JS (a minor), Re

In a child-injury fact-finding hearing, the local authority must prove allegations on the balance of probabilities. Findings must rest on evidence and proper inferences, assessed as a whole, rather than on suspicion or speculation. Medical evidence, including evidence of the intracranial-injury triad, is important but not determinative; the court must evaluate it with all other evidence.

A parent may remain culpable for failing to protect a child despite being a victim of domestic abuse, where that parent knows of a risk and does not take reasonable protective action. The pool of possible perpetrators is determined by a real possibility, but a finding that a person inflicted injury requires proof on the balance of probabilities.

This was a first-instance fact-finding hearing in care proceedings concerning J, an infant who was admitted to hospital with bilateral subdural haematomas and retinal haemorrhages. The local authority alleged that the injuries had been inflicted by one of J’s parents. By final submissions, it withdrew the allegation against the mother.

The court heard extensive medical evidence about the possible causes and timing of the intracranial and retinal bleeding, together with evidence about the parents’ volatile relationship, domestic abuse, the father’s episodes of anger, and reported episodes in which J became rigid or limp. The central issues were whether the injuries were non-accidental, who caused them, and whether they resulted from one or more incidents.

1. Fact-finding determinations made. The court found on the balance of probabilities that J sustained bilateral subdural haematomas and bilateral retinal haemorrhages through inflicted trauma on two occasions. Each assault included an element of shaking and was perpetrated by the father.

2. The court applied the ordinary civil standard described in Re B [2008] UKHL 35. It stressed that fact-finding must be evidence-based, not speculative, and that all evidence must be assessed together. Medical expertise assisted the court but did not displace its responsibility to decide the facts.

3. The intracranial-injury triad was a strong pointer to, but not diagnostic of, non-accidental head injury: R v Harris and Others [2005] EWCA Crim 1980. The medical evidence established that the chronic subdural haematomas were unlikely, though not impossibly, attributable to birth. The more likely explanation was inflicted trauma involving shaking. The mild retinal haemorrhages could have resulted from raised intracranial pressure, but were more likely caused by further inflicted trauma.

4. The court found that the father’s accounts of two alarming episodes involving J were incomplete and implausible. They were consistent with assaults involving shaking. His uncontrolled temper, domestic violence towards the mother and assault on J’s half-sister materially supported that conclusion. The evidence did not permit findings about the precise mechanism or circumstances beyond the two assaults; further findings would have been speculative.

5. The mother did not inflict injury. However, she culpably failed to protect J by exposing him to the father’s overnight care despite the known risk, failing to seek medical advice after the episodes, failing to report them to health professionals, and initially withholding relevant information about domestic violence. She also failed to protect the children from emotional harm caused by domestic abuse.

The findings were to form the basis of future assessments of the parents’ roles in J’s life.

First-instance fact-finding decision. The local authority applied for a care order after J was voluntarily accommodated. The proceedings, brought under the Children Act 1989, were transferred to the High Court for the fact-finding hearing.