Health Service Executive -v- BM & anor (NAI Standard of Proof)

Case OutcomeApproved
CourtDistrict Court
Docket NumberN/A
JudgeHalpin J.
Judgment Date12 Mar 2009
Neutral Citation[2009] IEDC 2
[2009] IEDC 2
AN CHUIRT DUICHE THE DISTRICT COURT
HEALTH SERVICE EXECUTIVE
APPLICANT
-AND-
BM & BM
RESPONDENTS
CHILD CARE ACT, 1991— SECTION 18
IN THE MATTER OF CHILD 1
12 March 2009
1. This matter c ame on for hearing lasting some nine actual day s of hearing, with the other days dealing with, in the main, case -
management issues and the like. Not unc ommon in these type of cas es, there was a somewhat lengthy period betwe en the c onclusion
on one day and t he resumption on another day over a period of time and this was no one’s fault but rat her arose from the necessity
of affording reasonable time to all witnesses, both expert and ordinary, so that they could adequately plac e all their evidence bef ore
the Court.
2. The Applicat ion by the HSE is for a F ull Care Order in respect of Child 1. The hearing commenced on 24 September 2008 and
conc luded on 12 March 2009. The Application was hotly cont ested by both the mother and the father. All parties we re represented by
solicitor and counsel.
3. The Respondents a re both from Country 1 and were married there in November 2006 and their daughter, Child 1, was born in
Country 1 in April 2007. The Respondents moved back to Ireland, they had been in Ireland before, firstly, mother and shortly
thereafte r, father with Child 1, in or around 2007. Father has a brother living here in Ireland, who is married and has a daughter; his
father st ill resides in Country 1. Mot her has a mother and three brothers living in Country 1. They are an ordinary, hard-working
family. Whereas on 1 Oc tober, at around 23:13, they were c aused to visit the Hospital, w ith a very sic k baby weighting 8.02 kgs and
having a fever with a temperature of 38.10 and a pulse rate of 167 and two bruises noted in t he perianal area: per Emergency
Department Form. Later, t he child’s temperature rose to bet ween 390 to 400. Subsequently, it was discov ered that t his baby, Child 1,
suffered 4 frac tured ribs and a fract ured elbow. The evidenc e of t he docto rs is that t his infant has been t he subject of non-
acc idental injury and all of the evidence, submitted by the Applicant, points to the fac t that fat her was t he perpetrator of t he alleged
brutal assaults resulting in this child, on three s eparate oc casions, sust aining the injuries just outlined.
4. It must be said that it is a most serious thing for a doct or to throw suspic ion upon a family in respect of injuries sustained by a
child. A paediatrician usually finds him or herself in a position of ve ry great delicac y and in a position where they can render
practic ally no assistance to the child until they boldly indicates t heir opinion which of course no person will do unless they are
possessed of the unlimited c ourage of their convic tions in these litigious days. Even w hen a doct or becomes suspicious, when t hey
are assured in their own mind that the baby they are at tending has been subject ed to abuse or non-ac cidental injury, they report t his
so that a full investigation ca n be conduc ted to ascertain t he origin of the injury or injuries suffered by the child. The fa ilure of a
doctor t o detect such injuries or the failure to report suspicion of such injuries permits the ac tions of the perpetrator t o continue
unfrustrated, sometimes with fatal c onsequences. If, ac ting under a suspicion that a doct or entertains, a report is f iled and after an
investigation, it subsequent ly proves ill-founded, no reproof is occ asioned and rightly so.
5. Thus, it was in Oct ober 2007 the Applicant, namely the HSE, applied for an Emergency Care Order on foot of concerns raised by
medical prac titioners in respect of injuries to the minor, Child 1. A number of Medical Reports have been furnished to t he Court and
the authors of these reports have given evidence to this Court a nd have been subject ed to c ross-examination on their findings. The
HSE called a number of witnesses including social workers and expert medical witnesses supporting their Application. T he Respondent
mother and father, as well as s ome ordinary witnesses f or the Respondents, also gave evidence.
Evidence of Doctor 1
6. The f irst witness c alled on behalf of the Applicant , in respect of the Full Care Order Hearing, was Doct or 1, Consultant Pae diatrician
and Neonatologist. The Court had the benefit of reading his reports and opinions in respect of his examinations and assessments of
Child 1 and these documents were dat ed:
• Lette r dated 5 Oct ober 2007 to duty Social Worker; and
• Lette r dated 23 Oct ober 2007 to duty Soc ial Worker.
7. Doctor 1 is one of the t op Consultant Paediatricians in t he country. Having examined the baby in this matter, namely Child 1,
Doctor 1 was concerned about certa in physical features whic h presented upon this baby on admittanc e to the hospital. Ac cordingly,
Doctor 1 rightly voiced his c oncerns to the Duty S ocial Worker. Doctor 1 advised that this baby was five months old and at t ime of
admission there was bruising noted t o the butt ocks and also to the left side. Doct or 1 state d that:
“[t]he bruises which we re faint in appearance appeared t o look like finger marks. In view of these bruises a s keletal
survey was performed. A skeletal survey has subsequent ly been reported by our radiologist as showing four
posterior rib fractures and also a probable healing fract ure of the elbow.
We have met with t he mother this aft ernoon, 5th Oct ober 07 at 3:15 and explained the nature of our c oncerns. We
particularly emphasised that our first conc erns were raised by t he location and dist ribution of the bruising and
subsequently by t he positive skeletal survey showing frac tured ribs and a fract ured elbow. Mother had no
explanation for the fract ures. She did mention that she sometimes bolds the baby around the buttoc ks area and felt
that t hat could explain the bruising. The f ather wasn’t present during the interview. We explained to the mother
that in view of our conc erns Community Care w ould need to be c ontacted.
Child 1’s history is somewhat c omplicat ed in that she has inter-c urrent illness. She has a fe ver and a rash

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