East Sussex County Council v AG (Finding of Fact)

In fact-finding proceedings concerning suspected induced illness, the local authority bears the burden of proving the alleged harm on the balance of probabilities. The court must assess the totality of the evidence, including expert and treating-clinician evidence, witness credibility, and properly drawn inferences. Failure by a parent to establish an alternative explanation does not prove the local authority’s case. Where harm is proved but the evidence does not establish which of two carers caused it, the court must not strain the evidence to identify an individual perpetrator. It may nevertheless identify a pool of possible perpetrators where there is a likelihood or real possibility that a person was involved. The threshold under Children Act 1989, s 31(2), may be satisfied where significant harm was caused by one or both parents although the individual perpetrator cannot be identified.

The local authority sought findings concerning AG, an infant who suffered repeated unexplained episodes while an in-patient at three hospitals. Toxicological testing identified extremely high levels of alcohol and the presence of chlorpheniramine. The central issues were whether the substances caused the episodes, whether they were deliberately administered, and whether the evidence established that the mother, the father, or both parents were responsible.

The parents advanced accidental, medical and hand-sanitiser explanations and denied responsibility. The court heard extensive factual, medical and toxicological evidence. The hearing was a first-instance fact-finding hearing, not an appeal.

1. Findings and causation. The court found that AG’s episodes were caused by the administration of alcohol and/or antihistamine. Extensive investigations had found no alternative medical explanation, and the toxicological and clinical evidence established serious intoxication.
2. Mode of administration. The court rejected the hand-sanitiser explanation. The expert evidence showed that the claimed repeated application could not produce the concentrations found, and the mother’s account was not accepted. There was no credible accidental or organic explanation. The substances had therefore been introduced by human agency.
3. Perpetrators. The court found that the substances had been deliberately and covertly administered by one or other or both parents. The episodes occurred in three hospitals without common medical staff and ceased immediately after the parents’ arrest. Both parents had opportunity, and each had credibility difficulties. The court declined to determine which parent was responsible, or whether both were responsible.
4. Legal approach. The local authority retained the burden of proof. The court applied the balance of probabilities and considered the evidence on its broad canvass. It did not treat the parents’ failure to prove an alternative explanation as establishing the local authority’s case. Nor did the number of people who had contact with AG require the local authority to disprove responsibility by every other person.
5. Scope of findings. The court was not permitted to strain the evidence to identify an individual perpetrator. It nevertheless found that the evidence established that one or other or both parents were responsible. The resulting findings included that AG had been subjected to extensive unnecessary and painful investigations and treatment. Directions were given for the parents to respond to the findings before the welfare stage.

This was a first-instance fact-finding hearing in the High Court (Family Division). No appellate history is stated in the judgment.