K (A Child)

Where a trial judge’s finding of fact rests on a misunderstanding of vital evidence, the appellate court may set it aside and substitute the finding which the evidence and the parties’ agreement justify. In care proceedings concerning injuries to a child, the court must distinguish the perpetrator of the injuries from the separate failures of another carer to protect the child, obtain medical treatment, or tell the truth. A material misapprehension of evidence can invalidate the factual foundation of the judgment and require the case to proceed on corrected findings.

The local authority sought findings in care proceedings about the causation and perpetration of several injuries suffered by a month-old child. The county court found that the mother had caused some injuries, but could not determine who had caused the most serious injuries, while finding that both parents had seriously failed the child. The mother appealed. The Court of Appeal examined the transcript and concluded that the county judge had misunderstood an emotionally significant exchange, on which his reasoning substantially depended. By the hearing of the appeal, the parties agreed the findings should be replaced by findings that the mother caused all the injuries and that the father was culpable for failing to protect the child and seek treatment, and for concealing the truth.

1. Appeal allowed. The county court’s findings were set aside. The Court of Appeal substituted findings that the mother was the sole perpetrator of all the injuries, while the father’s culpability consisted of serious failures to protect the child, obtain prompt medical treatment, tell the truth to professionals and the court, and prioritise the child’s interests.
2. The court was entitled to intervene because the judge had misunderstood or misheard material evidence. The judge had effectively based his conclusion on the mother’s emotional outburst, but the transcript showed that her reaction followed the father’s account of his distress at seeing the child injured. It was not an accusation directed at the father in the manner recorded in the judgment.
3. The misunderstanding concerned a vital plank of the reasoning and therefore undermined the factual conclusion that the court could not identify the perpetrator of the most serious injuries. The evidence, including the mother’s later admissions and the father’s account, supported the substituted findings.
4. The court did not need to determine other grounds concerning the curtailment of cross-examination or the judge’s characterisation of the mother and father’s relationship. The matter was to return to the county court for final disposal on the substituted findings. The formal order also recorded that the application was refused.

• Leicestershire County Court: On 28 September 2006, HHJ Mayor QC made findings concerning the perpetration of injuries to the child, identifying the mother as responsible for some injuries but leaving responsibility for the most serious injury unresolved.
• Court of Appeal (Civil Division): The appeal was allowed. The findings were set aside and substituted findings were made. The case was returned to the county court for final disposal.