This case has been much reported in the press over the last 48 hours or so. I have been asked specifically to write about it via twitter, so here is a bit of context to help people understand what it’s all about. I don’t know any more about the case than is publicly available – what is reported in the news appears primarily to be drawn from this press release on the Garden Court Chambers website, which is the chambers of defence counsel in the criminal proceedings. There is therefore only so much I can usefully say about it without descending into guess work.

What we know is this :

In April 2012 a baby its as taken to hospital to injuries to it’s frenulum (a little bit inside the mouth), and this led to the apparent discovery of several fractures. Those injuries were thought to be suspicious, or “non-accidental”. This led to two things :

  • care proceedings to decide if the baby could safely stay with his or her parents
  • a criminal investigation and prosecution process which seems to have been very lengthy in part due to the sequential production of various different expert reports.

The parents are named as a result of them being defendants in criminal proceedings. Under Family Court rules it is not permitted to identify the child or his / her adopters unless the court allows it.

The prosecution

Let’s deal with the criminal side of it first. On 7 October 2015, shortly after a report was received from a defence expert, the prosecution offered no evidence. That means they dropped the case because they didn’t think they could get a conviction i.e. they didn’t think they could prove the case beyond reasonable doubt. It appears from the press release that the expert evidence produced by the defence team was pretty clear in casting doubt on the suggestion the parents had caused the injuries by giving an alternate cause for them – but because the prosecution dropped the case that evidence was never tested in court through cross examination. [update 5pm 9/10/15 – I’ve just seen a news report suggesting the case was dropped half way through the trial and that Dr Fairhurst denied again and again” the suggestion the injuries were not caused by child abuse. It seems possible therefore that at least some of the evidence was tested]. We are told that the “expert’s opinion…concluded that he was doubtful there were any fractures at all.” So, doubtful, but not certain. That’s about as much detail as we have.

The family court case

Next, the family court side of things. We know that care proceedings were begun, probably immediately after the hospital admission, when the baby was very young (6 weeks old). We know that the court at some stage found that the parents had caused the injuries, and that in reaching that conclusion it had the benefit of an expert report from a paediatrician, Dr Fairhurst. We don’t know but it is likely that this expert was instructed jointly by all the parties rather than having separate “defence” and “prosecution” witnesses as in criminal cases. The judge in the family court controls the use of expert evidence, and must give permission for it. The test now for allowing expert evidence is that it must be “necessary”, but depending on when the decision was made in this case it might have been under the earlier, slightly less strict test of “reasonably required”. The family court operates on a different standard of proof to the criminal court – that is to say something is proved in the Family Court (like all other civil courts) if it is “more likely than not” that it happened. Put another way it is 51% or more likely – the local authority (social services) must prove the case and tip the balance to “more likely than not”. They appear to have done so successfully in this case. It is quite possible for someone to be acquitted in a criminal court because a jury can’t be “satisfied so it is sure”, but for something to still be “more likely than not”. Imagine a juror saying “well I think it probably happened but I can’t be sure”. That juror would have to go “not guilty”, but if he was judging the case in the Family or Civil Court would say that the thing was proved, because it probably happened.

We know that the court approved a plan for adoption, by making care and placement orders. We don’t know when, but it is likely (based on other cases of this sort) that it was done within a year – say by the middle of 2013 (the fact that contact continued for around 2 years after injury could suggest that the case was not finalised until later, but it is difficult to say). In some cases the Family Court will await the verdict in a criminal trial before finalising a Family Court case, but it depends on the circumstances. If the court waits for a conviction means that there is no need for those facts to be tried again in the Family Court – put simply the parents are stuck with it. If however there is an acquittal the Family Court would still have to go on and look at the evidence and decide if the thing was proved on the balance of probabilities (more likely than not) – and in that scenario a child would end up spending longer hanging around in foster care waiting for a decision. We don’t know what stage the criminal proceedings had reached by this point, but it is reasonable to assume that the Family Court felt that the decision could not wait. We don’t know what, if any, argument was had about this at the time.

So, the court had Dr Fairhurst’s report. It decided the allegations were proved. We are told that “no real challenge to the science was made” in those proceedings, but it’s not clear what that implied criticism is getting at. For example, we don’t know if the court was asked but refused to permit the instruction of a further expert either as second opinion or from a different discipline (an endocrinologist for example, as this is the discipline which seems to have been critical in the decision to drop the prosecution) – or if no such request was made. We don’t know if the remark is referring to a failure to properly cross examine Dr Fairhurst. So at this stage it is unclear if the focus of challenge / criticism is likely to be of the parent’s legal team or of the court – or of Dr Fairhurst – or a combination of all three.

The suggestion is that the new defence experts considered both ricketts and Von Willebrand’s disease, and implicitly that this had not been properly considered in the Family Court. From my experience I can say that Von Willebrand’s disease is something about which there is a good level of general awareness in the Family Court. It is often asked about when reports of this sort are commissioned. Ricketts too is now “on the radar” in the Family Court, particularly since the case of London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam), which was major news in April 2012 (exactly the time the care proceedings were likely to have been commenced in this case) and really raised the profile of rickets as a potential cause of injuries that might otherwise be thought suspicious. So it would be surprising if both of these potential innocent explanations for the apparent injuries had not been raised in the Family Court in some shape or form – for example through questions to Dr Fairhurst or a request for an expert of a particular specialism that could deal with those issues, or specific tests to be carried out to rule such conditions in or out.

The steps in the adoption process

The process for non-consensual adoption is this. The court makes a care and placement order, which authorises the local authority to place a child for adoption with prospective adopters. Once this happens a search begins and the child is matched to appropriate adopters. With a baby or young child with no disabilities one would normally not expect this to take very long – in this case we can guess the baby was in fact about 2 years old by the time he or she was placed. Until the child is placed with adopters a parent may apply for permission to try and have a placement order revoked, for example if there is a change in circumstances that makes it no longer appropriate.

Once a child has been placed for adoption a period of time must elapse before the adopters can apply for a final adoption order. A parent is not usually entitled to raise any opposition to that application, but in recent years there has been an increase in applications for permission to oppose the making of the adoption order, and (I think) an increase in the numbers of applications that are successful. Even if a parent is permitted to oppose the adoption the court can still (if appropriate) go on to confirm the adoption. Once an adoption order is made the biological parent has no legal connection or entitlement in respect of the child at all and it is extremely rare for an adoption order to be overturned once made. The 2009 case of Webster demonstrates the position. See : Couple vow to fight adoption ‘miscarriage of justice’.

The adoption process in this case

Back to this case. We don’t know when the child was placed with adopters, although we do know he or she has been placed, and that therefore the window to apply to revoke the placement order has closed. We know that the parents continued to have contact for two years after the injuries, which we can estimate at April 2014, some 18 months ago. It is likely that the point at which the contact stopped was not long before the placement with the adopters (contact is usually reduced and stopped before this happens) and that therefore the child has been with his or her adopters for over a year. Although the press release says the child has been “adopted” this is sometimes used colloquially to mean that the child has been placed for adoption but not necessarily that the adoption order has been made. It is likely, given that the press release is written by lawyers that “adoption” means adoption orders have been made – in which case the parents here appear to be in a similar position to the Websters, who were unsuccessful in challenging an adoption 3 years after the event. Here, our best guess is that the child has been with the adopters for maybe a year to a year and a half – so there are some differences of degree. If the adoption order has yet to be made the parents could potentially apply for leave to oppose the adoption order on the basis of a change of circumstance – but they cannot do this until an adoption order application is made.

An important point

It is clear that there is substantial new evidence that was not available to the Family Court when it made it’s findings, but those findings do still stand at the moment. It may be that in order to challenge the adoption the parents will need to challenge the findings by applying for them to be set aside – and possibly through a rehearing of them, taking into account the subsequent evidence. The fact that the prosecution ditched the criminal case does not necessarily mean that the findings in the Family Court will just be written off or overturned. Potentially they could be, but much would depend on the specifics of the case. If there did have to be a rehearing that would cause delay, which of course would weigh against the placement with the adopters being disrupted (for all the reasons in Webster).

Quite apart from their desperate wish to get their baby back, the parents are young and are likely to want more children. As long as the findings stand they are likely to face the scrutiny of the court in respect of those children. It is possible that the court will be asked to look at the findings again now or at the point when any future child is born for that reason, even if one ignores the obvious relevance to the existing child.

What will happen?

I make no predictions about what will happen in this case. It is very sad and awful for all involved – the biological parents and the adopters – and potentially the child (Although hopefully he or she is blissfully oblivious).

It is likely that in due course the judgments in the original family proceedings will be published. They were probably delivered prior to the publication of guidance encouraging the publication of more judgments from this sort of case, but the obvious public interest in this case may mean that a request is made for release of those judgments retrospectively. It is likely that publication of any judgment would have been postponed until the end of the criminal trial to avoid contamination or prejudice to the parents, and to avoid the identification of the child through jigsaw identification – and of course it is only very recently that this prosecution has gone away.

It may well be that as with the Websters any future judgment about these issues in the Family Court is delivered in open court with the parents (but not adopters) identified.

If any judgment is released I will update this post with a link.

One final point

The Garden Court press release says a few things I don’t quite understand :

This tragic case highlights the real dangers of the Government’s drive to increase adoption and speed up family proceedings at all costs. 


what of the savage legal aid cuts, rushed adoptions and restrictions on expert funding in the family courts leading to such skewed evidence being the only evidence presented to the family courts.

It is absolutely right to say that there has been tightening up of the use of expert evidence to the point that last year Parliament specifically legislated to say it must be “necessary” (previously it had been only set out in court rules). It is also right to say that there are regularly difficulties with the funding of experts in family proceedings, particularly in suspected non-accidental injury cases where experts in highly specialised fields often have an hourly rate way above the rate permitted by the Legal Aid Agency. There is often an enormous problem with this.

Leaving aside legal aid cuts to the rate of payment for experts as above, legal aid cuts have not primarily affected this sort of family case (“public law” i.e. care proceedings). These sorts of cases still attract automatic legal aid regardless of means or merits (although this will not necessarily apply to any application the parents make now), and although the lawyers rates have been progressively cut over the years parents are still represented.

As to the “rush for adoption” point – there has been a drive to speed up the court process and to make decisions about whether children should be adopted more quickly – and a drive to speed up the process of finding them adopters once that has happened. We don’t really know in this case whether the general pressure to deal with proceedings more quickly had an impact on the way the family case concluded. If, for example, the parents sought a second opinion or further expert report but were refused on grounds of delay – one could see the argument for saying so. I expect we will find out more about this in due course.

[UPDATE 12.37 : Just seen this in the Independent : Couple wrongly accused of abuse ‘unlikely to see their child again,

which says :

Lawyers for the couple said Ms Cox and Mr Carter had been refused legal aid to fight the adoption in the Family Court and criticised the decision to finalise adoption before the criminal court had made its ruling.

As I indicated above legal aid is not automatically available after care orders are made – and in this case it appears to have been refused. What this quote also tells us is that the adoption order has been made final (or at least that leave to oppose the application has been refused), and so as I thought was likely the parents are in a Webster-like scenario. The article gives us a bit more detail on the chronology however, which suggests that the contact only stopped a year ago – a year is still a long time in the life of a toddler though, so it is unclear how much difference that comparatively short period of time will make. It isn’t clear if the parents went to court alone and argued unsuccessfully that the court should wait for the verdict in the criminal court. It’s not clear where the evidence was pointing at the time the application for leave to oppose the adoption / the adoption order was made.]


  1. An excellent summary Lucy. I would add that I have never experienced a set of care proceedings involving a physical injury where Von Willebrands hasn’t been raised as a potential explanation so would be staggered if it hadn’t been here, and as you say the Al Alas and Wray case about Vitamin D and rickets as an explanation would have absolutely been in the news at exactly this time. Absolutely anyone dealing with a fracture case from that point on would have been looking into Vitamin D as a possible explanation.

    I had a quick look into Von Willebrands and there are two important issues – one that it is very rare, whilst about 1% of people have it most of those don’t have the form with the problematic symptoms of this type, and the form with the sort of problematic symptoms which would have to have been here are really extremely rare. That doesn’t of course mean that these parents don’t have a child who had it, but just that if a family Court is told that it isn’t an explanation for the injuries one can see why they would accept it.

    The second issue is that the obvious question of “well, why isn’t it tested for and ruled out?” is not that simple. There are tests, but there’s quite some debate about the reliability of those tests – I’ve found some figures of between 7 and 22 per cent of people who have it being found NOT to have it on the first test.

    So, whilst the public and press perception is that someone has bungled here or there is bad faith, it may actually be a combination of these factors

    (a) Vitamin D deficiency is rare and if the right tests weren’t done at the time it can be hard later on to trace whether the child had a Vitamin D deficiency or was likely to have had one
    (b) Symptomatic Von Willebrand’s is very rare indeed
    (c) The test for Von Willebrand’s may produce in some cases a false negative (the child has the condition, but the test says not)

    and that can create a scenario in which on all of the evidence before the family Court, the Court was RIGHT to have reached the conclusion it did, even if after the event later information comes to light that changes things.

    This could be a case where the family have had a succession of extraordinary bad luck rather than any bad faith or bad practice.

    [I remain somewhat puzzled by the bits in the press release saying that the parents’ defence medical expert cast doubt on there being fractures at all. That’s a very different matter. I would be extremely surprised if the well known and very eminent expert in the family Court was mistaken as to the EXISTENCE of fractures, rather than there being a very rare organic cause for them]

    • Yes I’m a bit puzzled by the fractures bit too. I took it to mean that the rickets caused some sort of presentation on xray that was mistaken for healing fractures. My recollection is that rickets can make everything much less visually defined on xrays.

    • Sure do wish I am granted my grandson they said in court by GAL attorney he was a foster child and my grandson would be better off with foster family. Judge said I don’t think you want him anyway. This is our court system today. No one wants to even deal with them because the lawyers say they never win. It’s useless situatuon. The hospital employees I worked at for the last 17 yrs say they would never set foot in cps services. The foster cares are not in it for the best interest of the child. IT’S for the money. And how they feel. I passed everything and the social worker I had was shocked when this happened to me in the court of law. He said he went back to his office in tears and said this was all crazy and I think he quit he was so upset. The other grandparent I know same story. They turned her down too and she is a school bus driver. How is it we both work for these types of jobs and are denied. May God have mercy and Reunite families not tear them apart.

  2. All this chat does not even begin to explain why these parents have been denied contact with their children.In the USA for example most adoptions are “open” ie the birth parents know where their children have gone and are allowed occasional face to face contact with them.(Google abc news adoption report
    “Open adoptions, as opposed to traditional adoptions, allow birth parents to stay involved in their children’s lives even after the adoption has been finalized.

    Twenty years ago, 1 percent of domestic adoptions were open. Now, 60 percent to 70 percent of domestic adoptions are open, which is why many agencies, whether advocates or opponents of the trend, offer open adoptions as an option.
    Onla a brute of a judge would deny families like the Websters and the one in question now any contact with their children.No excuses can be found for such behaviour

    • The US system is very different and comparing open adoption elsewhere to here is like comparing apples and oranges. For most placements here, the historical trauma and abuse precludes contact with birth parents, there are very few relinquished children. In other cases it risks stability, which is what adoption is trying to achieve.

  3. This post explains nothing about why the parents can never see their child again. It is a little truism that it is only the best interests of the child that are what matter here. The reality is that it is the best interests of the adoptive parents – these people are generally middle class, middle aged, solvent, infertile, and for a mixture of these reasons perceived as being infinitely deserving. How awful for these people to have to give the child back; the system can’t allow it. But what a luxury to be able to write a post like this. People whose children are wrongfully removed and adopted are more likely to feel that they should commit suicide than feel that they can write anything at all.

    • Hi Tallulah,
      No – it doesn’t explain anything about that because that was not what I was aiming to tackle in this post. I simply wanted to explain the legal context and the law as it is rather than how we might wish it to be. There is a perfectly respectable argument for saying the law should change.

      • Familoo, I am surprised that an eminent barrister such as yourself is not aware that the law does NOT need changint to allow parents contact after adoption.All it needs are lawyers and judges aware of the law and honest enough to see it enforced !

        Remember that since April 2014
        the new section 51A of the Adoption and Children Act 2002, makes provision for applications for contact AFTER an adoption order has been made.

        • Hello,
          First time I’ve ever been called eminent! 😉
          I know what the law is – s51A etc. It remains to be seen what the effect of that is in practice.
          I was referring to the law encompassing the caselaw which factors in the public policy reasons for finality in adoption, and whilst I am aware contact and open adoption is permissible under the law it is rarely considered appropriate or possible when considering s1(4) ACA 2002 (which is also the law). I’m not saying that is right or wrong, but it is how the law operates in this country at the moment. I think there is probably a groundswell of opinion that warrants a renewed debate about whether that is how we want to run adoption in this country, but that isn’t what this post was about.

      • Thank you for your response. It is very unusual for a barrister to show any sensitivity at all about his issue, so I am surprised.

  4. Oh dear, Lucy – you mocked me for my knowledge of common law. It comes before all, till changed by statute; and it would have saved you from:

    ‘We know that the court at some stage found that the parents had caused the injuries, and that in reaching that conclusion it had the benefit of an expert report from a paediatrician, Dr Fairhurst. We don’t know but it is likely that this expert was instructed jointly by all the parties rather than having separate “defence” and “prosecution” witnesses as in criminal cases. The judge in the family court controls the use of expert evidence, and must give permission for it.’

    Please, you and other family lawyers learn from teh above that the common law requires that opinion evidence be put in only with permission of the court. Properly followed and understood, it demands that both sides (I use the word correctly here, since (say) (1) parents may both agree on one expert and (2) child and Loc Auth agree on another) have access separately to equivalent expertise. It is not only in criminal proceedings this happens. Children lawyers, neglectfully let it happen that only one opinion witness is instructed ‘jointly’ (particularly in the ‘independant’ social work field); but that is for economy not for the sake of justice.

    • Well David, there was a time when that argument could have been had, and I remember running it and it being run by colleagues – but it is now the reality that almost all experts are jointly instructed. The court will not (usually) permit single experts as necessary (which of course is now set out in overriding statute not common law). In any event, although I know you love to shoehorn a common law argument in anywhere you can – what I was surmising was what has very probably happened in this case, not what the law or practice ought to be in your or my opinion. So, although you seem to imply I am in error I don’t think I am.

  5. Sorry, I meant “this” not “his” – I would not want to add sexism to my catalogue of sins.

  6. TotallyConfused

    40 years ago, my Husband was removed from his birth mother; his constant ‘injuries’ were but one of a NUMBER of factors. At the age of 20 he was diagnosed with Von Willebrands and Thromocytepenia. There is a history of cystic fibrosis on my side of the family. (I have an older child with CF) When our son was born 14 years ago and we demanded the appropriate screening/tested, we were branded ‘overanxious parents’. (The family court was pushed to use/accuse us and say the term FII or MbPS…’well, they aren’t bad or pushy enough to be called that.’) This ‘finding of fact’ has haunted us since his birth.

  7. This was a family court case 1989 Childrens Act, Unexplained Injury, Split case in a childs name contrary to his birth certified name by: Christian name, followed by fathers surname, followed by mothers surname
    The Childs name used throughout the case still stands in the High Court of Appeal London, Split Case joined
    Recently stated in OPEN court by legal representative LA it was done this way because the parents of the child were not married
    Question: where within the 1989 Childrens Act rules can I find the Rule of Law that states this to be legal

    • Sorry, I don’t understand the question. Can you rephrase?

      • As this case has been aired in OPEN court I hope I am right in presuming I can write this on your forum
        My Grandson Birth Registered 2weeks old
        Throughout a family court case, Applications, Orders
        his name was changed
        Magistrates Court [edited]
        Family Court [edited]E
        I have in my possession QC Fockes file of full case
        As I have stated the Case still stands in the High Court of Appeal London, Split Case joined
        (We wrongly appealed to change the childs name to his birth certified name, this was refused, no further appeal to change the case name of child
        Back to original question, where in the 1989 Childrens Act do I find the rule of law that allows the LA to have changed my grandsons name

        • No, you are not right. Even if your case was heard in open court it is likely the court imposed a reporting restriction order. I cannot find the name of your case by searching bailii so I expect this is what has happened. Therefore I have edited out the names. Please don’t try and post them again.

          • Our Case I am now referring to as OPEN Court Case is now a suing case.

          • Hi Not in my name,
            I’m sorry but I’m not going to publish the details in your comments because I am unclear what reporting restrictions may apply. Please do not try and publish any further comments along the same lines.

  8. I apologise for any embarrassment caused

  9. […] But I’m not an expert, so I’ll refer you to someone who is: Lucy Reed, on her Pink Tape blog:  “Parents Found Innocent Of Child Abuse After Their Baby Was Removed And Adopted – an explanation” […]

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