A, H, C, & W (Children), Re

On an appeal against findings of fact in care proceedings, the appellate court must not substitute its own view for that of the trial judge. Its task is to ask whether the findings were supported by material evidence and whether the judge properly carried out the fact-finding exercise. Credibility, probability and the weighing of competing evidence are primarily matters for the judge who saw and heard the witnesses. Unanimous medical evidence should not be rejected without very good reason. Where the findings were properly open to the trial judge, the appeal must be dismissed, even if another conclusion might have been possible.

The appeal concerned a father’s challenge to findings made by Her Honour Judge Waddicor in the Brighton County Court. A newborn child suffered a fractured femur, diagnosed as a classic metaphyseal lesion. The judge rejected injury in utero, during delivery and during hospital examinations. She found that the injury occurred after discharge, and that the father had caused it by rough handling while reckless as to physical harm. The father argued that the evidence did not support those findings, particularly because no one heard a scream and alternative explanations were available. The central issue was whether the findings and the fact-finding process were legally open to the trial judge.

The appeal was dismissed unanimously.

1. Wall LJ held that the appellate function was limited to examining whether there was material on which the trial judge could properly make the findings and whether she had performed her fact-finding function properly. The appellate court was not entitled to second-guess the judge or substitute its own view of the evidence. The relevant question was not what the appellate judges might have decided themselves: paras [8], [25]–[26].
2. The medical evidence unanimously diagnosed a classic metaphyseal lesion requiring force beyond normal parental handling and indicating a non-accidental injury. A judge departing from or rejecting such medical evidence required very good reason. The trial judge was entitled to rely on it in rejecting injury in utero, during delivery and during either hospital examination: paras [5]–[7], [12]–[19].
3. The judge was entitled to resolve the competing factual accounts by assessing credibility, probability, opportunity and the surrounding circumstances. Her finding that the injury occurred during the Saturday night and that the father caused it through rough handling was properly supported by the evidence. The finding did not require a conclusion that the injury was intentional; the judge found that the father had lost his temper and acted recklessly as to physical harm: paras [20]–[24].
4. Thorpe LJ agreed. Coleridge J also agreed with the proposed order and saw no flaw in the trial process or judgment: paras [27]–[28].

Order: Appeal dismissed.

• Brighton County Court: Her Honour Judge Waddicor made findings that the child’s injury was non-accidental and had been caused by the father.
• Court of Appeal (Civil Division): The father’s appeal was dismissed. [2009] EWCA Civ 1577