B (children) , Re

In child-protection fact-finding, the standard remains the civil balance of probabilities. The seriousness and inherent improbability of an allegation affect the cogency required, but do not create a heightened standard. Medical evidence must be assessed in context, including competing expert opinions, possible accidental explanations, family history and subsequent conduct. Suspicion, or the exclusion of some explanations, is insufficient if the evidence does not make non-accidental injury the only acceptable explanation. Serious findings that a witness fabricated evidence or sought to deceive the court also require procedural fairness. The witness must have an opportunity to answer the allegation before such findings are made.

After J, an 11-month-old child, was found to have bilateral subdural haemorrhages and retinal haemorrhages, the local authority commenced care or supervision proceedings concerning her and her two siblings. The parents relied on accidental falls in July and at a wedding in November 2004. The local authority relied principally on medical evidence indicating that the injuries were chronic and probably resulted from shaking.

The judge found on the balance of probabilities that one parent had probably shaken J, although he could not identify which parent. Supervision orders were made in February 2006. The parents appealed, challenging the fairness of findings that the mother had exaggerated or fabricated the July fall and the cogency of the evidence supporting non-accidental injury.

The appeal was allowed unanimously. The finding of non-accidental injury was not established and the Supervision Order was discharged.

1. Ward LJ held that the judge had made serious findings that the mother knew what had happened, had shaken J and had fabricated or exaggerated the July fall to protect herself and the father. Those allegations had not been put to her by the local authority or the judge. It was procedurally unfair to make findings of that gravity without giving her an opportunity to answer them. That amounted to a serious procedural irregularity which, if necessary, would have required a further hearing.
2. The court accepted the civil standard and the contextual approach explained in Re U (a child) (Serious Injury: Standard of Proof) Re B [2004] EWCA Civ 567, [2004] FLR 263, and Re H and R (Child Sexual Abuse: Standard of Proof) [1996] App Cases 563. Seriousness affects the inherent probabilities and the cogency required, but does not alter the standard of proof.
3. Each possible explanation required careful analysis. The medical evidence did not make the wedding fall impossible as a cause of the injury, and the evidence concerning retinal haemorrhaging was at best neutral on timing. The judge also failed adequately to evaluate the difference between the two radiologists’ evidence and the significance of the usual triad of indicators identified by reference to R v Harris and Others [2005] EWCA Crim 1980.
4. The favourable family evidence was material. The absence of bad parenting, the parents’ protective conduct and their repeated efforts to obtain medical attention had to be weighed with the medical evidence. Although such matters did not exclude accidental injury or momentary loss of control, the evidence did not make the accidental explanations so improbable that shaking was the only acceptable conclusion. Suspicion was not a sufficient factual basis for exercising the court’s jurisdiction. The local authority therefore failed to discharge the burden of proof.

Laws LJ agreed with Ward LJ’s reasons. Longmore LJ agreed, additionally identifying an evidential void arising from the failure to evaluate the experts’ differing opinions, the limited medical indicators and the favourable family evidence.

• Court of Appeal (Civil Division): Appeal allowed; the finding of non-accidental injury was not established and the Supervision Order was discharged.
• Plymouth County Court (HHJ Tyzack QC): Found on the balance of probabilities that one parent had probably caused J’s bilateral subdural haemorrhages by shaking her, but could not identify which parent; supervision orders were subsequently made.