S (Children: Findings of Fact)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Elisabeth Laing,Lord Justice Lewison |
| Judgment Date | 04 October 2023 |
| Neutral Citation | [2023] EWCA Civ 1113 |
| Docket Number | Case No: CA-2023-001333 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 1113
Lord Justice Lewison
Lord Justice Peter Jackson
and
Lady Justice Elisabeth Laing
Case No: CA-2023-001333
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT NORTHAMPTON
HHJ Wicks
NN21C00109
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Twomey KC and Nick O'Brien (instructed by Pathfinder Legal Services) for the Appellant Local Authority
Andrew Bagchi KC and Abigail Turner (instructed by HLA Family Law) for the Respondent Mother
Damian Garrido KC and Alicia Collinson (instructed by Wilson Browne Solicitors) for the Respondent Father
Chris Watson (instructed by Brethertons LLP) for the Respondent Children by their Children's Guardian
Hearing date: 28 September 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 4 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal concerns findings of fact in care proceedings.
The advantages possessed by a judge making findings of fact after hearing evidence are well understood. This court will not intervene unless there has been some clearly demonstrated error of approach.
When a court is considering a body of evidence in order to reach findings of fact it must take into account all the evidence and consider each piece of evidence in the context of the other evidence when reaching overall conclusions.
These principles are so well known that they do not require the citation of authority.
In the present case, the court was faced with evidence of a sequence of injuries to a small child over time, some minor in themselves, some serious. It found that the child's father had injured the child on one occasion and that he and the mother had covered it up. It also found that other injuries were the result of accidents and that some were in any case insufficiently serious to amount to significant harm: these conclusions are challenged by the local authority in an appeal supported by the Children's Guardian.
I have reached the reluctant conclusion that the fact-finding process in this case went wrong. The judge made findings against the parents in one respect concerning their treatment of the child and their credibility, but he did not take account of the implications of those findings when considering the other allegations of mistreatment.
At the end of the appeal hearing we informed the parties that the appeal would be allowed and that the judge's findings would be set aside. As the matter must be remitted for rehearing, I will give my reasons for supporting this outcome as briefly as possible.
Background
This is the second set of care proceedings concerning two boys, J (5) and B (3). The first set took place in 2020/2021. In February 2020, B was admitted to hospital aged five weeks, when he was found to have several skull fractures. The local authority issued care proceedings and the children were placed with their grandparents under an interim care order. The proceedings came before His Honour Judge Wicks, who conducted a fact-finding hearing that lasted for 10 days in September/October 2020 and February 2021, with judgment being given on 18 March 2021. The judge dismissed the proceedings, finding that the local authority had not established that the injuries were inflicted by either parent, and that the most likely cause was an unfortunate accident, unwitnessed by either parent, involving J jumping onto a baby bouncer in which B was lying, forcing it onto the floor and bringing B's head into sharp contact with the floor. None of the experts thought this probable, but they could not exclude it as a possibility. The judge also found that, although there had been arguments between the parents and some domestic abuse from the father towards the mother in the past, by the time B suffered his injury, their relationship was on a stable footing. His order included these recitals:
“AND UPON the court finding that the most likely explanation for the injuries to B is that J jumped from the sofa onto the baby bouncer in which B was laying bringing his head into contact with the floor;
AND UPON the court finding that there is no blame attached to the parents for the injuries suffered by B;
AND UPON the court recording that the children's medical and Local Authority records should be updated to reflect the absence of any wrongdoing on the part of the respondent parents so to avoid the suggestion that any ‘Child Protection markers’ exist in respect of the subject children.”
The children returned to the parents' care. The local authority attempted to work with the parents under a child in need plan, but the parents refused and the case was closed at the end of March 2021.
The present care proceedings began just five months later. On 16 August 2021, B was brought to hospital with soft tissue injuries to his head and face. He was found to have a large and bulging subgaleal haematoma over the left parietal and left temporal area, bruising on and behind the left ear, bruising on his left temple and right parietal area, a bruise and swelling on the forehead between his eyebrows, bruising around and below his right eye and bruising on his left cheek. No injuries were seen on J. The parents were arrested and the children were taken into police protection. In due course, interim care orders were made, under which the children have for the most part lived with their maternal grandparents.
Examination of the mother's phone revealed a large number of photographs taken between the middle of April and August 2021 and showing B with numerous facial injuries. These included photographs taken on 21 and 22 July 2021 that showed very severe facial bruising.
On 14 July 2021, the mother had cancelled a home visit by the health visitor, saying that the family was unwell.
A paediatric opinion was obtained from Dr Cartlidge in December 2021. He described the list of bruising to B as extraordinary for a child of that age. He advised that further evidence was required to exclude excessive bruising caused by Ehlers Danlos syndrome or a clotting disorder. If these were excluded, he considered that at least some of the frequent and extensive bruising sustained between April 2021 and August 2021 was most likely caused non-accidentally.
On 12 April 2022, a hearing took place at which the judge allowed the local authority's application to reopen his findings of fact concerning the 2020 skull fractures and directed that the causation of those injuries should be redetermined alongside the investigation of the 2021 bruising.
Dr Saggar, a clinical geneticist, provided a report in August 2022. He found no clinically significant gene mutations and excluded Ehlers Danlos syndrome, but he found evidence that both children had inherited a connective tissue disorder, hypermobile spectrum disorder (“HSD”), from their father. This conclusion did not alter Dr Cartlidge's opinion.
The local authority sought findings that the parents were responsible for the 2020 skull fractures and the 2021 bruising. It alleged that by May 2021 the parents were struggling to cope with B and that the father was using cannabis regularly. The parents denied mistreating B and said that his condition when admitted to hospital in August 2021 was the result of him walking into a stair gate on one occasion and falling on a laminated floor on another.
The second fact-finding hearing began on 31 August 2022. Evidence was given by eleven witnesses. After five days the hearing had to be adjourned during the mother's evidence after she became too distressed to continue. She completed her evidence on 11 January 2023, with counsel for the Guardian finishing his cross-examination through written questions. Submissions were delivered in writing.
Judgment was given on 8 June 2023 and a final order was made on 26 June 2023. The judge made these findings of fact:
“94. I set out in summary my findings:
a. B suffers from a hypermobility spectrum disorder (HSD) which makes him clumsier and more susceptible to bruising.
b. Between April and June 2021, whilst in the care of his parents, B suffered a number of bruises and cuts. None of these were caused by M or F, whether deliberately or carelessly. The supervision of the children may not always have been adequate. However, none of the injuries were sufficiently serious to amount to significant harm.
c. In July 2021, B suffered significant bruising and swelling to the left side of his head and face. These injuries were caused by a blow or slap with an open hand, administered by F, after he lost his temper with B.
d. M was aware of what had happened to B. She cancelled a visit by the health visitor and refused to allow even a doorstep visit, so that the health visitor would not see the injuries to B. The reason she gave for the cancellation, namely that the family were suffering from sickness and diarrhoea, was untrue. M has, to that extent, failed to protect B.
e. B suffered further significant injuries to his head and face in August 2021. These were caused accidentally by (i) B colliding with the stairgate, on or about 9 August 2021; (ii) B slipping and falling on a laminate floor and hitting his head, a day or two before his admission to hospital on 16 August 2021.
f. B's head injury in 2020 was caused accidentally, for the reasons set out in the judgment delivered in the 2020 proceedings.
95. On the basis of these findings, I conclude that the threshold for making orders under section 31 of the 1989 Act is crossed.”
In his judgment, the judge summarised the evidence and the law, and then set out his analysis. He was critical of how the local authority had pleaded its case. He considered B's HSD. He assessed the evidence of the parents as...
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