M-B (Children)

In care proceedings, a local authority must prove on the balance of probabilities that harm is attributable to culpable care before the statutory threshold is met. The absence of a satisfactory explanation is evidence to evaluate with the medical and other evidence; it does not reverse the burden of proof or automatically establish deliberate injury. “Non-accidental injury” is a broad label, and the relevant gateway question is fault rather than motive. A fact-finding judge must confront agreed expert evidence, avoid speculation, and give coherent reasons addressing the evidence as a whole. If a judgment on central injuries is contradictory or unreliable, the Court of Appeal should set it aside. Where it cannot fairly assess witnesses or reconstruct the evidence, it should remit for a de novo rehearing.

H County Council brought care proceedings after A, aged 10 months, died and post-mortem examination revealed multiple fractures. Emergency protection orders and interim care orders followed for A’s siblings and for a further child born to the mother. At a fact-finding hearing, HHJ Wright accepted that the fractures had no satisfactory explanation but declined to find that they were non-accidental injuries or to identify a perpetrator or pool of possible perpetrators. The local authority appealed the judgment dated 3 July 2015, arguing that the judge had failed properly to evaluate the expert medical evidence and had misunderstood the burden of proof. The central issues were whether the findings were legally and analytically sustainable and whether the Court of Appeal could substitute its own findings.

Disposition. The appeal was allowed unanimously. The first-instance judgment was set aside and the case was remitted for a de novo rehearing before a Family Division High Court judge.

1. The relevant issue arose under section 31(2)(b)(i) of the Children Act 1989. The local authority had to establish, on the balance of probabilities, that the injuries resulted from culpable care. It was not required to prove the precise mechanism, motive or perpetrator before the court could determine culpable causation.
2. The agreed medical evidence indicated that A had no condition predisposing him to fractures, was scarcely mobile, and had sustained injuries requiring significant force. Although individual fractures were not diagnostic of culpable injury, the number, locations and absence of an expected history of serious accidental injury were highly suggestive. The judge accepted that there was no satisfactory explanation and rejected the proposed cot incident, but nevertheless treated non-accidental causation as speculative without adequately explaining why the medical evidence was disregarded.
3. The absence of a satisfactory explanation did not reverse the burden of proof. The judge had wrongly elevated the fact-specific decision in Re M (Fact finding; Burden of Proof) [2013] 2 FLR 874 into a general legal principle. The proper focus under the statutory gateway was fault rather than motive, consistently with Re S (Split Hearing) [2014] EWCA Civ 25. The judgment’s compartmentalised reasoning, contradictory findings and unexplained treatment of the evidence made the fact-finding exercise fatally flawed and unreliable.
4. The Court of Appeal could not fairly substitute findings based on medical evidence alone. There were no transcripts and no opportunity to assess the parents and other witnesses. The case therefore required a fresh hearing on the whole evidence, without restricting the rehearing judge to the earlier findings. The father could not rely on issue estoppel in relation to the retrial.

• Court of Appeal (Civil Division) allowed the appeal under [2015] EWCA Civ 1027, set aside the fact-finding judgment and remitted the case for a de novo rehearing before a Family Division High Court judge.
• Watford County Court & Family Court HHJ Wright, judgment dated 3 July 2015 in case WD14C01056, declined to find non-accidental injury or identify a perpetrator or possible pool.