T (Children), Re

In care proceedings under the Children Act 1989, the standard of proof is the balance of probabilities. Serious allegations require cogent evidence because their inherent improbability is relevant when probabilities are assessed. The standard does not become the criminal standard, nor should the distinction be treated as illusory.

Medical experts inform the court of relevant medical and scientific knowledge. The judge must decide the statutory threshold by evaluating all the evidence together. The court must not require medical certainty, isolate medical evidence from family evidence, or fail to assess explanations and unexplained injuries.

ET, then aged three, suffered a recent perineal tear and anal fissures. The local authority commenced care proceedings concerning ET and her elder brother. The children were placed with their maternal grandparents and later became subject to interim care orders.

His Honour Judge Wade in Swindon County Court held that the threshold criteria in section 31 of the Children Act 1989 were not met and dismissed the proceedings. The local authority and the children’s guardian appealed. They contended that the judge had required an impermissible degree of medical certainty, misunderstood the experts’ final evidence, and failed to assess the family evidence and all injuries together.

1. Appeal allowed. The county court decision could not stand. The case was transferred to the High Court for a rehearing before a High Court judge, and interim care orders were made.

2. The applicable standard in care proceedings is the balance of probabilities, as stated in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. The seriousness and inherent improbability of an allegation affect the cogency of evidence needed to establish it, but do not create a higher standard of proof. The judge had correctly directed himself initially, but then required certainty or near-certainty in the medical evidence and thereby elided civil care proceedings with criminal proceedings.

3. Following Re B (Non-Accidental Injury) [2002] EWCA Civ 752, medical experts guide the court on medical and scientific matters. The judge has the distinct task of deciding whether the section 31 threshold is proved. The judge therefore erred by treating the experts’ inability to offer a certain diagnosis as determinative.

4. The change in Dr W’s opinion required proper evaluation. It followed his eventual access to clearer and additional photographs, rather than simply demonstrating irresolvable medical uncertainty. The medical evidence had to be reconsidered after all experts had access to the relevant material.

5. The judge also erred by assessing the medical and non-medical evidence in separate compartments. He had to assess the plausibility of the explanation for the perineal injury, the absence of an explanation for the anal injuries, and the totality of the evidence. That failure independently justified setting aside the decision.

6. The court further observed that clinical photographs are increasingly important in care proceedings. Suitable protocols should ensure that all relevant experts receive all photographs promptly. Avoiding delay accords with section 1(2) of the Children Act 1989.

• Court of Appeal (Civil Division): Allowed the local authority’s and guardian’s appeal, set aside the county court decision, transferred the matter to the High Court for rehearing, and made interim care orders.
• Swindon County Court: His Honour Judge Wade held that the section 31 threshold in the Children Act 1989 was not met and dismissed the care proceedings.