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

• Judge: Halpin J.
• Judgment Date: 12 March 2009
• Neutral Citation: [2009] IEDC 2
• Case Outcome: Approved
• Date: 12 March 2009
• Court: District Court (Ireland)

[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