Devon County Council v EB & Ors (Minors)

In care proceedings, the local authority bears the burden of proving significant harm and its attribution to care falling below the standard reasonably expected of a parent. The court decides disputed facts on the balance of probabilities and must avoid findings based on suspicion or speculation.

All evidence must be assessed together and in context. Expert medical evidence remains advisory. The court must consider the possibility of an unknown cause, which does not alter the burden or standard of proof. Where the total evidence leaves a real possibility of medical, accidental, birth-related or hospital-related explanations, non-accidental injury is not established merely because the injuries are unusual.

The local authority sought care orders under section 31(2) of the Children Act 1989 in respect of twins and their younger brother. The twins had sustained fractures and intracranial bleeding, and the local authority alleged that the injuries were non-accidental and had been inflicted by one of the parents.

The fact-finding hearing was delayed for extensive expert investigation of the parents’ and children’s medical conditions, including possible connective-tissue disorders and genetic causes. The central issues were whether the harm was attributable to care below the reasonable parental standard and, if so, which parent was responsible.

The care applications were dismissed. The twins had suffered significant harm, but the local authority had not proved on the balance of probabilities that the harm was attributable to care falling below that reasonably expected of a parent. The threshold under section 31(2) of the Children Act 1989 was therefore not crossed.

1. The judge applied the burden and standard of proof identified in Re B [2008] UKHL 35. The court had to decide whether the alleged events occurred; an intermediate conclusion that they might have occurred was insufficient.
2. Findings had to be based on evidence and properly drawn inferences, rather than suspicion or speculation: Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12. The court was required to survey the wider canvas and assess each item in the context of the totality of the evidence, as explained in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ. 567 and Re T [2004] EWCA Civ. 558.
3. Expert evidence was important but not determinative. The court retained the final responsibility for weighing medical evidence against the other evidence, and experts had to remain within their fields while deferring where appropriate to other disciplines. The evidence of the parents was also of central importance, and lies about one matter did not necessarily invalidate all their evidence.
4. The judge treated the possibility of an unknown cause as a factor which had to be considered in cases involving a discrete medical aetiology. That possibility affected neither the burden nor the civil standard of proof. The approach in R v Cannings [2004] EWCA 1 Crim, R v Henderson and Butler and others [2010] EWCA Crim. 126 and Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam was applied.
5. The evidence disclosed several genuine uncertainties: the absence of external signs despite frequent professional examinations; the parents’ connective-tissue and other medical conditions; possible familial susceptibility; possible birth-related chronic subdurals; a definite hospital re-bleed; and real possibilities that some fractures had occurred during hospital treatment. The judge accepted that the parents were honest and that the father’s prompt medical consultation about J’s clicking was inconsistent with having inflicted an injury.
6. Although a momentary loss of parental control was possible, the local authority had not proved that explanation on the balance of probabilities. The court accordingly dismissed the applications. The judge added that judicial continuity, properly directed expert investigation and flexibility for rare cases requiring longer than the usual timetable were important features of fair fact-finding in care proceedings.