NH v A County Council & Ors

The balance of probabilities applies to findings of fact in care proceedings. That standard does not require the court to identify an individual perpetrator of non-accidental injuries where the evidence does not permit it. A judge must identify the perpetrator where that conclusion can properly be reached. Otherwise, the judge must record that neither possible perpetrator can be excluded and must avoid findings based on speculation.

After a split fact-finding hearing, the same judge should normally conduct the welfare hearing. Crossing the statutory threshold gives the court power to make a care order, but does not require one. The eventual order must serve the child’s welfare.

The father appealed against findings made by His Honour Judge Meston QC during the fact-finding stage of care proceedings concerning two children. The judge found that the father had inflicted non-accidental injuries on both children and excluded the mother as a perpetrator. He made no finding identifying the perpetrator of the younger child’s torn frenulum.

The father sought either findings that the mother alone was responsible or a retrial. Both parents contended in the alternative that any further hearing should be before another judge. The local authority and children’s guardian submitted that neither parent could be excluded from the pool of possible perpetrators.

The principal issues were whether the evidence permitted the findings against the father, whether the mother’s admission established responsibility for the torn frenulum, and whether the proceedings should continue before the original judge.

1. Appeal allowed. The finding that the father alone perpetrated the injuries to both children was set aside. The Court substituted a finding that neither parent could be excluded as a possible perpetrator of the injuries to either child. The matter was remitted to the same county court judge for continuation of the proceedings.

2. [2008] UKHL 35 establishes that findings of fact in care proceedings are governed by the simple balance of probabilities. Its binary analysis does not compel a judge to identify one of two possible perpetrators. Where the evidence leaves the judge genuinely unable to find that one person rather than another caused the injuries, the proper conclusion is that neither can be excluded. Judges must not strain to identify a perpetrator or begin from the premise that non-identification will be exceptional.

3. The younger child’s torn frenulum was a non-accidental injury sustained in the parents’ care. The judge could not attribute it to the father, and the mother had clearly admitted causing it. His neutral finding was therefore impermissible. The only finding properly available on the balance of probabilities was that the mother caused that injury. This error undermined the judge’s overall exoneration of the mother.

4. The judge had also failed adequately to address significant evidence that the mother may have caused bruising to the older child. That omission, together with the error concerning the torn frenulum, made the exclusive finding against the father unsound. The evidence nevertheless remained capable of implicating the father, so his request to be excluded from the pool was rejected.

5. The threshold under section 31(2) of the Children Act 1989 was satisfied, but that did not require a care order. It merely empowered the court to make one if the children’s welfare under section 1 required it.

6. The same judge should normally conduct the fact-finding and welfare stages. The case did not fall within the exceptional category in which justice required a change of judge. The original judge had heard extensive evidence, could apply the substituted findings without prejudice, and was to conduct the final hearing.

1. Court of Appeal (Civil Division): The appeal was allowed. The finding that the father was the sole perpetrator was set aside. The Court found that neither parent could be excluded from the pool of possible perpetrators, found that the mother caused the torn frenulum, and remitted the proceedings to the same judge.

2. Bournemouth County Court: His Honour Judge Meston QC found the father responsible for the injuries to both children, excluded the mother as a perpetrator, and made a neutral finding concerning the torn frenulum. The lower court decision has no citation stated in the judgment.