Gloucestershire County Council v JD & Ors

In fact-finding proceedings concerning inflicted injuries, the court must determine whether a particular person probably caused the injuries. It must not identify a perpetrator merely because that person is the more likely candidate. The evidence must be assessed as a whole, separately and comparatively, while avoiding speculation.

If no perpetrator is established on the balance of probabilities, the court must consider whether there is a real possibility that each identified candidate caused the injuries. The absence of a central witness, and the inability to test that witness’s evidence, are relevant to the weight of the evidence and may make identification unsafe. A fact-finding hearing may nevertheless be appropriate where the issue has significant consequences for the children or future child protection decisions.

The local authority brought care proceedings after B, a premature infant, suffered life-threatening non-accidental injuries in August 2016. Two possible perpetrators were identified: her mother, JD, and the family’s landlady, JL.

An earlier finding that JL was the perpetrator was set aside because JL lacked litigation capacity and had not been represented by a litigation friend. A later hearing also found that JD had caused separate injuries to B in November 2017. The present hearing reconsidered the August 2016 injuries and addressed whether JD or JL had probably caused them, whether either remained in the pool of possible perpetrators, and whether it was fair and necessary to conduct the rehearing.

1. Rehearing and fairness. The court rejected the submission that Article 6 prevented it from undertaking the fact-finding exercise. The absence of oral evidence from JL, who lacked capacity, affected the weight and evaluation of the evidence but did not make the hearing impermissible. The issue was sufficiently important to justify investigation, given its significance for the children, JD, JL and future child protection decisions.
2. Previous findings. The court approached the August 2016 allegations on a blank canvas. It was not bound by the earlier findings or by the reasoning that had led to them, although the earlier judge had heard some evidence closer in time to the events.
3. Burden and standard. The local authority bore the burden of proving disputed facts on the balance of probabilities. There was no obligation on JD to provide an alternative explanation. The court considered all the evidence, including hearsay, expert evidence, witness credibility and proper inferences, while avoiding speculation.
4. Identification of the perpetrator. Applying Re B (a child) [2018] EWCA Civ 2127, the court asked whether the evidence established that JD probably caused the injuries and whether it established that JL probably caused them. It was not sufficient to ask which candidate was more likely. If neither was proved to be the perpetrator, the court then considered whether there was a real possibility that either might have caused the injuries.
5. Application. The injuries were inflicted and were probably caused during one episode. There was evidence pointing towards JD, including the later findings concerning her treatment of B and lies relating to the August injuries. There was also evidence pointing towards JL, including her unusual and irrational behaviour on the relevant morning. However, JL’s evidence had not been tested and the evidence as a whole remained incomplete. The court would be straining to identify either woman as the perpetrator on the balance of probabilities.
6. The court therefore found that neither JD nor JL had been proved to have caused the August injuries. Both remained in the pool because there was a real possibility that either had caused them. The court declined to speculate further.

The judgment describes a rehearing following an earlier fact-finding judgment by His Honour Judge Marston and a later judgment by Mrs Justice Roberts directing that the August 2016 allegations be reheard. This court determined the rehearing at first instance.