R (Children: Findings of Fact), Re

In care proceedings, alleged inflicted injury must be decided by a thorough and synthesised evaluation of all the evidence, including medical evidence, lay accounts and the competing inherent probabilities. Neither medical nor non-medical evidence has precedence.

Where a family account is rejected, the court must clearly decide whether it is untrue and give cogent reasons. A finding of infliction may, on the particular evidence, compel an inference of collusion; collusion is not then an unsupported bolt-on finding. The inherent improbability of an assault can be disregarded only once an assault is established.

Care proceedings followed serious head injuries suffered by C, aged eight months, while at home with six maternal relatives. The local authority alleged that C had been shaken and that the relatives had colluded to present a false account of an accidental fall.

The Family Court found that C had probably been injured in a single shaking episode. It could not identify the perpetrator, so made a pool finding against the six relatives. It found collusion not proved. The mother appealed against the judge’s assessment of the family evidence and his evaluation of probability. Permission to appeal was granted on those grounds, but not on the medical findings.

1. Appeal allowed. The judge’s findings of inflicted injury and possible perpetration could not stand. The appeal court set aside the findings, discharged the supervision orders, permitted the local authority to withdraw its revived public-law application, and concluded the proceedings without a rehearing. C’s injuries consequently remained unexplained.

2. The fact-finding exercise required a complete evaluation of the medical and lay evidence. The medical evidence strongly favoured shaking but did not establish it with certainty. The court therefore had to assess the relatives’ account of a fall, the possibility of a fall followed by shaking, and the possibility of shaking without a fall. Medical evidence was not a canvas against which lay evidence was merely considered; both were vital and neither had precedence.

3. The judge did not make a clear finding whether C fell as described, nor did he give adequate reasons for rejecting the family’s account. Relatively superficial and sometimes inaccurate comments on discrepancies did not explain why the witnesses were disbelieved. That failure was material to fairness and to the assessment of risk, particularly because the implications differed if the family had jointly concealed an assault.

4. The judge misapplied Re B [2008]. Inherent probabilities cease to assist only once an assault is known to have occurred. Here, an assault had not been established, and the improbability of an assault occurring at a closely attended family gathering had to be evaluated. A Lucas direction was also premature: alternative reasons for lying matter only after the court has found that a witness lied.

5. On these facts, a finding of inflicted injury necessarily entailed that the other relatives present knew what had happened and who was responsible. The judge could not coherently find infliction while declining to infer collusion because there was no direct evidence of the discussions. The normal evidential process permitted the necessary inference of sustained deliberate concealment.

• Court of Appeal (Civil Division) — allowed the mother’s appeal in [2024] EWCA Civ 153; set aside the fact-finding conclusions and approved withdrawal of the revived proceedings without a retrial.
• Family Court at Peterborough — on 26 June 2023, His Honour Judge Chaudhuri found that C had probably been shaken, could not identify the perpetrator, and made a pool finding against six maternal relatives. The judge found the allegation of collusion not proved. On 19 December 2023, supervision orders were made by agreement.