(Court of Appeal, Briggs,
Macur and Sales LJJ, 14 October 2015)
Public law children –
Fact-finding hearing – Appeal – Refusal to make findings of non-accidental
injury – Whether the judge had erred in the manner in which he dealt with the
The local authority appeal from a fact-finding hearing
in which the judge refused to make findings of non-accidental injury was
Case No: B4/2015/2389/CCFMF
Neutral Citation Number:  EWCA Civ 1027
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT & FAMILY COURT
HIS HONOUR JUDGE WRIGHT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:Lady Justice Macur DBE:
LORD JUSTICE BRIGGS
LADY JUSTICE MACUR DBE
LORD JUSTICE SALES
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Ms C Budden (instructed by Hertfordshire CC Legal Dept.) for the Appellant
Ms R Foulkes (instructed by Crane & Staples Solicitors) for the 1st Respondent
Ms J Gilliatt (instructed by R A Savage Solicitors) for the 3rd Respondent
Hearing dates : 25 August 2015
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 A was the youngest child and only son of EB (“the mother”) and CM (“the father”). He died aged 10 months on 2 June 2014. The cause of his death cannot be ascertained. However, during post mortem examination, at least seven fractures were discovered which had occurred prior to the date of his death, affecting all four long bones and in five distinct locations. As a result, emergency protection orders were made in respect of A’s elder siblings, L, P and S. They were removed from the mother’s care and have been subject to interim care orders since 5 June 2014. Another boy child, W was born to the mother on 12 March 2015, the son of FB, with whom the mother had been living at the date of A’s death. He too was made subject to an interim care order and has been removed from the mother and FB’s care.
 This appeal arises from the fact finding hearing conducted by HHJ Wright culminating in a judgment on the 3 July 2015, and is brought with permission granted by the first instance judge himself. H County Council (“the local authority”) contend that the judge was wrong not to make findings on the evidence that the fractures were the result of non–accidental injury and to identify the probable perpetrator, or otherwise the pool of possible perpetrators.
 The urgency in resolving the future of four young children merited this case to be listed in the vacation. We have read and heard submissions from Miss Budden on behalf of the local authority, Miss Foulkes on behalf of the mother, Miss Gilliat on behalf of FB and had regard to the helpful skeleton argument prepared by Miss Phillips on behalf of the children. Having done so we were able to inform the parties present that the appeal will be allowed with reasons to follow in writing and directions given that the case be remitted for rehearing to a Family Division High Court judge, a case management hearing already arranged for 3 September next. There follow the reasons why I join in the decision to allow this appeal.
 The background to the case requires but little more detail than indicated above in the context of this appeal and in view of the consequent directions we have made. The mother and father began their relationship in 2007. In January 2014 the mother formed a relationship with FB. From February 2014 she and the four children lived together with him in the home she had formerly shared with the father. Referrals had been made to Children’s Services in 2009 and 2011 by reason of reports of domestic violence, possible neglect and the father’s criminal conviction for wounding his brother. However, no statutory intervention was deemed necessary. A further referral was made in February 2014, prior to FB moving in with the mother. FB also has a previous conviction for wounding with intent and issues of domestic violence had been reported in his previous relationships, albeit denied by him. A ‘Child in Need Plan’ was devised intended to improve home conditions. Prior to A’s death, it appears that the execution of this plan was satisfactory and that care proceedings were not in contemplation.
 Section 31(2) of the Children Act 1989 provides that:
“A court may only make a care order or supervision order if it is satisfied –
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm or likelihood of harm, is attributable to –
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
 The decision to institute court proceedings following A’s death and the discovery of the fractures was inevitable. The possible culpable causation of A’s injuries had obvious implications for the physical safety and emotional well being of the three older children and the child subsequently born. Nevertheless, and as is all too common in this type of proceedings, the local authority prepared a schedule of numerous findings they asked the court below to make, which descended to the fact that the mother smoked in the family home. It does not appear to me that many of these subsidiary findings of fact, if made, would have assisted the judge to determine issues of causation and/or responsibility for matters relating to the physical injuries sustained by A, and would have been an unlikely trigger for statutory intervention into family life if the mother and FB had been voluntarily co-operating with the Child in Need Plan. The unnecessary distraction created does not assist the parties, case management or the efficacious use of valuable court time. Fortunately, this court need not concern itself with the trivia; neither, it is to be hoped if the local authority marks the observations I made during the course of the appeal, will the judge who is to hear this case in the near future.
 The pertinent finding sought by the local authority was that the fractures had been caused ‘non-accidentally’ by one of the adults responsible for his physical care in a particular time window, that is culpably in accordance with the terms of section 31(2)(b)(i). In the absence of direct evidence of any deliberate, reckless or manifestly negligent behaviour or incident that would account for the fractures, the local authority relied upon the agreed evidence of expert medical opinion in osteoarticular pathology, paediatric radiology and clinical paediatric medicine and the absence of a satisfactory explanation of how the injuries occurred to establish culpability.
 In the course of his judgment, HHJ Wright quotes verbatim from the medical reports and refers at some length to the oral evidence of one expert, Dr Morrell, Consultant Paediatrician, and implicitly accepts it. It is unnecessary for me to do otherwise than to summarise the medical evidence in this judgment. There was and is no issue that A did not have a congenital condition which predisposed him to ‘brittle’ bones liable to fracture easily or spontaneously or which rendered him insensitive to pain or discomfort. Developmentally, A was scarcely mobile. His injuries could not have been self inflicted. The fractures had occurred 25 to 50 days before death. Each fracture was the result of significant force applied to the bone, typical of a blow, impact, pulling/ yanking, or bending/snapping action and would not have occurred from minor domestic accidents, over-exuberant play or rough, inexperienced parenting. The appearance of the individual fractures were not diagnostic of culpable injury but the number, multiple sites and absence of a history of significant memorable accidental injury which would be expected to have led to hospital attendance were highly suggestive of that fact. At the time the fractures occurred A would have been in severe pain for up to 30 minutes, have remained tender and may have had swelling around the site of the fracture.
 The mother had raised a number of possible causes for the injury in her witness statement, which predominantly featured the over-exuberant behaviour of A’s three older sisters when around their brother. These possible explanations were addressed by the Consultant Radiologist and Consultant Paediatrician expert witnesses and discounted as causing the fractures. In oral evidence the mother and FB expanded upon an incident when the two elder girls, not then 6 or 5 respectively, had got into the cot in which A was lying and jumped up and down where his feet were. The Consultant Radiologist and Consultant Paediatrician entertained the prospect that the mechanism of jumping directly upon the limbs could result in a fracture; the radiologist was however doubtful that sufficient force would have been generated by the girls, and the Consultant Paediatrician was satisfied that if a fracture had occurred as described A would have been crying or screaming in pain. There was no evidence of the same. The judge specifically dismissed the ‘cot incident’ as causative of any of the fractures and concluded overall that there was “no satisfactory explanation for the fractures”.
 Nevertheless, the judge considered that the cot incident “serves to show the possibilities of causative events other than inflicted, non-accidental injury”, was “mindful of the danger of reversing the burden of proof” and refused to make a finding of ‘non accidental’ injury “on the present state of the evidence in this case. In my judgment, it owes too much to speculation and I cannot properly draw the inferences to support this allegation”.
 I find the judge’s reasoning difficult to follow at this stage of his judgment. The agreed medical evidence was unequivocal, as he found. He was not required to speculate on the detail or motive of the actual causation of the fractures. He was entitled to draw inferences from the description of the likely mechanism involved in causing one of the fractures, let alone all seven in distinct and separate locations, to the effect that extraneous and significant force had been used. He does not adequately explain why he ignores the evidence in this regard or, sufficiently, why he speculates on other possible but non specific causative events not within the medical experts’ contemplation nor predicated by his findings on the explanations offered in the case.
 In Re S (Split Hearing)  EWCA Civ 25, –, a case concerning a child who sustained skull fractures with associated brain haemorrhage and swelling found to have been injured in the care of her parents but not deliberately so, Ryder LJ highlights the ‘catch-all’ and non-specific (and potentially unhelpful) nature of the term ‘non-accidental injury’ commonly used in Children Act proceedings, which can accommodate a range of situations from sadistic cruelty and callous indifference to inadequate and inappropriate handling. Ryder LJ also highlights that, I summarise, the necessary element in seeking to categorise the causation of an injury for the purpose of the section 31(2) (a) and (b) (i) gateway for state intervention in family life, is the concept of fault, not motive.
 I have considered whether this part of HHJ Wright’s judgment should be read to indicate that he was resistant to finding the fractures to have been deliberately and intentionally inflicted rather than negligently occasioned, particularly given his positive appraisal of the mother’s relationship with A which I read later in his judgement, but am satisfied that this is not so in view of his reference to the reversal of the burden of proof and the fact that he declined to clarify his reasoning subsequently. Neither Miss Foulkes nor Miss Gilliat suggest this as an explanation, even although, confusingly, the judge immediately thereafter in his judgment goes on to consider whether he can identify a perpetrator of the injuries and does remove the father from the ostensible pool of perpetrators.
 Miss Foulkes and Miss Gilliat do submit that this part of his reasoning in relation to the pool of perpetrators should be seen to articulate why he refused to make the finding of non-accidental injury sought by the local authority; that is, he counters the inferences that could be drawn from the medical evidence on the basis that he finds it improbable that any of the adults did injure A. I find these submissions to be unpersuasive, not least because (i) he extensively reviews the evidence and submissions made with a view to identifying the perpetrator and does discount the father; (ii) he does not expressly discount the mother or FB as causing the injuries, although he does find that the mother did not have reason to know of the fractures. Whilst the mother may argue that this must mean that the judge did exculpate her, it is of course possible that a perpetrator will not appreciate the actual consequences of the adverse handling of a child; (iii) he specifically finds in relation to FB that “it would be unwarranted speculation to conclude that any of these factors had resulted in him committing the violent acts necessary to cause A’s fractures”; and, (iv) states that “the court does not have the evidence to identify who caused the fractures to A”. All of which signifies that he did proceed on the basis of a culpable causation.
 The judge’s reference to Ward LJ’s observations in Re M (Fact finding; Burden of Proof)  2 FLR 874, at 881, appears to have led him to conclude that the local authority’s reliance on the lack of a satisfactory explanation must necessarily indicate a reversal of the burden of proof. This is to ignore the medical evidence in this case and wrongly to elevate to a point of legal principle Ward LJ’s clearly fact-specific determination in Re M that the judge was wrong in that case to equate lack of parental explanation with a malevolent explanation. It appears that this error distracted the judge from his task of evaluating the whole of the evidence and making a determination on the balance of probabilities as to whether he was satisfied that the local authority had established causation to be culpable.
 I regret to say that whilst it is apparent to me that the judge expended considerable time and effort in the writing of his judgment it is not comprehensible in those significant parts relating to the fractures. Whilst there is an obvious methodology that can be identified in that he seeks to address the facts and the identified evidence relied upon to prove the same in the schedule of proposed findings in the chronological order utilised by the local authority, this has led to his review of the evidence being compartmentalised, and some of his findings contradictory. That is, the medical evidence is randomly and inconsistently relied upon by the judge, for example, in partly exculpating the father on the basis that objectively there were no sufficient signs that A was distressed after he had cared for the child to indicate that an injury had occurred, but then later indicating that such distress would not necessarily have been apparent to the mother when finding she lacked knowledge of the injuries to require her to take A to the hospital. Then there is the bewildering, confused and, in the absence of a finding of culpable harm, unnecessary attempt at attribution of fault. This demonstrates to me that the judge’s fact finding exercise was fatally flawed in all matters relating to the central and significant issue of A’s injuries, and the judgment rendered unreliable. It cannot form the basis of any future welfare evaluation of these children’s needs.
 I do not intend that my reasons for allowing this appeal should be read to indicate my view of the evidence; rather it is the decision making process indicated within the judgment that leads to my conclusion that the judgment must be set aside. Miss Budden on behalf of the local authority initially sought that this court should substitute its own findings of fact in place of those of the first instance judge, specifically seeking findings of ‘non-accidental injury’ at the hands of the mother or FB. It is impossible for this court to do so on the basis of the medical evidence alone. There are no transcripts of evidence and there has been no opportunity to evaluate the parents, FB and other witnesses on this aspect of the case. It is not for this court to cherry-pick through the findings made by HHJ Wright. For the reasons indicated above, we would need to exercise great caution in doing so.
 A fresh pair of eyes must be brought to this case and the hearing conducted de novo. However the local authority puts its case in the future, the judge who will rehear the case should not be restricted in any sense in making findings established by the whole of the evidence adduced before him/her. The father has not been represented in this appeal on the basis, as indicated in a position statement filed on his behalf, that he does not seek to challenge the judge’s findings that exculpate him. He is not entitled to claim issue estoppel and he should have been advised of the prospect of a potential retrial.
Lord Justice Sales:
 I agree.
Lord Justice Briggs:
 I also agree.