CD (A Child : Re Hearing of Fact-Finding)

In a fact-finding hearing concerning alleged non-accidental injury, the local authority bears the burden of proving disputed facts on the balance of probabilities. Parents bear no evidential burden to provide an alternative explanation. The court must assess the whole evidential picture, including expert evidence, witness credibility, contemporaneous records and properly available inferences. Medical opinions must not be considered in isolation or treated as determinative. Where causation remains uncertain, the possibility of an unknown cause is a factor in evaluating whether the alleged cause is proved. Lies may corroborate other evidence only where the relevant safeguards are satisfied; they are not direct proof of guilt. A previous fact-finding decision which has been reopened must be reconsidered afresh.

The local authority sought care orders concerning three children after the youngest child sustained severe brain injuries as a neonate and later suffered a metaphyseal fracture of the right humerus. An earlier fact-finding judge had concluded that the brain injuries resulted from severe streptococcal infection and that there had been no shaking injury. Following further expert evidence and the later fracture, the High Court permitted the earlier findings to be reopened and ordered a complete rehearing.

The central issues were whether the father had caused the brain injuries by shaking the child and whether he had caused the later arm fracture and associated bruising by pulling or twisting the child’s arm.

1. Rehearing and burden of proof. The earlier fact-finding decision having been reopened, the judge conducted a complete rehearing and was not bound by the earlier findings. The local authority retained the burden of proving each allegation on the balance of probabilities. The parents were required to prove nothing and were under no pseudo-burden to provide an alternative explanation.
2. Evaluation of evidence. The court was required to assess all the evidence in the round. Expert evidence was important but not determinative. The judge had to consider the experts’ opinions alongside the factual evidence, contemporaneous records, credibility assessments and proper inferences. The possibility of an unknown cause was a factor to be considered where appropriate.
3. Lies. A lie did not establish guilt directly. It could corroborate other evidence only if deliberate, material and motivated by a realisation of guilt and fear of the truth. The father’s failure to disclose what had happened to the child, coupled with his dishonest account, was capable of corroborating the evidence of a shaking injury. The judge found that the evidential safeguards were met in relation to the January incident.
4. January injuries. The medical evidence, including the absence of findings supporting infection, the pattern of bleeding and the timing and nature of the deterioration, was evaluated with the parents’ accounts and the father’s dishonesty. Taken together, the evidence established on the balance of probabilities that the father had subjected the child to a serious shaking incident and had failed to obtain or facilitate prompt medical attention. The relevant allegations were proved.
5. November injuries. Although metaphyseal fractures in non-mobile children were usually associated with inflicted injury and the father had opportunity and had given unreliable evidence, the court had to compare that case with the alternative explanation. The evidence established two incidents in which the child’s arm became trapped in the cot bars. The judge concluded that the fracture was more likely to have resulted accidentally from the child’s position and the mother’s efforts to free him, and that the bruising and swelling probably arose from the later incident. The allegations concerning the fracture and bruising were not proved.
6. The court made no finding of culpability against the mother. It found that the father was responsible for the brain injuries, that no one was responsible for the arm fracture, and that further assessment of both parents was likely to be required.

This was a first-instance fact-finding rehearing in the High Court. The earlier findings of the designated family judge were reopened by order dated 6 July 2018, and the issues were reheard afresh.