Sunderland CC v AB (Re-hearing: Fact-Finding: Expert or Professional Evidence)

In fact-finding care proceedings, the local authority bears the burden of proving disputed facts on the balance of probabilities. The court must evaluate the totality of the evidence, including medical evidence, witness credibility, inherent probabilities and the possibility of an unknown medical cause.

The court must not treat the most likely medical explanation as necessarily probable. Where the medical evidence is uncertain, the absence of a complete mechanism may be significant, particularly where the condition is unusual and several causes remain possible. A perpetrator must not be identified merely by comparison or exclusion: the evidence must establish that the individual probably caused the injury.

The proceedings concerned a six-month-old child who presented with widespread petechiae, periorbital swelling and limited subconjunctival haemorrhage. The local authority alleged that the presentation resulted from an assault involving compression or asphyxiation by one or both parents.

HHJ Hudson had found that the injuries were inflicted by the father. The Court of Appeal allowed the father’s appeal and remitted the case for rehearing, observing that the medical evidence did not clearly establish either inflicted or non-inflicted injury. The rehearing concerned whether the petechiae were inflicted injuries and, if so, whether either parent was responsible.

1. Threshold and burden of proof. The local authority had to establish the facts supporting the threshold under Children Act 1989, section 31(2), on the balance of probabilities. The parents were required to prove nothing, and the court had to avoid reversing the burden of proof.
2. Evaluation of evidence. Findings had to be based on evidence and proper inferences, viewed in the context of the totality of the evidence. Medical opinions were important but not determinative. The court’s role was distinct from that of the experts, and the judge had to weigh expert evidence with the factual evidence, credibility assessments and inherent probabilities.
3. Medical uncertainty. The possibility of an unknown or unidentified aetiology had to be considered. Excluding possible causes could be a valid method, but its reliability depended on the certainty with which those causes had been excluded. Here, the unusual petechial pattern, marked sparing, absence of associated injuries, duration of the rash and lack of a satisfactory mechanism prevented the medical evidence from providing a sufficiently reliable conclusion of inflicted injury.
4. Perpetrator identification. The court had to ask whether the evidence established that the petechiae were probably caused by human infliction, and then whether it established that either parent probably caused them. It was not sufficient to identify the more likely candidate or to proceed by linear exclusion.
5. Treating clinicians and Part 25 experts. A treating clinician may give expert evidence where the opinion falls within the clinician’s expertise. However, the circumstances in which a treating clinician forms an opinion may affect its weight. The court should consider whether the emergency context, personal relationship with the child or carers, and early formation of the opinion have impaired detachment.
6. Application. The court accepted that the medical evidence favoured a mechanical cause but remained uncertain whether the petechiae were inflicted. The proposed compression and facial-occlusion mechanisms did not satisfactorily explain the pattern of sparing and other features. The parents were credible, and the factual evidence was inconsistent with the prolonged and deliberate assault required by the medical hypotheses.
7. Disposition. The local authority failed to establish on the balance of probabilities that the petechiae were inflicted injuries caused by the father, and the mother was not shown to be a perpetrator. The court was unable to determine the cause of the petechiae.

1. Court of Appeal: On 16 July 2019, the father’s appeal from the fact-finding decision of HHJ Hudson was allowed and the matter was remitted for rehearing. The Court of Appeal declined to substitute its own finding because the medical evidence was insufficiently clear.
2. High Court (Family Division): The rehearing was conducted by Mr Justice Williams, who did not find that either parent had inflicted the petechiae.