threshold Test in Non-Accidental Cases

I have recently read an inspiring commentary from the lawyers in the recent judgment of Re C (Permission to withdraw: Medical evidence: Interim threshold not crossed) [2018] EWFC B37, concerning the challenge to interim threshold tests in a non-accidental (NAI) case prior to expert evidence being obtained.

This was a case where a mother diligently reported to her Health Visitor and Doctor concerns about marks that appeared on her newborn’s face. The Doctor considered the marks to be superficial blood vessels. The baby was eventually referred for a hospital consultation where the attending consultant paediatrician was shown pictures of differing stages of the baby’s marks on the mother’s phone.  At the time of presentation in the hospital, the consultant had not seen any of the case history and therefore the notes of the Health Visitor or Doctor.  Furthermore, the baby did not have any visible marks at the point of examination. The consultant concluded the marks were consistent with bruises and non-accidental.  The Local Authority applied for an Interim Emergency Protection Order the following day, which was granted.

The baby continued to present with the marks even after placed in supervised care where both parents and baby lived with the maternal Grandmother. The baby was taken back to hospital and the attending clinicians saw the marks and concluded they were simply superficial blood vessels.

It took some 7 weeks from the imposition of the interim EPO before the case was brought back to court.  It must have clearly been a distressing experience for new parents who acted as diligently and lovingly as they could for their child and yet somehow ended up facing family protection proceedings.

It is certainly a lesson to be learnt that whilst in most cases interim thresholds cannot be child as clear expert evidence is required, there will be cases where it is appropriate to make a challenge to the interim threshold.

The Following cautionary points were noted by the legal team:

  • Do not assume that the only option in the case of an alleged NAI is to wait for the instruction of a single joint expert. Be alert to what other evidence may be available to the parties’ from the outset and consider whether any of this would justify an early challenge to the Local Authority’s case;
  • Be alert to the fact that the decision to issue proceedings may have been based solely on the opinion of the senior treating clinician at the hospital. Check whether they have seen all of the previous notes made by other professionals involved with the child.
  •  Consider whether there are any other weaknesses in the evidence upon which the Local Authority is relying. In Re C the photographs relied upon were taken by the mother on her mobile smart phone rather than by a specialist camera at the hospital and this was ultimately a relevant factor in the judgment. 
  •  If it becomes clear that there is likely to be evidence in existence which would justify an early challenge to interim threshold, act promptly. Be pro-active in seeking the evidence and try to identify which clinicians are relevant as early as possible in order to prevent delay.

As mentioned at the beginning of this piece, it is so inspiring to see such challenges to the norm and serves as an important reminder to always take stock, review, and assess each stage of such important cases involving children.

For the full Article – please see https://www.familylawweek.co.uk/site.aspx?i=ed198888

By Suezanne King

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