X (A Child) (No 4)

In a family fact-finding hearing, the burden remains on the party making the allegations. The court applies the balance of probabilities, regardless of an earlier criminal acquittal reached under the higher criminal standard. A rehearing may proceed despite a party’s withdrawal where the process remains fair and the opposing case is properly put to the evidence. Expert evidence must be assessed by the quality and reasoning of the opinions, not by counting experts. The court upheld findings that a non-ambulant child had suffered multiple inflicted injuries, and that proposed medical explanations did not account for them.

X suffered multiple injuries as a baby in 2012. The original family fact-finding hearing found that the injuries were non-accidental, followed by care, placement and adoption orders. The birth parents were later acquitted in criminal proceedings after the prosecution abandoned the case when a radiologist expressed doubt about some fractures.

The Court of Appeal directed that the family findings be reconsidered in light of the later expert evidence. A rehearing was ordered, but the birth parents subsequently withdrew from participation. The central issues were whether the rehearing could fairly proceed, whether the original findings remained reliable, and whether the injuries could be explained by medical conditions, including vitamin D deficiency or rickets.

1. Rehearing and fairness. The hearing could proceed despite the birth parents’ withdrawal. Essential fairness was preserved because the court knew the substance of their case and their position could be put to the witnesses. Proper challenge required clarification of the evidence, exploration of differences between expert opinions, and examination of the essentials of the birth parents’ case. Counsel instructed by X’s guardian could undertake that task without compromising neutrality.
2. Burden and standard of proof. The local authority bore the burden throughout. The applicable standard was the balance of probabilities. The criminal acquittals did not determine the family proceedings because the criminal case required proof beyond reasonable doubt and had been abandoned when the prosecution concluded that there was no realistic prospect of conviction.
3. Expert evidence. The court preferred the evidence of Dr Fairhurst and Dr Offiah to that of Dr Somers on the metaphyseal fractures. This was not a matter of counting heads. Weight was attached to the reasons given, the features identified in the radiographs, and the experts’ confident but open-minded engagement with competing views. Dr Ayoub’s evidence was rejected as worthless.
4. Findings. Except for a small number of marks for which an innocent explanation remained possible, the bruises and marks were inflicted using unreasonable force. Tears to both frenulae were caused by excessive and unreasonable force applied recklessly, probably by the birth father, rather than by a deliberate attempt to hurt. The fractures and periosteal injury were inflicted injuries. Type-II von Willebrand disease, vitamin D deficiency, rickets and other proposed medical conditions did not explain them.
5. The original findings were vindicated. There had been no miscarriage of justice affecting either the birth parents or X.

• Court of Appeal: On 14 March 2016, the Court directed that the facts found in the original family proceedings be reconsidered in light of the expert evidence given at the criminal trial, leading to the rehearing before the High Court.
• High Court (Family Division): The rehearing proceeded and the original findings were upheld.