A (Children)

In determining disputed past facts on the balance of probabilities, a court must assess the evidence as a whole. It must consider evidential gaps, the strength of individual factors, contrary indications and competing explanations.

The court must then decide whether the proposed account is more compelling than the case for withholding that conclusion. It is wrong to assign percentages to rival explanations or aggregate percentages attributed to innocent possibilities. Resort to the burden of proof alone is appropriate only where a comprehensive assessment leaves no other just course.

The local authority sought care orders for five children after their ten-year-old sister died from ligature compression to the neck and was found to have acute traumatic genital injuries. Following a 15-day fact-finding hearing, the High Court dismissed the applications because deliberate infliction had not been proved and the threshold in section 31(2) of the Children Act 1989 was therefore unsatisfied.

The local authority appealed from [2017] EWHC 3707 (Fam). It contended that the judge had misunderstood or omitted important medical evidence concerning the genital injuries, failed to assess all the evidence together and wrongly used percentages when applying the balance of probabilities.

1. Appeal allowed. The High Court order was set aside and the proceedings remitted for rehearing. The respondent’s notice was dismissed, and the application to adduce fresh evidence was refused.

2. The judge materially misunderstood the evidence concerning the genital injuries. The medical evidence established acute traumatic penetrative injuries for which there was no accidental explanation identified by the relevant specialist. The judgment neither addressed that specialist’s clear evidence nor made specific findings about how the injuries occurred. Those injuries were critical to the statutory threshold inquiry.

3. Evidence must be assessed as a whole rather than in separate compartments. The unexplained genital injuries had to be considered together with the fatal ligature injury, the experts’ view that the presentation was highly atypical of accidental hanging, the circumstances within the household and the judge’s assessment of the parents’ evidence. Disregarding the genital injuries when determining the mechanism of death prevented a proper evaluation of the whole picture.

4. The balance of probabilities does not permit pseudo-mathematical allocation and aggregation of percentages for rival accounts. The court must decide, on rational and objective grounds and by an overall assessment, whether the case for believing the suggested event occurred is more compelling than the case for withholding that belief. Suspicion, including strong suspicion, remains insufficient.

5. A court may ultimately determine that the party bearing the burden has failed to prove its case. It should reach that position only when driven to it by the evidence and after examining evidential gaps, the establishment of individual factors, contrary indications and alternative explanations. The trial judge resorted to the burden prematurely and therefore failed properly to apply section 31(2) of the Children Act 1989.

6. A retrial was proportionate despite the passage of time and the family’s reunification. If the death was neither accidental nor suicidal, the unresolved circumstances presented grave child-protection concerns for the surviving children.

1. Court of Appeal (Civil Division): The local authority’s appeal was allowed. The order below was set aside and the proceedings were remitted for rehearing. The respondent’s notice was dismissed and permission to adduce fresh evidence was refused: [2018] EWCA Civ 1718.
2. High Court (Family Division): Francis J dismissed the local authority’s care-order applications after finding that deliberate genital and fatal neck injuries had not been proved and that the section 31(2) threshold was not satisfied: [2017] EWHC 3707 (Fam).