D (A Child), Re (Rev 1)

In a fact-finding hearing concerning suspected non-accidental injury, the local authority bears the burden of proving causation and perpetration on the balance of probabilities. The burden never shifts to a parent to provide an explanation. The court must assess medical, lay and circumstantial evidence holistically, while recognising that an unknown cause remains a possible conclusion where the evidence does not establish an inflicted injury.

Expert consensus is important but does not determine causation. The court must weigh it against the parents’ evidence, the timing and presentation of the injuries, and the surrounding circumstances. A finding that a parent caused injury requires proof to the civil standard, not merely opportunity, unreliability or membership of a pool of possible perpetrators.

A four-month-old child suffered subdural and retinal haemorrhages and encephalopathy after collapsing while alone with her father. The mother was accepted to have played no part in causing the injuries. An earlier fact-finding decision exonerating the father was overturned on appeal and the matter was remitted for a fresh hearing.

The fresh hearing considered unchanged expert evidence, new genetic evidence, the parents’ accounts, the family circumstances and the possibility of accident, natural disease or unknown cause. The central issue was whether the injuries were inflicted by the father during the short period in which he had sole care of the child.

1. The hearing was conducted afresh. The court did not review the earlier decision but considered the evidence from a clean sheet.
2. The local authority bore the burden of proof. The applicable standard was the balance of probabilities. The father was under no obligation to disprove the allegation, and the burden did not shift because he could not provide a credible explanation.
3. The court adopted a holistic approach. Medical evidence had to be considered alongside the lay and circumstantial evidence. Expert opinion was important but remained distinct from the court’s fact-finding function. The possibility of unknown aetiology had to be considered and could not be excluded merely because no alternative explanation was identified.
4. The court found that the bilateral, multilayered retinal haemorrhages were unrelated to birth injury, raised intracranial pressure, resuscitation or a spontaneous re-bleed. Taken with the subdural injuries and encephalopathy, they strongly supported a recent traumatic event.
5. The child had appeared well shortly before collapsing. The father’s accounts contained material inconsistencies and he had withheld relevant information about later violence and arrest. Those matters were considered with, but did not replace, the medical evidence.
6. On the balance of probabilities, the injuries were caused by one or more shaking or shaking-impact incidents while the father had sole care of the child. The injuries were non-accidental and probably resulted from a momentary loss of self-control. There was no evidence that the father intended to cause them.
7. The threshold under section 31(2) of the Children Act 1989 was met. A final care order was made, with continuing therapeutic work and future risk assessment directed towards possible rehabilitation of the family.

1. High Court (Family Division): the fresh fact-finding hearing resulted in findings that the father caused the child’s injuries by shaking or shaking impact. A final care order was made.
2. Court of Appeal: the earlier decision of the deputy High Court judge exonerating the father was overturned and the matter was remitted for a fresh hearing. The decision is identified in the judgment as [2017] EWCA Civ 196.
3. Deputy High Court Judge, Family Division: the father was exonerated after the original fact-finding hearing.