H (A Child), Re

In fact-finding proceedings concerning serious injuries to a child, a retrial may be required where material fresh evidence corrects a false premise on which the trial judge assessed the evidence. A judgment must provide sufficient intellectual analysis of the central issues, including the evidence relating to individual injuries, dates and competing accounts. A broad-brush conclusion is inadequate where it does not explain why material evidence has been accepted or rejected. Reasons must enable the parties to understand the findings, assess their position on appeal and permit effective appellate review.

The local authority brought care proceedings concerning serious injuries suffered by a young child. After a five-day fact-finding trial in the Family Division, Johnson J found the intervenor solely responsible for the injuries and found the mother culpable for failing to protect the child and for subsequent concealment.

The intervenor appealed after a previously undisclosed memorandum video interview of the child was discovered. The appeal also challenged the adequacy of the judge’s reasoning, particularly his treatment of injuries allegedly inflicted before the intervenor’s involvement. The central issues were whether the fresh evidence and deficiencies in the judgment required the findings to be set aside and the case retried.

1. Appeal allowed. The fact-finding decision was set aside and a retrial was directed before another judge of the Family Division. There was no order as to costs.
2. Fresh evidence. The trial judge had attached considerable significance to the supposed absence of a formal video interview when assessing the child’s reported statements. The later discovery of the interview deprived the intervenor of the opportunity to have the child’s direct words assessed and compared with the accounts given by the foster carers. Even if the interview was essentially neutral, the judge’s conclusion could not stand on that materially false premise. The intervenor was entitled to a complete investigation and judgment.
3. Adequacy of reasons. Per Lord Justice Thorpe, a judgment on grave and fact-sensitive issues must sufficiently analyse the case advanced by the party seeking exoneration, including relevant deficiencies, inconsistencies, contradictions and implausibilities in the evidence. The judge had dealt with a series of injuries in a composite and broad-brush conclusion, without adequately analysing the individual injuries, their timing or the significance of the medical evidence concerning the earlier arm fractures. A middle course was required between analysing every detail and losing sight of the overall case.
4. Appellate function. Lord Justice Mance agreed, adding that reasons on the main issues enable the parties to understand their position, consider an appeal and allow the Court of Appeal to identify the basis of the decision. Mr Justice Neuberger agreed with both judgments.

• Court of Appeal (Civil Division): allowed the appeal, set aside the fact-finding decision and directed a retrial before another judge of the Family Division.
• Family Division: following a five-day trial before Johnson J, findings were made that the intervenor was the sole assailant and that the mother was culpable in failing to protect the child and subsequently concealing the reality.