Lancashire County Council v R & Ors

In care proceedings, the identification of a perpetrator is determined on the simple balance of probabilities. Where harm is established but the perpetrator cannot be identified, uncertainty does not prevent the threshold under Children Act 1989, section 31 being satisfied, or the possible perpetrators being treated as risks at the welfare stage. Inclusion in a pool requires a real possibility or likelihood, meaning a possibility which cannot sensibly be ignored and which is founded on present facts and fair inferences. Expert evidence must be weighed with lay and observational evidence; the judge remains the decision-maker. The triad of subdural haemorrhage, retinal haemorrhage and encephalopathy is a strong pointer to non-accidental injury, but is not automatic proof. Domestic abuse evidence may bear on harm and risk, but does not necessarily establish propensity to injure a child.

Lancashire County Council sought a care order concerning R, an infant who had suffered chronic and acute subdural haemorrhages, extensive retinal haemorrhages and transient encephalopathy. The central factual issues were whether the chronic haemorrhage arose from birth or later trauma, whether the acute injuries were caused by the father’s handling of R on 11 August 2006, and whether the mother had failed to protect R. The judgment also addressed the standard of proof, uncertain perpetrators, expert evidence, medical causation and propensity evidence. A previous fact-finding hearing before a circuit judge had been abandoned and the proceedings transferred to the High Court.

1. Findings and order. The court found on the balance of probabilities that R had suffered repeated significant harm. The father caused each major non-accidental head injury. The mother was not responsible for the specific incidents but had generally failed to protect R after being put on notice of the risk. The threshold under section 31 of the Children Act 1989 was crossed, and it was necessary and proportionate for R to remain subject to an interim care order pending further assessment and final welfare determination.
2. Fact-finding and perpetration. The simple balance of probabilities applies to identifying a perpetrator. There is no hard and fast rule concerning multiple perpetrators. If harm is proved but responsibility cannot be allocated, the court may proceed on the basis that each identified possible perpetrator is a possible perpetrator and potential risk. The appropriate test for inclusion in that pool is whether there is a real possibility or likelihood that the person caused the injury. A court cannot simultaneously find that one parent was the perpetrator while leaving the other parent in the pool.
3. Expert evidence. The court must weigh expert evidence alongside lay and observational evidence. Experts identify possibilities and explain their reasoning, but the judge determines the facts and applies the standard of proof. A court may reject an expert consensus where its conclusion is soundly based on the evidence and reasoning. An unexplained scientific cause remains unknown unless the evidence as a whole proves another cause on the balance of probabilities.
4. Medical evidence. The combination of subdural haemorrhage, retinal haemorrhage and encephalopathy is a strong pointer to non-accidental head injury, but does not automatically establish it. Medical knowledge is evolving and the degree of force cannot be scientifically correlated with the severity of injury. In this case the distribution and nature of the fresh bleeding, the retinal haemorrhages and the neurological change established injuries caused by force beyond acceptable handling.
5. Propensity and assessment evidence. Domestic abuse evidence may be relevant to the harmful environment, the likelihood of harm and welfare risk under sections 31(2) and 1(3)(e) of the Children Act 1989. It does not, without more, establish a propensity to injure a small child. Social-work assessments should be prepared promptly, but necessary child-protection action must not be delayed by paperwork.

The judgment records that an earlier fact-finding hearing before a circuit judge was abandoned because of significant evidential difficulties. The proceedings were then transferred to the High Court for determination.