Wigan Borough Council v Fisher & Ors

In care proceedings concerning serious injuries to an infant, findings must be based on the whole body of evidence, applying the balance of probabilities. The court should identify a perpetrator where the evidence supports doing so, but should not strain to do so where it does not. A person may be excluded from a pool of possible perpetrators where there is no real possibility of responsibility. Lies require careful evaluation because they do not, without more, establish guilt. A clinician’s suspicion that physical abuse is a real possibility triggers investigative guidance even if the clinician ultimately considers an accident at least as likely. A non-abusing parent is not culpable for failure to protect without evidence that the parent knew, or ought to have known, of the abuse.

Wigan Borough Council sought a care order for A, aged three, after the death of her sixteen-week-old sister, Evie. Evie had suffered multiple skull and rib fractures, brain injuries and bruising over several months. Both parents denied responsibility and alleged that the other was responsible.

The fact-finding hearing addressed who caused the injuries, whether the cause of death could be established, whether either parent had failed to protect Evie, and whether any other aspect of parenting crossed the intervention threshold.

1. Legal approach. The local authority bore the burden of proof. The standard was the balance of probabilities. Findings had to be based on all the evidence, not only expert evidence. The court should not strain to identify a perpetrator, but could exclude a person where there was no real possibility of responsibility. Lies did not equal guilt and had to be assessed in context.
2. Medical investigation. The doctors who treated Evie on 6 December 2012 had suspected the possibility of non-accidental injury because of the unusual skull fracture. The relevant child-protection guidance therefore applied. It concerned investigations, not final conclusions. The fact that the doctors eventually accepted the possibility of an accident did not remove the duty to investigate, refer and arrange a skeletal survey.
3. Responsibility for injuries. The father caused the major skull fracture on 6 December by striking Evie or striking her against something. He concealed the event and falsely blamed A. He also assaulted Evie on the morning of her death, causing bruising to her back and shoulder and precipitating her collapse. The court found that the father alone caused the remaining skull fractures, rib fractures and earlier bruising. The mother was exonerated. The evidence did not support treating theoretical possibilities as real possibilities after careful scrutiny.
4. Cause of death. Evie’s Treacher Collins syndrome did not cause her death, although it might have exacerbated other conditions. Pneumonia alone was unlikely to explain the death. The recent assaults significantly contributed to it, but the physiological process could not be identified. The medical cause of death therefore remained unascertained.
5. Failure to protect and threshold. The mother did not know, and could not reasonably have been expected to know, what the father was doing. Her continued relationship with him after Evie’s death did not establish an earlier failure to protect. The only failure to protect was the father’s concealment of his abuse. No other aspect of the parenting crossed the intervention threshold.

Not stated in the judgment.