Case No. ZE22C50109

27.CA 1989, s31(2) reads as follows:(2)A court may only make a care order or supervision order if it is satisfied—(a)that the child concerned is suffering, or is likely to suffer, significant harm; and(b)that the harm, or likelihood of harm, is attributable to—(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or(ii)the child’s being beyond parental control.28.Where the facts relied on by the local authority to establish the threshold criteria are in dispute, the local authority must prove them. The court will take the following approach to the fact-finding process:a.The burden of proof is on the party which makes the allegation: in public law Children Act proceedings, the local authority. a.The standard of proof is the balance of probabilities: Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35. b.The court may find only that something happened or that it did not happen. The law operates a binary system and there is no room for a finding that something ‘might have’ happened: Re B [2008] UKHL 35. c.The court must not reverse the burden of proof. If a respondent fails to prove an affirmative case they have set up by way of a defence, that does not of itself establish the applicant’s case. In such circumstances the question for the court is not ‘has the alternative explanation been proved?’, but ‘in the light of the possible alternative explanation, can the court be satisfied that the applicant has proved its case on the balance of probabilities?’: Re X (Children) (no 3) [2015] EWHC 3651. d.Findings must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation. The court may, and should, take into account the inherent probabilities of a potential scenario when determining whether or not an allegation is true. e.The court surveys a wide canvas. It must take into account all of the evidence, and consider each piece of evidence in the context of all the other evidence. f.In particular, expert evidence must be considered in the context of all the evidence. Experts must confine their evidence to their own discipline. The role of the court is different from that of the expert. It is the judge and not the expert who makes the final decision: A County Council v KD & L [2005[ EWHC 144 Fam. g.It is essential that the court forms a clear assessment of the credibility and reliability of the lay witnesses. Their evidence is extremely significant and the court is likely to place considerable weight on their evidence and the impression it forms of them. 29.When considering inherent probabilities the court must take care to ensure that the focus remains on the evidence before it in the particular case. In Re BR (Proof of Facts) [2015] EWFC 41 Peter Jackson J, as he then was, said:“4.Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:‘Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely, things do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.’I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.”30.In Re S (Split Hearing) [2014] EWCA Civ 25 Ryder LJ said:“19.The term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of s 31(2) of the CA 1989.20.The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way.”31.I am not sure I agree that the term “non-accidental injury” is a tautology: it seems to me that the word “injury” is capable of a neutral meaning when used, for example, to describe a fracture that has been caused accidentally. But the more important point is that the court must be careful to place an expert’s opinion that a fracture has been caused “non-accidentally” within the context in which it is offered. The expert is giving an opinion about causation, based on the nature of the injury and his or her clinical experience. The court’s role is not to categorise the injury, but to determine whether it is attributable to the care being given to the child by the parents not being what it would be reasonable to expect a parent to give. In making that determination the court must survey all the evidence, both expert and lay. 32.In cases where such a cause is alleged, the court may be presented by the child’s carers with one or more alternative explanations; or with no explanation at all. In all cases, and regardless of whether or not an explanation is offered, the local authority retains the burden of proof. The explanation, or lack of one, which is offered by the carers is a matter which the court may take into account provided that in doing so it does not reverse the burden of proof. In Re BR (Proof of Facts) Peter Jackson J said: "[15] It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge's observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far. [16] Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.[17] In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby's part on any such occasion was therefore one of the matters requiring careful assessment".33.In the same case the court endorsed a list of “risk factors” and “protective factors” that might assist the court in putting the evidence before it in such a case into context. The risk factors include a history of domestic abuse; substance abuse; poor parent-child relationships and negative interactions; parental stress; lack of family cohesion; and poverty and other socioeconomic disadvantage. The protective factors include a supportive family environment; stable relationships; adequate finances and housing; and a network of community and family support. The Judge emphasised that in itself, the presence or absence of a particular factor proves nothing: “children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. Each case turns on its own facts.” 34.In this, as in all other cases where the cause of an injury is in dispute, the court must factor into its consideration of the evidence the possibility that the cause is unknown: Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam.35.The threshold criteria may be met on the basis of a finding that one of a finite “pool” of persons has caused significant harm to a child, in circumstances where the court is unable to make a finding as to which of them has done so: Re S-B [2009] UKSC 17. 36.However, in such a case the court must take care not to reverse the burden of proof by considering in turn whether each member of the identified pool of perpetrators can be excluded. The burden of proof remains on the local authority at all times and it is for the local authority to show in the case of each potential perpetrator that there is a ‘likelihood or real possibility’ that he or she is responsible for the injuries.