Torbay Councl v A Mother & Ors

In care proceedings involving alleged non-accidental injury, the local authority bears the burden of proving the threshold facts on the balance of probabilities. The court must assess medical evidence alongside all other evidence, including the accounts and credibility of the carers, while avoiding speculation and recognising the limits of expert science. A witness’s lies do not necessarily establish that the witness lied about every matter; the court must consider the reasons for each lie. Learning difficulties must be accommodated in the conduct of the hearing and carefully considered when assessing evidence. Where the evidence establishes inflicted injury but not the precise mechanism, the court may make findings at that level without conjecturing about the details.

These were care proceedings concerning J, commenced after the death of his 38-day-old younger brother, R. The local authority alleged that R had suffered fatal inflicted head and eye injuries while in his father’s care and that the threshold under Children Act 1989, section 31, was met. It initially advanced alternative allegations against the mother, but withdrew them at the conclusion of the hearing.

The court heard extensive medical, factual and psychological evidence, including evidence about the father’s learning difficulties and several changing accounts of events on the afternoon of 25 November 2012. The central issues were the timing and cause of R’s injuries, whether earlier bleeding resulted from birth or an intermediate injury, whether the father’s accounts explained the injuries, and whether findings could be made as to the perpetrator.

1. Burden and standard of proof. The local authority bore the burden of proving the alleged facts on the balance of probabilities. The court had to base findings on evidence, avoid speculation and assess the whole evidential canvas. Expert medical evidence required appropriate attention but had to be weighed with the factual evidence and kept within the bounds of the experts’ expertise.
2. Credibility and vulnerability. The evidence of the parents and other carers was of particular importance. In applying the principle in R v Lucas [1981] QB 720, the judge treated lies as capable of arising from panic, fear, shame or misplaced loyalty. A lie about one matter did not establish that the witness had lied about everything. The father’s learning difficulties required adjustments to the hearing and particular caution in interpreting his evidence, but did not prevent findings that he understood the need to provide a fuller account.
3. Medical and factual findings. R had sustained a severe episode of head trauma shortly before his collapse and death. That episode accounted for the skull fracture, bruising, acute intracranial and spinal bleeding, optic nerve and retinal haemorrhages, and brain injury. The evidence also established direct traumatic injury to the eyes. The older bleeding was more likely than not attributable to birth, and the evidence did not establish an intermediate inflicted injury.
4. Perpetrator and mechanism. The father’s accounts of an impact from the baby swing and a later fall were implausible and did not explain the injuries. The judge found that the acute injuries were inflicted by the father, although it was impossible to determine precisely how they were inflicted or whether the act was deliberate and calculated rather than a momentary loss of control. The father knew that R had been injured, concealed marks with a hat and culpably failed to obtain immediate medical assistance. The mother was not responsible, directly or through failure to protect.
5. Orders. The threshold under section 31 was satisfied. The court was not asked to make a final order at the fact-finding hearing, but provisionally considered that J should return to his mother’s care with continuing support and that a supervision order under section 1 might be appropriate. The postscript recorded that a child arrangements order and a 12-month supervision order were later made.

First-instance fact-finding judgment in care proceedings. The judgment states that the threshold under section 31 of the Children Act 1989 was satisfied. It records that final orders were made subsequently, including a child arrangements order under which J lived with his mother and a 12-month supervision order.