In re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening): CA 14 May 2004

In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the Cannings case.
Held: The appeals failed. It was wrong to diminish the difference in standards of proof between civil and criminal cases. ‘The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in his speech in re H. ‘There were significant differences between care and criminal cases: more evidence would be admitted, and the proceedings were inquisitorial rather than adversarial. ‘it by no means follows that an acquittal on a criminal charge or a successful appeal would lead to the absolution of the parent or carer in family or civil proceedings.’
The court urged caution on those asked to find abuse: ‘(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal;
(ii) Recurrence is not in itself probative;
(iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause;
(iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice;
(v) 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 will throw light into corners that are at present dark.’

Dame Elizabeth Butler-Sloss P, Lord Justice Thorpe, And Lord Justice Mantell
[2004] EWCA Civ 567, Times 27-May-2004, Gazette 03-Jun-2004, [2005] Fam 134, [2004] Fam Law 565, [2004] 2 FCR 257, [2004] 3 WLR 753, [2004] 2 FLR 263
England and Wales
CitedRegina v Angela Cannings CACD 19-Jan-2004
The defendant had been convicted of murdering her children. The substance of the evidence against her was that on a medical expert. His evidence was disputed and later doubted.
Held: Appeal allowed. In general courts should be careful to . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedB v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
DoubtedRe ET (Serious Injuries: Standard of Proof) FD 2003
The court heard a care application in which the baby had sustained skull, brain and other injuries alleged to be at the hands of her parents.
Held: The standard of proof was the civil standard of the balance of probabilities and directed . .
CitedRe: CB and JB (care proceedings: guidelines) FD 8-Apr-1998
The court gave guidelines for procedures at preliminary hearings in care cases, and as to psychiatric evidence: ‘(iv) Evidence of propensity or psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .

Cited by:
CitedA Local Authority v S and W and T By her Guardian FD 27-May-2004
A child had died. The father was accused and acquitted of murder by way of shaken baby syndrome. The local authority persisted with an application for care orders for the other children.
Held: ‘I do not claim to have divined truth. I have . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedLancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .
CitedIn re L (A Child: Media Reporting) FD 18-Apr-2011
The local authority had intervened on suspecting physical abuse. L was placed with the maternal grandmother who took L to Ireland before care proceedings were commenced. The Irish court found him to have been wrongfully removed, and orders were made . .

Lists of cited by and citing cases may be incomplete.

Children, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.196767