Lancashire County Council v M & Ors

In family fact-finding proceedings, propensity evidence is not subject to a complete prohibition. Its relevance depends on the facts. Evidence of established behaviour may form part of the broader evidential canvas, although criminal-law admissibility rules are not imported wholesale.

The court must identify a perpetrator where an individual is proved, on the balance of probabilities, to be more likely than not to have caused the harm. There is no heightened standard because the allegation is serious. Equally, the court must not strain to identify a perpetrator where the evidence does not permit it. Psychological opinion about propensity must remain distinct from findings based on established conduct and reasonable inferences.

The local authority sought care orders for two young children after their infant sibling died following an episode of co-sleeping while the parents had consumed alcohol and drugs. The medical evidence established that the infant had sustained a posterior rib fracture several weeks before death. The parents accepted that death resulted from overlaying but disputed responsibility for the earlier injury.

The central issues were whether the fracture was non-accidental, whether the father was more likely than the mother to have caused it, and whether the proposed placement with paternal grandparents was in the children’s best interests.

1. Findings and orders. The posterior rib fracture was non-accidental and had been caused by forceful side-to-side compression. On the balance of probabilities, the father had inflicted it. The injury was unrelated to the infant’s death. The care plan placing the children with their extended family, with supervised contact, was approved as being in their best interests.
2. Propensity evidence. Re CB and JB (Care Proceedings: Guidelines) [1998] EWHC Fam 2000; [1999] 1 WLR 238 did not establish a complete prohibition on propensity evidence. Its observation that such evidence was unlikely to assist concerned psychiatric or psychological opinion in a purely factual issue. Established behaviour and reasonable inferences may nevertheless be relevant. The criminal authorities provide useful illustration, but their admissibility framework cannot be imported identically into family proceedings.
3. Standard and attribution. The civil standard applies to identifying the perpetrator: the question is whether the individual is more likely than not to have caused the injury. Section 31(2) of the Children Act 1989 requires harm to be attributable to the care given or likely to be given, but does not require the court to identify a perpetrator in every case. Identification is a duty where the evidence permits it, not an obligation to choose where the evidence remains insufficient.
4. Evaluation of evidence. The court was entitled to consider the father’s established history of violence and loss of control, his drug and alcohol misuse, his unusual presence in the home during the forensic window, and the changed family circumstances. These were not used in isolation. They formed part of a cumulative evidential assessment. By contrast, there was no comparable evidence of rough handling or violence by the mother.
5. Domestic abuse context. The court referred to section 70 and Schedule 2, paragraph 4 of the Domestic Abuse Act 2021 and to R v Cook [2023] EWCA Crim 452; [2023] WLR(D) 376 to emphasise the seriousness and risk significance of non-fatal strangulation. Those observations informed the assessment of vulnerability and risk in the care decision.

First-instance decision of the High Court (Family Division). No appellate history was stated in the judgment.