Birmingham City Council v LB & Ors (Rev 2)

In a fact-finding hearing concerning non-accidental injury to a child, the local authority bears the burden of proving the facts on the simple balance of probabilities. The same standard applies when identifying the perpetrator of established harm. The seriousness of the allegation does not raise the standard of proof.

Inherent probabilities and improbabilities are relevant only as part of the overall assessment. The court should seek to identify the perpetrator but should not strain unduly to do so. Lies must be assessed in their context, since a witness may lie for reasons such as shame, fear or distress without lying about every matter. Medical evidence must be evaluated against the broad canvas of all the evidence and circumstances.

The local authority brought care proceedings following the death of Kieron Barley, aged 22 months, from a non-accidental head injury. The medical evidence established two separate episodes of non-accidental injury, one on 28 May 2011 and a fatal episode on 19 June 2011.

The mother and the man who had acted as the child’s father initially disputed the medical conclusions and gave accounts which the court found to be false or incomplete. During the hearing, both accepted that the child had died from a non-accidental head injury. The central issues were whether the court could identify the perpetrator of the injuries and what the mother knew about, or had done in response to, the risks to the child.

1. Applicable standard. The local authority bore the burden of proof. Applying Re B [2008] UKHL 35, the standard was the simple balance of probabilities, neither more nor less. That standard applied equally to identifying the perpetrator of proven non-accidental harm. The seriousness of the allegation did not alter the standard.
2. Assessment of probabilities. Inherent probabilities and improbabilities were matters to be taken into account when deciding where the truth lay. The court should endeavour to identify the perpetrator, but should not strain unduly to do so.
3. lies and credibility. The court applied the principles in R v Lucas [1981] QB 720. A lie could arise from shame, panic, fear or distress. A finding that a witness lied about one matter did not establish that the witness had lied about everything.
4. Medical evidence and the broad canvas. The medical evidence had to be considered in the context of all the evidence and circumstances. On that approach, the court found that the child had suffered two episodes of non-accidental injury. The first involved shaking or a shaking-impact mechanism and compressive fractures to the T8 and T9 vertebrae. The second caused fatal head injury. The injuries were inflicted while the child was in the sole care of the father, whom the court identified as the perpetrator.
5. The mother was found to have failed to protect the child to a very significant and serious degree. She had helped to conceal the first assault and had attempted to protect the father rather than the child.

First-instance fact-finding judgment. No appellate history is stated in the judgment.