A Local Authority v S

Family proceedings remain civil proceedings, even where the facts may amount to serious criminal conduct. The applicable standard is the balance of probabilities, not proof beyond reasonable doubt. The seriousness of an allegation affects the inherent probabilities and therefore the evidence needed to establish it, but does not create a heightened standard of proof. The applicant bears the burden of proving the facts satisfying the threshold criteria. A criminal acquittal does not determine the issue in family proceedings, because the questions, evidential rules and standards of proof differ. Where medical experts disagree, the judge must heed appropriate caution but must still make findings on the evidence and decide the case on the balance of probabilities.

The local authority sought a care order for T, aged 15 months, whose half-sibling X had died from serious brain injuries while in the care of W. W had previously been acquitted of murder and manslaughter in criminal proceedings arising from X’s death. The family court therefore had to determine the most probable cause of X’s injuries and whether the facts justified state intervention in T’s life. The issues included the effect of the criminal acquittal, the burden and standard of proof in care proceedings, and the proper approach to disputed medical evidence concerning a possible shaking injury.

1. The criminal acquittal did not prevent the family court from reaching a different conclusion. The jury had to decide whether it was sure that W had committed criminal violence causing X’s death. The family court had to determine, on the balance of probabilities and using a wider range of evidence, what had most probably happened and whether T could safely be returned to parental care.

2. Care proceedings remain civil proceedings. Under Children Act 1989, section 31(2), the local authority bore the burden of proving the threshold facts justifying intervention. The court could make findings only where supported by evidence; anxiety or concern about risk could not substitute for proof. This approach was consistent with Articles 6 and 8 of the European Convention.

3. The court followed the approach stated by Lord Nicholls in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. The civil standard remained the balance of probabilities. The seriousness of an allegation was relevant because serious events might be inherently less probable, so stronger evidence would ordinarily be required, but the standard itself was not elevated.

4. The court also applied the guidance in Re LU (a child) and Re LB (a child) [2004] EWCA Civ 567. The caution required where medical experts disagree, as discussed in R v Cannings [2004] EWCA Crim 1, did not relieve the family judge of the duty to make clear findings on the facts. An acquittal or successful criminal appeal did not necessarily absolve a parent in family proceedings.

5. Applying those principles, the judge found that W’s explanation was unreliable. In the absence of a reliable explanation, the overwhelming probability was that X’s head injuries resulted from a non-accidental acceleration/deceleration injury involving rotational forces. The threshold criteria were established both by the causation of the head injury and by W’s deliberate misleading of doctors, police and social services. The case then moved to the welfare assessment concerning T; no final care-order disposition is stated in the judgment.