B (Children)

In child-protection fact-finding, a judge must evaluate expert medical evidence and lay evidence together. Uncontroverted expert evidence may be rejected only where reliable contrary evidence makes it logically insupportable, and reasons are required. Credibility findings cannot, by themselves, neutralise strong medical evidence. Expert evidence about how a seriously injured child would present is evidence, not speculation.

Where two possible perpetrators are identified, the civil standard requires heightened cogency before one can be excluded and the other found solely responsible. If the evidence establishes only that one of them caused the injuries, the court must preserve that uncertainty. Perpetration and failure to protect must be assessed in the round.

Care proceedings were brought for Y after her half-brother K died following multiple serious non-accidental injuries. At a preliminary issue hearing, Mr Justice Coleridge found K R responsible for all the injuries, exonerated the mother as perpetrator, and found that she had not failed to protect K.

The local authority appealed against those findings. K R sought permission to challenge the conclusion that he was the perpetrator, seeking an outcome which left responsibility unresolved. The central issues were whether the trial judge was entitled to reject uncontroverted medical evidence, whether the evidence justified exonerating the mother, and whether it established K R as the sole perpetrator to the requisite civil standard.

Disposition. Thorpe LJ, with Rix LJ agreeing and Arden LJ agreeing without further reasons, held that the trial judge was plainly wrong. K R’s application for permission to appeal and the local authority’s application were granted. The appeals were allowed to the extent indicated. The court concluded that either the mother or K R had perpetrated the injuries, but that the evidence did not establish to the requisite standard which of them was responsible. The mother had nevertheless failed to protect K. There was no order for costs, save for detailed assessment.

1. Medical evidence. The trial judge had found that K had an unusual reaction to pain and that the prominent bruise on his back was fresh. Those findings were not reasonably open on the uncontroverted medical evidence. The expert evidence established that K would have reacted as a normal child and that the bruise was not fresh at the time of death. The judge had substituted unsupported judicial theories for expert evidence.
2. Expert evidence and credibility. Evidence about how a seriously injured child would present was expert evidence, not speculation. The principle in Re B (Split Hearings: Jurisdiction) [2000] 1 FLR 334 at 340 was directly applicable. A judge may reject strong expert evidence where reliable contrary evidence exists, but must give reasons. The credibility of lay witnesses cannot by itself make uncontroverted medical evidence ineffective.
3. Failure to protect and perpetration. The two issues had to be considered in the round. The mother’s inability to provide a trustworthy explanation for the injuries was relevant to both issues. Her good care of Y and favourable character evidence were relevant, but could not justify complete exoneration.
4. Standard of proof. Applying the guidance in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, the civil standard required heightened cogency before excluding one of two possible perpetrators. K R was the more probable perpetrator of most injuries, but that did not establish that he was solely responsible.
5. Subsequent disposal. The mother’s risk as a primary carer could not be disregarded. Her conduct within the relationship with K R might differ from her conduct outside it. The judge conducting the disposal hearing had to balance rehabilitation against that risk, without the Court of Appeal expressing a view on the ultimate outcome.
6. Preliminary issue orders. Orders directing split hearings should define the questions carefully, and the final order should record the conclusion on each issue. The papers were to be released to a jointly instructed expert for the subsequent proceedings.

• Court of Appeal (Civil Division): Granted permission to appeal and allowed the appeals to the extent indicated. It held that responsibility for perpetration could not be determined between the mother and K R to the requisite standard, but that the mother had failed to protect K.
• High Court of Justice, Family Division: At a preliminary issue hearing, Mr Justice Coleridge found K R responsible for all the injuries, exonerated the mother as perpetrator, and found that she had not failed to protect K.