B (A Child), Re

In public law child-protection proceedings, a threshold finding must be coherent with the factual findings and the evidence. It is impermissible to find the Children Act 1989 threshold crossed while substantially accepting the parents’ explanations and exonerating them from responsibility for serious injuries.

Credibility, conflicts in the evidence and causation must be carefully evaluated. Agreed expert and statistical evidence cannot be dismissed by unsupported judicial impression. Where these defects undermine the findings, the proper course is to allow the appeal and order a retrial.

An infant suffered a major skull fracture, a rib fracture and spinal fractures after two reported falls and rough handling by her father. The local authority removed her into foster care and commenced public law proceedings.

After a four-day trial, HHJ Bryant found the statutory threshold met, although he accepted that the father might have caused the injuries accidentally and that the mother had not caused them. The local authority appealed, arguing that the findings were internally inconsistent and unsupported by the lay and expert evidence. The central issue was whether the threshold and causation findings could stand or required a retrial.

The Court of Appeal allowed the appeal unanimously. Lord Justice Thorpe gave the leading judgment, with Lord Justice Lawrence Collins and Lord Justice Goldring agreeing.

1. The first-instance judge had taken the threshold language from section 31(2)(b)(i) of the Children Act 1989. However, he had attempted to maintain the proceedings by finding the threshold crossed while essentially accepting the parents’ explanations, exonerating the mother entirely and the father substantially. That combination produced an unsafe and internally inconsistent conclusion.
2. The three injuries were extremely serious and had been sustained within a short period. A judge seeking to mitigate or exonerate a parent must have a sound evidential basis for doing so. Once the father’s account had been found unconvincing, the court needed at least to survey other possible causative circumstances.
3. The judge was required carefully to evaluate the differences between the parents’ accounts. Treating those differences as irrelevant, without adequate analysis, was too cavalier, particularly because confidence in either account depended on resolving the conflicts.
4. The judge’s proposed explanation for the skull fracture was contrary to the medical evidence. He had also dealt improperly with agreed expert evidence founded on accepted research, and had been wrong to dismiss statistical evidence through his own unsupported assessment of its reliability or usefulness. If the expert’s meaning was unclear, clarification should have been sought.
5. The local authority’s proposed alternative orders could not be adopted. The issues therefore had to be tried again by another judge at the Newcastle Care Centre. The court directed that a directions hearing take place there at the earliest possible date.

1. Court of Appeal (Civil Division): On 18 November 2008, allowed the local authority’s appeal. The threshold and related findings required reconsideration at a retrial before another judge.
2. Sunderland County Court: HHJ Bryant delivered reserved judgment on 28 August 2008 after a four-day trial and found the statutory threshold made out. The order dated 29 August 2008 did not record the findings.