WSCC v H & Ors (Children) (Care proceedings: Brain Injury), Re

In care proceedings involving an unexplained brain injury, the local authority must prove the alleged facts on the balance of probabilities. The court must evaluate the whole evidential picture, including the possibility that the medical cause remains unknown; the absence of an alternative explanation does not itself prove causation. Findings must be based on evidence rather than suspicion or speculation. A perpetrator may be identified where the evidence makes that conclusion more likely than not, but the court must not strain the evidence merely because identification is desirable. The statutory question under the Children Act 1989 is whether the relevant harm is attributable to care falling below the objective standard reasonably expected, not whether the conduct was intentional or blameworthy.

West Sussex County Council brought care proceedings concerning two children after Y suffered a life-threatening brain injury. The central factual issues were the timing and mechanism of the injury and whether it had been caused by the mother or her partner, W, the agreed pool of possible perpetrators.

The medical evidence agreed that the injury resulted from an impact. The evidence differed on whether there had been an earlier injury, but the court had to determine the issues on the balance of probabilities by assessing the medical, witness and circumstantial evidence together.

1. Burden and standard. The local authority bore the burden of proving its allegations. The standard was the balance of probabilities. The court could not make a finding that an event merely might have happened.
2. Evaluation of evidence. Findings had to rest on evidence, including proper inferences, rather than suspicion or speculation. The court was required to survey the evidence broadly and avoid evaluating medical and factual evidence in separate compartments. The possibility of an unknown medical cause had to be considered where appropriate, without changing the burden or standard of proof.
3. Pool of perpetrators. The relevant test was whether there was a likelihood or real possibility that a person was responsible. The parties agreed that the pool was confined to M and W. Lies could be considered under R v Lucas (R) [1981] 73 Cr.App.R. 159, but they did not automatically establish responsibility.
4. Findings. The judge preferred the neurosurgical evidence that the injury was acute and had occurred shortly before collapse. The earlier swing incident and vomiting episode did not provide a satisfactory explanation for a separate earlier impact. The medical evidence and Y’s presentation established an impact injury on the night of 14/15 February 2015, but not its precise mechanism.
5. Attribution. W’s inconsistent and incomplete account, including the unaccounted period when he was alone with the children, contrasted with M’s evidence and conduct. On the balance of probabilities, W caused the injury by an unidentified action or actions. The evidence did not establish deliberate infliction; a reckless and foolish action was considered more likely.
6. Statutory analysis. Applying Re S (A Child) [2014] 1 FLR 1421, the court treated the statutory inquiry under section 31(2) as concerned with the facts, significant harm, attributability and the objective standard of care, rather than labels such as non-accidental injury or questions of intent and blame.