City And County of Swansea v MB & Ors

In care proceedings, the civil standard of proof applies equally to whether harm was non-accidental and to the identity of the perpetrator. Serious allegations do not require a heightened standard, although inherent probabilities may be relevant. The court must make a binary finding and cannot treat an unresolved possibility as a finding of fact.

Where the perpetrator cannot be identified, the court may identify a pool of possible perpetrators if the evidence establishes a likelihood or real possibility of involvement. A failure to protect may be established where the innocent carer knowingly conceals the truth. For future-risk threshold findings under Children Act 1989, section 31(2), the court must assess the risk arising from the established facts and the care likely to be provided.

The local authority brought care proceedings concerning V, the young daughter of M B and M K, after a baby cared for in their household suffered catastrophic injuries consistent with violent shaking. Proceedings concerning the injured baby were withdrawn after expert evidence excluded her mother as a perpetrator.

The central issues were whether the injuries resulted from abusive shaking or an attempted resuscitative shake, whether either respondent could be identified as the perpetrator, whether the other had failed to protect the child, and whether V was suffering or likely to suffer significant harm attributable to care that it would be unreasonable to expect a parent to provide.

1. Findings and standard of proof. The local authority bore the burden of proof. The applicable standard was the balance of probabilities, both for the finding that the injuries were non-accidental and for identifying the perpetrator. The seriousness of the allegations did not alter that standard. If the evidence remained equivocal, the court could not make a finding that an event might have occurred.
2. Medical evidence. The court assessed expert medical evidence alongside the lay evidence. Experts advised, but the judge decided. The court preferred the evidence of Dr Cartlidge to Professor Wyatt and rejected the theory that an unexplained collapse followed by a resuscitative shake caused the injuries. The injuries were caused by violent shaking shortly before the baby became profoundly unwell.
3. Perpetrator and protection. The court could not decide which respondent had shaken the baby. Both therefore remained in the pool of possible perpetrators. The other respondent must have known what had occurred and had failed to protect by withholding the truth from medical professionals and the court.
4. Threshold. Applying Children Act 1989, section 31(2), the court held that V was likely to suffer significant harm attributable to care that it would not be reasonable to expect a parent to provide. A child in the household had suffered very significant harm at the hands of one respondent, while the other had concealed the truth. The fact that V was older and was not the injured child did not prevent the threshold from being established.
5. The threshold finding did not itself determine whether a care order should be made. That question required a separate welfare decision.

First-instance fact-finding judgment in care proceedings. The judgment records that the local authority had withdrawn the proceedings concerning the injured baby on 20 January 2014; the present judgment concerned only the care proceedings relating to V.