CL v East Riding Yorkshire Council & Ors

In care proceedings, serious injury sustained while a child is in parental care does not itself satisfy the threshold in the Children Act 1989, section 31(2). The local authority must prove that the harm is attributable to care falling below the statutory standard. Where medical evidence leaves accidental and non-accidental causation open, the court cannot treat a parent as responsible for, or as having caused, the injury on a neutral basis. The injury may nevertheless remain relevant to other threshold findings. Failure to obtain prompt medical attention and collusion or lies about the injury may independently establish significant harm or its likelihood.

BL, aged seven weeks, suffered serious head injuries while in the care of his parents. In care proceedings, Her Honour Judge Davies found that the injuries occurred while BL was in the parents’ care and that either or both parents were responsible, but she could not determine whether the injuries were accidental or non-accidental. She also found failure to protect and parental collusion.

The mother appealed, alleging procedural unfairness, inadequate consideration of medical evidence and erroneous findings on causation and protection. The central issues were whether the findings established the threshold under the Children Act 1989 and whether a neutral finding of parental responsibility was permissible.

The appeal was allowed to a limited extent. The Court of Appeal substituted modified findings for findings 4 and 5 of the judge’s findings. The findings of collusion and failure to protect were upheld.

1. Statutory threshold. Under section 31(2) of the Children Act 1989, the local authority bore the burden of proving that the significant harm was attributable to care that was not what it would be reasonable to expect a parent to give. The applicable burden and standard of proof were those identified by Lord Nicholls in [1996] AC 563.
2. Causation and perpetration. Where non-accidental injury is proved, the threshold may be satisfied even if the perpetrator cannot be identified and either or both parents may be found responsible. That reasoning did not apply here. The medical evidence was consistent with accidental or non-accidental causation, and the local authority had abandoned its allegation that BL had been shaken. The injuries alone therefore could not establish the threshold, and the judge could not allocate responsibility, guilt or causation to either parent.
3. Parental conduct. The injuries remained relevant to the parents’ conduct. Their failure to obtain immediate medical attention, and their collusion and lies about the circumstances, could independently support a finding that BL had suffered or was likely to suffer significant harm through inadequate care, even if the injury itself was accidental.
4. Fairness and clarity. Treating the parents as responsible for the injuries risked reversing the burden of proof and unfairly affecting later assessments. Removal of that wording cured the potential unfairness. Mr Justice Coleridge agreed, stressing that findings concerning injuries must be clear and focused and must not make assessors proceed on an incorrect risk basis.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 49, the appeal was allowed to the limited extent of substituting modified findings concerning causation and parental responsibility.
• Kingston upon Hull County Court: Her Honour Judge Davies made findings of fact on 19 September 2005 in care proceedings concerning BL, including findings of responsibility, failure to protect and collusion.