A (Children)

In fact-finding proceedings concerning injury to a child, the burden remains on the party seeking the finding, who must prove it on the balance of probabilities. A judge does not reverse that burden merely by testing whether an alternative perpetrator is a real possibility or by eliminating that alternative. The judgment must be read as a whole. The judge may evaluate the inherent probability of competing explanations, consider the evidence in its entirety, assess witness credibility and reach a specific finding of responsibility where the evidence supports it. The Court applied [2008] UKHL 35 and [2009] UKSC 17.

The father appealed against the judgment of Peter Jackson J dated 11 November 2011, which found that he was responsible for fatal injuries suffered by one of his twin children within weeks of birth. The appeal focused on the judge’s consideration of whether the child’s older brother could have caused the injuries, particularly the reasoning at paragraph 172. The father argued that this approach reversed the burden of proof and supported no more than a finding that he was a possible perpetrator. The Court of Appeal also considered the significance of additional evidence concerning the older brother.

1. Appeal dismissed. The Court of Appeal unanimously upheld the finding of responsibility. Thorpe LJ gave the leading judgment, Toulson LJ agreed, and Black LJ gave separate supporting reasons.
2. The trial judge had correctly stated that the burden of proving responsibility lay on the party seeking the finding and that proof was required on the balance of probabilities, consistently with Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35. His rejection of the father’s evidence did not itself establish responsibility.
3. The judge was entitled to consider whether the father’s explanation that the older child caused the injuries was a real possibility. That was a permissible and sensible approach under Re S-B (Children) [2009] UKSC 17. It involved assessing the inherent possibility or probability of the necessary events, the medical evidence, the evidence as a whole and the father’s credibility.
4. Read as a whole, the judgment did not require the father to prove that he was not responsible or that the older child was responsible. The judge found that the alternative explanation was vanishingly improbable in light of the evidence, rejected the father’s account and then made the specific finding that the father caused the injuries. The conclusion was therefore not based on an impermissible reversal of the burden or on elimination alone.
5. Thorpe LJ additionally observed that, at the second stage of the trial, the judge would be bound to consider the later injury inflicted by the older child and could reconsider earlier findings if that development proved sufficiently material. That observation was not necessary to the dismissal of the appeal.

• Court of Appeal (Civil Division): the appeal against the judgment of Peter Jackson J was dismissed. Permission had initially been refused on the papers but was granted on a renewed oral application.
• High Court, Family Division: Peter Jackson J found that the father was responsible for the fatal injuries suffered by one of the children.