T And M (Children: Fact Finding: Physical Injury)

In child-protection fact-finding proceedings, the local authority bears the burden of proving non-accidental injury on the balance of probabilities. A court is not required to identify the individual perpetrator where the evidence does not permit a reliable conclusion, and it must not strain to do so. An uncertain-perpetrator finding requires a real possibility that each proposed perpetrator caused the injury, but that possibility does not itself establish that either person did so or justify predicting future harm. Where one parent caused the injury and the other failed to obtain appropriate medical attention, the failure to protect may itself be highly significant.

The local authority sought findings concerning the death of a 13-month-old child and approximately 70 fractures sustained during two periods before death. The principal medical issue was whether the injuries resulted from inflicted trauma or an underlying bone disorder. The remaining issue was whether responsibility could be attributed to the mother, the father, or both. The court also considered whether either parent had failed to protect the child and whether the threshold criteria for public law intervention were met.

1. The local authority proved, on the balance of probabilities, that the child’s fractures were inflicted. The medical evidence established two episodes of severe trauma, occurring approximately two to four days and two to four weeks before death. The court rejected possible unknown or naturally occurring causes and found no relevant metabolic bone disease, osteogenesis imperfecta, vitamin deficiency, collagen reduction or osteopetrosis.
2. The court could not reliably identify whether the mother, the father, or both had inflicted the injuries. Neither parent was exonerated. The evidence, including the children’s accounts and the medical evidence concerning the child’s presentation, established that both parents had lied and had colluded to suppress the truth, but the lies did not by themselves identify the perpetrator.
3. Applying the principles concerning an uncertain perpetrator, the court required a real possibility that each proposed perpetrator had inflicted the injuries. Such a possibility did not establish that either parent had done so and could not, without a finding of actual past harm, alone justify a prediction of future harm.
4. If only one parent had inflicted the injuries, the other had committed a glaring failure to protect by not obtaining appropriate medical attention. Neither parent could be regarded as protective. The threshold under s.31 was crossed in relation to all the children because A had suffered significant physical and emotional harm and the surviving children remained at serious risk of substantial physical harm while responsibility remained uncertain.

Not stated in the judgment.