The girl was admitted to hospital three times last autumn - always on days she had spent with the childminder. She had been shaken violently and suffered brain damage.
Lancashire County Council took the case to the Court of Appeal after a county court judge ruled in April that neither the girl nor the boy should be taken into care. The council alleged the injuries were caused either by the girl's parents or by their childminder. Because it was not known who caused the injuries, both children should be protected by taking them from their homes, it said.
Lord Justice Walker said in a judgment that after "anxious consideration" the girl did satisfy the minimum conditions allowing the court to make a care order. The judge, whose decision was endorsed by the Master of the Rolls, Lord Woolf, and Lady Justice Butler-Sloss, said if the girl's parents were "innocent of causing serious physical harm, they may regard our conclusion as very unjust".
He added that "if their behaviour had been more responsible" - the county court judge referred to over-indulgence in alcohol and past use of amphetamines - the decision could have been different. Lord Woolf said after the judgment:
"This court has made no finding that indicates that either of the parents were responsible for what has happened to the child."
An interim care order was made for the girl, whose case is to be referred back to Judge David Gee at Blackburn County Court. He must decide on the level of future risk and how the child, referred to as A to protect her identity, will be looked after.
"We would only add that A's parents, however upset they are by this decision, must realise that it is taken in A's best interests and that her welfare will be paramount in the court's further deliberations," Lord Justice Walker said.
The childminder's son, referred to as B, was cared for by his grandparents during the proceedings. He will remain there until a custody hearing brought by his father, who is separated from his partner.
Judge Gee said his decision on 28 April to refuse care orders for both children was one of the most difficult he had had to make. He found that neither child satisfied the conditions of the Children's Act to make care orders and spoke of the "obvious dilemma in human terms".
"If the criteria are met and orders are made I am exposing one child to the possibility of removal from parents who are no risk and have done no wrong.
"If the applications are dismissed then I will undoubtedly be causing one child to be returned to a parent, or parents, one or both of whom are an obvious and serious unassessed risk."
Lord Justice Walker said the two children are linked because the girl's parents placed her with the childminder from September to November.Reuse content