RMM v HW & Ors

In care proceedings, an expert’s evidence expressed as a clinical possibility does not itself establish a fact on the balance of probabilities. The judge must assess the whole evidential picture. That may include the nature of the medical evidence, the absence of an innocent explanation, and the content and manner of a parent’s evidence. Unsatisfactory evidence may justify an adverse inference. However, a parent should not be placed in a pool of possible perpetrators of non-accidental injuries merely because that parent had care of the child when the injuries were sustained. Where the evidence otherwise demonstrates consistently good care, there must be some additional evidence casting doubt on that parent’s account or conduct.

Care proceedings concerned a child who had suffered an acute life-threatening event and a nose-bleed while in his father’s sole care, followed weeks later by bruising and other injuries while both parents had cared for him. The Wolverhampton County Court conducted a fact-finding hearing.

The judge found that the earlier event was non-accidental and that the father had caused it. She also found that the later injuries were non-accidental but could not identify their perpetrator, placing both parents in a pool of possible perpetrators. The father appealed against the first finding. The mother cross-appealed against her inclusion in the pool. The central issues were whether the evidence supported the finding concerning the earlier event and whether the later pooling conclusion was properly reasoned.

1. The father’s appeal was dismissed. The medical expert had described partial suffocation as a significant possibility, based on the acute life-threatening event, the absence of a medical explanation and the unusual nose-bleed. That evidence did not amount to a clear opinion that the event was non-accidental on the balance of probabilities. The judge was nevertheless required to decide the issue herself by surveying all the evidence.
2. The judge was entitled to consider the father’s evidence. His account failed to explain the causation of the event. The judge identified a significant inconsistency concerning the child’s bib and considered that the father’s emphatic denial that he had held the child down was defensive. Unsatisfactory evidence can support an adverse inference as effectively as a complete failure to give evidence. The event was unexplained, but not necessarily inexplicable.
3. The mother’s cross-appeal was allowed. It may in principle be legitimate to infer that the person responsible for one non-accidental injury was responsible for a later injury. The incidents must nevertheless be assessed in their own context. Here, the judge had identified the mother’s care as consistently excellent and had no evidence, beyond her joint care of the child during the relevant period, casting doubt on her conduct. That was insufficient to place her in a pool of possible perpetrators.
4. The finding that both parents were in the pool was set aside. It was replaced by a finding that the father was the perpetrator of the later injuries. Lord Justice Stanley Burnton and Lord Justice Rix agreed with Lord Justice Wilson’s orders and reasons.

• Court of Appeal (Civil Division): dismissed the father’s appeal and allowed the mother’s cross-appeal.
• Wolverhampton County Court: following a fact-finding hearing, found the earlier event non-accidental and caused by the father, and placed both parents in a pool of possible perpetrators of the later injuries.