B (A Child)

An adverse finding is compatible with a fair hearing where the person knew the substance of the allegation and supporting evidence and had a reasonable opportunity to respond. Expressly putting every challenge in cross-examination is desirable but not an absolute requirement; fairness depends on the proceedings viewed overall.

Where injuries were inflicted by one of several possible perpetrators, the court must first ask whether the evidence identifies an individual on the balance of probabilities. If it does not, the court considers whether each candidate remains a real possibility. Even in a two-person pool, the question is whether the evidence establishes that a particular individual probably caused the injury, not merely which individual is more likely.

A baby sustained fractures to both lower legs and six ribs while in his parents’ care. The medical evidence established that the injuries were inflicted, and the parents were the only possible perpetrators.

Following a fact-finding hearing, Recorder Miller found that the mother had probably caused all the injuries during a loss of control and excluded the father from the pool of perpetrators. The mother appealed, contending that the process was unfair because sole responsibility had not been put to her explicitly and because the recorder relied on matters not raised with her. She also argued that he had selected her merely as the likelier of two candidates instead of applying the balance of probabilities separately.

The central issues were whether the mother had received fair notice and an opportunity to answer the case, and whether the recorder had applied the correct approach to identifying one of two possible perpetrators.

1. Appeal dismissed. The recorder’s findings were reached through a fair process and by application of the correct legal test. His reasoned conclusion was properly open on the evidence. Asplin and Newey LJJ agreed with Peter Jackson LJ.

2. An adverse finding may be made only where the affected person knows the allegation and the substance of the supporting evidence and has a reasonable opportunity to respond. The obligation to put relevant matters in cross-examination promotes that requirement, but it is not absolute. The decisive question is whether the trial, viewed overall, was fair. Relevant considerations include the issue’s importance, the relationship between the unput ground and matters that were put, the reason for the omission, whether the ground arose elsewhere, and whether a satisfactory answer was plausibly available.

   The mother knew throughout that the authority sought findings against either or both parents. Both parents’ denials necessarily implicated the other, and their final submissions each sought the other’s identification. The mother underwent extensive questioning about the surrounding circumstances, including her health and the acoustics of the home. In a case without direct evidence, conventional cross-examination was necessarily limited by the parties’ lack of knowledge. The mother therefore had fair notice and a full opportunity to respond: paras 22–27.

3. Where inflicted injury is established and several perpetrators are possible, the court first asks whether the evidence identifies a perpetrator on the balance of probabilities. If it does not, the court asks of each candidate whether there is a real possibility that the person caused the injury, excluding candidates for whom there is no such possibility. A court must not strain to identify a perpetrator.

   The same method applies where there are only two candidates. The evidence may be considered separately, collectively and comparatively, but the ultimate question is not who is more likely. It is whether the evidence establishes that the particular individual probably caused the injury. This avoids identification through a linear process of exclusion or on evidence falling short of probability: paras 19–21.

   The recorder reviewed the evidence concerning both parents and expressly found it more likely than not that the mother caused the injuries. He did not exonerate the father merely because he appeared less likely to be responsible. His approach accorded with the correct principle: paras 28–29.

1. Court of Appeal (Civil Division): The mother’s appeal was dismissed. The court upheld the recorder’s finding that she had caused the injuries and that the father should be excluded from the pool of perpetrators: [2018] EWCA Civ 2127.
2. Family Court at Swindon: On 5 July 2018, Recorder Miller found on the balance of probabilities that the mother had caused all the child’s injuries during a loss of control and that the father had not caused them.