G (a child)

In family proceedings involving alleged non-accidental injury, the civil standard of proof remains the balance of probabilities for both the occurrence of abuse and the identification of the perpetrator. The seriousness of the allegation affects the inherent probabilities and therefore the cogency of the evidence required; it does not create a higher standard or a separate threshold. A finding against a parent must be supported by sufficient reliable evidence. An appellate court should not interfere with a trial judge’s assessment of credibility and weight unless the conclusion was plainly wrong.

A five-and-a-half-month-old child died after suffering serious injuries while in the care of his parents. The medical evidence established non-accidental injury, but the trial judge, Mrs Justice Hogg, could not determine whether the mother, the father, or both had caused the injuries. She made an inconclusive finding on the identity of the perpetrator in her judgment of 19 April 2000.

The mother appealed, arguing that the judge had applied too demanding a standard of proof and should have found that the father was the perpetrator. The central issues were the applicable standard of proof and whether the judge’s evaluation of the evidence was open to her.

1. Appeal dismissed. The judge was entitled to conclude that the evidence did not establish, on the balance of probabilities, that either parent should be identified as the perpetrator.
2. The civil standard remained the balance of probabilities for each issue. The seriousness of alleging that a parent inflicted non-accidental injury required sufficiently cogent and reliable evidence because the alleged event was inherently less likely, but it did not impose a heightened standard of proof. There was no separate, lower test for identifying the abuser after abuse had been established.
3. The mother’s argument that proof of abuse was a preliminary hurdle after which perpetrator identification was determined by an easier test was rejected. The allegation against each parent was a separate serious allegation requiring evidence adequate to meet it.
4. The trial judge had given an impeccable self-direction. She had considered the medical evidence, the opportunities available to both parents, and the unreliability and inconsistencies in their accounts. Her conclusion was unpalatable but properly open on the evidence.
5. The appellate court was not in the position of the trial judge, who had seen and heard the witnesses. The weight of the evidence and assessments of credibility were matters for the trial judge. Intervention was impermissible unless the conclusion was plainly wrong.

Lord Justice Thorpe and Mr Justice Burton agreed with the President.

• Court of Appeal (Civil Division): appeal from the judgment of Mrs Justice Hogg dated 19 April 2000 dismissed.