Non-Accidental Injury – what happens when a mishap gets misinterpreted?

Written by Emma Taylor, Partner and Head of the Family Department at GoodLaw Solicitors. Emma has practised family law for over 20 years, specialising in non-accidental injury cases involving fractures, genetic anomalies, and complex medical evidence.

An ordinary accident can be misinterpreted as deliberate harm when a child’s injury doesn’t match the explanation provided by their caregiver. Clinicians who have doubts will typically contact children’s social care and, in most cases, the police on the same day.

Genuine accidents are sometimes misunderstood. Conditions such as fragile bones, undiagnosed genetic disorders, birth trauma, and minor falls have all been responsible for injuries that initially seemed suspicious. Demonstrating this requires evidence and expert analysis.

How thinking about inflicted injury has changed

Throughout my career, I have witnessed the changes in the approach to matters where non-accidental injury is in question. Shaken Baby Syndrome is now outdated as a phrase, and critics argue that the traditional diagnostic criteria could actually be indicative of some natural medical conditions rather than abuse in certain situations. Findings have been challenged and reopened when new medical diagnoses have been established.  

This was particularly pertinent to children who had Ehlers-Danlos syndrome, as it was identified to be mimicking non-accidental injury, notably in the case of Effie Stillwell [2017] EWFC B19. What cases like this have taught us as practitioners is to always keep an open mind and to always ask questions.  

Two developments lie behind that shift. Medical literature has moved away from treating any single cluster of findings as proof of assault, while appellate judgments increasingly insist that clinical opinion be weighed against everything else known about a household.

What is an NAI, in plain terms?

Doctors and social workers use the label to describe harm they believe was inflicted, whether through a deliberate act, a momentary loss of control, or serious recklessness. Crucially, it records a suspicion rather than a diagnosis, and evidence can overturn it.  

Presentations that commonly raise concern include:  

• Fractures in babies who cannot yet crawl or walk, especially rib, metaphyseal, or spiral breaks.  
• Bruises on soft or protected areas such as ears, cheeks, the torso, or inner thighs.  
• Head trauma featuring subdural bleeding, encephalopathy, or retinal haemorrhaging.  
• Burns whose pattern does not correspond with the account provided.  
• Abdominal damage where no crash or heavy impact has been reported.  

Nothing is settled by the wound itself. What professionals scrutinise is the fit between clinical findings, the timeline, and each carer’s description of events.

Section 47 of the Children Act 1989 requires a council to conduct inquiries whenever there is reasonable cause to believe that a child in its area is suffering, or is likely to suffer, significant harm. Hospitals make the referrals, and social workers are then required to take action.

What happens if care proceedings are issued?

Court involvement begins with an application under section 31, seeking either an interim care order or an interim supervision order, which sets the care proceedings process in motion. A first hearing typically follows urgently, sometimes on the next working day. Parents named as respondents to a section 31 application qualify for legal aid regardless of their income or the strength of their case. Parents continue to hold parental responsibility throughout, which they then share with the applicant authority once an order is granted.  

Separation is not automatic. Judges assess whether safety can be achieved at home – through a written agreement, round-the-clock supervision by relatives moving in, or a placement with grandparents. Lawyers who are instructed early can propose such arrangements before positions become entrenched.

Asking the right medical questions

As lawyers, we do not necessarily know the answers to the medical questions at hand, but we should be able to identify who to ask, when to seek to instruct any expert and what questions to put to them in order to ensure our client’s case is fully and properly explored.

Independent instructions in this field often involve:

• Paediatric radiologists: reviewing imaging and dating any fractures.
• Haematologists: excluding clotting and bleeding disorders.
• Clinical geneticists: identifying collagen or connective tissue anomalies.
• Ophthalmologists: interpreting retinal findings.
• Consultant paediatricians: drawing every strand into a single overview.
• Biomechanical engineers: assessing whether a described fall could generate the forces observed.

Written questions are agreed between parties and approved by the judge. Badly drafted wording wastes months, so it repays real attention.

It is also important to ask our clients everything, even things that may initially seem irrelevant to our clients. Sometimes, when sitting in a lengthy meeting with a client, I can see their puzzled expressions about why it matters how long their kettle takes to boil in the kitchen, or what their primary school teacher meant when they commented they were regularly clumsy and bruising themselves at school, but it can all be relevant.

Conditions that can imitate abuse

Several diagnoses produce injuries resembling assault:

• Osteogenesis imperfecta: brittle bone disease, capable of producing breaks after minimal force.
• Ehlers-Danlos syndrome: connective tissue fragility associated with easy bruising.
• Vitamin D deficiency and rickets: weakened skeletal structure prone to unusual fracture patterns.
• Birth trauma: subdural collections occasionally arise during delivery and persist for weeks.
• Von Willebrand disease and haemophilia: dramatic bruising from ordinary handling.
• Glutaric aciduria type 1: a metabolic disorder mimicking inflicted head injury.

Short domestic falls belong on the list too. Height rarely correlates neatly with severity, and outlier outcomes do occur.

What the Court of Appeal expects: Re R (Children: Findings of Fact)

Judges must grapple with medical and lay accounts together, giving neither automatic priority. That principle was restated in Re R (Children: Findings of Fact) [2024] EWCA Civ 153, where Peter Jackson LJ allowed a mother’s appeal against a pool finding after her eight-month-old suffered a head injury in a room occupied by six relatives.

Three points from the ruling matter to anyone facing comparable allegations:

• Clinical evidence is not a backdrop against which lay testimony is measured; both contribute in their own way.
• Rejecting a family’s version requires clear, cogent reasons set out in the judgment.
• Improbability cuts both ways, because a devoted relative assaulting an infant mid-gathering, followed by wholesale deception, is itself deeply unlikely.

Re BR (Proof of Facts) [2015] EWFC 41 adds a companion thought: rare things happen constantly, even though the chance of them arising in any individual case remains very low.

Fact-finding hearings: who proves what?

The applicant council carries the burden entirely. Parents disprove nothing, and the civil standard applies – more likely than not. Should evidence leave a real question open, the correct outcome is an unexplained finding, not suspicion dressed up as conclusion.

Where responsibility cannot be attributed to one adult, judges may identify a pool of possible perpetrators. Such an outcome follows people into their careers, particularly those working in nursing, teaching, or residential childcare, and it can be challenged on appeal.

“Protect first, investigate second”

However, there is a “protect first, investigate second” process generally. The stress, anxiety and loss of precious time for these families whilst the social services investigation is happening cannot be underestimated.

Whilst many of my clients feel vindicated after a fact-finding hearing where they are found not to have caused any injuries to their child, this does not give them back the months and months that they have missed with their babies. This is my motivator for getting organised from the start in these types of cases and trying to do as much as possible to move things along.

I also try and speak to parents early, sometimes whilst they are still at the hospital awaiting child protection medical outcomes or test results, to advise them about the need to cooperate and work openly with professionals. I try and encourage my clients to really think about the timeline (what happened when) before it gets forgotten or their phone gets seized by the police, which can sometimes be a person’s only point of reference to remind them of details.

What support exists once the case closes?

But what happens when the court proceedings end, the allegation of non-accidental injury is found to not have happened, and the families go home with their children?

The answer is nothing. The Local Authority have no reason to be concerned about the family anymore and there is little in the way of aftercare or support for the significant trauma these families have experienced. There could, feasibly, be some support from health visitors or professionals but, realistically, the families just want to be left alone by the professionals they have been dealing with and have faced allegations from for months.

The lost time is heartbreaking, and it isn’t coming back. Not only that but for their child’s minority, every bump, bruise, scratch is cause for anxiety and the impact is long lasting.

Our responsibility as practitioners

As legal professionals working in these cases, we cannot forget this. We must strive to work efficiently, effectively and with determination to try and make the process as manageable as possible for our clients and to control the things we can to try and speed things along where possible. Sometimes, delay is inevitable to ensure the right information is obtained to help our client’s case, but it is vital we do all we can within the framework we have.

If you require any support with a case involving social services or care proceedings, please contact us on 01273 956270 or [email protected].