A County Council v A Mother & Ors

In fact-finding proceedings concerning suspected injury to a non-mobile infant, the local authority bears the burden of proving inflicted injury on the balance of probabilities. That burden does not shift to parents, and parents need not prove an alternative medical explanation. The court must assess the whole evidential picture, while guarding against speculation, over-dogmatic expert evidence and the assumption that an unknown cause has been excluded merely because known causes have not been identified. Medical evidence must remain within the expert’s field and be evaluated alongside lay evidence. Where the perpetrator cannot be identified on the balance of probabilities, individuals may remain in the pool; where identification is possible, the court may make an individual finding. On the evidence, the injuries were inflicted by the mother.

A six-week-old infant was admitted to hospital with a femoral fracture. Further investigations disclosed multiple fractures, a skull fracture and intracranial bleeding. The parents initially resisted a full examination and gave no satisfactory account of the injuries.

The Family Court initially exonerated the parents. The Court of Appeal allowed the local authority’s and guardian’s appeal and ordered a rehearing: [2018] EWCA Civ 1810. At the rehearing, the High Court considered disputed medical evidence, possible hypermobile Ehlers-Danlos syndrome, vitamin D deficiency, a chromosomal microdeletion, unknown pathology, the parents’ evidence and the identification of the perpetrator.

1. Applicable principles. The local authority bore the burden of proving the alleged facts. The standard was the balance of probabilities. A possible alternative explanation did not have to be proved by the parents; the question was whether, in light of it, the local authority had proved its case. Findings had to be based on evidence rather than suspicion or speculation.
2. The evidence had to be considered in the round. Individual pieces of evidence could not be placed in separate compartments. Medical opinions were important but the court alone could weigh them with the other evidence. Experts had to remain within their expertise and avoid collateral issues. Particular caution was required where experts disagreed or an unknown natural cause remained possible.
3. The court rejected the proposition that hEDS, vitamin D deficiency, the chromosomal microdeletion or an unknown bone condition explained the injuries. The infant had no identified bone disease or abnormal bone density. Even if hEDS or fragility existed, the fractures required a memorable external mechanism and could not be attributed to ordinary handling.
4. The court found a unified diagnosis of trauma or inflicted injury. The suggested explanations, including a two-year-old jumping on the infant and a toy, did not account for the injuries. The parents’ conduct, delay in obtaining medical assessment, resistance to investigation and evidence were evaluated with the medical evidence. Those matters did not reverse the burden of proof.
5. For perpetrator identification, a person may remain in the pool where there is a likelihood or real possibility that the person caused the injury. An individual attribution requires proof on the balance of probabilities. The court found that the mother was more likely responsible and that all the injuries were inflicted by her. The father failed to protect the child by not ensuring prompt medical attention, but was not found to have caused the injuries.
6. The court regarded Professor Holick’s methods and conclusions as insufficiently rigorous and concluded that he was unlikely to satisfy the requirement of objectivity and impartiality in future cases concerning fractures in young children. The local authority’s case succeeded on the fact-finding issues.

• Court of Appeal: The Family Court’s judgment exonerating the parents was reversed and a rehearing ordered: [2018] EWCA Civ 1810.
• High Court (Family Division): On rehearing, the court found that the infant had sustained inflicted injuries and that the mother was more likely responsible.