A (A Child), Re

In fact-finding care proceedings, the local authority bears the burden of proving allegations on the balance of probabilities. Findings must rest on evidence and properly drawn inferences, not suspicion or speculation. Medical opinions must be assessed alongside the whole evidential picture, while the court retains responsibility for the ultimate decision. Where the evidence cannot establish which carer caused an injury, the court must not strain to identify a perpetrator. Parents with learning difficulties should be identified early and provided with appropriate litigation support, special measures and, where necessary, intermediary assistance. Those steps should ordinarily be addressed within the statutory care-proceedings timetable.

A child suffered bruising, subdural and retinal haemorrhages and mild encephalopathy while in the care of her parents. The local authority commenced care proceedings. An earlier finding that the father had inflicted the injuries was overturned on appeal because his learning difficulties had not been adequately accommodated; the Court of Appeal ordered a retrial under [2012] EWCA (Civ) 1905.

At the retrial, the central questions were when and how the injuries occurred, whether either parent was responsible, and whether the mother had failed to protect the child. The court also considered the procedural steps required to enable a parent with learning difficulties to participate fairly in care proceedings.

1. Fact-finding principles. The local authority bore the burden of proof, and the standard was the balance of probabilities. Findings had to be based on evidence and proper inferences, not suspicion or speculation. The court had to consider the evidence as a whole, including expert evidence, while recognising that experts and the court had distinct roles. The judge remained responsible for the final evaluation. In cases involving suspected non-accidental head injury, the analysis should be multidisciplinary, with each expert remaining within the limits of his or her expertise. The evidence of parents and carers, including their credibility and reliability, was of central importance.
2. The court applied the reasoning in Regina v Lucas [1981] QB 720: a lie may arise from shame, embarrassment, panic, fear or misplaced loyalty, and a lie about one matter does not establish that the witness lied about everything. In this case, that reasoning also supported the possibility that the father had concealed an accidental act through embarrassment.
3. The injuries were caused by trauma and most probably occurred while A was in the father’s care during a short period around 3.15 am. The judge found that the father had not told the whole truth, but could not make a firm finding as to the precise mechanism without speculation. A low-level fall was possible. The mother was absolved of responsibility and there was no evidence that she had failed to protect A.
4. In identifying a perpetrator, the court should distinguish the threshold for placing a person in the pool of possible perpetrators from the standard required for a finding that the person was the perpetrator. A person may remain in the pool where there is a likelihood or real possibility of responsibility, but a specific finding requires proof on the balance of probabilities. Where that standard cannot be met, the court should not strain to choose between possible perpetrators.
5. Where a parent may have learning difficulties, representatives should consider capacity to give instructions and competence to give evidence at the outset. The issue should be raised promptly with the court. Directions for a litigation friend and special measures should ordinarily be considered at the early case-management hearing. Where necessary, an immediate expert assessment should be sought under Part 25 of the Family Procedure Rules, together with arrangements for an intermediary or other assistance. Funding and notice requirements should be addressed early.
6. Prompt identification and support should not ordinarily require departure from the 26-week timetable for care proceedings, save in exceptional circumstances. The judgment gave wider observations about the importance of supporting parents with learning difficulties and identifying risks arising from their imperfect understanding of childcare.

1. Court of Appeal: The earlier fact-finding decision was overturned and a retrial ordered under [2012] EWCA (Civ) 1905.
2. High Court (Family Division): The retrial determined the factual issues. The mother was absolved of responsibility, and findings were made that the injuries occurred while A was in the father’s care.