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A Local Authority v K, D and L [2005] EWHC 144 (Fam)

Principles that should be applied on a fact finding hearing in care proceedings where a child whose older sibling had died in circumstances that needed to be established

A Local Authority v K, D and L [2005] EWHC 144 (Fam)

Family Division: Charles J (8 March 2005)

Summary
Principles that should be applied on a fact finding hearing in care proceedings where a child whose older sibling had died in circumstances that needed to be established.

Background
This was a fact finding hearing, concerning the establishment of the threshold set by Children Act 1989, s 31, in which the local authority sought a finding that the child who was the subject of these proceedings was at risk of suffering significant harm from her mother, on the basis that the mother had caused the death of her older child, L.

The judge set out at some length the legal foundations for his approach in this case: (1) the threshold stage was largely an adversarial process, combined with the court's quasi-inquisitorial function in dealing with cases concerning children; (2) the standard of proof to be applied in Children Act cases was the balance of probabilities, and the strict rules of evidence applicable in a criminal trial was to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence were considerably relaxed (see Re LU (a child); Re LB (a child) [2004] EWCA Civ 567, reported as Re U (Serious Injury: standard of proof); Re B [2004] 2 FLR 263, confirming that the House of Lords' decision in Re H and R (child: sexual abuse) [1996] 1 FLR 80 remains the leading authority); (3) in applying the balance of probabilities test, the court was not determining whether there was a real possibility that the relevant event occurred, but whether it was more likely than not that it did so; (4) in deciding whether an event occurred to the appropriate standard, the court must do so on evidence, facts found to that standard and reasoning based thereon – suspicion was not enough; (5) whilst medical expert evidence was one part of the evidence available to the court at the fact-finding stage, and properly reasoned expert medical evidence would carry considerable weight, the judge was the person who made the final decision (and see Findings below); (6) with reference to, but distinguishing, R v Cannings [2004] EWCA Crim 1 which dealt with the criminal standard of proof, the court in a family case was entitled to make a finding as to the cause of a death or an injury when competing reasonable causes of that death or injury had been identified on the evidence as reasonable (and not fanciful) possibilities; and (7) the court was entitled to depart from the opinion of an expert but, if it did so, it must explain its reasons (see Re B (Care: Expert Witnesses) [1996] 1 FLR 667).

The judge proceeded to review the experts' evidence advanced on behalf of the local authority, the sequence of events on the date of L's death, and the mother's account of events including possible causes of L's death.

Findings
On the basis of the experts' evidence, and having regard to the possibilities advanced on behalf of the mother, it was very unlikely that the mother's account of events provided an explanation of the cause of L's death and the injuries that she suffered; consequently, it was far more likely than not that the mother had caused L's death and injuries.
The judge also expressed the view that, in civil cases concerning children, it might be preferable if the medical experts were not asked to express a view as to the cause of the relevant death, injuries or harm on the balance of probabilities but were asked to:

  1. identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered,
  2. state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause,
  3. compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant death, injuries or harm,
  4. state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view, and
  5. to state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view.

Read the full text of the judgment