R (A Child), Re

In child-protection fact-finding proceedings, a court should not exonerate one of two possible perpetrators on a speculative assessment that conflicts with important evidence. Where the evidence establishes that injuries were non-accidental but does not safely identify which parent caused them, the appropriate finding may be that either parent was the perpetrator.

The mother appealed against a fact-finding decision concerning two fractures suffered by her baby. The judge found that the injuries were non-accidental, rejected the parents’ explanations and treated the father’s admissions as incredible, thereby exonerating him as the possible perpetrator. The judge nevertheless directed psychiatric and risk assessments because the child would be at significant harm with either parent or both.

The appeal was supported by the father and guardian. The local authority did not oppose allowing the appeal. The central issue was whether the finding identifying the mother alone was safely based on the evidence.

1. Appeal allowed. The Court of Appeal unanimously substituted the answer to question 9: the perpetrator was either the father or the mother.
2. The court had no full transcript of the decision below. The approved note carried the trial judge’s reservation that it omitted some paragraphs. The appellate court therefore avoided detailed analysis or criticism of the lower court’s reasoning.
3. Nevertheless, the guardian’s submission that the decision appeared to rest on substantial speculation was well expressed. The lower court’s conclusion that the father could be exonerated conflicted with important areas of the evidence. The finding that the father’s admissions were merely protective of the mother did not safely justify identifying the mother alone as responsible.
4. Where the evidence established non-accidental injuries but did not safely determine which of two parents caused them, the proper fact-finding conclusion was that either parent was the perpetrator. This achieved the objective of correcting the unsafe finding without requiring a wider rehearing.
5. The revised finding did not determine the remaining welfare issues. The lower court’s direction for psychiatric assessment of the mother and risk assessment of both parents remained material.

• Exeter District Court: On 5 September 2008, HHJ Tyzack QC found that two fractures were non-accidental, rejected the parents’ explanations and exonerated the father as a possible perpetrator.
• Court of Appeal (Civil Division): The appeal was allowed. The answer to question 9 was amended to state that the perpetrator was either the father or the mother.