E (Children), Re

In a child-injury fact-finding hearing, where responsibility may lie with either of two parents or with both, each parent must have a fair opportunity to be separately represented and to give evidence. A finding against one parent cannot safely stand where both parents were represented by one solicitor and the other parent was not called. On setting aside such a finding, responsibility remains open for determination at trial. Remission and case-management directions should reflect the practical availability of hearing time and the progress of expert assessments.

The father sought permission to appeal an order and finding made by His Honour Judge Stretton in the Derby County Court on 29 September 2000. The proceedings concerned serious injuries suffered by the child, B, in April and May 2000. A split hearing had been directed to determine causation. At that hearing, both parents were represented by one solicitor; the father gave oral evidence, but the mother was not called. The judge rejected the father’s evidence and found him responsible for the injuries.

After the application for permission was directed to an oral hearing, the parties reached a broad consensus that the finding should not stand, subject to formal concessions concerning the non-accidental injuries and the possibility that either or both parents were responsible. The remaining issues concerned the order on appeal and the practical arrangements for determining the case on remission.

Lord Justice Thorpe gave the reasons for decision. Lord Justice Laws agreed with the proposed orders and reasons.

1. Permission and appeal. Permission to appeal was granted and the appeal was allowed. The order and finding of 29 September 2000 were set aside on the concessions recorded by the court.
2. Fair determination of causation. The expert evidence was summarised as showing that B’s injuries were plainly non-accidental and probably resulted from three separate episodes. The essential question was whether the mother, the father, or both were responsible. To enable the court to determine that question, it was essential that the parents should be separately represented and that each should give evidence. That had not occurred. The father alone had given oral evidence, although the mother had submitted a statement, and the judge had then rejected the father’s evidence and attributed responsibility to him.
3. Effect of the appeal. Setting aside the finding did not amount to a finding against the mother. The question whether either parent bore responsibility remained open for determination by the trial court.
4. Remission and case management. The court considered whether to order a further preliminary causation hearing followed by a disposal hearing, or to use the existing four-day fixture before His Honour Judge Orrell beginning on 25 June 2001. The experts were able to continue their assessments without a prior judicial determination of responsibility, and the practical availability of an additional hearing was doubtful. The sensible course was therefore to direct determination of all outstanding issues at the existing fixture. The parties were directed to seek an earlier directions hearing before Judge Orrell, preferably in April after submission of the assessment reports.
5. Final order. The case was remitted to His Honour Judge Orrell at Derby County Court for determination at the 25 June 2001 fixture, with a directions hearing to be arranged beforehand. A detailed funded client assessment was ordered.

1. Court of Appeal (Civil Division): On 7 February 2001, permission to appeal was granted, the appeal was allowed, and the order and finding below were set aside. The case was remitted for determination at the existing Derby County Court fixture.
2. Derby County Court: On 29 September 2000, His Honour Judge Stretton rejected the father’s evidence and found him responsible for the child’s injuries.