XP (A Child), Re

In care proceedings, findings of fact must be based on evidence and not speculation. The court must assess each item of evidence within the wider evidential picture, including expert medical evidence, while recognising the possibility of an unknown cause. A court should identify a perpetrator of non-accidental injury only where satisfied on the balance of probabilities; it should not strain to do so merely because identification is desirable. On the facts, rough handling during the administration of nasal spray amounted to neglect, but the evidence did not establish that either parent caused the child’s death or tibial fracture.

Following the unexplained death of an eight-month-old child, a local authority commenced care proceedings concerning his younger half-sibling. The proceedings included a fact-finding hearing about the deceased child’s fracture, bruising, health, care and the parents’ relationship and lifestyle. The local authority did not seek findings that either parent caused or contributed to the death.

The central issues were whether the parents had neglected the child, whether the injuries were non-accidental, whether either parent caused the tibial fracture, and whether failures to obtain medical attention or engage with health services were established on the balance of probabilities.

1. Approach to fact-finding. The local authority bore the burden of proof, and the standard was the balance of probabilities. Findings had to be based on evidence rather than speculation. The court was required to consider the evidence on a wide canvas, weighing expert opinion against the other evidence and keeping each expert within the limits of his or her expertise. The possibility of an unknown cause had to remain in view. The guidance in R v Lucas [1981] QB 720 and Lancashire County Council v The Children [2014] EWHC 3 (Fam) was applied.
2. Relationship and neglect. The father was controlling, possessive and occasionally violent towards the mother. The child’s needs were not consistently prioritised. The parents were careless in permitting repeated collisions and falls, using an ill-fitting cot mattress, smoking in the flat and failing to obtain timely medical attention for the child’s illness, infected scrotal abrasion and persistent symptoms. These findings amounted to neglect.
3. Bruising. The court accepted that the facial bruising could have resulted from rough handling while both parents held the child’s face to administer nasal spray. That conduct was not necessarily deliberate, but it was rough handling amounting to care which a reasonable parent would not have given and which caused pain and discomfort. The remaining bruises were not found to have been inflicted by either parent.
4. Tibial fracture and death. The unusual fracture could not confidently be characterised as accidental or non-accidental. The local authority failed to prove that either parent caused it by excessive force, or that they were culpable in failing to obtain medical assistance for it. The evidence also did not establish that either parent caused or contributed to the death. Possible links with sudden infant death syndrome and overheating were speculative.
5. Disposition. Some, but not all, of the requested findings were made. The question whether the threshold under Children Act 1989, s 31 was satisfied in respect of the surviving child, and what orders should follow, remained to be determined.