L (Children), Re

In care proceedings concerning disputed causes of child deaths, a finding that one medical cause is improbable or excluded does not itself establish deliberate harm. The fact-finding judge must assess expert evidence together with evidence about events, credibility and other relevant circumstances, and reach the ultimate conclusion on the balance of probabilities. Where a real possibility of an unexplained death remains, the judge should be extremely wary of finding deliberate harm without other cogent evidence. On appeal, the judgment must be read as a whole. Imperfect wording is not a fatal error where the reasoning shows that all material evidence was considered and cogent reasons were given for preferring one expert opinion.

Care proceedings concerning six children followed the deaths of two siblings. The local authority alleged that the deaths resulted from induced illness and that the surviving children were at risk from the mother. After a lengthy fact-finding hearing involving competing medical and scientific evidence, HHJ Dowse concluded that a cardiac cause could be excluded on the balance of probabilities and that deliberate harm was established.

The mother appealed, arguing that the judge had treated one expert’s evidence as conclusive, failed to consider unexplained causes, and assessed collateral evidence only after deciding the medical issue. The central question was whether the judgment, read as a whole, disclosed a material error of approach.

Appeal dismissed. Thorpe LJ, Pitchford LJ and McFarlane LJ agreed that HHJ Dowse’s judgment, read as a whole, did not contain the alleged error.

1. The judge was required to consider the medical evidence in the context of the whole evidential picture. Excluding or treating a cardiac cause as improbable did not make that conclusion determinative of deliberate harm. The judge had considered the evidence concerning hospital admissions, the probabilities of what had occurred, possible causes, the mother’s credibility and the other collateral material before reaching the ultimate conclusion.
2. Where, after considering expert evidence, the court remains faced with a real possibility of an unexplained death, and there is no other cogent evidence, it should be extremely wary of finding deliberate harm. Pitchford LJ considered that the judge had correctly directed himself on this issue by reference to Cannings and had understood the limits of current medical knowledge.
3. The appellate court should examine the judgment as a whole. McFarlane LJ held that the statement that a cardiac cause could be excluded was properly understood as a conclusion about the probability of that cause, rather than as a finding that resolved every issue. Its position before the end of the judgment showed that the judge went on to consider the remaining evidential elements.
4. The judge was entitled to prefer Dr Martin’s evidence to that of Professor Fleming and Dr Robinson because he understood the competing opinions and gave cogent reasons for his preference. Any defect was one of presentation or wording, not a fundamental failure of judicial reasoning. The Court expressed concern about delay and emphasised the need to progress the remaining proceedings with expedition.

• Court of Appeal (Civil Division): The mother appealed against HHJ Dowse’s preliminary fact-finding judgment. The appeal was dismissed.
• Kingston upon Hull District Registry: HHJ Dowse, sitting as a section 9 judge, handed down a 499-paragraph judgment on 31 January 2011 following a 63-day fact-finding hearing. Permission to appeal was refused below.
• Permission stage: Sir Mark Potter provisionally refused permission on paper. On oral renewal, Black LJ granted permission while expressly stating that this did not indicate the likely outcome.