The London Borough of Ealing v AR

In care proceedings, the local authority must prove disputed facts on the balance of probabilities. The court must decide whether the alleged event occurred; a finding that it might have occurred is insufficient.

Findings must be grounded in evidence and proper inferences, not suspicion or speculation. Evidence must be assessed in its full context and across the case as a whole. The possibility of an unknown medical cause must be considered where relevant, but it neither alters the burden or standard of proof nor requires every possible cause to be excluded.

Lies are relevant to credibility, but do not automatically establish responsibility for the injury or invalidate all other evidence. A perpetrator may be identified where the evidence, viewed holistically, proves responsibility on the balance of probabilities.

The local authority brought care proceedings concerning a young child who had sustained severe brain and retinal injuries. The medical evidence, which was substantially unchallenged, supported an acceleration-deceleration injury, probably caused by shaking. The principal issue was whether the perpetrator could be identified among the child’s parents and child-minder.

All three principal witnesses had lied about the child-minder’s involvement. The local authority and the child’s guardian submitted that those lies prevented a finding identifying any perpetrator. The court had to determine the timing and mechanism of the injury, assess the witnesses and medical evidence, and decide whether the statutory threshold was met.

1. Burden and standard of proof. The local authority bore the burden of proving the disputed allegations. The applicable standard was the balance of probabilities. The court had to reach a binary decision on whether the relevant facts occurred; it could not make a finding that an event merely might have occurred.
2. Evidence and medical uncertainty. Findings of fact had to be based on evidence and proper inferences, not suspicion or speculation. The evidence had to be assessed in context and across the whole evidential canvas. The possibility of an unknown cause had to be considered where appropriate. That consideration did not alter the burden or standard of proof. Here, the medical investigations were unusually thorough and no organic explanation was identified, although the court remained mindful of the limits of current medical knowledge.
3. Credibility and lies. Applying the approach in R v Lucas, [1981] QB 720, the fact that a witness had lied did not mean that the witness had lied about everything or that the witness was responsible for the injury. The court had to consider the reasons for the lies and assess each part of the evidence in the context of the evidence as a whole.
4. Identification of the perpetrator. The agreed pool of possible perpetrators satisfied the test of a likelihood or real possibility of responsibility. The evidence that the child was well before being left with the child-minder, together with the medical evidence about the timing and immediate symptoms, excluded the father and established on the balance of probabilities that the child-minder had caused the injuries by shaking the child in a momentary loss of control.
5. The statutory threshold under section 31 of the Children Act 1989 was not met because the injuries were attributed to the child-minder, while the parents had reasonably left the child in her care and could not reasonably have foreseen what occurred. The relevant findings were made, but the care application was dismissed in substance.
6. The court also stated that MRI scans with contrast were highly desirable, if not essential, when infants or children presented with possible brain injury, since the initial scans without contrast had contributed to delay in recognising the possibility of inflicted injury.