Re C & Ors (Care Proceedings: Fact Finding)

In care proceedings, the threshold under section 31(2) of the Children Act 1989 may be established although the court cannot choose between alternative causes of a child’s injury. The court must find on the balance of probabilities that every remaining alternative attributes the significant harm to unreasonable care.

Dishonesty may support an inference that an undisclosed accident involved deficient parenting, provided the court applies appropriate caution and does not reverse the burden of proof. A likelihood of significant harm must be established for each child, but its precise extent need not be quantified where parental dishonesty obstructs safeguarding assessment.

The mother appealed against findings made by a Family Court judge after a fact-finding hearing concerning six children. An infant had sustained a skull fracture and associated injuries. The judge could not determine whether the injury had been deliberately inflicted or caused by an undisclosed accident, but found that either possibility involved care which it was unreasonable for a parent to give.

The judge also found incidents of violence, minimisation of domestic abuse and extensive dishonesty by the parents and an adult sibling. She concluded that the threshold in section 31(2) of the Children Act 1989 was crossed for all six children.

The appeal challenged the case management of unproved historical allegations, the treatment of alternative causes and lies, the findings concerning the older children, the absence of a failure-to-protect finding, and the finding of delayed medical treatment.

1. Appeal dismissed. The judge’s findings and determination that the statutory threshold was crossed were open to her. Although the production of the judgment and seven annexes involved delay, excessive clarification and fragmented reasoning, the reasons were discernible when the documents were read together. The irregularities caused no injustice.

2. An appellate court should interfere with a case-management decision only where the judge erred in principle, considered irrelevant matters, omitted relevant matters or reached a decision outside the generous ambit of reasonable discretion. The judge permissibly allowed evidence of historical allegations to be adduced as context while recognising that their truth would not be determined. She did not use those unproved allegations as findings.

3. Section 31(2) of the Children Act 1989 did not require the judge to choose between deliberate injury and an accidental mechanism. The material binary question was whether significant harm attributable to unreasonable care had been proved. The judge found that deliberate injury was one possibility and inferred that any undisclosed accident was likely to have involved deficient parenting. Every remaining alternative therefore satisfied the attribution requirement.

4. The judge did not reverse the burden of proof. Her adverse inference arose from the scale of the adults’ dishonesty and obfuscation. She also recognised, consistently with R v Lucas [1981] QB 720, that lies can have several explanations and must be treated cautiously.

5. The incidents of violence, minimisation of domestic abuse, lack of candour, exposure of the children to family dishonesty and resulting obstruction of professional safeguarding supported a likelihood of significant physical and emotional harm to every subject child. The precise risk to each child could properly be left for careful evaluation at the welfare stage.

6. There was no contradiction between declining to find a failure to protect and declining to find that no failure had occurred. In law the parents could not be treated as having failed to protect, but their dishonesty had prevented the court from deciding the issue. The finding of delayed medical attention after the swelling became boggy was also supported by the expert and parental evidence.

1. Court of Appeal (Civil Division): The mother’s appeal was dismissed. The court held that the Family Court’s findings and reasoning were sustainable when the judgment package was read as a whole.
2. Family Court at Birmingham: HH Judge Tucker found that the threshold in section 31(2) of the Children Act 1989 was crossed for all six children. The judge refused permission to appeal. No neutral citation for the Family Court decision is stated.