L and M, (Children)

In care proceedings, disputed facts must be proved on the simple balance of probabilities. The seriousness of an allegation does not raise the standard of proof, although inherent probabilities may be relevant. A court must decide whether a fact happened; it cannot make a finding that it might have happened.

Findings must be based on reliable evidence and proper inferences, not suspicion or speculation. The court must assess the totality of the evidence, including expert evidence, while retaining responsibility for the final factual decision. Where non-accidental injury is proved, the court should identify the perpetrator if the evidence permits, but need not strain to do so. A possible-perpetrator pool arises where there is a likelihood or real possibility that a person caused the injury.

The Welsh Local Authority brought care proceedings concerning two children after their infant sibling died and was found to have a healing wrist fracture. The death itself was accepted as sudden infant death and no blame was attached to either parent.

The central issues were whether the fracture was non-accidental, whether either parent was responsible, and whether earlier concerns relating to a half-sibling needed investigation. The court heard evidence from the parents, family members, a social worker and medical experts. The earlier history was considered only insofar as it affected the Father’s credibility.

1. The Local Authority bore the burden of proving the disputed facts on the balance of probabilities. Applying Re B (Children)(FC) [2008] UKHL 35, the seriousness of the allegation and the seriousness of the consequences did not alter that standard. The court had to decide whether the facts occurred and could not find that they might have occurred. The approach in Re S-B (Children) [2009] UKSC 17 was applied.
2. Findings had to rest on evidence and proper inferences, viewed in the context of the evidence as a whole. Suspicion and speculation were insufficient. The court applied the principles in Re A (No 2) [2011] EWCA Civ 12 and Re T [2004] EWCA Civ 558.
3. The medical evidence established that the injury involved fractures caused by pulling and twisting. The experts’ evidence had to be assessed alongside the wider factual evidence. The expert advised, but the judge decided, applying Re B (Care: Expert Witnesses) [1996] 1 FLR 667, Re U and Re B [2004] EWCA Civ 567 and Re X Y Z [2005] EWHC 31 (Fam).
4. The court rejected the suggested accidental explanations. It found that the wrist fracture was a non-accidental injury inflicted by a carer who had lost his or her temper and violently twisted and pulled the wrist. The injury was within the period alleged and the evidence established that the perpetrator was aware that the conduct was abusive.
5. Applying the possible-perpetrator approach in Re S-B (Children) [2009] UKSC 17 and North Yorkshire CC v SA [2003] 2 FLR 849, the realistic pool comprised the Mother and Father. The court excluded the Mother and found, on the balance of probabilities, that the Father assaulted the child. The Mother was not at fault for failing to protect because the evidence showed that a non-perpetrator might not know that such an injury had occurred.
6. The threshold criteria under Children Act 1989, section 31(2), were established in relation to both children. The children were returned to the Mother’s care by agreement shortly after judgment. The question of the Father’s contact was left to be considered separately.

First-instance fact-finding decision. No appellate history was stated in the judgment.