LINCOLNSHIRE COUNTY COUNCIL v MS & Ors

In fact-finding proceedings concerning suspected non-accidental injury to a child, the court must assess all the evidence in the round on the balance of probabilities. Where the evidence does not establish which of two caregivers caused the injury, both may be placed in the pool of perpetrators if the court is satisfied that one of them must have done so. A child may suffer emotional harm from domestic abuse even when not present during the incident. Dishonesty by parents may materially reduce the weight and reliability of their evidence, although findings about lies must be approached in accordance with the Lucas direction.

The local authority sought findings concerning bruising to Y, a non-mobile infant, including that one parent caused the injuries or that both should be placed in the pool of perpetrators. It also relied on domestic abuse, alcohol misuse, failure to protect, and emotional harm to the children.

Interim Supervision and Care Orders had been made for the children. The hearing was conducted on a rolled-up basis, with fact-finding addressed first. The central issue was whether the injuries were non-accidental and, if so, whether the evidence established which parent caused them.

1. Medical findings. The court accepted the evidence of Dr Herath and Dr Mittal. The injuries to Y were non-accidental. A non-mobile infant could not have caused them, and the mother’s explanation was implausible. The relevant alerting features included bruising to a non-mobile child, multiple injuries, bruising to the trunk and the absence of an alternative medical explanation.
2. Pool of perpetrators. The local authority bore the burden of proof, and the standard was the balance of probabilities. The evidence had to be considered in the round. Although the father’s history of alcohol misuse and aggression was troubling, the court could not determine whether he had caused the injuries or whether the mother had caused them and was concealing the truth. Given the nature and painfulness of the injuries, both parents must have been aware of what had occurred. Both were therefore placed in the pool of perpetrators.
3. Lies and domestic abuse. The court gave itself the Lucas direction concerning lies. The parents’ dishonesty and minimisation materially undermined the reliability of their evidence. Domestic abuse and alcohol misuse were conceded and established on the evidence. The children were capable of being harmed by domestic abuse occurring within the family even when they were not in the room or did not see the violence.
4. Welfare. The court found harm to both children but adjourned final welfare decisions to allow the parents to undertake further work with professionals. No final welfare determination was made.

First-instance proceedings. Interim Supervision and Care Orders had been made on 7 July 2021. HHJ Clarke directed that the hearing proceed on a rolled-up basis; Mrs Justice Lieven determined the fact-finding issues and adjourned the welfare decision.