LU (a child) v LB (a child)

Factual and Procedural Background

This judgment addresses two sequential cases concerning applications for permission to appeal against findings in care proceedings under the Children Act 1989. Both cases involve allegations that the mothers deliberately caused serious harm to their children, LU and LB respectively. The appeals challenge the standard of proof applied and the impact of the Court of Appeal (Criminal Division) decision in R v Cannings on such proceedings.

In the first case, LU, born in July 2001, was found by the trial judge to have suffered deliberate airway obstruction by the mother on four occasions between August and October 2001. The mother sought to appeal these findings, requesting additional evidence and an extension of time. Permission to adduce further evidence was granted, but permission to appeal and extension of time were refused.

In the second case, LB, born in October 1999 with disabilities, was found to have suffered rigors caused deliberately by the mother between late September and early October 2001. The local authority had made a care order placing LB with paternal grandparents. The mother sought permission to appeal and an extension of time; permission was granted but the appeal was ultimately dismissed.

The Department for Education and Skills intervened in both cases to provide its perspective on the legal issues.

Legal Issues Presented

1. What is the correct standard of proof to be applied in care proceedings alleging serious harm caused by a parent?
2. What is the impact of the Court of Appeal (Criminal Division) decision in R v Cannings on the conduct and assessment of care proceedings under the Children Act 1989?

Arguments of the Parties

Appellant's Arguments

• The mothers' counsel argued that the standard of proof in care proceedings should reflect a higher threshold than the ordinary civil standard, citing developments refining the principles from Re H (Minors) (Sexual Abuse: Standard of Proof).
• They submitted that the medical experts in LU's case had adopted a dogmatic approach, relying improperly on repetition of unexplained events to conclude child abuse, contrary to the warnings in R v Cannings.
• They challenged the reliability and sufficiency of the medical evidence, emphasizing the need for caution where expert opinions diverge and natural causes cannot be excluded.
• In LB's case, the appellant contested the elevation of controversial medical opinions into findings of fact and argued that the judge erred in relying on circumstantial and extraneous evidence to support medical conclusions.
• Additional evidence relating to extended family infant deaths was submitted in LU's case to suggest possible genetic or natural causes, though with limited verification.

Respondent's Arguments

• The local authorities and guardians supported the application of the balance of probabilities standard as established by Lord Nicholls in Re H, rejecting any conflation with criminal standards.
• They emphasized the quasi-inquisitorial nature of care proceedings and the broader evidential canvas available, including non-medical evidence such as family history, professional observations, and parental credibility.
• They highlighted the importance of assessing the totality of evidence rather than isolating medical findings, particularly in light of the child's welfare and protection.
• Respondents accepted the relevance of the R v Cannings judgment but maintained its limited application to criminal cases, underscoring the distinct legal and procedural context of family law.
• The Department for Education and Skills underlined the differences in standards and evidence between criminal and family proceedings, advocating caution in interpreting medical certainty and expert disagreement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563	Established that the standard of proof in family proceedings is the balance of probabilities, with flexibility to account for the seriousness of allegations.	The court reaffirmed Lord Nicholls' approach as the correct standard for care proceedings and rejected any higher standard.
R v Cannings [2004] EWCA Crim 1	Addressed the standard of proof and evidential requirements in criminal prosecutions for repeated unexplained infant deaths, emphasizing the exclusion of natural causes as a reasonable possibility.	The court distinguished criminal from family proceedings, limiting the impact of Cannings on care cases but adopting its warnings against over-dogmatic conclusions.
B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340	Considered the standard of proof in civil applications for sex offender orders, noting a civil standard applied with strictness proportional to seriousness.	The court acknowledged the relevance of this approach but emphasized that it does not alter the fundamental civil standard in family cases.
R (McCann and Others) v Crown Court at Manchester; Clingham v Kensington Royal London Borough [2002] UKHL 39	Confirmed that applications under the Crime and Disorder Act are civil proceedings, with the balance of probabilities standard, but pragmatically advised magistrates to apply criminal standard in antisocial behaviour orders.	The court noted the distinctions and rejected extending the criminal standard to family care proceedings.
Re ET (Serious Injuries: Standard of Proof) [2003] 2 FLR 1205	Applied the civil standard of proof in a care case involving serious injuries, considering the balance of probabilities with heightened cogency for serious allegations.	The court found that Bodey J applied too high a standard and reaffirmed adherence to the principles in Re H.
Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211	Provided guidance on the use of psychiatric and psychological evidence in split hearings, cautioning against premature or prejudicial expert opinions on adult responsibility.	The court applied this guidance to limit psychiatric evidence at the preliminary stage, emphasizing the judge's role in assessing credibility.

Court's Reasoning and Analysis

The court carefully analysed the applicable standard of proof in care proceedings, reaffirming that the balance of probabilities standard established in Re H remains authoritative. It rejected submissions seeking to elevate the standard to a criminal or near-criminal threshold despite the seriousness of allegations, emphasizing the inherent flexibility within the civil standard to account for gravity.

In assessing the impact of R v Cannings, the court distinguished criminal prosecutions from family law proceedings, noting differing procedural rules, evidential standards, and objectives. The criminal case required exclusion of natural causes as a reasonable possibility to uphold convictions, while family courts must evaluate which explanation (human agency or natural cause) is more probable on the available evidence.

The court recognised that Cannings provides cautionary guidance against over-reliance on statistical improbability and dogmatic expert opinions, especially in cases with medical uncertainty or expert disagreement. However, it emphasized that these warnings do not alter the fundamental responsibilities of local authorities or the standard of proof in care cases.

Regarding the facts of the two cases, the court reviewed the extensive medical and non-medical evidence. In LU's case, despite additional late evidence concerning extended family infant deaths, the court found the medical experts' unanimous opinion that deliberate airway obstruction was the most likely cause was not undermined. The judge's findings on the mother's credibility and the surrounding circumstances were upheld as properly supporting the conclusion that the threshold for significant harm was crossed.

In LB's case, the medical evidence was complex and divided, with only two of six experts supporting deliberate harm. The court found that the medical evidence alone was insufficiently cogent to meet the standard of proof. However, when combined with the non-medical evidence—particularly the mother's credibility, opportunity, knowledge, and conduct—the judge was entitled to find the threshold satisfied. The court identified errors in the judge's reliance on some medical opinion but held that the totality of evidence justified the conclusion.

The court underscored the importance of the judge's role in evaluating credibility and weighing all evidence within the quasi-inquisitorial family proceedings framework. It rejected calls to discontinue care proceedings solely due to expert disagreement, affirming the need for a broad evidential approach to child protection.

Holding and Implications

The court DISMISSED the appeals in both cases, refusing permission to appeal in LU's case and dismissing the appeal in LB's case after granting permission and extension of time.

The holding confirms that the civil standard of proof, as articulated in Re H, remains the correct standard in care proceedings involving serious harm allegations. The decision clarifies that the criminal standard or its equivalent does not apply in family law, even in grave cases. The judgment delineates the limited impact of R v Cannings on family proceedings, emphasizing the distinct legal contexts and evidential frameworks.

The implications for practitioners and local authorities are to continue preparing care applications on the balance of probabilities standard, supported by a comprehensive evidential approach including medical and non-medical factors. The court cautions against over-dogmatic expert evidence and the undue reliance on statistical improbabilities, advocating careful, reasoned judicial assessments.

No new precedent altering the standard of proof is established; rather, the judgment reinforces existing principles and provides guidance on the interplay between criminal and family law evidential standards in child protection cases.