TF & Anor, Re

In care proceedings, the local authority must prove the alleged facts on the ordinary civil standard: the balance of probabilities. Section 31 does not permit a finding of future risk based on reasonable suspicion, and there is no heightened civil standard requiring a general rule of cogent evidence. The court must assess inherent probabilities, including the unusual nature of the alleged injury, while evaluating medical evidence in the context of the whole evidential picture. Medical possibilities must be considered, but a merely possible alternative will not prevent findings where the evidence as a whole establishes the more probable explanation. Findings of non-accidental injury and failure to protect may establish the future-risk limb of the statutory threshold for each child, with the extent of risk requiring further assessment.

This was a fact-finding hearing in care proceedings concerning TF, born in 2003, and her younger brother FL, born in 2007. The local authority alleged that FL had suffered non-accidental bruising, bilateral clavicle fractures and bilateral rib fractures, and that the injuries resulted from parenting below the standard required by Children Act 1989, section 31.

The parents advanced accidental and birth-related explanations. The father accepted careless supervision but denied inflicting injury. The central issues were the causation and timing of the fractures and bruising, responsibility for the injuries, whether either parent had failed to protect FL, and the consequences for the statutory threshold and future risk.

1. Standard of proof. The local authority bore the burden of proving the alleged facts on the balance of probabilities. Applying Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, the court held that section 31 did not permit a finding of risk based on reasonable suspicion. There was no heightened civil standard and no general requirement for cogent evidence. The court nevertheless had to take account of inherent probabilities, including that fractures are not normal injuries.
2. Evaluation of evidence. Medical evidence was not to be considered in isolation. It had to be weighed with the accounts of the parents, the timing and reporting of the injuries, the surrounding circumstances and the assembly of all the injuries. A theoretical or barely possible medical explanation did not, without supporting evidence, displace the more probable explanation.
3. Findings. The court rejected the hypothesis that the rib fractures were sustained at birth. It found, to the requisite standard, that the rib fractures resulted from excessive force, compression or squeezing, outside normal parenting. It rejected the account that the clavicle injuries and facial bruising resulted from an accidental fall and found that those injuries were non-accidental and perpetrated by the father. The mother was not positively exonerated, but the probability was by a large margin that the father caused the injuries.
4. Protection and risk. The father’s late reporting and the mother’s delay in obtaining medical attention were relevant to the alternative failure-to-protect findings. The court found that the mother was wrong not to take FL to hospital earlier. In light of the parents’ de facto household and the findings, the second statutory limb of section 31, concerning future risk, was made out for both children. The extent of that risk and its effect on future parenting were left for further assessment.

First-instance fact-finding decision. The judgment does not state any prior appellate decision.