A County Council v A & Ors

In care proceedings arising from the inflicted injuries and death of an infant, the local authority must prove disputed facts on the balance of probabilities. The court must assess all the evidence, including medical evidence, witness credibility, properly drawn inferences, and the possibility of an unknown cause. It must not reverse the burden of proof or require a parent to provide an alternative explanation.

Where the evidence does not establish which of two carers caused a non-accidental injury, the court must not strain to identify a perpetrator. It should instead identify the pool of possible perpetrators by applying the real possibility test. Lies may corroborate guilt only where they are deliberate, material and motivated by a realisation of guilt and fear of the truth. The threshold for care proceedings may nevertheless be crossed where continuing uncertainty creates a real risk of significant harm.

The local authority applied for findings concerning the death of an eight-day-old infant, X, and earlier non-accidental injuries. X’s older sister, Z, was subject to an interim care order and lived with foster carers.

The parents accepted that X had suffered inflicted injuries on more than one occasion and that the acute injuries caused her death. Each parent alleged that the other was responsible. The central issues were the nature and timing of the injuries, whether either parent could be identified as the perpetrator, the significance of the parents’ lies and concealed reconciliation, and whether the statutory threshold was crossed in relation to Z.

1. Findings as to X’s injuries. The court found that X had suffered separate older and acute inflicted injuries. The older injuries included a femoral fracture and head, spinal and bruising injuries. The acute injuries were caused by shaking with impact shortly before her collapse and death. The alleged resuscitative shaking could not have caused the injuries.
2. Identification of the perpetrator. Applying Re S-B (Children) [2009] UKSC 17 and Re D (Children) [2009] 2 FLR 668, the court declined to identify either parent as the perpetrator on the balance of probabilities. The evidence did not justify excluding either parent. Both were therefore in the pool of possible perpetrators because there was a real possibility that each had been involved in injuring X.
3. Evidence and lies. The court assessed the medical evidence in the context of the whole case and considered the parents’ changing accounts, credibility and relationship. Their lies about resuming their relationship were deliberate, material and motivated by fear of the truth. They supported the conclusion that each was concealing knowledge, but did not by themselves establish which parent inflicted the injuries. The court applied the approach in R v Lucas [1981] QB 720 and Re H-C (Children) [2016] EWCA Civ 136.
4. Threshold. The threshold under section 31(2) of the Children Act 1989 was crossed. Z was at risk of substantial physical harm while uncertainty remained as to which parent had inflicted X’s injuries, and at risk of substantial emotional harm from the parents’ volatile and abusive relationship.
5. Outcome. The court made the findings of fact set out in the schedule and determined that the threshold criteria were satisfied.

First-instance fact-finding and threshold determination in care proceedings. No appellate history was stated in the judgment.