D (a Child), Re

In fact-finding proceedings, the court must assess competing possible explanations in parallel. It is impermissible to determine a preliminary harmful event on the balance of probabilities, convert that finding into certainty, and then require the court to choose between alleged perpetrators. The possibility that the primary event did not occur must remain within the overall assessment. The burden of proof remains on the party advancing the allegation, and respondents have no obligation to provide an alternative explanation. Serious allegations may require cogent evidence, but improbability does not add to the standard of proof. Contemporary documents are generally important when assessing credibility.

A local authority brought care proceedings concerning a child with profound medical needs after an incident in hospital in which her oxygen supply was found to be off. The principal factual issue was whether the supply had been deliberately switched off by the mother, accidentally switched off by a student nurse, or had not been switched off and the attending nurse had been mistaken. The court also considered the proper approach to probability where the alleged harmful event itself was disputed.

1. The court was not satisfied on the balance of probabilities that the mother had deliberately switched off the child's oxygen supply.

2. The local authority bore the burden of proving its allegations on the balance of probabilities. The binary character of the standard of proof did not permit a preliminary finding that the oxygen had been switched off to be treated as a certainty for the purpose of a later inquiry into responsibility.

3. Where the competing scenarios are that the primary event did not occur, that it occurred accidentally, or that it was deliberate, the probabilities must be assessed in parallel. A judge must retain the possibility that the primary event did not happen. Otherwise, a false choice is created and the probabilities may be made to exceed one.

4. The court found, just, that the oxygen supply had been turned off, while recording real doubts. It nevertheless found that the mother had not done so. That conclusion did not establish that the student nurse had accidentally turned it off. The court was not satisfied on the balance of probabilities that the student nurse had done so either.

5. There was no requirement for the respondents to advance an alternative explanation. Credibility had to be assessed by reference to the whole evidence, including contemporaneous records, rather than demeanour alone. The court treated the nurse's contemporaneous records and the technical evidence as important, but considered the evidence of an alleged change in the mother's demeanour too nebulous to carry weight.

6. The court distinguished the present case from a pool-of-perpetrators case because the harmful act itself was not certain. The fact-finding issue was determined without a positive finding that either respondent had caused the alleged event.

The judgment was a first-instance fact-finding decision in care proceedings commenced by the local authority on 7 August 2013. No appellate history is stated.