N (A Child)

A finding that a person cannot be excluded from the pool of possible perpetrators of a child’s non-accidental injury may have serious consequences, even though it does not identify that person as the perpetrator. The court may need to consider the circumstances in which such a finding is appropriate, including whether the local authority’s investigation has been properly conducted and presented. Where serious findings are challenged and concerns arise about the conduct and clarity of the fact-finding process, permission to appeal should be granted so that those issues can be examined.

The applicant sought renewed permission to appeal against findings made by Her Honour Judge Hindley QC in the first stage of care proceedings concerning a six-year-old child who had sustained non-accidental injuries. The judge found that the applicant and his wife could not be excluded from the pool of possible perpetrators and that they had culpably delayed obtaining medical treatment despite awareness of the child’s serious wrist injury.

The proposed appeal raised concerns about the judge’s treatment of evidence, the conduct of the local authority’s investigation, and the adequacy and clarity of the judgment. The central issue was whether permission should be granted to challenge those findings.

1. Application granted. The court granted permission for the proposed appeal to proceed.
2. A finding that a person is not excluded from the pool of possible perpetrators of a non-accidental injury is potentially very serious, although it is not a finding that the person perpetrated the assault. Decision-makers may therefore face difficulty in determining the weight properly attributable to such a finding.
3. The applicant submitted that a pool finding should be made only where the local authority’s investigation into perpetration had been properly conducted and presented. The judge had accepted, by reference to articles 6 and 8 of the ECHJ, that such a finding should follow only a proper investigation.
4. The Court of Appeal expressed provisional concern that the judicial investigation might not, in this case, have demonstrated the necessary rigour. Concerns included the treatment of evidence concerning a possible additional person, the failure of a social worker to attend court, the absence of express consideration of the ramifications of that failure, and the judge’s limited treatment of the child’s presentation and the delay in obtaining medical attention.
5. Those concerns, combined with the seriousness of the findings and the possibility that a rehearing might otherwise be required, justified granting permission. The court did not determine the substantive appeal or set aside any finding at this stage.

• Birmingham County Court: Her Honour Judge Hindley QC made findings in the first stage of care proceedings on 25 November 2008.
• Court of Appeal (Civil Division): Wall LJ refused permission on paper. On renewal, the Court of Appeal granted permission to appeal.