B e f o r e :
|Re BR (Proof of Facts)|
Karl Rowley QC and Tammi Bannon (instructed by Stephenson's Solicitors) for the Mother
Susan Grocott QC and Julie Forsyth (instructed by Haygarth Jones Solicitors) for the Father
Clive Baker (instructed by Morecrofts LLP) for the Child
Hearing dates: 3, 4, 6, 9, 13, 16 & 17 March and 8 May 2015
Judgment date: 11 May 2015
Crown Copyright ©
Mr Justice Peter Jackson:
(1) Proof of facts.
(2) Evidence about a child's likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density)  EWFC B26 (12 March 2015).
(3) An analysis of generic risk factors and protective factors.
Proof of facts
(1) Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case. In my view, statements of principle (some relied on in this case) that suggest that an enhanced level of evidential cogency or clarity is required in order to prove a very serious allegation do not assist and may lead a fact-finder into error. Despite all disclaimers, reference to qualitative concepts such as cogency and clarity may wrongly be taken to imply that some elevated standard of proof is called for.
(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same.
(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
(4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:"Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low."I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.
Evidence about pain response
"As I have noted, that opinion is frequently given by paediatricians in cases such as this. In my judgment the contention that there must have been a 'memorable event' is unhelpful and potentially prejudicial to carers. Not only is it a formulation which invites an inference as to the veracity of any carer unable to describe a 'memorable event' [but] in my judgment it also comes perilously close to reversing the burden of proof, suggesting that a carer should be able to describe a 'memorable event' if the injury really does have an innocent explanation."
Risk factors and protective factors