High Court Case Highlights Importance of Propensity Evidence in Identifying Perpetrator of Child's Non-Accidental Injury

Citation: [2023] EWHC 3097 (Fam)
Judgment on


The High Court of Justice Family Division case of Lancashire County Council v M & Ors [2023] EWHC 3097 (Fam) demonstrates a complex investigation into the non-accidental injury and subsequent death of a child. Under the scrutiny of Mr Justice Hayden, the case assesses not only the duty of identifying significant harm to a child and its attributability but also the responsibility of pinpointing the likely perpetrator. This pivotal judgment underscores the application of legal principles related to the determination of factual issues, the standard of proof in childcare proceedings, and the concept of propensity in the context of identifying a perpetrator.

Key Facts

The case involves two children, A and J, and their younger sibling R, who suffered a tragic death. The local authority’s involvement with the family began due to concerns of parental domestic abuse. Suspicions were later confirmed that the parents were involved in substance abuse and had not truly separated as they declared to authorities. The health visitor’s assessments appeared to show inconsistencies with the truth, particularly concerning co-sleeping. It was later revealed, after several heavy drinking incidents, that the baby R had died due to overlaying while co-sleeping with the mother M, which was ultimately accepted as the cause of death by the parents. A historical injury to the baby, a non-accidental posterior rib fracture that was unrelated to the death, became the focal point for identifying the likely perpetrator.

The legal challenge centered around attributing the earlier rib fracture to either parent, with distinct attention paid to established patterns of behavior and substance abuse, especially during a significant change to the family’s routine due to the father F’s wrist injury. The following legal principles played a crucial role in reaching a decision:

  1. The standard of proof is the balance of probabilities, as established in civil law and reaffirmed in cases such as Re B (Children) [2008] UKHL 35 and Re SB (Children) [2009] UKSC 17. Facts are held to be true if they are more likely than not to have occurred.

  2. The inherent improbability of an event does not necessitate a heightened standard of proof and should be assessed with common sense – as discussed in The Popi M [1985] 1 WLFR 948.

  3. Propensity evidence, while not typical in establishing the factual substratum in family proceedings, is not precluded per se. The judge is expected to evaluate the broad evidential canvas, including patterns of past behavior, as they might indicate the likelihood of similar conduct in the case at hand – as clarified in R v Hanson [2005] EWCA Crim 824.

  4. Identifying a perpetrator is a judicial duty when the evidence allows, and reliance on ‘propensity’ becomes pivotal when the behaviors in question indicate a significant likelihood of being the cause of harm – highlighted in Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181.


Upon consideration of all evidence, including the testimony, history of abuse, substance misuse, and expert medical evidence, Mr Justice Hayden concluded that on the balance of probabilities, the father F was found to be the likely perpetrator of R’s rib injury. Notably, the specifics of F’s established violent behavior under the influence of alcohol or drugs, increased household stress due to a broken wrist, and lack of control contributed to this inference.

Furthermore, the judgment emphasizes that while there is an inherent risk of error within the civil standard of proof, the imperative for child protection and imperative clarity in planning for the child’s welfare outweigh this risk.


In Lancashire County Council v M & Ors, the case presents a rigorous application of principles concerning harm to a child and the judicial duty in identifying a perpetrator within family proceedings. The judgment of Mr Justice Hayden meticulously navigates through the complexities of evidence, highlighting the importance of propensity evidence in certain circumstances and reiterating the balance of probabilities as the guiding standard of proof – ensuring that children’s welfare remains paramount and acknowledging the child’s right to know the truth about who injured them. The decision serves as a firm reminder of the court’s resolve to protect children and inform the strategies necessary to that end.

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