S and T (Children : care orders)

In care proceedings, the local authority bears the burden of proving disputed facts on the balance of probabilities. Serious allegations do not alter that standard, although inherent probabilities and the quality of the evidence remain relevant.

Findings must be based on evidence and properly drawn inferences, not suspicion or speculation. The court may identify a pool of possible perpetrators without identifying the actual perpetrator, but it must not strain to do so. A failure-to-protect finding requires factual evidence that the carer knew or ought to have known that injury would be inflicted.

Expert evidence assists but does not determine the result. The court may conclude that the cause of an injury remains unknown. Where threshold is established, welfare is paramount and a Special Guardianship Order provides substantially greater permanence than an ordinary child arrangements order.

Kent County Council brought care proceedings concerning two young children, S and T. The proceedings followed concerns about neglect, domestic abuse and several injuries to T, including bruising, a knee injury and a fractured wrist. The parents disputed that the injuries were non-accidental, although they accepted that the statutory threshold was met and ultimately supported placement with the paternal grandmother and her husband.

The court had to determine the disputed factual allegations, including whether the injuries were non-accidental, who caused them, whether there had been a failure to protect, and the appropriate welfare arrangements. It also considered contact and T’s surname.

1. Findings and burden of proof. The local authority bore the burden of proving disputed facts. The applicable standard was the balance of probabilities, including for non-accidental injury and the identity of the perpetrator. The seriousness of the allegations did not alter that standard. The court was required to examine the evidence critically and anxiously, while avoiding speculation.
2. Injuries to T. The court found that T’s facial bruise, knee injury and wrist fracture were non-accidental injuries. The bruise was caused by an adult blow; the knee injury was a deliberate cigarette burn; and the wrist injury resulted from an abusive pulling and twisting action. On the balance of probabilities, the Mother caused all three injuries. The court rejected the possibility that the injuries were caused by the pram, a toy, accidental handling or prematurity.
3. Other findings. The injury to S’s frenulum was caused by the Mother pulling his jumper over his head with excessive force, but it was accidental rather than deliberate. The court found that both parents had exposed the children to seriously neglectful home conditions and domestic abuse. Mr Q’s lies about domestic abuse were considered under the Lucas approach but did not establish that he caused the injuries. The court did not find that he had failed to protect T because the evidence did not show that he knew or ought to have known that the injuries would be inflicted.
4. Experts and unknown causation. The expert evidence was weighed with the lay evidence. The judge retained responsibility for the findings and was entitled to reject or qualify expert opinions. The court could have found the cause of an injury unknown if the evidence had remained equivocal, but the evidence here established the relevant findings.
5. Welfare and orders. The statutory threshold was established. The children’s welfare was paramount. The court made Special Guardianship Orders in favour of the paternal grandmother and her husband. Contact was to reduce gradually to monthly contact, subject to regular attendance and supervision. T was directed to use the hyphenated surname R-Q. The parents’ parental responsibility was restricted by the Special Guardianship Orders.

First-instance decision. No prior appellate decision was stated in the judgment.