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(Court of Appeal, McCombe, Gloster, Ryder LJJ, 2 July 2013)
A fact-finding hearing took place to determine the perpetrator of head injuries and bruising to the youngest of seven children, aged 18 months. The conclusion of the medical evidence was that these had been non-accidental injuries. The judge found there were three people in the pool of potential perpetrators: the mother, the father of the youngest two children and a man with whom the mother was having a relationship at the time the injuries were inflicted. The mother and father were ruled out at the conclusion of the hearing but the judge found there was insufficient evidence to find that the mother's partner was the perpetrator. The local authority was given permission to withdraw the applications for care orders.
The children's guardian appealed. The appeal was allowed in part. The dismissal of the care applications at the outset of the hearing resulted in the welfare determination never being made in the context of the non-accidental injuries and constituted an error of law.
The judge was to be criticised for her failure to consider the bruising or consider the time at which the head injuries were first noticed. That failure in her analysis of the evidence contributed to her inability to identify a perpetrator.
The judge had regarded the lack of direct evidence as fatal to the local authority's case and so exculpated the parents in circumstances where there was no reasoned basis for that conclusion so it was not possible to say whether the judge was correct in reaching it.
Notwithstanding the conclusion that the judge's findings of fact or evaluative judgment may have been wrong, court was persuaded that there was potential for the children to remain safely with their mother, in the absence of her partner, under a protective agreement. The guardian's request for a re-hearing of the fact-finding was refused. The appeal was allowed in relation to the grant of permission to withdraw the proceedings and a welfare hearing was directed to take place before the same judge so that the welfare question could be properly examined and proper consideration given to what order, if any, ought to be made.