A (Death of a Baby), Re

In family fact-finding proceedings, the party seeking a finding bears the burden of proving it on the balance of probabilities. Where several individuals might have caused a known injury, the question is whether there is a real possibility that the particular individual was involved. The court must assess that possibility against the whole body of evidence, including medical evidence, chronology, credibility and the inherent probabilities. Disbelief of a witness does not, by itself, establish responsibility; the burden remains on the party alleging it. On the evidence, responsibility for the fatal injuries was established against the father, while the possibility that the child’s sibling caused them was rejected as vanishingly improbable.

The local authority brought care proceedings concerning two surviving children after their two-week-old brother died from catastrophic head injuries sustained at home. The central issue was whether the injuries had been caused by the mother, the father or the older sibling, who had an autistic spectrum disorder. The court conducted a thirteen-day fact-finding hearing involving extensive medical, forensic, police and family evidence. The coroner had previously recorded that the death was an accident caused by the sibling, but the family court considered the underlying evidence afresh.

1. Applicable standards. The burden of proving a fact rested on the party seeking the finding, and the standard was the balance of probabilities: Re B (Children)(Care Proceedings: Standard of Proof) [2008] UKHL 35. Where several persons might have caused a known injury, the issue was whether there was a real possibility that the particular person was involved: Re S-B Children [2009] UKSC 17.
2. The medical evidence established that the baby had suffered exceptionally severe injuries caused by crushing force, probably following impact to the right side of the head. The injuries were not caused by shaking or by one impact alone. They were most consistent with an impact-and-crushing mechanism.
3. The mother was not present when the injury occurred and did not know how it had been caused. The father’s account that the older sibling had caused the injuries required an improbable combination of events, including the sibling removing both babies from their seats, placing the injured baby in a position permitting a forceful jump, causing no injury to the other twin, and remaining calm while the father slept through the episode.
4. The court rejected the father’s account and found that there was no real possibility that the sibling had caused the injuries. The court therefore found that the father had caused them. The precise mechanism was not determined, and the court declined to speculate beyond the evidence.
5. The court emphasised that disbelief of the father’s evidence did not itself establish responsibility; the burden remained on the party alleging it. Here, however, the limited number of possible explanations, the medical evidence and the rejection of the only alternative explanation together justified the finding.
6. The coroner’s verdict was given no material weight because the inquest had been inadequately informed and procedurally unfair to the sibling. The judgment was directed to be sent to the coroner, with permission for disclosure in any attempt to rectify the verdict. Further care proceedings concerning the expected child were to be transferred to and consolidated in the High Court.

Not stated in the judgment.