IB & EB (Children)

In care proceedings alleging non-accidental injury, the local authority bears the burden of proving each allegation on the balance of probabilities. Findings must be based on evidence and properly drawn inferences, not suspicion or speculation. The court must assess the evidence on a wide canvas and in its totality, while recognising the distinct roles of judge and expert. The possibility of an unknown cause is a factor in deciding whether the proposed causation is proved. A person may be placed in the pool of possible perpetrators where there is a likelihood or real possibility of responsibility, but identification of the perpetrator requires proof on the balance of probabilities. The court should not strain to identify one parent where the evidence cannot distinguish between them.

Devon County Council brought care proceedings concerning two children, I and E. It alleged that I’s fractured finger and E’s airway injuries, bleeding episodes, foreign body, rib fractures and later airway swelling were non-accidental injuries inflicted by one of the parents. It further alleged induced illness or injury and failure by the non-perpetrating parent to protect the children.

The case involved extensive medical evidence, numerous hospital interventions, disputed explanations for the injuries, and significant disclosure failures by the police and hospital trust. The central questions were which injuries were proved, whether they were inflicted, who was responsible, whether the injuries formed a pattern of induced illness, and whether the father had failed to protect the children.

1. Burden and standard of proof. The local authority bore the burden of proving each allegation. The standard was the balance of probabilities. If an allegation was not proved, it had to be disregarded. The court had to consider inherent probabilities to the extent appropriate.
2. Fact-finding approach. Findings had to rest on evidence and proper inferences, not suspicion or speculation. The evidence had to be assessed across the whole factual canvas, with each item considered in the context of the others. Expert evidence was important but the court retained responsibility for the final decision. Experts had to remain within their expertise and defer where appropriate to other specialists.
3. Unknown causation. The possibility of an unknown cause was a relevant factor in deciding whether the causation advanced by the local authority had been established. It did not alter the burden or standard of proof.
4. Perpetrator. A person could be placed in the pool of possible perpetrators where there was a likelihood or real possibility that he or she caused the injury. A finding identifying a particular perpetrator required proof on the balance of probabilities. Where the evidence could not distinguish between two possible perpetrators, neither should be excluded and the court should not strain to identify one.
5. Findings. The court found that E’s pharyngeal tear was present before her admission to Southampton, caused the initial bleeding, and was inflicted by the mother. It found that later bleeding was probably caused by re-bleeding during medical interventions. The allegations concerning the cotton wool, rib fractures, later arytenoid swelling and I’s fractured finger were not proved on the balance of probabilities. The allegation of induced illness was also not proved. The father was not shown to have known, or reasonably to have known, that the mother posed a risk, and no failure to protect was established.
6. The existing arrangements for the children’s care were continued pending a further hearing.

First-instance care proceedings in the High Court (Family Division). The judgment does not state that it was an appeal.