Re BR (Proof of Facts)  EWFC 41 – an examination by Jackson J of the proof of facts; a child’s likely pain response and an analysis of generic risk factors and protective measures in alleged NAI cases
The case of Re BR (Proof of Facts)  EWFC 41 follows a fact-finding hearing held in private concerning a baby who sustained a very large number of fractures. The specific details of the fact-finding hearing do not form part of this judgment, nevertheless, the Honourable Mr Justice Peter Jackson makes a number of observations arising from issues raised during the course of that fact-finding hearing.
Jackson J addresses the followings issues in this judgment, namely the:
“(1) Proof of facts;
(2) Evidence about a child’s likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density)  EWFC B26 (12 March 2015); and
(3) An analysis of generic risk factors and protective factors.”
i. Proof of Facts
Jackson J provides a helpful overview of the standard of proof, namely the balance of probabilities; and emphasises that the burden rests upon the person asserting that particular fact. He comments that the “court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.”
ii. Evidence about a child’s likely pain response – Re FM (A Child: fractures: bone density)  EWFC B26 (12 March 2015)
Jackson J considered the judgment of HHJ Bellamy in the matter of Re FM following reference to this case by the respondent parents, in particular paragraph 115 of that judgment. Jackson J quotes this paragraph and notes at paras 15-17 of his judgment the following:
“ Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.
 Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.
 In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.”
iii. Risk Factors and Protective Factors
Within his judgment Jackson J acknowledged that a helpful framework had been provided on behalf of the Children’s Guardian, following an analysis of information from the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals, of possible risk and protective factors that may assist the court when considering cases of this nature.
(For a further review of Re FM and its full judgment click here.)