KH and HH (Children), Re

In a fact-finding hearing concerning suspected inflicted injury to an infant, the local authority bears the burden of proving the relevant facts on the balance of probabilities. The court must apply that standard without adding a separate requirement of inherent probability when the evidence establishes that an injury occurred. A judge may identify the probable perpetrator where the evidence permits, but should not strain to do so. An uncertain-perpetrator finding requires a real possibility, on the evidence, that each identified individual inflicted the injuries. A person’s lies are not, by themselves, proof of guilt; their significance depends on the wider evidence and possible reasons for the lies. A non-perpetrating parent cannot be found to have failed to protect merely because another parent inflicted injury where the medical evidence does not support that conclusion.

The proceedings concerned the long-term arrangements for K and H, following the death of their eight-week-old sister, E. E suffered fatal head trauma, together with earlier rib and tibial fractures. The local authority sought findings about the cause of E’s injuries, the identity of the perpetrator, and whether either parent had failed to protect her.

The court considered extensive medical, documentary and factual evidence, including the parents’ differing accounts of events on the evening of E’s collapse. The central issues were whether E’s injuries were inflicted, whether either parent could be identified as responsible, and whether the non-perpetrating parent had nevertheless failed to protect her.

1. Cause of injury. The court found that E died from a traumatic shaking-type injury involving an element of impact. The fatal injury occurred shortly before the emergency call and was almost certainly inflicted by one of the parents. The earlier rib and tibial fractures were also inflicted. The suggestion that E had suffered an apparent life-threatening event followed by injury from a resuscitative shake was rejected on the medical evidence.
2. Burden and standard of proof. The local authority bore the burden of proof. The applicable standard was the balance of probabilities, applying the approach stated in Re B (Children) (Care Proceedings: Standard of Proof) [2009] AC 11. Inherent improbability did not require a heightened standard once the evidence established that an injury had occurred.
3. Identification of the perpetrator. The court could not determine whether the mother or father inflicted the fatal or earlier injuries. Either parent was a real possibility on the evidence. The court therefore made an uncertain-perpetrator finding and exonerated H, the child’s toddler brother. A judge should identify a probable perpetrator if able to do so, but should not strain to reach such a conclusion.
4. Credibility and lies. The parents’ contemporaneous accounts, later evidence, relationship and conduct were evaluated in the round. Lies could arise from self-protection or protection of another person. A lie was not, without more, evidence of guilt.
5. Failure to protect. The court did not find that the innocent parent had failed to protect E. The symptoms associated with the earlier fractures were non-specific and might not have alerted a non-perpetrating parent to inflicted injury.