“[70] My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies. [71] As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future.”
“that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury”
"[26] It is an 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."
“[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] Evidence cannot be evaluated and assessed in separate compartments. 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."
“[101B] I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”
“An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.”
"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help. 40. This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, "
"[44] …in cases concerning alleged non- accidental injury to children properly reasoned expert medical evidence carries considerable weight, but in assessing and applying it the judge must always remember that he or she is the person who makes the final decision; [49] …In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non- accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof;"
"I am therefore able to reach a conclusion as to cause of death and injury that is different to, or does not accord with, the conclusion reached by the medical experts as to what they consider is more likely than not to be the cause having regard to the existence of an alternative or alternatives which they regard as reasonable (as opposed to fanciful or simply theoretical) possibilities. In doing so I do not have to reject the reasoning of the medical experts, rather I can accept it but on the basis of the totality of the evidence, my findings thereon and reasoning reach a different overall conclusion."
"[10]...there has to be factored into every case which concerns a disputed etiology 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."
“40. As to the second, if the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators. Sometimes this will be necessary in order to fulfil the "attributability" criterion. If the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. Sometimes it will desirable for the same reasons as those given above. It will help to identify the real risks to the child and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child in the long run. 40. In North Yorkshire County Council v SA[2003] EWCA Civ 839 ,[2003] 2 FLR 849 , the child had suffered non-accidental injury on two occasions. Four people had looked after the child during the relevant time for the more recent injury and a large number of people might have been responsible for the older injury. The Court of Appeal held that the judge had been wrong to apply a "no possibility" test when identifying the pool of possible perpetrators. This was far too wide. Dame Elizabeth Butler-Sloss P, at para 26, preferred a test of a "likelihood or real possibility". 41. Miss Susan Grocott QC, for the local authority, has suggested that this is where confusion has crept in, because in Re H this test was adopted in relation to the prediction of the likelihood of future harm for the purpose of the threshold criteria. It was not intended as a test for identification of possible perpetrators. 42. That may be so, but there are real advantages in adopting this approach. The cases are littered with references to a "finding of exculpation" or to "ruling out" a particular person as responsible for the harm suffered. This is, as the President indicated, to set the bar far too high. It suggests that parents and other carers are expected to prove their innocence beyond reasonable doubt. If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case.”
“46. Drawing matters together, it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill-treatment and where the only ‘unknown’ is which of a number of persons is responsible. So, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the relevant allegation can be proved to the civil standard against an individual or individuals in the normal way. Nor does it arise where only one person could possibly be responsible. In that event, the allegation is either proved or it is not. There is no room for a finding of fact on the basis of ‘real possibility’, still less on the basis of suspicion. There is no such thing as a pool of one. 47. It should also be emphasised that a decision to place a person within the pool of perpetrators is not a finding of fact in the conventional sense. As is made clear in Lancashire at [19], O and N at [27-28] and S-B at [43], the person is not a proven perpetrator but a possible perpetrator. That conclusion is then carried forward to the welfare stage, when the court will, as was said in S-B, “consider the strength of the possibility” that the person was involved as part of the overall circumstances of the case. At the same time it will, as Lord Nicholls put it in Lancashire, “keep firmly in mind that the parents have not been shown to be responsible for the child’s injuries.”
"Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?"
“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 . . .”
“62. Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child. 63. Such findings where made in respect of a carer, often the mother, are of the utmost importance when it comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children's best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries. 64. Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming 'a bolt on' to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, "nearly all parents will be imperfect in some way or another". Many households operate under considerable stress and men go to prison for serious crimes, including crimes of violence, and are allowed to return home by their long-suffering partners upon their release. That does not mean that for that reason alone, that parent has failed to protect her children in allowing her errant partner home, unless, by reason of one of the facts connected with his offending, or some other relevant behaviour on his part, those children are put at risk of suffering significant harm.”
“98. The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a "lie" made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices. 99. In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100. One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251. In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt”
“The following risk factors of cot death were identified: Intrinsic to the baby: Premature birth, young infant. Parenting: Maternal alcohol consumption (mother is heavily intoxicated. Environment: Co-sleeping (5 individuals involved), parental smoking, infant was under duvet, in the crook of arm of mother facing mother. The listed risk factors put this baby high risk for cot death and it is not appropriate to classify the death as Sudden Infant Death Syndrome. Interpretation of the rib fractures of different age is a matter for the Home Office Pathologist and Specialist Pathologist. I did not find any medical cause of death.”
“The femur displays a fine layer of lower mineralised bone tissue on the posterior surface. No damage was identified on the sternum. The ribcage displayed numerous injuries. There is a total of 13 incomplete fractures on the anterior aspects of the ribs near the sternal ends. These are only visible on the internal surfaces and have the appearance of vertical creases within the cortical bone. In addition, there are 17 possible posterior rib fractures through the deep corner of the rib heads. They are very subtle. The majority of the anterior fractures identified on the postmortem radiology have been confirmed on the micro-CT images. The anomaly on the distal right femur appears like new bone formation on the micro CT-images. In addition to these features there were subtle possible fractures on the posterior rib aspects, their nature should be verified by histology. No fracture age can be provided from the scan images alone, this again is best done by histology.”
“The deceased was a 3 month old child who was found unresponsive in bed and not breathing. It was reported he slept in the bed with mother and two other siblings and that he was born prematurely and diagnosed with health conditions prior to death (not revealed at time of this report). The brain examination shows a few non-specific changes. For instance, there is a small and microscopic focus of old ischaemia and infarct in the white matter of the right parietal lobe associated with mild increase in number of activated microglia cells and mild macrophage infiltration in the meninges. These appearances indicate old reactive changes to a previous localised ischaemia in the brain most likely related to premature birth and other health conditions. The changes in the brain are mild and focal and unlikely to have contributed to death. There are occasional accumulations of βAPP indicating mild and focal axonal disruption in the brainstem which could be due to final events of ischaemia in the brain although this is not certain. There is no evidence, however, of established ischaemia in other parts of the brain or βAPP deposition. The brain shows no evidence of natural disease which could have caused or contributed to death. There is, for instance, no evidence of inflammation (encephalitis or meningitis) or malformation subarachnoid haemorrhage or internal bleeding. The pathological changes in the brain are required to be considered closely with autopsy examination, toxicology and other investigations before final conclusion. Conclusion Mild non-specific changes consistent with localised old ischaemia. No evidence of traumatic brain injury.”
“There is a total of 24 anterior and posterior rib fractures. All of the fractures are small, partial and subtle. They show a variety of histological appearances that indicate that they most likely occurred at at least two different time points. Most of the anterior rib fractures show appearances that indicate that they occurred several hours before death and some fractures show features that indicate that they could have occurred either a few hours prior to death, at the time of death or, even after death due to attempted CPR (generally the amount of haemorrhage is small). Many of the posterior rib fractures show features that indicate that they occurred significantly earlier than the anterior rib fractures. Some of these fractures show an established tissue reaction that indicates that they occurred between 36hrs and 3 days prior to death. The posterior rib fracture with the most clear cut features indicating that it occurred within this time frame is the left 7th posterior rib fracture (block 54). These rib fractures would have been caused by significant (i.e. significantly more force than might be imparted by “rough play”) chest compression. The anterior rib fractures would have been caused by either anterior to posterior (front to back compression and/or lateral to lateral (side to side) compressive force. These posterior rib fractures implicate an element of lateral to lateral (side to side) compressive force. A factor that needs to be considered in this case is whether the bones were weakened by birth prematurity – i.e. “osteopaenia of prematurity”
“D was a premature but otherwise healthy baby at the time of his death. He was found to have died in the parents’ bed in which both parents and two other siblings were also sleeping. His parents had both been drinking alcohol and his father had also taken cocaine on the previous day. The skeletal survey and the post mortem findings identified a number of fractures to D’s ribs that had occurred up to 3 days before his death. These ante-mortem fractures would have been painful and distressing both at the time they were caused but also when the baby was subsequently changed and handled. The mechanism, by which the posterior fractures were caused i.e. side-to-side compression, was different from the mechanism likely to have caused at least some of the anterior rib fractures. At least some of the anterior fractures could have been caused during attempts to resuscitate the baby.”
“What are the possible/probable causes of this haemorrhage? Extension/flexion trauma to the spine. When is this haemorrhage likely to have occurred (in terms of a date/time and in relation to the death)? There is no tissue response to the haemorrhage and this indicates that the haemorrhage would have occurred at any time point within a few days prior to death including immediately prior to death. More precise dating than this may be possible by an expert neuropathologist.”
“I have reviewed Prof Mangham’s responses and I am concerned regarding his interpretation of the spinal nerve root haemorrhage: When is this haemorrhage likely to have occurred (in terms of a date/time and in relation to the death)? There is no tissue response to the haemorrhage and this indicates that the haemorrhage would have occurred at any time point within a few days prior to death including immediately prior to death. More precise dating than this may be possible by an expert neuropathologist. With this [in] mind and considering his later opinion that this bleeding cannot be explained by overlay, I feel it is essential that this matter is addressed by an expert neuropathologist and that they should examine the material reviewed by Professor Mangham, specifically to address dating of the bleeding/injury of the thoracic paraspinal nerve roots as this could have significant implications regarding causation.”