S (A Child) , Re

The threshold for a care or supervision order is concerned with significant harm, its attribution to the care provided, and the objective standard reasonably expected of a parent. It does not depend on intent, blame, or characterising conduct as negligent, reckless or deliberate.

Courts should find the facts proved on the balance of probabilities and apply the statutory language. Expressions such as “non-accidental injury” must not obscure the factual possibilities or the statutory test.

In public law children proceedings, a split hearing should ordinarily be confined to a stark or discrete issue whose early determination will expedite the substantive decision. The court must reason and record that case-management decision by reference to the overriding objective, the child’s timetable and the timetable for proceedings.

A local authority brought care proceedings concerning a baby who had sustained two skull fractures with associated brain haemorrhage and swelling. The family gave two accounts of the incident, both of which the county court judge rejected as false. The judge found that the child had suffered significant harm while in her parents’ care, but was not satisfied that either parent had deliberately inflicted the injury.

The local authority appealed, alleging inconsistency with the medical evidence, failure to infer culpability from the parents’ lies, and inadequate reasoning. The appeal also exposed failures to identify and examine the significant harm, attributability and objective-standard elements of section 31(2) of the Children Act 1989, together with concern about the use of a split fact-finding hearing divorced from the social and welfare context.

1. Appeal dismissed. The judge’s findings and inferences were not plainly wrong. He had not found that the injury was accidental or that the parents had not injured the child. He had found only that deliberate infliction by either parent was not proved. Other possible mechanisms had not been sufficiently investigated. The proceedings were remitted for outstanding factual issues, welfare and proportionality to be considered together.

2. Binary fact-finding remained applicable: a fact in issue either happened because it was proved on the balance of probabilities, or it did not happen because it was not proved. The failure to prove deliberate infliction was not a positive finding exculpating the parents or any other adult.

3. Section 31(2) of the Children Act 1989 required findings satisfying significant harm, attribution to the care provided and departure from the objective standard reasonably expected of a parent. The threshold was not concerned with intent or blame. It was therefore unnecessary to classify the conduct as negligence, recklessness or deliberate infliction. The court should find the facts supported by the evidence and then apply the statutory formulation.

4. “Non-accidental injury” was a clinical catch-all which could conceal a range extending from lack of care to deliberate infliction. If such terminology was used, practitioners and experts had to ascertain its precise meaning and explore the compatible factual mechanisms. Describing harm as an “accidental injury” was also unhelpful because a true accident was unexpected and unintentional, whereas an injury involved an element of wrong.

5. The judge had considered the false accounts through the approach in R v Lucas [1981] 1 QB 720. After hearing the witnesses, he was entitled to decline to infer deliberate infliction, while inferring that medical treatment had been delayed.

6. A split hearing in public law children proceedings should be confined to a stark or discrete issue whose early determination will expedite the substantive decision. Removing facts from their social and welfare context can deprive the court of material relevant to credibility, reliability, risk and parental capability. It can also impair later welfare and proportionality assessments. The decision must further the overriding objective and the relevant child and proceedings timetables, and its reasons and the issue to be tried must be recorded in the case management order.

7. Social work and Cafcass assessments should begin at the earliest opportunity. They do not depend on the prior judicial proof of facts and may assess risk by reference to each factual scenario which the court is asked to consider.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 25, the local authority’s appeal was dismissed. The proceedings were remitted to the allocated judge so that any outstanding factual issues could be determined together with welfare and proportionality.

2. Cambridge County Court: His Honour Judge Yelton found that the child suffered significant harm while in her parents’ care, but was not satisfied that either parent had deliberately inflicted the injury.