9.5 Fact finding for medical reasons and non accidental injury

Accusations of non-accidental injury are very serious.  If you are accused, you might be arrested and then you are involved in both criminal and family court cases.  It is important to try to find a family lawyer who specialises in medical cases, because they are used to accessing and reading medical records. These types of cases are complex and often regular family lawyers have no understanding of medical issues that might affect your case.

There is often confusion expressed about why both criminal AND family cases can run together, based on the same concerns that a child has been hurt. In some cases, the criminal proceedings will stop or not even start and only the family case continues. This is because of the different roles and responsibilities of the criminal and family courts.

As punishment in the criminal court can involve being sent to prison, the standard of proof is high – ‘beyond reasonable doubt’. In family court you can be found to have harmed a child based on “probability”, where judges take the view that if there is no parental explanation which is acceptable, there must be an explanation which puts the blame on parents.  

If you are accused of harming your child physically it is important that you give an accurate statement of what you know and that you are honest about what you can or cannot remember, what you saw or did not see, what you did or did not do. However, if you are arrested it is important that you engage a criminal lawyer straight away and that you give a “No Comment” interview. Your criminal and family lawyers must work together to make sure that anything you say in family court cannot be used in criminal court.

If you are under pressure to “cover up” for someone else and you’re frightened, you should ask the court for protection or you may end up being blamed for something you didn’t do. Inconsistencies in what you say can and will be used against you and will have an impact on the final judgement.

Prior to the fact finding hearing itself, the court will ask for evidence to be gathered. This could include midwife/obstetric/GP/Health Visitor records, ambulance audio (of the 999 call) and notes, hospital records, police disclosures, any initial post-mortem report and statements from any relevant family members.

The Local Authority (LA) will be required to submit to court their “Schedule of allegations”, which will be the basis for their case. This is called a threshold document and will be the basis for their case against you.

If you can get any medical or other expert evidence to back up what you’re saying, or you have evidence from other professionals (eg teachers, health visitors, ISVA etc) or there are other people who can back up what you are saying (including family friends, work colleagues, etc) you should put all of them forward by making a Part 25 application [31].

If any of these witnesses are contested by the other side, the court will make a decision about whether to accept them or not, keeping in mind that professional experts carry a lot of weight in court and can determine the outcome of a case. The court may give permission ‘only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings.’  Judges often limit the number of professionals and witnesses you can have in court so this needs to be planned very carefully.  The court cannot compel witnesses to come to court to be questioned, so the witnesses you request must be willing to attend court.

The court will also decide on a medical or other expert to oversee the medical evidence and make a statement to court.   Both sides are expected to agree on this court appointed expert. Look carefully at the CV of any medical expert the LA might suggest – these are often experts they have used before and are favourable to the LA, so they might not look at the evidence independently. You have the right to object and suggest your own preferred expert, although this won’t necessarily be agreed.

The court can also ask for all police, medical or school records, mobile phone or social media records to be presented. It is very important at this point to not be posting anything about court on any social media platform. These can be accessed and used against you in court to show you in a bad light.

The Fact Finding (FF) hearing:

  • The LA will present its evidence first followed by their expert witnesses. Your team will have the right to cross examine. If you feel that any evidence is wrong it is important to let your lawyer know so that they can question the witnesses while they are on the stand.
  • Your witnesses will be called to give evidence after the LA has finished and again, all teams will have the right to cross examine.
  • You will then be asked to give evidence and be cross examined by not just the LA but also the Guardian’s lawyer. If you have a partner, their lawyer will also cross examine you. It has been known in these cases that you might be on the stand for days, during which time you will not be allowed contact with either your own lawyers or any witnesses involved in this case.
  • After all the evidence has been heard, all parties’ lawyers each take turns to sum up your case. Your lawyer will ask if you want them to do this in person or if you prefer written submissions. 

If you disagree with the expert medical evidence, you should expect your lawyer to forcefully challenge it.  The standard of proof at fact finding hearings is the “balance of probabilities”.  This is much lower than the standard of proof in criminal cases which is “beyond reasonable doubt”. 

If you’re not found guilty, i.e. no findings are made against you, you should ask for immediate reunification or an immediate end to the proceedings.

 If findings are made against someone else which affects you eg, if your partner is found guilty of having caused harm, you should take immediate advice about how to ensure your children remain with you.  This may mean ending a relationship or cutting yourself off from people you may care about whom the court has decided are harmful to your child/ren.  It is also advisable not to use the same lawyer as your partner during this period.

If findings are made against you, you need to consider whether you have any grounds to challenge them.  It is very important to appeal if you disagree with the judge’s finding. It’s better to lose an appeal than not appeal at all because if you don’t appeal, it looks like you accepted the judge’s ruling. You only have 21 days to file your appeal and often this will not be covered by legal aid so you need to consider quickly whether you will appeal on your own. If you don’t appeal or the appeal fails, you will be expected to accept what the court has ruled regardless of whether you think it’s true or not.  If you don’t, this will be used against you. 

Fact finding should be based on facts but given that judges and Children’s Services can object to your experts being heard and that regardless of your experts, the judge could ignore their evidence and form their own conclusions, you might find that your evidence has not been heard. Your lawyers should object at every point, please insist they do even when they tell you there is no point. This becomes important if you later feel you want to appeal, and transcripts can be used to show that your objections were either ignored or unfairly dealt with.

The judge will usually give the court a date when Judgement will be given. This could be a few weeks away when you will be asked to attend court again to hear the judgement.

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