A (A Child)

In a public law fact-finding hearing, a judge may properly decline to exonerate either of two possible perpetrators of a particular injury, even where the evidence makes one parent the more likely perpetrator. A finding that neither person can be exonerated does not mean that they are equally likely to have caused the injury.

An appellate court will not interfere merely because a party contends that findings about one parent’s violence, credibility and propensity to harm required the other parent’s exoneration. Where uncertainty exists as to a judge’s findings, the parties should seek amplification before pursuing an appeal.

A very young child sustained grave injuries while in hospital and also showed evidence of earlier head injuries and a metaphyseal fracture of the left tibia. At a preliminary fact-finding hearing, HHJ Plumstead found that the mother alone had caused the hospital injuries and, on the balance of probabilities, the earlier head injuries.

The timing of the tibial injury could not be determined. The judge held that neither parent could be exonerated as its perpetrator. The father appealed, contending that the findings about the mother compelled his exoneration. The local authority supported the appeal in part, submitting that the judge had not found the parents equally likely to be responsible.

The central issue was whether the judge’s inability to exonerate either parent in relation to the tibial injury was illogical or perverse.

1. Permission was granted, but the appeal was dismissed. Thorpe LJ held that the judge was entitled to distinguish the tibial injury from the hospital and head injuries. The evidence justified her conclusion that neither parent could be exonerated as the person who caused the tibial injury.

2. The findings concerning the mother’s violent mishandling of the child, her credibility and her responsibility for the other injuries made her the more likely perpetrator of the tibial injury. They did not, however, compel a finding that the father was excluded. The judge’s conclusion was therefore neither illogical nor perverse.

3. The finding that neither parent could be exonerated was not a finding that they were equally likely perpetrators. The judge had not said that they were equally likely, and her earlier findings made that construction untenable. The Court indicated that the mother was plainly the more probable perpetrator, while the father remained a possible perpetrator.

4. Where a party is uncertain about the meaning or scope of a judge’s finding, an application for amplification should ordinarily be made at the end of the hearing or during the period before an appeal is filed. Thorpe LJ referred to English v Emery Reinbold in making that procedural observation.

5. Longmore LJ and Maurice Kay LJ agreed. Thorpe LJ also favoured reporting restrictions to protect the child and family while proceedings continued in the County Court.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 1058, permission to appeal was granted but the father’s appeal was dismissed.

• Cambridge County Court: HHJ Plumstead made preliminary fact-finding determinations in a public law case and refused the father permission to appeal.