N And N (Non Accidental Head Injury: Fact Finding)

In family fact-finding proceedings, the burden remains on the party alleging non-accidental injury. The standard is the balance of probabilities. A suspected perpetrator’s lies do not, by themselves, establish culpability; their significance must be assessed with all the evidence and the possible motives for deception in mind. The court must evaluate the medical evidence, accounts of events, subsequent conduct and wider circumstances in the round. Expert evidence need not exclude an accidental mechanism before the court may find that an inflicted mechanism is more probable. A finding that injury was inflicted does not necessarily require a finding of deliberate or intentional harm. A sudden loss of control may provide the more accurate description.

The proceedings concerned two children, including a six-week-old boy who suffered catastrophic head injuries after collapsing at home. The local authority alleged that the injuries resulted from forceful shaking with impact. The father asserted that the child had accidentally fallen down the stairs while being carried for a night-time feed. The hearing was concerned with establishing what had occurred, including the significance of the father’s changing accounts, the medical evidence and the mother’s evidence about sounds heard during the incident.

1. Burden and standard of proof. The local authority bore the burden of proving the alleged facts. The applicable standard was the simple balance of probabilities. The father was not required to prove his account.
2. Assessment of lies. The mere fact that a potential perpetrator has lied is not, by itself, evidence of guilt. People may lie for reasons including shame, fear or an attempt to conceal dishonourable behaviour. The court must consider the reasons for the lies and their significance in the context of the whole evidential picture.
3. Holistic fact-finding. The court was required to assess the medical evidence together with the histories given, the circumstances at the time of injury, subsequent conduct and the parties’ oral evidence. The experts considered the proposed fall theoretically possible but unlikely, having regard to the severity and pattern of injury, the child’s presentation and the delayed disclosure of the alleged fall. The medical evidence did not have to exclude the accidental mechanism.
4. Findings. The father’s account was inherently improbable and inconsistent with the medical evidence. His delayed disclosure, repeated lies and conduct after the event materially undermined it. The child’s injuries resulted from forcefully inflicted shaking with impact against an unyielding surface or object.
5. Intent. The finding of inflicted injury did not require a finding that the father set out deliberately or intentionally to injure the child. On the balance of probabilities, the injury was best understood as the consequence of a sudden and frenzied loss of control, probably arising from anger and frustration.

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