London Borough of Southwark v A Family

In fact-finding proceedings under Part IV of the Children Act 1989, the local authority bears the burden of proving each material fact on the balance of probabilities. The court must decide whether the alleged fact happened; it cannot make a finding that it might have happened.

The absence of a satisfactory alternative explanation does not, by itself, prove the local authority’s case. In a disputed medical-causation case, the possibility of an unknown cause must be considered. The fact that experts regard non-accidental injury as the most likely explanation does not establish it where the evidence, viewed as a whole, leaves the court unable to conclude that the alleged culpable conduct occurred.

The local authority brought care proceedings concerning five children after a ten-year-old child died at the family home from a compression injury to the neck and was found to have genital injuries. It alleged that members of the immediate family had sexually assaulted and killed her and had then concealed the circumstances, exposing the younger children to a risk of significant harm.

Two earlier fact-finding judgments had been overturned on appeal, leading to a third trial. The central issues were whether the child had been sexually assaulted by a family member, whether her death resulted from culpable conduct, and whether the family had conspired to conceal the truth.

1. Burden and standard of proof. The proceedings were governed by Part IV of the Children Act 1989. The local authority had to prove the threshold facts under section 31(2) on the balance of probabilities. The burden remained on the local authority throughout. Failure by the respondents to establish accident, suicide or third-party involvement did not itself prove the local authority’s case.
2. Binary fact-finding. Applying Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, the court had to determine whether each fact happened or did not happen. There was no intermediate finding that an event might have occurred.
3. Unknown causation. The court applied the principle in Henderson v Others [2010] EWCA Crim 1269, as applied in care proceedings in Re R (Care proceedings: causation) [2011] EWHC 1715 Fam. The court had to resist inferring non-accidental injury merely because known alternative mechanisms had not been established. An unknown cause was a possibility to be considered. That principle affected neither the burden nor the standard of proof.
4. Evaluation of the evidence. The medical evidence placed sexual assault and homicide at the top of the differential diagnosis, but did not prove that they had occurred. The evidence concerning the family, the weaknesses in the police investigation, the absence of established conspiracy, and the unresolved possibility of accident or another unknown cause meant that the local authority had not proved culpable sexual assault, homicide or concealment.
5. Disposition. The threshold criteria were not established. The proceedings were dismissed.

The judgment records two earlier fact-finding trials. The first resulted in dismissal of the local authority’s case; the Court of Appeal later allowed the local authority’s appeal and directed a retrial. The second resulted in findings against the family; a further appeal was allowed and a third fact-finding trial was ordered.