L (A Child), Re

In care proceedings, the local authority bears the burden of proving each disputed fact on the balance of probabilities. The court must apply the binary standard: a fact is proved or it is not proved. It must assess all the evidence on the wide canvas, including expert evidence, witness reliability and the possibility of innocent explanations.

Where rival hypotheses remain, the court must not reject the least probable explanation and treat the remaining improbable explanation as proved. It may aggregate the probabilities of alternative explanations which do not involve the alleged perpetrator. A finding that harm was perpetrated, or that a person was within a pool of possible perpetrators, cannot be made where the evidence leaves the court unable to conclude that the alleged act was perpetrated on the balance of probabilities.

The local authority brought care proceedings following the death of a child at home. The child had died from ligature compression of the neck, and post-mortem evidence initially raised the possibility of sexual assault. The mother, father and two teenage children were placed in a proposed pool of perpetrators.

The court conducted a fact-finding hearing concerning the cause and circumstances of death, possible sexual interference, the identity of any perpetrator and whether the statutory threshold was met. The evidence included medical and DNA evidence, accounts from family members, police investigation material and the possibility of an intruder. The central issues were whether the death was a perpetrated act and, if so, whether any respondent was responsible.

1. Findings and disposition. The local authority failed to prove that the death was a perpetrated act or that any respondent was responsible for sexual assault or death. The threshold was therefore not met.
2. Standard and burden of proof. The burden remained throughout on the local authority. The court applied the balance of probabilities and the binary principle. It was not permissible to find that an event might have happened as a legal finding of fact.
3. Evidence and expert opinion. The court considered the evidence on the wider canvas. Medical opinions had to be assessed with the other evidence, and the court retained responsibility for the ultimate findings. The genital and ano-rectal evidence was inconclusive. The requested finding of ano-rectal injury was withdrawn and, applying the binary approach, was not established.
4. DNA evidence. The absence of a positive match with family members was exculpatory in the circumstances. The unknown male DNA in the child’s clothing pointed away from, rather than towards, involvement by a male family member. The local authority could not rely on the weakness of the samples to suggest family involvement while disregarding evidence excluding family members.
5. Rival hypotheses. The court applied the approach in A County Council v. M & F [2012] 2 FLR 939. It was wrong to eliminate the least probable hypothesis and then select another improbable hypothesis merely because it remained. The probabilities of accident and suicide, taken together, exceeded 50 per cent, so the local authority had not discharged the burden of proving a perpetrated act.
6. Pool of perpetrators. The court found a real possibility of an intruder. The pool was therefore not closed. The court did not need finally to determine whether teenage children could fall within a pool of potential perpetrators, although it indicated that it would not accept that proposition as necessarily correct.
7. Police disclosure. The court criticised the police investigation and disclosure. It made tentative suggestions for future disclosure practice in cases involving the death or serious assault of a child, expressly stating that those suggestions were not formal guidance and that the existing protocol remained applicable.