D (A Child)

In a fact-finding hearing, proof on the balance of probabilities does not require the court to eliminate every doubt or uncertainty. The judge must nevertheless evaluate the evidence as a whole and decide whether the evidence establishes the alleged facts.

Where expert medical evidence is rejected, the judge must have a sound basis and explain the reasons. In assessing competing explanations for injury, the court must consider the combined significance of all relevant medical findings. It must not isolate one feature or disregard evidence which materially supports a unifying explanation. An appellate court may intervene where the failure to conduct that overall analysis undermines the conclusion.

The local authority appealed from the dismissal by His Honour Judge Cleary, sitting as a High Court judge, of its application for a care order concerning ML. The fact-finding hearing concerned whether ML had sustained a shaking or shaking-impact injury shortly before her collapse while in her father’s sole care.

The treating clinicians and four court-appointed experts considered that the injuries were most likely recent and traumatic. Their evidence included acute bilateral retinal haemorrhages which were said to be unconnected with the subdural findings and consistent with a shaking injury. The judge held that the local authority had not proved its case and dismissed the proceedings. The issue on appeal was whether he had properly evaluated the medical evidence as a whole.

1. Appeal allowed and matter remitted for rehearing. The judge’s conclusion could not stand because he had failed properly to analyse the totality of the medical evidence before deciding that the local authority had not discharged the burden of proof.

2. The balance of probabilities does not require every doubt or scientific uncertainty to be dispelled. A judge may reject expert evidence, but must decide whether, notwithstanding uncertainties, the evidence as a whole establishes the allegation. The court endorsed this point by reference to Re B (Non-Accidental Injury) [2002] EWCA Civ 752.

3. The decisive error concerned the ophthalmological evidence. Retinal haemorrhages were not, by themselves, proof of a shaking injury and could not properly be treated as a “trump card”. However, the recent bilateral retinal haemorrhages were evidence which could strongly support the other experts’ conclusion that the brain findings represented an acute traumatic event. They also required an explanation if a chronic or birth-related cause for the subdural findings was to be accepted.

4. By treating the retinal evidence as incapable of resolving his doubts, the judge left it out of the evaluation. He thereby addressed the head and eye injuries separately and failed to consider the unifying medical hypothesis advanced by the experts. Only after a correct overall assessment of the expert evidence could the judge weigh it against the lay evidence, including the contradictions in the father’s account.

5. A judge, not an expert, decides the case. But where expert advice is rejected, there must be a sound basis and adequate reasons, as explained in Re M-W (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12. The Court of Appeal did not substitute findings. Fairness required a rehearing, with directions and allocation to be dealt with initially by the Family Division Liaison Judge.

• Court of Appeal (Civil Division): allowed the local authority’s appeal, set aside the dismissal, and remitted the matter for rehearing: [2017] EWCA Civ 196.

• High Court: His Honour Judge Cleary, sitting as a High Court judge, dismissed the local authority’s application for a care order after declining to find that the father had caused ML’s injuries.