Inflicted or accidental injuries

The central issue for the court in Re X and Y (Fact-Finding: Alleged Abusive Head Trauma) [2026] EWFC 72 (Mrs Justice Judd) was whether those injuries were inflicted, as alleged by the local authority, or caused by an accidental fall, as consistently maintained by the mother.

The mother, who was in her early twenties, was caring for Z alongside her own two young children at her home. Her relationship history included a prior abusive relationship with the father of her own children, which had ended before the events in question, and a more recent relationship with Z’s father. Z stayed with his father regularly, including overnight visits, and had been in the mother’s care on a routine basis prior to the incident.

On the morning of 5 March 2025, Z’s father left for work at approximately 7am, leaving the mother as the sole carer for all three children. The mother’s account, which remained consistent from the 999 call through to her oral evidence, was that the children had been playing in the front room whilst she was preparing to leave for a playgroup. She briefly went into the adjacent kitchen to make a drink and, during that time, heard a sudden noise. On returning, she found that Z and one of the children had fallen from the sofa. Z appeared unresponsive and severely unwell. The mother immediately called emergency services.

The contemporaneous 999 call captured the mother describing Z’s condition in real time, including abnormal breathing and reduced responsiveness. Emergency services attended promptly, and Z was transferred to hospital. Medical investigations revealed a catastrophic brain injury, including subdural haemorrhage and profound hypoxic-ischaemic damage, together with extensive retinal haemorrhages. Despite surgical intervention, including a decompressive procedure, Z’s condition deteriorated and he was pronounced dead the following day.

Following the incident, emergency protection orders were obtained in respect of the mother’s children, who were initially placed with family members and later in foster care. The local authority advanced a detailed threshold case, alleging that Z’s injuries were inflicted by the mother through shaking and/or impact, and further asserting that her parenting practices gave rise to a continuing risk of significant harm.

The mother denied inflicting any injury and maintained throughout that the incident was accidental. She accepted certain lifestyle factors, including occasional cannabis use and briefly leaving her children unattended while asleep, but contended that these matters were neither causative of the incident nor sufficient to meet the statutory threshold.

The court had before it extensive evidence, including detailed medical expert reports from specialists in pathology, ophthalmology, neurosurgery, and paediatrics, together with a substantial body of contemporaneous evidence, including the 999-call recording and prolonged police body-worn camera footage capturing the mother’s behaviour and accounts shortly after the incident

Legal framework

The court acted in accordance with established principles governing fact-finding hearings in care proceedings. The burden of proof lies on the local authority, and the applicable standard is the balance of probabilities, as reaffirmed in Re JS [2012] EWHC 1370 (Fam). Findings must be based on evidence and proper inferences, and not on suspicion or speculation.

The court emphasised that there is no obligation on a parent to establish an alternative explanation for injuries, and the failure to do so does not, of itself, prove the local authority’s case. This principle has been clearly articulated in Re X (Children) (No 3) [2015] EWHC 3651 (Fam) and Re Y (No 3) [2016] EWHC 503 (Fam) and reaffirmed in Wolverhampton City Council v JA and Ors [2017] EWFC 62.

The court further reiterated that medical and lay evidence must be evaluated holistically, with neither taking precedence over the other. This approach reflects appellate guidance, including Re R (Children: Findings of Fact) [2024] EWCA Civ 153, which emphasises that both forms of evidence are integral to the fact-finding exercise:

“33. The court was therefore called upon to evaluate a number of competing improbabilities. The first scenario involved C suffering injuries that were highly unlikely, individually and collectively, to have resulted from a banal domestic fall. The other two scenarios involved other kinds of improbability. In the second scenario, that of a child being shaken by an otherwise loving relative in the midst of a good-natured family gathering; in the last scenario, that of a sustained cover-up on the part of an entire family whose history contains none of the general risk factors that are associated with child mistreatment, while all of the protective factors are strongly present: cf. Re BR (Proof of Facts) [2015] EWFC 41 at para. 18. The court’s evaluation had to take account of the fact that unlikely events occur all the time, although the probability of them arising in any individual case is extremely low: ibid at para. 7.

34. I do not agree with the judge’s concept of speculation at paragraph 204. Of course he was right to say that the court’s task was to determine whether the local authority had proved its case on threshold on the balance of probability. However, that involved grappling with and drawing conclusions from all of the evidence, medical and lay. The medical appearances were clear and the explanation for them was highly likely; but it was not certain, as the judge acknowledged by his finding at paragraph 178i. Against that, the court had the accounts of six people who were with C at the time she was injured. It is wrong to describe the medical evidence as the canvas against which the other evidence was to be considered. Medical and non-medical evidence are both vital contributors in their own ways to these decisions and neither of them has precedence over the other.”

In assessing witness evidence, the court recognised the potential for discrepancies arising from stress, confusion, or the fallibility of memory, as discussed in Lancashire County Council v C, M and F (Children: Fact Finding Hearing) [2014] EWFC 3 and the well-known observations on memory in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm).

The court also had regard to the need to consider the totality of the evidence before reaching conclusions, including the wider factual context, as emphasised by the Court of Appeal in A (A Child) (Fact-Finding: Head Injury) [2024] EWCA Civ 327.

Finally, the court recognised that in complex medical cases it may not always be possible to determine causation with certainty, and that medical knowledge evolves over time, as reflected in authorities such as R v Cannings [2004] EWCA Crim 1  and Re U (A Child) (Serious Injury: Standard of Proof): Re B (A Child) [2004] EWCA Civ 567. The court noting that ‘the words of Dame Elizabeth Butler-Sloss P in Re U, Re B, still have a resonance today:’

“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.”

Judgment

Mrs Justice Judd concluded that the local authority had failed to discharge the burden of proving that Z’s injuries were inflicted.

The medical evidence established that Z had suffered a catastrophic brain injury accompanied by extensive retinal haemorrhages. The ophthalmological findings were regarded as highly suggestive of acceleration-deceleration forces and therefore consistent with abusive head trauma. However, the court noted that other aspects of the medical evidence introduced significant uncertainty. In particular, the neurosurgical evidence indicated that the brain injury could be explained by impact alone, including a fall onto the back of the head, and the clinical presentation did not align neatly with typical cases involving fatal shaking injuries.

The expert evidence, taken as a whole, was characterised by caution and acknowledgement of the case’s unusual features. The experts accepted that the case did not fit comfortably within established medical literature and described it as an “outlier” whether considered as accidental or non-accidental. Whilst the injuries were more commonly associated with abusive mechanisms, the possibility of an accidental cause, albeit rare, could not be excluded.

The court placed considerable weight on the contemporaneous evidence, which was described as particularly valuable. The 999 call and body-worn camera footage demonstrated that the mother had provided an immediate, detailed, and consistent account of an accidental fall. Her presentation was open, spontaneous, and unguarded, and she engaged readily with the attending officers. The court found no indication that she was attempting to conceal or fabricate events. Minor inconsistencies in her account were considered immaterial and consistent with the normal fallibility of memory in stressful circumstances.

The court also considered the broader context, including the absence of any history of violence towards children, the lack of prior safeguarding concerns of significance, and the practical difficulties associated with inflicting shaking-type injuries on a child of Z’s age and size. These factors further undermined the likelihood of an abusive mechanism.

In evaluating the totality of the evidence, the court concluded that, whilst the medical evidence raised serious concerns and pointed towards a possible abusive explanation, it was not determinative. The mother’s account was found to be credible, consistent, and supported by contemporaneous evidence. The local authority had therefore failed to establish, on the balance of probabilities, that the injuries were inflicted.

Accordingly, the court found that it was more likely than not that Z’s injuries were caused by an accidental fall. The findings sought by the local authority were not made.

In relation to threshold under Children Act 1989, the court further concluded that the concerns regarding the mother’s cannabis use and her brief absences from the home, while not to be encouraged, were insufficient either individually or cumulatively to establish that the children were suffering or likely to suffer significant harm. The evidence indicated that the children were otherwise well cared for, and the statutory threshold was not satisfied.

In conclusion, Mrs Justice Judd emphasised the importance of a holistic and balanced evaluation of all the evidence in complex fact-finding cases. The judgment underscores that even strong medical indicators of abuse cannot displace a credible and consistent alternative account unless the local authority satisfies the burden of proof. It further highlights the limits of medical certainty and the critical role of contemporaneous and lay evidence in determining disputed issues of fact.

Victoria Ludwig is a 2026 pupil barrister at Spire Barristers.