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Zahra Pabani
Zahra Pabani
Partner - Family Law
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CARE: Lancashire County Council v D & E [2008] EWHC 832 (Fam)
Date:14 MAR 2008

(Family Division; Charles J; 14 March 2008)

Where a child had sustained injuries of some kind, part of the exercise conducted by the court was to identify from the expert evidence the range of possible causes; the court's reasoning process could, however, lead to a finding that did not accord with the medical experts' conclusion as to what was most likely or was more likely than not. A medical view as to the most likely cause of injuries established such a cause as a real possibility that had to be considered, in all the circumstances of the case, together with other possibilities. The exercise of identifying a perpetrator, or pool of perpetrators, also formed part of the exercise of considering whether there had been an inflicted injury; someone with the opportunity to injure the child should not have to show that he or she had not done so. It was most unlikely that the factual examination, and thus the forensic process relating to it, could properly rest only on a chain of reasoning based on (a) the view of the medical experts that the most likely cause was shaking or shaking and impact, and (b) the identification of the pool of perpetrators by reference to the carers of the child. That was likely to be only a step in the process, and there would need to be a further examination of the pool and whether, given the existence of the pool, from those starting points based on role, opportunity and timing, the uncertainty and fog created could be removed or cleared away by applying a more likely than not approach. If an explanation based on accident was not advanced by the parent, then the court could nonetheless consider and explore whether there was or might have been an accident, as part of the function of striving to identify what had caused a child to suffer injury, but in the absence of any clear evidence the court could not make findings as to the specifics. In some cases, a court might make a finding that the undisclosed event that was the cause of the injury and consequent illness could cover a range of events or degrees of force. In this case, which had a number of unusual features, the local authority had not established that it was more likely than not that one or both of the parents was responsible for a shaking or shaking and impact injury.