N (A Child)

Where a child has suffered a non-accidental injury during a period of shared care and the evidence may not identify the perpetrator, the court should generally conduct a fact-finding hearing. It may identify a pool of possible perpetrators even though it cannot prove which individual caused the injury. The risks of suspicion falling on an innocent carer do not displace the need to investigate the possibility of further harm from an unidentified perpetrator. The hearing must remain fair, but procedural criticism will not justify appellate intervention where it causes no material unfairness or could not affect the outcome. An appellate court will not interfere merely because a party challenges the weight given to evidence.

A child suffered extensive bruising and a fractured wrist during a 24-hour period in which he was cared for first by his mother and then by Mr and Mrs H. The county court found that the bruising was non-accidental and that the fracture was an unintended consequence of an assault. It could not identify the perpetrator on the balance of probabilities, and retained the mother and Mr and Mrs H in the pool of possible perpetrators. It also found that Mr and Mrs H were aware of the wrist injury and delayed obtaining medical treatment.

Mr H appealed. He argued that the fact-finding hearing should not have taken place, that the investigation concerning another possible perpetrator and a social worker’s absence made the hearing unfair and contrary to Article 6, and that the finding concerning awareness of the injury was unsupported. The central issues were whether the hearing was necessary and fair, and whether the judge’s findings could stand.

Appeal dismissed unanimously.

1. The decision to embark on the fact-finding hearing was a case-management decision within the judge’s discretion. It was carefully considered, well within that discretion and had not been appealed when made. The Court of Appeal rejected the submission that the hearing was futile or unnecessary.
2. The decision in Lancashire County Council v B [2000] 2 AC 147 established that, where care is shared and the court may be unable to identify the individual responsible for a non-accidental injury, a fact-finding hearing is appropriate and generally necessary. The risks of injustice to an innocent carer were recognised, but did not outweigh the prospect of further harm from an unidentified carer. The later decisions in In re O and another (Minors) (Care: Preliminary Hearing) In Re B (A Minor) [2003] UKHL 18; [2004] 1 AC 523 and In re B (Children) (Care proceedings: Standard of Proof)(CAFCASS intervening) [2008] UKHL 35; [2009] 1 AC 11 formed part of the same coherent approach.
3. Any fact-finding hearing must be fair to all relevant parties. The local authority’s failure to call the social worker was properly criticised, but the alleged procedural deficiencies did not create material unfairness. Even if the disputed evidence had restored ER to the pool, it could not have established him as the actual perpetrator or removed Mr and Mrs H from the pool. Mr H had also failed to ask the judge to adopt a more coercive approach when ER declined to answer further questions. The Article 6 challenge therefore failed.
4. The judge was entitled to find that Mr and Mrs H had noticed the serious wrist injury and delayed obtaining treatment. She considered the evidence that the child had not displayed pain to other witnesses, but was entitled to rely on the medical evidence of the visibly deformed wrist and her assessment of the carers’ evidence. The complaint was, at most, a challenge to the weight of the evidence and did not undermine the finding.

The order was that the appeal be dismissed.

1. Court of Appeal (Civil Division): On 2 April 2009, dismissed the appeal.
2. Birmingham County Court: On 25 November 2008, HHJ Hindley QC found that the child had suffered non-accidental injury, retained the mother and Mr and Mrs H in the pool of possible perpetrators, and found that Mr and Mrs H knew of the wrist injury and delayed obtaining medical treatment.