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Judge praises council for "brave but proper decision" to end care proceedings

A Family Court judge has praised the London Borough of Bromley for its “brave but proper decision” to end care proceedings in case where a child was suspected to have suffered deliberate injury but was later found not to.

HHJ Carol Atkinson, sitting as a deputy High Court judge, also said she was “truly sorry” for the trauma the family had been put through with a bereavement and subsequent care proceedings.

The case of JO and JS (children)(dismissal of proceedings) [2021] EWFC B36 concerned triplets, boys JA and JO and a girl JS. In June 2020, JA, who was 14 months old was found by his mother in his cot, unresponsive. She called an ambulance. 

JA died upon arrival at hospital having suffered a cardiac arrest after a period of diarrhoea and vomiting and was found to have contracted an E-Coli related infection.

A skeletal survey of JA found what radiologists believe was a healing fracture of the collar bone.

Suspicion of deliberately inflicted injury was raised but the only incident the mother could recall that might have given rise to such an injury by accident was outside the timeframe assumed by medical staff.

Although examination of the other two children revealed no injuries, Bromley issued care proceedings.  

“The only crumb of comfort for these parents, already laid unimaginably low by the loss of one of their children, was that JO and JS were to remain in the maternal family and their mother with them, though subject to supervision by the maternal grandmother and/or aunt,” the judge noted.

After expert evidence from a ‘Professor M’ was eventually obtained it showed JA’s collar bone had not been broken but rather what the radiologist had seen was recovery from a minor fall from his bouncer - as the mother had described - and the time period could be extended to cover that.

Bromley concluded it was now “obvious” there had been no injury and withdrew proceedings.

HHJ Atkinson said: “In terms of a decision there has been little to record in this judgment but I considered that this was a story that needed to be told. 

“It is a story that shines a light upon many aspects of the family justice system in circumstances in which complaint is often made that there is little light and little transparency.”

She said the chain of events demonstrated “the difficult position that the local authority and those charged with the safeguarding of children are in when faced with what appears to be incontrovertible evidence that a child has suffered an unexpected and significant injury whilst in the care of a parent. 

“Until the arrival of the report from Prof M there was little room for an argument that there was no fracture. I would suggest that this local authority could not ignore that information and an investigation had to follow. 

“In the final analysis and after an intensive inquiry the local authority carried out its own analysis of the broader canvass and concluded that it should step away. 

“This is a brave but proper decision for a responsible local authority to take.” 

Despite the issues raised in the case HHJ Atkinson said she had “faith in the system. It is far from perfect and it is all too often too slow, but I nevertheless have faith that it can balance the rights of parents, the right to respect for family life and the need to protect children from harm whilst  coming to a fair and just conclusion.”

The judge said though that those involved in such cases must not lose sight of  “the emotional cost to this family and other families through having to endure the process. 

"I am truly sorry for that. They have borne this intrusion into their lives, during which they have on occasions been considered culpable, with astonishing dignity and fortitude.”

Mark Smulian

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