Lancashire County Council v D & E

In fact-finding proceedings concerning suspected inflicted injury, medical evidence that shaking was the most likely cause established only a real possibility. The court had to assess that possibility alongside the household events, timing, parental evidence, credibility and other possible causes. The existence of a pool of possible perpetrators did not reverse the burden of proof or require carers to prove their innocence.

An accidental explanation not advanced by the carers could be explored, but the court could not identify or define such an event without an evidential basis. A parent could be excluded from the pool either because there was no real possibility of involvement or because it was more likely than not that the parent was not the perpetrator. On the evidence, the threshold under the Children Act 1989 was not established.

This was a fact-finding hearing in care proceedings brought by Lancashire County Council concerning serious brain, retinal and skull injuries suffered by a six-week-old child, R. The local authority sought findings that the brain and eye injuries resulted from shaking or shaking with impact, that one or both parents caused them, and that any witnessing parent failed to protect R and concealed the truth.

The parents denied causing or witnessing inflicted harm. The mother relied on an accidental fall from a chaise longue as a possible explanation for the skull fracture. The central issues were the significance of the expert medical opinion, the range of reasonable possible causes, the identification of any perpetrator, and whether the threshold criteria were proved to the civil standard.

1. Threshold and outcome. The local authority failed to prove the threshold criteria to the civil standard. The court found that it was more likely than not that neither parent had injured R by shaking him, with or without impact, or had failed to disclose a deliberate or accidental event which they knew or reasonably ought to have known caused the injuries. The chaise longue incident did not establish the threshold.
2. Medical evidence and causation. The experts’ view that shaking or shaking with impact was the most likely cause established a real possibility requiring careful consideration. It did not determine whether inflicted injury was more likely than not. The court had to assess the medical evidence together with the evidence about timing, household events, parental conduct, credibility, bone fragility and alternative causes. Doctors and experts were not the decision-makers on fact or credibility.
3. Pool of perpetrators. Identifying a pool formed part of deciding whether an inflicted injury occurred. The exercise did not end when the pool was established. A person could be excluded either because there was no real possibility of involvement or because it was more likely than not that the person was not the perpetrator. The opportunity to injure a child did not impose a burden on the carer to prove non-involvement.
4. Undisclosed accidents. The court could investigate an accidental explanation not advanced by a parent. However, without evidence identifying the nature of the accident, it could not make a finding as to what the accident was or define its parameters. In an appropriate case, the evidence might support only a finding that the cause fell within a range including an undisclosed accident or inflicted harm.
5. Application. The mother’s timing, conduct and interaction with the father made it highly unlikely that she had inflicted the injuries shortly before leaving the home. Although there were difficulties in the father’s account and in his failure to disclose the chaise longue incident, his evidence was accepted overall. The court also found that neither parent was more likely than not to be concealing a causative event.
6. Procedural fairness. Fairness in cross-examination was fact-sensitive. Where a party sought a finding that a parent was a possible perpetrator by reference to particular timings and events, that case should have been expressly put to the parent. The court nevertheless decided the case on the evidential and factual weaknesses in the proposed findings.
7. Final order. The threshold was not established.