How does the Court find out what happened?

If it is disputed how your child or children sustained injuries which the Local authority are concerned about then the Court will have to make a decision. Before the Court can make a decision it will need all possible evidence before it. This will include medical evidence, police disclosure and statements from the Local authority, parents and any other interested party. These are all key pieces of evidence in your case.

The Local authority, as they are the ones who have started the proceedings will be asked by the Court to produce a ‘Schedule of Allegations’ which will contain all the matters which are disputed and what they want the Court to determine i.e. set out each injury and how and who they believe cause the injury. This will state clearly in a table form each separate allegation/injury which will be numbered, summarise their position and refer to any evidence from the Court bundle. You and any other interested party will get to respond by summarising your position and also having the opportunity to refer to any evidence from the Court bundle.

 

Medical Evidence 

The most basic type of medical evidence is medical records from the G.P. and hospital records. These can be obtained by your solicitor on your behalf of if the Local authority share Parental Responsibility they can obtain these. These will be considered by your legal team to see whether there is anything contained within them which may assist your case or whether there is something which further instructions are needed to matters can be explained to the other parties. The medical records will also record for example if there was an incident and required treatment what the circumstances were around medical assistance being sought, the treatment, diagnosis, presentation of the child and family members and any concerns the medical professional may have.

Although when a child or children are treated by their G.P., nurse or staff at the hospitals they are regarded as ‘treating medical professional’. There are times where an independent expert is required to report on matters. An expert who is specialised in the area of medicine which is the cause of concern can be instructed. For example, if a child sustained a serious burn then a burns expert could be instructed. If the child sustained a broken bone, then a paediatric radiologist could be instructed.

This expert will be given medical records which may include x-rays or photographs and a copy of the Court bundle. They may examine the medical evidence they have and in some cases the child and provide an independent opinion to the Court. This expert will also have to be available to attend Court should this be required. Usually an expert will attend if there is something in the report or the recommendations are disputed.

 

Police Disclosure

Often when a child sustained NAI the police can be involved. The could be informed by medical professionals, Social Workers or other people of concerns. When they are informed of matters they have a duty to investigate matters.

Initial investigations can be conducted along with the Local authority as joint investigations. Any interested party or even the child or children of the family could be interviewed. This evidence is important within the family proceedings.

The Court can make can make an Order for all police evidence to be provided including criminal records of any of the parties who are thought to have been involved in causing the injuries. This will include a typed copy (transcript) of any police interviews and any video interviews of the children.

 

Statements

You will be given the opportunity to put your case forward and your version of events, which is extremely important. Your solicitor will go through all the evidence which has been received and speak to you in detail about what is required in your statement. You will be given the opportunity to be taken through all the evidence and tell your solicitor your views on your matter. Your solicitor will make this into a statement on your behalf. Your solicitor will ensure that all necessary matters are clarified and ensure that your position is put forward in the best possible manner.

You need to be open and honest with your solicitor so that you can be fully advised on matters. What is contained in your statement must be accurate and correct and it is likely that you will be asked directly about things you have stated in your statement by the Court and other parties involved in the case. It is therefore important to know what is contained in your statement and ensure that you remain consistent with your position and version of events.

 

Court Determination

The Court will consider all the evidence ahead of the hearing and then at the hearing will hear from the parties for example the Social Worker, you, the other parent, any other interested party and any experts.

The Judge will consider all this and make a decision. The Judge in family proceedings needs to make a decision based on the civil burden of proof which is on ‘the balance of probabilities’.

 

The Balance of Probabilities  

Each party will need to make their case to the Judge who will apply the ‘probability test’.  This is where the Court has to be satisfied whether the allegation in question is more likely than not, to have occurred. If that is the case the Court must make a determination that the allegation has been proved as fact.

The standard of proof in family cases is much lower than in criminal cases, where the standard of proof is ‘beyond a reasonable doubt’. This means that

In family cases if the Local authority makes an allegation against the parents, it is not for the parents to prove the allegation wrong but the Local authority to prove that they are right.