X (A Child), Re

In a fact-finding case involving suspected non-accidental injury, the court must decide whether the evidence proves, on the balance of probabilities, that a particular person caused the injury. It must not identify the person who is merely the most likely candidate, or reach a conclusion by excluding others. Where the evidence leaves genuine uncertainty, the court must not strain to identify a perpetrator.

The court must consider the evidence as a whole, including lies, but a lie does not of itself prove the underlying event, responsibility or state of mind. Lies may assist where they concern material facts, are deliberate, lack an innocent explanation and, together with other evidence, support the required inference.

This was a local authority fact-finding hearing concerning a nine-week-old child who had suffered chronic and acute subdural haemorrhages, spinal bleeding and extensive retinal haemorrhages. The medical evidence established two forceful shaking-type events, one before 2 March 2018 and one shortly before the child’s admission to hospital on 14 March.

The child had been cared for by his parents and by Mrs X, a childminder, while Mr Y was present in the childminder’s home. The central issues were whether the injuries were non-accidental, whether one or more adults could be excluded from the pool of possible perpetrators, and whether the evidence identified a perpetrator on the balance of probabilities.

1. Medical findings. The court accepted the unchallenged expert consensus, while retaining responsibility for evaluating it in the context of all the evidence. The injuries were caused by two forceful shaking-type events. Birth trauma, accident and the child’s possible mild platelet dysfunction did not explain the injuries.
2. Applicable approach. The burden remained on the local authority. The fact-finding exercise was binary: the court had to decide whether an event was proved, rather than find that it might have occurred. All the evidence had to be considered on the wide canvas, without compartmentalising it. The court applied the guidance in Re M (Children) [2013] EWCA Civ 388 and Re A (A child) (Fact-Finding; Speculation) [2011] EWCA Civ 12.
3. Pool of perpetrators. The court first considered whether a perpetrator could be identified on the balance of probabilities. If not, it would consider whether each candidate could be excluded because there was no real possibility that they caused the injuries. It was impermissible to identify a person simply because they were the likeliest candidate, or by a linear process of excluding others. This approach was drawn from North Yorkshire County Council v SA [2003] EWCA Civ 839, A-C (A child) [2013] EWCA Civ 1321, B (A Child) EWCA Civ 2127 and Re D (Care Proceedings: Preliminary Hearing) [2009] EWCA Civ 21.
4. Lies and credibility. The court applied the principles in R v Lucas [1981] QB 720, as adopted in family proceedings by A County Council v K, D and L [2005] EWHC 144 and explained in H-C [2016] EWCA Civ 136. A lie did not establish guilt by itself. The court assessed whether the lies were deliberate, material and without an innocent explanation, and considered them with the independent evidence and the witness’s overall credibility.
5. Application and outcome. Mr Y was excluded from the pool because his opportunity to harm the child was very limited and the evidence did not establish a real possibility that he caused the injuries. The parents’ conduct was consistent with their not appreciating the seriousness of the child’s condition. Mrs X’s repeated lies, attempts to implicate the Mother, concealment of the child’s symptoms and failure to seek medical attention provided factual support beyond suspicion or theory. The court found on the balance of probabilities that Mrs X shook the child on two occasions. The judgment constituted the court’s finding of fact.