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7.3 Evidence: approach when fact-finding

Public Children Law: A Case Law Compendium

Author:
William Seagrim
Publisher:
Bloomsbury Professional
Publication Date:
2025
Law Stated At:
3 June 2024

7.3.1 Evidence: approach when fact-finding: an overview

Re L and M (children) [2013] EWHC 1569 (Fam), [45]–[58] (Baker J)

  • THE LAW
  • 45. In determining the issues of this fact finding hearing I apply the well-established legal principles. I have summarised those principles at length in my earlier decisions in Re JS [2012] EWHC 1370 (Fam) and Devon CC v EB [2013] EWHC 968 (Fam). All counsel have referred to one or both of those summaries. I have those principles firmly in mind and need only refer to them briefly here.
  • 46. First, the burden of proof lies at all times with the local authority.
  • 47. Secondly, the standard of proof is the balance of probabilities.
  • 48. Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. I have borne this principle in mind throughout this hearing.
  • 49. Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.
  • 50. Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.
  • 51. Sixth, cases involving an allegation of non-accidental injury often involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.
  • 52. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.
  • 53. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).
  • 54. Ninth, as observed by Dame Elizabeth Butler-Sloss P in an earlier case ‘The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.’
  • 55. This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother’s two other children had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed: ‘What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.’
  • 56. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1: ‘Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.’
  • 57. In Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed, ‘A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.’
  • 58. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so.

See also A Local Authority v W and others [2020] EWFC 40, [2020] 4 WLR 83, [37]–[38] (MacDonald J) addressing the same point (setting out a similar list of principles as ‘long established legal principles that govern the fact finding exercise’)

See also Re A (a child: findings of fact) [2022] EWCA Civ 1652, [2023] 1 FCR 468, [41] (Peter Jackson LJ) addressing a similar point (it is entirely possible to prefer the evidence of one witness on some issues and another witness on other issues)

7.3.2 Evidence: approach when fact-finding: wide canvas

Re U (a child) (serious injury: standard of proof); Re B (a child) (serious injury: standard of proof) [2004] EWCA Civ 567, [2004] 2 FCR 257, [26] (Dame Elizabeth Butler-Sloss P)

  • [26] It is for the purpose of satisfying that threshold that the local authority seeks to prove specific facts against the parent or parents. Only if it succeeds in that task can its application for a care or supervision order proceed. Thus the preliminary issue of fact constitutes the gateway to a judicial discretion as to what steps should be taken to protect the child and to promote his welfare. In those circumstances we must robustly reject Mr Cobb’s submission that the local authority should refrain from proceedings or discontinue proceedings in any case where there is a substantial disagreement amongst the medical experts. For the judge invariably surveys a wide canvas, including a detailed history of the parents’ lives, their relationship and their inter-action with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children’s guardian.

See also Re T (children) [2004] EWCA Civ 558, [2004] 2 FLR 838, [33] (Dame Elizabeth Butler-Sloss P) addressing a related point (viewing the totality of evidence)

See also Re P (a child) [2019] EWCA Civ 1346, [2020] 1 FCR 77, [47] (King LJ) addressing a related point (taking account of all relevant evidence)

7.3.3 Evidence: approach when fact-finding: discrepancies in accounts

Lancashire County Council v The Children and others [2014] EWHC 3 (Fam), [9] (Peter Jackson J)

  • 9. To these matters, I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as ‘story-creep’ may occur without any necessary inference of bad faith.

See also Wigan Council v M and others [2015] EWFC 6, [82] (Peter Jackson J) addressing a related point (the levels of precision expected of children), see Chapter 7.4.2 Evidence: children: children giving evidence: levels of precision

7.3.4 Evidence: approach when fact-finding: inferences based on proved fact

Re A (a child) (fact-finding: speculation) [2011] EWCA Civ 12, [2011] 1 FCR 141, [26] (Munby LJ)

  • [26] There are, in my judgment, two different points wrapped up in this complaint which need to be disentangled and kept quite distinct. The first, on which, as a matter of principle, Ms Crowley is obviously correct, is the elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation. Whether, as she would have it, Roderic Wood J fell into error in this respect, is something to be determined when I come to consider the particular findings of which complaint is made. When I come to embark upon that exercise I will, of course, have Ms Crowley’s submissions on this point very much in mind. Here I merely observe that the judge, as one would expect, was very alert to the fact that suspicion cannot be the basis of findings. Thus, referring to the father’s claim for asylum, the judge said (main judgment at [47]): ‘I have … concluded that he is a wholly unreliable historian in relation to a very significant part of his claim for asylum. Whilst I am accordingly suspicious as to his account of his activities in Iran/Iraq as a justification for asylum, I can do no more than record that suspicion. Since it is suspicion and does not achieve the necessary standard of proof to qualify as a probability I shall put that aspect of the matter firmly out of my mind.’

See also A Local Authority v Ms A and others [2010] EWHC 28 (Fam), [2011] 2 FLR 137, [18]–[20] (Ryder J) addressing the same point (in the context of dismissing the drawing of an inference from the mere recurrence of events and emphasising that a judicial inference must be based on fact)

7.3.5 Evidence: approach when fact finding: multiple injuries over a short duration

Re M (a child) [2010] EWCA Civ 1467, [37] (Wilson LJ)

  • 37. The first basis of the cross-appeal is the father’s responsibility for the October event. Is it likely, asks Miss Hodgson on behalf of the mother, that, within the space of less than seven weeks, the partial suffocation of a baby is caused by one parent and yet injuries to his body are, or even just may be, perpetrated by the other? It is certainly not unknown for judges to give a negative answer to that type of question and, by reference to it, to proceed to identify the perpetrator of a second non-accidental injury. When they do so, their reasoning is – in my view – in principle valid. In the present case (says Miss Hodgson) the judge posed the question to herself at a curious stage, namely in the final paragraph of her written judgment and, in particular, after she had announced her conclusion that she could do no more than to consign the parents to a pool. It resembled a postscript, namely that, in relation to the December injuries, she had been invited to extrapolate from the father’s responsibility for the October event that he was their perpetrator but that the matters were ‘quite separate and very different’ and that she was unable to accede to the invitation. Of course it was quite separate. But was it very different? Yes, says Mr McIlwain on behalf of the local authority, suffocation is very different from gripping or inflicting a blow. No, says Miss Hodgson, both are born of a sudden loss of adult control.