SCC v M & Ors

In care proceedings, the court determines facts on the balance of probabilities. Serious injuries may be found non-accidental where the medical evidence, absence of an adequate accident or medical explanation, and the child’s presentation support that conclusion. The court may identify the perpetrator even where the precise mechanism and timing cannot be established, provided the evidence as a whole makes that conclusion more likely than not. Witness credibility, the timing window, opportunity, and the physical capacity of proposed perpetrators are relevant to that assessment. The court must distinguish proof that injuries were inflicted from proof of an intention to cause harm.

SCC brought care proceedings concerning four children after D, a six-week-old baby, suffered serious head, eye and spinal injuries together with bruising. The father had previously been acquitted of grievous bodily harm in criminal proceedings. The family court conducted a fact-finding hearing concerning the circumstances, timing and perpetrator of the injuries, including an allegation that the eldest child, A, might have caused them. The central issues were whether the injuries were non-accidental, when they were inflicted, and whether the evidence established responsibility on the balance of probabilities.

1. The court found that D had suffered serious head, eye and spinal injuries and bruising. The agreed medical evidence established that the head, eye and spinal injuries were consistent with vigorous shaking or shaking with impact, while the bruising was consistent with firm gripping. The force exceeded normal handling or rough play and would have caused pain and distress.
2. In the absence of an accident, other incident, or organic or congenital explanation, the injuries were non-accidental. The court emphasised that this finding did not establish that they were inflicted with an intention to harm.
3. The court accepted that D was already injured when S found him shortly after 8.30 am on 27 August 2013. The most probable window was the early hours of that morning, although the evidence permitted the window to extend back to the early evening of the previous day.
4. The court assessed the competing possibilities. The medical evidence made it difficult, though not absolutely impossible, for a nine-year-old child to have caused the injuries, and made it even less likely that the younger children had done so. The evidence about A’s conduct and the children’s accounts was unreliable or insufficient to establish her responsibility.
5. The father’s evidence was contradictory and unreliable. His anger, opportunity, failure to account for the critical hours, and knowledge that he was withholding information led the court to conclude that he had lost his temper, gripped D and shaken him forcefully. The court excluded A, B and C from responsibility.
6. The criteria under Children's Act, section 31, were satisfied in respect of all four children, particularly D and A.