A Local Authority v M & F & Ors

In a fact-finding exercise under the Children Act 1989, the local authority must prove each alleged inflicted injury on the balance of probabilities. Where the perpetrator cannot be identified, the court should first identify those with the opportunity, then seek to identify the perpetrator on the balance of probabilities, and only then ask whether there is a likelihood or real possibility that each remaining individual was involved. The burden remains throughout on the local authority. A person cannot be placed in a pool merely because they lived with, or had access to, the child during the relevant period. Evidence must be evaluated cumulatively and in its full context. The court need not resolve every speculative hypothesis, but must determine the issues necessary to decide the threshold question fairly.

The local authority sought care orders concerning four children after their ten-year-old sister, S, died at home. The proceedings followed an earlier fact-finding judgment which dismissed the application, and a rehearing ordered after the Court of Appeal allowed the local authority’s appeal in [2018] EWCA Civ 1718. The central issues were the cause of death, the cause of genital injuries, responsibility for either injury, and alleged family collusion.

The court heard extensive medical, forensic, police and lay evidence. It had to decide whether the injuries were accidental or inflicted, whether they were sexually motivated, and whether any individual could properly be identified as the perpetrator for the purposes of the threshold criteria.

1. Findings and outcome. The court found that S had died from ligature strangulation inflicted by another person. The genital injuries were caused by blunt trauma involving penetration or attempted penetration by an object, finger or penis. They were not established to be sexual assault injuries. The court concluded, on the balance of probabilities, that M caused the genital injuries during the day and strangled S during the night. The threshold criteria under section 31(2) of the Children Act 1989 were therefore satisfied and the local authority’s care proceedings required reassessment.
2. Evaluation of evidence. Evidence had to be assessed cumulatively, with each piece considered in relation to the totality of the evidence. Medical opinion was important but not determinative. The judge had to retain intellectual humility and consider whether the broad canvas nevertheless left the cause unproved. Here, however, the expert evidence had been tested carefully and coherently supported inflicted trauma.
3. Perpetrator analysis. Following the structured approach in Re: B (Uncertain Perpetrator) [2019] EWCA Civ 575, the court should identify those who had the opportunity, seek to identify the actual perpetrator on the balance of probabilities without straining the evidence, and only if that cannot be done ask whether there is a likelihood or real possibility that each person was a perpetrator. The pool concept does not arise where one person alone could be responsible, and there is no pool of one.
4. The burden of proof remained throughout on the local authority. The court must not require a respondent to establish innocence, to provide a credible alternative explanation, or to be excluded or exculpated from a pool. Those expressions risk reversing the burden. Conversely, the court must not avoid identifying a perpetrator where the evidence properly requires it.
5. The court rejected the intruder theory as unrealistic and found no evidential basis for including W in the pool. It found that F and E were likely asleep when S was killed and that M was the only person in the household likely to have been awake. A finding of collusion could damage credibility, but collusion by children did not necessarily have the same character as adult conspiracy and did not automatically destroy all of a witness’s evidence.
6. The local authority was directed to reassess the children’s circumstances in light of the findings and the identified risk of serious harm or death, particularly to the remaining daughter.

1. Court of Appeal: The earlier fact-finding judgment was overturned and the matter remitted for rehearing in [2018] EWCA Civ 1718.
2. High Court (Family Division): The rehearing resulted in findings that the injuries were inflicted and that M was the perpetrator.