LU (a child) v LB (a child)

In care proceedings, the standard of proof remains the balance of probabilities. The seriousness and inherent improbability of an allegation require cogent evidence, but do not create a higher or criminal standard. The criminal-law approach in R v Cannings does not alter that rule.

A court must assess all admissible evidence. It should consider medical evidence with appropriate caution, especially where experts disagree or scientific knowledge is uncertain. Recurrence, statistics, and the absence of a known natural explanation cannot alone prove deliberate harm. However, medical evidence and reliable evidence of family circumstances, opportunity, and credibility may cumulatively establish the Children Act 1989 threshold.

These conjoined appeals concerned findings made by Bracewell J at the threshold stage of care proceedings under the Children Act 1989.

In LU, the judge found that the mother had deliberately obstructed the child’s airway on four occasions. The mother sought permission to appeal out of time and relied on further family-history evidence and the subsequent criminal decision in R v Cannings.

In LB, the judge found that the mother had deliberately introduced an infected substance through the child’s cannula, causing 11 potentially life-threatening rigors. Holman J later made a care order placing LB with paternal grandparents. The appeal challenged the medical and non-medical bases for the threshold finding.

The common issues were the civil standard of proof in serious child-protection allegations and the effect of R v Cannings on care proceedings.

1. LU: permission to appeal and an extension of time were refused. LB: permission and an extension of time were granted, but the appeal was dismissed. The court upheld both threshold findings.

2. The joint judgment held that the applicable standard in care proceedings is the balance of probabilities, as explained in re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Serious allegations require evidence sufficiently cogent to overcome their inherent improbability. They do not require a heightened civil standard or proof beyond reasonable doubt. The contrary approach taken in re ET (Serious Injuries: Standard of Proof) [2003] 2 FLR 1205 was too high.

3. R v Cannings [2004] EWCA Crim.1 did not alter local authorities’ responsibilities or the standard of proof under the Children Act 1989. Its criminal-law context was materially different. Nevertheless, it usefully warned against over-dogmatic expertise, reasoning from recurrence alone, and treating the lack of an identified natural cause as positive proof of abuse. Particular caution is required where reputable medical experts materially disagree.

4. A family judge must decide whether deliberate human agency or an unascertained natural cause is more probable on the whole evidence. The court’s quasi-inquisitorial function permits consideration of a wider evidential picture than would usually be admissible in a criminal trial. A serious expert disagreement does not require a local authority to refrain from, or discontinue, care proceedings.

5. In LU, the experts had assessed each episode and then its sequence and pattern. Their conclusion did not rest merely on statistics or the elimination of innocent explanations. The additional evidence about infant deaths in the extended family was unverified and too incomplete to warrant a rehearing. The medical evidence, the mother’s lack of credibility, and the surrounding circumstances supported Bracewell J’s finding.

6. In LB, the medical evidence alone did not establish deliberate interference: the rigors remained scientifically unexplained, and the two supporting experts’ opinion partly depended on extraneous circumstances. Bracewell J was nonetheless entitled to reach the threshold finding from the cumulative non-medical evidence, including the mother’s credibility, history, opportunity, knowledge, conduct concerning the cannula, and the child’s circumstances.

• Court of Appeal (Civil Division): In the joint judgment, the court refused LU’s application for permission to appeal and extension of time, and dismissed LB’s appeal after granting permission and an extension: [2004] EWCA Civ 567.
• High Court (Family Division), Bracewell J: At separate threshold hearings, found that LU’s mother had deliberately obstructed LU’s airway and that LB’s mother had deliberately interfered with LB’s cannula, thereby satisfying the threshold criteria.
• High Court (Family Division), Holman J: In LB’s disposal proceedings, made a care order and approved a plan for LB to live with her paternal grandparents.