K (Threshold - Cocaine Ingestion - Failure to give evidence)

In 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 expert evidence, witness credibility, hearsay and properly drawn inferences. It must not reverse the burden of proof or rely on speculation.

A failure to give evidence does not automatically require the court to reject the witness’s evidence or draw every adverse inference. The court should assess the reason for the failure, the evidence relied upon by the other parties and the issues to which the evidence relates. Appropriate weight may be given to some evidence but not to other evidence.

The local authority brought care proceedings concerning four children after their three-year-old sibling died following cocaine ingestion. The central issues were whether cocaine ingestion caused the death, how and where the ingestion occurred, and whether the mother, Father 1 or the paternal grandmother had culpably failed to protect the children.

The mother was medically assessed as capable of giving evidence but ultimately did not do so. The court proceeded on the basis of her recorded interviews and written statements. The parties accepted that cocaine ingestion had caused cardiac necrosis and death, but disputed responsibility and the circumstances of ingestion. The central questions were whether the statutory threshold was met and how the court should evaluate the mother’s failure to give evidence.

1. Threshold and proof. The local authority had to establish the criteria in Children Act 1989, s 31(2), on the balance of probabilities. The parents were required to prove nothing. The court had to decide whether disputed events occurred, rather than conclude merely that they might have occurred.
2. Evaluation of evidence. The judge was required to survey the evidence as a whole, avoiding compartmentalisation. Expert medical evidence had to be considered with the lay evidence, credibility assessments and proper inferences. The court, not the experts, remained responsible for the ultimate determination of causation. The possibility of an unknown cause had to be considered without altering the burden or standard of proof.
3. Failure to give evidence. The general approach that a failure to give evidence may justify an adverse inference required a nuanced application. The court had to consider the circumstances of the failure, any credible explanation, the nature of the issue and the other evidence. Depending on the case, it could rely on some evidence, reject other evidence, and draw some but not all possible inferences.
4. Findings. The combined medical, toxicological and factual evidence established that K ingested cocaine in the mother’s home during the afternoon or early evening of 3 April 2019. Father 1 brought the cocaine into the home in connection with his drug-related activities and carelessly left it available to K. The mother knew of his activities and failed effectively to protect the children. The paternal grandmother did not directly cause the ingestion but bore indirect responsibility for the drug environment and her failure to protect the children from that risk.
5. Outcome. The court found the statutory threshold established in relation to the children. The judgment records findings of primary responsibility against Father 1, secondary responsibility against the mother and more diffuse responsibility against the paternal grandmother.