O & M (Children)

In fact-finding proceedings, expert evidence that a fractured limb caused by a kick would usually be accompanied by bruising does not make the absence, or non-observation, of bruising conclusive. The court must assess the reliability and timing of the observations. Where the medical evidence leaves a real possibility that the proposed mechanism occurred without bruising, the court may reach a different overall conclusion from the experts if the totality of the evidence is sufficiently powerful. That evidence may include contemporaneous symptoms, repeated accounts, the absence of a credible alternative explanation, failure to obtain treatment, and conduct indicating concealment.

The father appealed against a finding made by His Honour Judge Jack in the Hull County Court on 30 June 2006 during care proceedings. The judge found that the father had fractured his six-year-old son's tibia by kicking him during an unsupervised contact period and had then culpably failed to obtain medical attention.

The father argued that the finding was unsafe because the medical evidence indicated that a kick sufficient to cause a fracture would usually cause bruising, yet no bruising had been observed. The respondents supported the finding, while alternative submissions were made that the court should substitute a pool-of-perpetrators finding or remit the issue for rehearing. The central issue was whether the medical evidence prevented the finding or could be outweighed by the evidence as a whole.

Appeal dismissed. Lord Justice Wilson considered the trial judge's judgment unsatisfactory because it did not provide a freestanding summary of the relevant evidence, identify what was accepted or rejected, or explain the reasons for the conclusions. Lord Justice Tuckey agreed with those reasons.

1. The medical evidence was that bruising would usually, but not invariably, accompany a kick forceful enough to fracture the leg. Evidence that witnesses had not noticed bruising did not necessarily establish that no bruising existed. The evidence also did not show that any bruising would necessarily remain visible for more than 48 hours.
2. The medical evidence therefore militated against, but did not exclude, the father's kick having caused the fracture. A court is not bound to adopt the experts' view of the more likely cause where the evidence leaves a real possibility consistent with another conclusion and the totality of the evidence supports it. This was the third way described in A County Council v K, D and L [2005] 1 FLR 851.
3. The evidence was sufficiently powerful to justify the finding. It included the child's limp at the end of contact, repeated allegations that his father had kicked him, the lack of a credible alternative account, the father's failure to obtain treatment despite the fracture's severe pain, and his lack of frankness when later questioned.
4. The supplementary finding that the father culpably failed to obtain medical attention was not disturbed. The issue was not remitted and no substitute pool finding was made.

Order: appeal dismissed; no order for costs, save for detailed assessment of the publicly funded costs of the mother, father, stepfather and guardian.

1. Court of Appeal (Civil Division): dismissed the father's appeal against the fact-finding decision. Lord Justice Tuckey agreed with Lord Justice Wilson.
2. Hull County Court: on 30 June 2006, His Honour Judge Jack found that the father had caused the child's fractured tibia by kicking him during contact and had failed to obtain medical attention.