LU (a child) v LB (a child)

The standard of proof in care proceedings is the balance of probabilities. Serious allegations require cogent evidence, with inherent probabilities assessed within that standard. Criminal standards governing preventative orders or prosecutions do not alter it.

Unexplained medical events and their recurrence do not themselves establish deliberate harm. Courts must recognise the limits of medical knowledge and exercise particular caution where experts disagree about a possible natural cause. Each episode and the overall pattern require careful evaluation alongside the family circumstances and other evidence.

Expert disagreement does not prevent a local authority from pursuing care proceedings. Cogent non-medical evidence may establish deliberate harm even where the medical evidence provides no reliable explanation. Criminal acquittal or the reversal of a conviction does not determine the findings to be made in family proceedings.

Two mothers sought permission to appeal findings made by Bracewell J at preliminary threshold hearings in care proceedings. In LU’s case, the judge found that the mother had deliberately obstructed her baby’s airway on four occasions. The medical experts agreed that imposed airway obstruction was the most likely explanation. The mother sought an extension of time and permission to introduce further evidence about infant deaths within the extended family. The disposal hearing remained pending.

In LB’s case, the judge found that the mother had caused non-organic failure to thrive and had deliberately introduced an unidentified infected substance through a cannula, causing eleven potentially life-threatening rigors. The experts disagreed about the explanation for those rigors. Holman J subsequently made a care order and approved placement with the paternal grandparents. The mother sought permission to appeal and an extension of time.

The Department for Education and Skills intervened in both applications. The common issues were the standard of proof in care proceedings alleging serious parental harm and the effect of R v Cannings, [2004] EWCA Crim.1, on the assessment of medical evidence and local authorities’ child protection responsibilities.

1. In LU’s case, permission to adduce additional evidence was granted, but permission to appeal and an extension of time were refused. In LB’s case, permission to appeal and an extension of time were granted, but the appeal was dismissed. The court delivered a single judgment to which all three members contributed.

2. The standard of proof in proceedings concerning children remained the balance of probabilities, as explained in Re H (Minors) (Sexual Abuse: Standard of Proof), [1996] AC 563. The seriousness and inherent improbability of an allegation affected the cogency of the evidence required, rather than introducing a higher standard. Decisions concerning sex offender and antisocial behaviour orders under the Crime and Disorder Act 1998 did not alter that approach. The standard adopted in Re ET (Serious Injuries: Standard of Proof), [2003] 2 FLR 1205, was too high (paras 6–13).

3. The criminal requirement considered in R v Cannings did not govern care proceedings. A family judge could find deliberate harm where clear and cogent evidence established that human agency was more probable than an unascertained natural cause. Scientific uncertainty remained equivocal, and recurrence alone proved nothing. Particular caution was required where experts disagreed, where an expert appeared dogmatic or prejudiced, and where medical knowledge remained incomplete. Expert disagreement did not require a local authority to refrain from proceedings or discontinue them. Section 31(2) of the Children Act 1989 provided the threshold for protective intervention, which had to be assessed on the whole evidence (paras 22–30).

4. In LU’s case, the experts had carefully considered individual episodes and their collective pattern. Their opinions rested on more than repetition or exclusion of known natural causes. The additional family history was insufficiently detailed and verified to demonstrate a likely important influence on the result. The judge was entitled to combine the medical evidence with findings concerning the mother’s circumstances and credibility (paras 64–91).

5. In LB’s case, the judge had wrongly treated the frequency of unexplained rigors and speculative medical opinions as positive medical support for deliberate interference. Nevertheless, the extensive non-medical evidence, including opportunity, knowledge, conduct and credibility, was relevant and cogent. It was sufficient to sustain the finding that the mother caused the rigors. The appeal therefore failed (paras 148–154).

6. Psychiatric or psychological assessment would usually assist little with a purely factual issue at a preliminary hearing. Exceptionally, complex factual questions could make assessment of a possible perpetrator or family dynamics helpful. A finding against a parent did not itself exclude rehabilitation, which depended on the individual circumstances (paras 27, 146–147).

• Court of Appeal (Civil Division): In [2004] EWCA Civ 567 , refused LU’s mother permission to appeal and an extension of time, while admitting additional evidence. Granted LB’s mother permission to appeal and an extension of time, but dismissed her appeal.
• High Court (Family Division): Bracewell J made threshold findings concerning deliberate airway obstruction in LU’s case on 7 November 2002. A disposal hearing before Kirkwood J was fixed for 17 March 2004.
• High Court (Family Division): Bracewell J made threshold findings concerning non-organic failure to thrive and deliberately induced rigors in LB’s case on 10 January 2003. On 12 September 2003, Holman J made a care order and approved a care plan under which LB would remain with her paternal grandparents.