A County Council v M and F

In a fact-finding hearing, the civil standard remains the balance of probabilities, whatever the seriousness of the allegations. Seriousness may affect the inherent probabilities and the cogency required, but it does not raise the standard of proof. A court may conclude that the party bearing the burden has failed to prove an allegation rather than choose between competing improbable explanations. The court must assess expert evidence as part of the whole evidential picture. Generalised paediatric research and the visual ageing of bruises may assist but are not determinative. Even powerful histological evidence may be insufficient where its forensic application is untested, relies substantially on animal research and conflicts with the wider evidence. Suspicion or risk does not establish deliberate abuse. The allegations of deliberate injury, neglect and murder were not proved, although injuries caused by reckless use of a bicycle buggy were found.

The local authority brought care proceedings under Part IV of the Children Act 1989 concerning two children after the unexplained death of their infant sibling. The hearing concerned the cause of injuries observed during the infant’s life and after death, the cause of death, alleged neglect of a foot condition, and whether either parent had deliberately inflicted injury or failed to protect the child.

The local authority relied principally on expert pathology, including histological evidence concerning neutrophil and macrophage migration, together with lay, photographic and paediatric evidence. The parents denied abuse and murder and advanced natural, accidental, post-mortem and resuscitation explanations. The central issue was whether the evidence established deliberate abuse and related findings on the balance of probabilities.

1. Standard and burden of proof. The local authority bore the burden of proving each allegation on the balance of probabilities. The seriousness of an allegation did not create a higher standard. It was relevant only to the inherent probability of the alleged event and the cogency needed to establish it. The court was not required to select one of several improbable explanations where the evidence left it in doubt.
2. Holistic assessment. The evidence had to be considered on a wide canvas. Medical evidence was important but formed part of the total evidential picture. Generalised empirical paediatric evidence could assist in assessing whether an injury was accidental, but it was not specific to the child and was not determinative. Visual ageing of bruises was an inexact technique and could not safely provide the principal basis for findings.
3. Histology. The histological evidence was powerful and supported the conclusion that some injuries occurred during life and at particular approximate intervals before death. However, its forensic application was untested. The research was largely based on animals, there was little published research concerning humans and none concerning babies, and biological systems were variable. The possibility of post-mortem or resuscitation-related changes, infection and bleeding disorders could not be dismissed sufficiently to make the evidence decisive.
4. Findings. The parents were found to be fundamentally honest, loving and caring. The court found that injuries to the infant had been caused by the father’s reckless use of the bicycle buggy, with the mother complicit to some extent, but without malign intent. The local authority failed to prove deliberate abuse, failure to protect, neglect of the feet or murder. The case was one in which the burden of proof came to the court’s assistance, and the parents were treated in law as not having deliberately inflicted the alleged violence.