A Child (Threshold: Inflicted Injury and Domestic Abuse)

In care proceedings involving suspected inflicted injury, the local authority must prove the statutory threshold on the balance of probabilities. The court must assess the whole evidential canvas, including medical evidence, witness credibility, contemporaneous material and properly drawn inferences. It must not reverse the burden of proof or identify a perpetrator merely because that person is the likeliest candidate. Where there are several possible perpetrators, the question is whether the evidence establishes that a particular individual probably caused the injury. Lies do not constitute direct proof of guilt. They may corroborate guilt only where they are deliberate, material and motivated by a consciousness of guilt. A parent’s failure to protect a child from known or reasonably suspected abuse is objectively assessed, although personal vulnerability may be relevant to welfare and risk.

The local authority brought care proceedings concerning A, aged two, and his newborn sister B. A had suffered healing rib and scapula fractures, extensive bruising and life-threatening abdominal injuries requiring surgery. The central questions were whether the injuries were accidental or inflicted, whether the first respondent or the third respondent caused them, and whether the first respondent failed to protect A from domestic abuse and further injury.

The hearing also addressed the statutory threshold under Children Act 1989, section 31(2), and the appropriate arrangements for A. The position concerning B required further assessment and was not finally determined.

1. Threshold and proof. The local authority bore the burden of proving disputed facts on the balance of probabilities. The court applied the statutory threshold in section 31(2) of the Children Act 1989. The court was required to decide whether facts occurred, rather than conclude merely that they might have occurred.
2. Evaluation of evidence. The evidence had to be considered in the round. Medical evidence was important but did not determine causation. The court had to weigh expert opinion with witness credibility, contemporaneous records, photographs, messages and properly drawn inferences. It had to avoid speculation, compartmentalisation and reversal of the burden of proof. The possibility of an unknown cause remained a factor when assessing probabilities.
3. Multiple perpetrators. Applying Re B (a child) [2018] EWCA Civ 2127, the court first considered whether a perpetrator could be identified on the balance of probabilities. If not, it considered whether each candidate remained a real possibility. It was impermissible to identify a person merely because they were the likeliest candidate.
4. Lies and hearsay. A lie was not direct proof of guilt. Under the principles in Re H-C (Children) [2016] EWCA Civ 136 and R v Lucas [1981] QB 720, it could corroborate guilt only if deliberate, material and motivated by a realisation of guilt and fear of the truth. Lies could arise from fear, shame, loyalty or distress. Hearsay evidence, including social-work records, was admissible and its weight was for the court.
5. Findings. The July genital injury was accidental. The third respondent caused the rib and scapula fractures, the serious facial bruising and the life-threatening abdominal injuries. He also inflicted bruising on at least one further occasion. The first respondent was not the perpetrator of the significant injuries but, from August 2018, failed objectively to protect A from a known or reasonably suspected risk of serious physical harm, failed to obtain timely medical treatment and exposed him to significant emotional harm from domestic abuse.
6. Orders. The threshold criteria were satisfied. The agreed plan for A to transition to the care of his father was approved. The position concerning B was adjourned for further family assessment.