AD & AM (Finding of Fact: Non-Accidental Injury)

In child-protection fact-finding proceedings, the local authority bears the burden of proving alleged facts on the balance of probabilities. The court must decide whether the facts occurred; suspicion and speculation cannot substitute for proof.

Medical and factual evidence must be assessed together. The court is not bound by expert conclusions and may reach a different overall conclusion while accepting the experts’ reasoning. A finding that injuries were non-accidental does not require identification of the perpetrator. Where the evidence permits it, the court should identify the perpetrator, but should not strain to do so. The court must also remain open to an unknown cause where non-accidental injury cannot properly be inferred merely from the absence of an understood alternative mechanism.

The London Borough of Newham brought proceedings under Part IV of the Children Act 1989 concerning AD and his older sister AM. AD, aged 10 months, suffered a skull fracture, serious brain injuries and thoracolumbar vertebral compression fractures.

The central issues were whether the injuries were accidental or non-accidental and, if non-accidental, whether the perpetrator could be identified. The parents denied causing the injuries and relied principally on an alleged incident earlier in the evening involving AD falling near a toy scooter. The court heard extensive medical and factual evidence.

1. Applicable principles. The local authority bore the burden of proof, and the standard was the balance of probabilities. Findings had to rest on evidence and proper inferences, not suspicion or speculation. The court was required to consider the evidence as a whole.
2. Medical and factual evidence had to be evaluated together. Following A Local Authority v K, D and L [2005] 1 FLR 851; [2005] EWHC 144 (Fam), the court’s role was distinct from that of the experts. It could reach a different conclusion from the experts’ opinions while accepting their reasoning, provided that the conclusion followed from the totality of the evidence. The same approach was expressed by the Court of Appeal in Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567.
3. The court applied the guidance in Re S-B (Children) [2009] UKSC 17 and Re D (Care Proceedings: Preliminary Hearing) [2009] EWCA Civ 472. Identification of a perpetrator was not necessary to establish the threshold criteria. However, where an individual could properly be identified on the balance of probabilities, the judge had a duty to identify that person and should not strain to avoid doing so.
4. The possibility of an unknown aetiology had to remain open. Adopting Re R (Care Proceedings: Causation) [2011] EWCH 1715, the court recognised that non-accidental injury must not be inferred merely because no understood alternative mechanism had been established.
5. The alleged 4.30 pm incident was found insufficient to cause the injuries. The medical evidence, the timing of the deterioration and the family accounts established that the injuries occurred later and were non-accidental. The court found that the mother inflicted them, although it declined to speculate on the precise mechanism or motive. The proceedings were adjourned for determination of the children’s future arrangements and welfare.