N (a Child), Re

In care proceedings, a discrete fact-finding hearing concerning an earlier child’s death should be ordered only where it is necessary for the proper resolution of the proceedings. The court must apply the balance of probabilities and must decide disputed facts as having happened or not happened; unresolved doubt does not create an intermediate finding. Case management must also reflect proportionality, expense, the allocation of court resources, the child’s timetable and the parties’ procedural rights. A hearing may properly be refused where the medical dispute is acute, the outcome may remain inconclusive, and the child’s current safety can be assessed and managed without deciding the historical cause of death.

This was an adjourned case management conference in care proceedings concerning N, an infant. The local authority relied exclusively on the earlier death of N’s seven-month-old brother, MY, and sought a discrete fact-finding hearing to determine whether MY had died from an accidental fall or non-accidental head injury. The medical evidence was sharply divided, and there had been no contested judicial determination of the cause of death. The central issue was whether a separate factual investigation was necessary and proportionate to the proper resolution and protection of N’s case.

1. Application refused. The court declined to order either a paper investigation or a full discrete fact-finding hearing. The next hearing was to be an Issues Resolution Hearing, followed, if possible, by a final hearing.
2. The local authority bore the burden of proving the facts relied on to cross the threshold under section 31(2) of the Children Act. Applying Re B (Care proceedings: Standard of Proof) [2006] UKHL 35, the standard was the simple balance of probabilities. The seriousness of the allegation or consequences did not alter that standard.
3. A disputed fact is determined within a binary system. MY’s injuries were either non-accidental or they were not. If the local authority failed to discharge the burden, the injuries had to be treated as accidental for the purposes of the issue.
4. The court applied the guidance in Re U (Serious Injury: Standard of Proof) [2004] EWCA Civ 567, including caution where medical experts disagree, the equivocal character of unexplained medical events, and the need to guard against over-dogmatic expert evidence. The case management questions were whether the fact-finding hearing was necessary, whether early resolution would advance the substantive hearing, and whether it would prevent delay and disproportionate use of scarce expert resources.
5. The overriding objective required consideration of expedition, fairness, proportionality, expense, equal footing, court resources and the parents’ rights under Articles 6 and 8 of the Convention. A hearing lasting several weeks, involving further experts and likely rebuttal evidence, would not save expense or resources and might still be inconclusive.
6. The historical issue was not necessary to decide N’s case. The court could protect N on the existing evidence, treating the unresolved circumstances of MY’s death as creating a risk capable of management through assessment, support and monitoring. A finding of either inflicted injury or accident could itself produce injustice if the evidence did not justify it. The court therefore concluded that a separate fact-finding hearing would not advance the case.