L & R (Children), Re

On an appeal against findings of fact, the appellate court must remain available to correct a conclusion that was not properly open on the evidence. It must, however, respect the trial judge’s assessment of the evidence and should not substitute its own view merely because it might have reached a different conclusion. Expert evidence that a proposed explanation is highly unusual does not compel its rejection where the experts do not exclude it. The trial judge must assess the medical evidence alongside all other evidence. Where the evidence permits a positive finding identifying responsibility, the court may make that finding rather than leave the matter unresolved within a pool of possible perpetrators.

Care proceedings concerned G and D. Following a fact-finding hearing, Mr Justice Coleridge found that the parents had physically and emotionally ill-treated G and emotionally ill-treated D, thereby crossing the threshold under Children Act 1989, s.31. He rejected allegations that D or the parents had caused cuts to G’s head and a burn to his leg, finding instead that G had inflicted the injuries himself.

G appealed against those findings, supported by the local authority. The parents and D opposed the appeal. The central issue was whether the judge’s conclusions were so unsupported by the evidence, particularly the medical evidence, that the Court of Appeal should interfere.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Wilson delivered the principal judgment, with Lord Justice Lloyd and Lord Justice Jacob agreeing.

1. Appellate review of fact. The court must keep open the possibility of correcting findings of fact, but an appellant faces a substantial task where the trial judge has carefully evaluated the evidence. The weight given to evidence is principally for the trial judge, who heard the witnesses and considered the recorded interviews. The appellate court should not substitute its own assessment unless the finding was not properly open on the evidence or the reasoning process was materially defective.
2. Medical evidence. The evidence showed that self-harm by an eight-year-old boy, particularly in the form of neat cuts to the head, was highly unusual or unknown in the experience of the medical witnesses. That evidence did not exclude self-infliction. The judge was entitled to conclude that the medical evidence was consistent with both self-harm and harm inflicted by another person, and to determine causation by considering the whole evidential picture.
3. Evaluation of the evidence. The judge was entitled to attach weight to the parents’ evidence, D’s recorded interviews, and G’s earlier accounts and demonstrations, while taking account of the later change in G’s account and the circumstances affecting its reliability. His conclusion that G had caused the cuts was therefore properly open to him.
4. Positive finding and final order. A court may make a positive finding of responsibility where the evidence permits it, rather than resorting to a less satisfactory pool of possible perpetrators. The same conclusion applied to the finding that G caused the fire resulting in the burn. Appeal dismissed.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1034, the court unanimously dismissed G’s appeal against the findings of fact.
2. High Court, Family Division, Bristol District Registry: Mr Justice Coleridge’s reserved judgment, handed down on 19 February 2010, made findings in care proceedings concerning G and D. The judge found that G had inflicted the cuts and burn himself, while making separate findings of ill-treatment against the parents.