Re G (A Child) (Non-Accidental Injury: Standard of Proof)
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Date | 2001 |
| Year | 2001 |
| Court | Court of Appeal (Civil Division) |
Child abuse – Non-accidental injury – Baby dying while in parents’ care – Either parent possible perpetrator – Older sibling placed in foster care – Split trial – Judge finding at first part of hearing that baby had been abused but unable to identify perpetrator – Mother appealing – Whether judge applying correct standard of proof – Whether judge’s failure to identify father as perpetrator justified on the evidence.
The mother had two children, J born in 1996 and the subject of the care proceedings, and R, who died in 1999 at the age of five and a half months while in the care of the mother and of his father. R’s father was not the father of J but was the father of two other children and a stepchild to whom he was apparently devoted. R had been born prematurely and kept in hospital for nearly three months after birth. Within three weeks of his release he was readmitted to hospital with severe bruising and a history of vomiting. He was returned to his parents’ care and subsequently died. The initial post mortem diagnosis was that R’s death was due to an infection but it then became apparent that he had suffered a series of fractures in the weeks before his death and there was evidence of a shaking injury sustained on the morning of death. J was subsequently placed in care. The parents’ evidence was that on the day when R died, his father had got up early and fed him but had left him in his cot and ignored him thereafter. The mother had got up later and claimed to have gone out with J and one of the other children without having attended to R. She returned at midday by which time the medical evidence established that R was already dead. At the first hearing of the split trial it was determined that R had been abused by his parents but the judge stated that she required strong and cogent evidence in order to identify which of the two parents had inflicted the injuries and that the circumstantial evidence available did not enable her to do so. The mother appealed, contending that the judge had misdirected herself as to the requisite standard of proof and that although strong and cogent evidence was required before the finding of abuse could be made, the identity of the perpetrator ought to be established on the balance of probabilities by reference to a weaker test. She further contended that the judge’s decision not to identify the father as the perpetrator was not justified on the evidence.
Held – The proposition that it was only necessary to have strong and cogent evidence as to the event of abuse, and not as to its perpetrator, had no basis in authority and could not be accepted by the court. In each case the decision had to be made on the balance of probabilities and the test was the same. To find a parent guilty of non-accidental injury the evidence had to be adequate to meet the serious allegation made. In the instant case, the judge had recognised that it would have been more convenient to have come to a clear conclusion as to the identity of the perpetrator, but after conscientiously weighing up the evidence she had been unable to do so because that evidence was not sufficient on the balance of probabilities either to exclude the mother or to identify the father. The judge had evaluated the reliability and credibility, or lack of credibility, of both parents, and while a number of her findings were extremely critical of the father and of the inconsistencies in his evidence, she had also pointed out inconsistencies and minimisations in the mother’s evidence. Her self-direction had been impeccable, she had not erred in law and it was impossible for the appellate court to state that she had been plainly wrong, on the weight of the evidence, to have failed to identify the abuser. Accordingly, the appeal would be dismissed.
Re H and R (minors) (sexual abuse: standard of proof)[1996] 1 FCR 509 applied.
Cases referred to in judgmentsDellow’s Will Trusts, Re, Lloyds Bank Ltd v Institute of Cancer Research [1964] 1 All ER 771, [1964] 1 WLR 451.
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509, [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
Hornal v Neuberger Products Ltd [1957] 1 QB 247, [1956] 3 All ER 970, [1956] 3 WLR 1034, CA.
AppealThe mother appealed against the finding of Hogg J, given on 19 April 2000 on the trial of the preliminary issue, that the mother’s younger child R had suffered non-accidental injuries while in the care of the parents but that the evidence as to which parent had inflicted the injuries was inconclusive. The facts are set out in the judgment of Dame Elizabeth Butler-Sloss P.
Jonathan Cohen QC and Catherine Wood (instructed by Hillman Smart & Spicer) appeared on behalf of the appellant.
Mary Lazarus (instructed by the Legal Department, East Sussex Council) appeared on behalf of the first respondent.
Roger Haywood-Smith QC and Claire Jakens (instructed by Stephen Rimmer & Co) appeared on behalf of the second respondent.
Stephen Cobb (instructed by Lawson Lewis & Co) appeared on behalf of the third respondent.
Joanne Brown (instructed by Buss Murton) appeared on behalf of the fourth respondent.
DAME ELIZABETH BUTLER-SLOSS P.1. This is an extremely sad case. I start by giving a direction as to identification that there should be no identification of the mother, father, father of the child with whom we are concerned or any other member of the family that might lead to the identification of the child who is the subject of these proceedings. We shall be grateful to the Press for their usual care to keep anonymity of names.
2. This is a case where a child aged five-and-a-half months died while in the care of the parents. The cause of death was unknown, but in due course when proper investigations were made it was discovered that he had suffered very serious injuries which could not be identified as leading directly to his death but were caused over a period of four to six weeks. I will identify some of those injuries in a moment. The sad fact is that this child was in the care of the parents of the child; there is no other possible perpetrator. It is either the mother or father or possibly both of them as to either all the injuries or some of the injuries.
3. The background to this case is that the father of the dead child, but not the father of J, is 27 years but I will, for convenience, call him the father. The mother of both children is now 21 years. J was born on 13 September 1996 to a different father, who is represented through counsel here today but who has not taken specific part in these proceedings. The relationship between the father of J and the mother ended...
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