London Borough of Hammersmith and Fulham v G & Ors

In a fact-finding hearing concerning alleged inflicted injuries, the local authority bears the burden of proving the relevant facts on the balance of probabilities. The court must assess the whole evidential picture, including medical and non-medical evidence, and must not rely on suspicion, speculation or an unproved alternative explanation. Medical evidence must be evaluated in context, with neither medical nor lay evidence automatically taking precedence. Where expert evidence conflicts, the court must scrutinise the experts’ reasoning, methodology, omissions and engagement with the individual facts. A failure by a parent to prove an alternative account does not itself establish the local authority’s case. The court may conclude that injuries were accidental and that statutory threshold criteria are not satisfied.

The local authority brought care proceedings concerning three children after the death of a fourth child, D, in an accident involving a bunk bed and scarf. Post-mortem and histopathological evidence raised competing views about whether D had sustained acute and older rib fractures, their timing, and their cause. The parents relied on accidental mechanisms, including the fall, attempts to free D and prolonged CPR. A subsidiary issue concerned alleged injuries to A.

The court conducted a fact-finding hearing and considered whether the local authority had proved inflicted injury and whether the threshold criteria under section 31(2) of the Children Act 1989 were met.

1. Outcome. The court endorsed the local authority’s decision not to pursue findings of inflicted injury. The threshold criteria under section 31(2) of the Children Act 1989 were not satisfied. The interim care orders were discharged and supervision of the parents’ care of C was withdrawn.
2. The burden of proof rested on the local authority and the standard was the balance of probabilities, applying Re B. The court had to assess the whole picture and decide whether the alleged event was more likely than not. Suspicion, strong suspicion, speculation, surmise and assertion were insufficient. A party was not required to prove an alternative defence, and failure to do so did not establish the local authority’s case.
3. In cases involving alleged inflicted injury and expert medical evidence, the court was required to evaluate medical and lay evidence together. Neither category had automatic precedence. The court adopted the guidance in Re T, Re H; Re B (A Child), Re R (Children: Findings of Fact) and the other authorities reviewed at paragraphs 13–20.
4. The court preferred Professor McCarthy’s balanced and authoritative evidence to Professor Mangham’s evidence. Material errors, an unduly linear approach, failure to engage with possible accidental causes, omission of haemorrhage, reliance on controversial timing evidence and delay in reporting undermined Professor Mangham’s conclusions. The court found that 12 rib fractures were acute and had been sustained accidentally, through one or more of the fall, attempts to extricate D and prolonged CPR. The alleged older lesions were remodelling, not fractures.
5. It was good practice in concurrent family and criminal investigations for expert meetings convened by the police or CPS to be minuted and, where practicable, for the family parties to receive advance notice. Open and effective co-operation remained subject to protecting the integrity of either proceeding and to any confidentiality or public-interest-immunity order.
6. The parents declined a Family Assistance Order under section 16 of the Children Act 1989, seeking support under section 17 from the local authority in whose area they then lived.