W-P (Children)

Appellate intervention in factual findings is rare, but justified where material analytical flaws take the decision outside the proper margin of respect due to the trial judge. Expert evidence is not improper factual speculation merely because it analyses the movements and positions required to produce an injury. In proceedings involving several injuries, the judge must assess the evidence holistically and consider the overall probability of the proposed account. A central factual hypothesis unsupported by evidence, contradicted by a witness, and not put to experts or counsel cannot safely sustain findings. The appropriate course was to set aside the findings and remit the fact-finding exercise for rehearing before a different judge.

Coventry City Council appealed from factual findings made by His Honour Judge Hooper QC in care proceedings in the Coventry County Court on 28 November 2008. The proceedings concerned injuries suffered by K, a seven-week-old infant: a fractured femur, bruising and a scratch. The judge found that K’s father had caused all three injuries in two separate incidents of reckless but unintentional conduct, and made related findings concerning the mother’s failure to protect.

The local authority contended that the findings were contrary to the weight of the evidence and were not reasonably open to the judge. The central issues were whether the judge had properly evaluated the expert evidence, considered the injuries together, and been entitled to find that the bruising and scratch occurred during an alleged nappy-changing incident.

Lord Justice Wilson delivered the leading judgment. Lady Justice Smith and Sir Mark Potter agreed. The appeal was allowed, the findings were set aside, and the fact-finding exercise was remitted for an early rehearing before a different judge, preferably His Honour Judge Bellamy if available.

1. The trial judge had the advantage of hearing the witnesses and appellate courts should allow a wide margin for factual findings. Nevertheless, this was a rare case in which the criticisms went beyond minor carping and the reasoning fell outside that margin.
2. The judge had analysed the fracture separately from the bruising and scratch and had failed to stand back and consider whether it was probable that the same person had caused several injuries in two unrelated incidents within less than three hours. The injuries and the evidence concerning them should have been considered together.
3. The judge wrongly discounted Dr Kanabar’s evidence as factual speculation or an improper usurpation of the fact-finding function. It was necessary for the expert to analyse the movements, positions and forces required to test the likelihood of the father’s proposed injury mechanism. That analysis was part of the medical opinion which the judge had to evaluate.
4. The judge was entitled to accept part, but not all, of the father’s evidence. However, rejecting an admission against interest and treating other evidence as exaggeration required judicial caution, preferably expressed in the judgment.
5. The decisive flaw concerned the finding that the bruising and scratch had occurred during a nappy-changing incident. There was no supporting evidence, the father denied that he had changed K’s nappy while alone with the children, and the hypothesis had not been put to the expert or counsel. The judge did not explain how those difficulties were overcome. The finding was therefore unsafe.
6. The appellate court declined to exclude the mother from any possible reconsideration at the rehearing. It could be problematic to require a new judge to avoid an issue which later developments in the evidence might make material.

• Court of Appeal (Civil Division): allowed the appeal, set aside the factual findings and remitted the fact-finding exercise to the Coventry County Court for rehearing before a different judge.
• Coventry County Court: on 28 November 2008, His Honour Judge Hooper QC found that the father had caused the infant’s fracture, bruising and scratch in two reckless but unintentional incidents.