O & N (Children)

In care proceedings, the local authority retains the legal burden of proving facts relied on under Children Act 1989. A parent's need to offer an explanation for injuries may amount to an evidential burden, but it does not require the parent to prove innocence.

An unproved allegation and judicial suspicion cannot found a conclusion that a parent caused past harm or poses a corresponding future risk. Where infliction of harm by a parent is not proved, welfare assessments and disposal must proceed on the basis that the parent did not inflict it. A separately proved failure to protect remains material. Once the threshold is met, disposal must focus on the children's welfare and the parent's ability to meet and protect them.

The mother appealed from a Liverpool County Court directions order following a preliminary fact-finding hearing in consolidated care proceedings concerning her two young children. The father had admitted deliberately causing the older child's skull fracture. The judge found that the other injuries had occurred while the child was in the parents' care, but could not identify either parent as their perpetrator. She also found that the mother had failed to protect the child from the father's assault.

The appeal challenged the form and consequences of the findings, particularly the suggestion that the mother had to exculpate herself and the continued assessment of her as a possible perpetrator. The central issue was the proper basis on which the proceedings should continue to welfare disposal.

1. Appeal allowed to the limited extent of varying and clarifying the order. Ward LJ gave the only reasoned judgment recorded. The threshold for care orders was already satisfied by the father's admitted deliberate infliction of grave injury. Identification of the perpetrator of every other injury was not necessary to establish that threshold, although those matters could be relevant at disposal.

2. The local authority bore the legal burden throughout. It had to prove, on the balance of probabilities, any allegation that the mother inflicted harm or posed a future risk. The parents could properly be expected to provide an explanation for injuries sustained in their care, but that was an evidential matter only. The proposed finding that neither parent was exculpated was therefore improper and meaningless.

3. Applying the reasoning in In Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and In Re M and R (Child Abuse: Evidence) (1996) 2 FLR 195, an allegation not proved on the balance of probabilities was not a fact on which future risk could be based. Suspicion and doubt could not fill that gap. Since the evidence did not prove that the mother inflicted any of the further injuries, the case had to proceed on the basis that she did not harm the child and that neither child was at risk of physical harm from her on that account.

4. The finding that the mother failed to protect the child from the father's head injury stood. The judge was entitled to find that the mother must have been aware that something was seriously wrong and did not act. That independent finding meant that the care applications could not be dismissed.

5. The order was varied to record the proved injuries, the failure to prove either parent's responsibility for the further injuries, and the mother's failure to protect. The disposal stage was directed to concentrate on her ability to protect the children from future partners and to meet their needs. The judgments were to be provided to the parties and disclosed to the relevant experts.

• Court of Appeal (Civil Division) Allowed the mother's appeal to the extent set out in the judgment and varied the order: [2002] EWCA Civ 1271.
• Liverpool County Court Her Hon. Judge Downey made a directions order on 10 April 2002 after a preliminary fact-finding hearing in consolidated care proceedings.