M (A Child), Re

Under section 31 of the Children Act 1989, the local authority must prove significant harm and the necessary causal connection with unreasonable parental care. The standard is the balance of probabilities. Suspicion and the absence of a satisfactory benign explanation do not establish that an injury was deliberately inflicted.

The court must assess all the evidence without reversing the burden of proof. A finding that one parent failed to protect a child also requires evidence capable of establishing that parent’s awareness of the injury or its infliction.

Both parents appealed against findings made by HHJ Hammerton in the Medway County Court after a fact-finding hearing in care proceedings. Their eight-week-old child had presented with several unusual bruises. Medical experts could not identify the objects or mechanisms that caused them, but considered the injuries non-accidental because no satisfactory benign explanation had been found.

The judge found that the child had suffered significant harm deliberately inflicted by one parent. She could not identify the perpetrator, retained both parents within the pool of possible perpetrators and found that the other parent had failed to protect the child.

The central issue was whether those findings respected the local authority’s burden of proving the causation element of the threshold under section 31 of the Children Act 1989.

1. The appeal was allowed unanimously. Ward LJ delivered the judgment, with which Lloyd LJ and Rafferty LJ agreed. The findings that the injuries were deliberately inflicted and that the other parent failed to protect the child could not stand.

2. The threshold under section 31 of the Children Act 1989 required both significant harm and proof that the harm was attributable to care falling below that which it was reasonable to expect a parent to give. The bruising amounted to significant harm. The disputed question was whether the local authority had proved the necessary causal connection with unreasonable parental care.

3. The local authority bore the burden of proof throughout. The applicable standard was the ordinary balance of probabilities. Suspicion was not proof, and the evidential analysis could not require the parents to demonstrate that the injuries were accidental.

4. The number, distribution and appearance of the injuries, their occurrence within a narrow period and the child’s age could have established a case to answer concerning a general failure to provide reasonable care. That was not, however, the case placed before the trial judge. She had been invited to find, and did find, that one or both parents deliberately inflicted the injuries.

5. The medical evidence did not identify the relevant object, the manner in which pressure had been exerted, the degree or duration of pain, or the child’s likely reaction. Reasoning from the absence of a satisfactory benign explanation to a malevolent explanation involved an impermissible leap. It effectively reversed the burden of proof. The local authority had therefore failed to prove deliberate infliction on the balance of probabilities.

6. The failure-to-protect finding was also inadequately reasoned. There was no evidence establishing whether the child cried, how loudly or for how long, or whether the pressure merely caused discomfort that another person would not notice. The local authority did not seek to uphold that finding.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1580, the court unanimously allowed both parents’ appeals and set aside the material fact-finding conclusions.

2. Medway County Court: HHJ Hammerton found that the child had suffered significant harm through injuries inflicted by one parent, that both parents remained possible perpetrators and that the other parent had failed to protect the child.