When considering who was likely to have caused injury to a child, for the purpose of determining who should have care of the child, the civil or ‘balance of probabilities’ approach is the one that must be taken in all instances. The severity of the injury does not alter the burden of proof used when making the decision.

In such cases, a child is typically found to have suffered non-accidental injuries which could have been inflicted by either or both parents. It is a matter for the family court to decide who was likely to have been responsible for the injuries.

A recent case concerned two brothers, one of whom had suffered non-accidental injuries and one of whom had not. The one who had not had been placed with a foster carer shortly after birth. The child who had sustained the injuries had lived with his mother and the judge ordered that he be removed from her care on the basis that he was likely to be harmed if he remained with her.

The children’s mother appealed against the decision, basing her appeal, in essence, on the supposition that the standard of proof required when deciding who was likely to have caused the child’s injuries was the ‘beyond reasonable doubt’ test used in criminal proceedings.

The Supreme Court took the view that although a family judge was not there to decide who was guilty of causing harm, the judge could identify, on the balance of probabilities, those likely to have been responsible, even if no one individual could be identified (i.e. the pool of possible perpetrators may be family members generally or pupils at a school). It therefore upheld the original decision.