02 Mar 2016
Following a number of recent appeals arising from flawed fact finding decisions, this article will consider the correct approach a court must take when finding facts in relation to non-accidental injuries, particularly when there is complex medical evidence involved.
In the case of Devon County Council v EB and others  EWHC 968, Baker J summarised the correct approach in a series of handy bullet points. This summary has been approved and added to in a number of cases, such as by Jackson J in Re BR (Proof of facts)  EWFC 41.
Jackson J in Re BR after reiterating that the burden of proof remains with the Local Authority at all times, dealt with the thorny issue of the standard of proof in the following way:
“The standard of proof is the balance of probabilities: is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this.
- Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case. In my view, statements of principle (some relied on in this case) that suggest that an enhanced level of evidential cogency or clarity is required in order to prove a very serious allegation do not assist and may lead a fact-finder into error. Despite all disclaimers, reference to qualitative concepts such as cogency and clarity may wrongly be taken to imply that some elevated standard of proof is called for.
- Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same.
- The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
- 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.”
In Devon County Council v EB and others, Baker J having considered the burden and standard of proof went onto consider the correct approach to evidence as follows:
- Findings of fact must be based on evidence.
As LJ Mumby said in Re A (A child) (Fact Finding Hearing: Speculation)  EWCA Civ. 12:
“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.”
When considering cases of suspected child abuse, the court must take into account all the evidence and furthermore consider each piece of evidence in context of all the other evidence. As Dame Elizabeth Butler-Sloss, President observed in Re U, Re B 9 (Serious Injuries: Standard of Proof)  EWCA Civ. 567, the court “invariably surveys a wide canvas”. In Re T  EWCA Civ. 558,  2 FLR 838 at paragraph 33 she added:
“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 the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.”
- Whilst the opinions of medical experts are important, they have to be considered in the context of all the evidence.
In A County Council v KD & L  EWHC 144 Fam. at paragraphs 39 to 44, Mr Justice Charles observed:
“It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.
“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 … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”
As Mr Justice Ryder observed in A County Council v A Mother and others  EWHC Fam. 31:
“A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”
- The Court must be cautious as to scientific evidence expressed as certainty.
As observed by Dame Elizabeth Butler-Sloss President in Re U, Re B, supra:
“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 may throw a light into corners that are at present dark.”
This principle was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings  EWCA 1 Crim. In that case a mother had been convicted of the murder of two of her 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 quashed her convictions. There was no evidence other than the repeated incidents of breathing having ceased and there was serious disagreement between the 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, Lord Justice Judge, 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.”
Lord Justice Moses in R v Henderson and Butler and others  EWCA Crim. 126 at paragraph 1:
“Where a 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.”
In Re R (Care Proceedings: Causation)  EWHC 1715 Fam. Mr Justice Hedley, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further at paragraph 10:
“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.
“In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”
- The Court must ensure, particularly in case involving a number of experts that each keep within the bounds of their own expertise.
- 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. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them: see Re W and another (Non-accidental Injury)  FCR 346.”
- A Lucas directions is often required when considering parental evidence.
“It is not uncommon 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 various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything: see R v Lucas  QB 720.”
For even the simplest case involving allegations of non-accidental injury, the above principles must be brought to the attention of the tribunal hearing the case by those representing the parents or alleged perpetrators. From the author’s own experience, medical experts still express opinions in relation to contentious medical issues, such as the degree of force required to cause fractures in young children, with degrees of certainty that are not necessarily warranted on the evidence. The above principles are a vitally important bulwark against trial by science.