Cumbria County Council v KW

In a fact-finding hearing concerning infant head injuries, the court must decide whether the alleged inflicted injury is more likely than not on the whole evidence. The court must not adopt a hierarchy of medical possibilities or find an inflicted injury merely because accidental or medical explanations are unlikely. Medical evidence must be evaluated with the lay evidence and the surrounding circumstances. The civil standard of proof remains the balance of probabilities, regardless of the seriousness of the allegation or consequences. Genuine medical uncertainty must be recognised, but it does not prevent a finding where the totality of the evidence establishes the alleged cause as more probable. Expert evidence should identify hypotheses, qualifications, unknown causes and the range of professional opinion, while remaining focused on a reasoned forensic risk assessment.

The local authority sought findings concerning injuries sustained by LM, an infant, after an alleged fall backwards onto a carpeted floor. Medical investigations identified subdural and bilateral retinal haemorrhages. The evidence included competing expert views about benign enlargement of the subarachnoid spaces, the possibility of injury from minor trauma, and the significance of the retinal haemorrhages.

The court also considered the parents’ evidence, text messages, family circumstances and the mother’s account of the incident. The central issues were whether the injuries were accidental, non-accidental or of unknown origin and, if non-accidental, whether the mother was the perpetrator.

1. The court found that LM had sustained a non-accidental inflicted shaking injury, most likely caused by a momentary loss of control by a frustrated carer. The mother was alone with LM and was therefore found to be the perpetrator. The court declined to endorse a care plan placing the children with their maternal grandparents under a special guardianship order and directed a comprehensive assessment of the parents’ capacity to care for the children, involving the wider family.

2. The burden remained on the local authority throughout. Applying Re B (Children) [2008] UKHL 35, the standard was the simple balance of probabilities. Neither the seriousness of the allegation nor the seriousness of the consequences altered that standard.

3. Following the guidance in Re BR (Proof of Facts) [2015] EWFC 41, the court had to assess each possible explanation on its merits. There was no hierarchy of possibilities and no process of elimination by which an inflicted injury became proved merely because other explanations were improbable. The court had to determine whether, on the whole evidence, inflicted injury was more likely than not.

4. The medical evidence was inconclusive and could support accidental injury, non-accidental injury or unknown causation. Retinal haemorrhages were not pathognomonic of non-accidental injury. BESS was a relevant vulnerability when assessing the subdural haemorrhages, but it did not itself determine causation. The medical evidence had to be considered alongside reliable lay evidence and the family circumstances.

5. The court criticised the expert report where it moved from acknowledging medical uncertainty to presenting the mother’s account as the most likely explanation without a sufficiently reasoned connection. Expert reports should comply with PD 25B, para 9.1 by identifying assumptions, hypotheses, qualifications, unknown causes, the range of opinion and the reasons for the opinion expressed.

6. The court emphasised the importance of rigorous representation of the child’s interests in fact-finding proceedings. A position of neutrality adopted merely to appear independent may fail to meet the child’s primary professional interests.

Not stated in the judgment. This was a first-instance decision of the High Court (Family Division).