H v City & County of Swansea & Ors

In child-injury fact-finding proceedings, a person should remain within the pool of possible perpetrators only where the evidence, properly evaluated, establishes a real possibility that they caused the injury. A judge must weigh adverse credibility findings and opportunity against reliable contemporaneous evidence bearing on the person’s knowledge and conduct.

Where that balanced evaluation necessarily excludes a person from the pool, an appellate court may substitute a narrower pool rather than remit the issue for rehearing.

CJ, then aged 13 months, sustained multiple non-accidental bruises. In care proceedings, His Honour Judge Gareth Jones found that the perpetrator could not be identified on the balance of probabilities. He included the mother, PSP and ASP in the pool of possible perpetrators.

The mother appealed against her inclusion. The local authority and children’s guardian supported the appeal, but PSP and ASP opposed it. The central issue was whether the judge had properly evaluated the evidence, particularly contemporaneous text messages and the mother’s reaction on discovering the injuries, when deciding whether there was a real possibility that she was responsible.

1. Appeal allowed. The court set aside the finding that the mother was within the pool of possible perpetrators and substituted a finding that the pool comprised PSP and ASP only.

2. Lady Justice Black held that the injuries had not been caused before CJ was entrusted to PSP’s care on 7 January 2009. The relevant inquiry therefore concerned the period thereafter. The medical evidence indicated that the assault would have caused marked distress. Save for a short period when ASP was alone with CJ, another adult would probably have heard it. This supported the inference that one or more adults had knowledge of the assault.

3. The contemporaneous text messages were especially powerful evidence. In the absence of evidence that the mother had devised them as a false trail, they showed that she was genuinely trying to discover what had happened to CJ. PSP’s later description of her immediate reaction, and her prompt removal of CJ, request for medical help and contact with the authorities, supported that conclusion.

4. The judge’s concerns about the mother’s truthfulness related to her continuing relationship with PSP. They did not dispense with the need to assess those lies against the evidence pointing away from her responsibility. A Lucas direction would have assisted, although the essential error was the failure to complete the necessary evaluative exercise.

5. Had all relevant factors been weighed, the judge would necessarily have concluded that there was no real possibility that the mother inflicted the injuries. A remittal was neither necessary nor appropriate. Mr Justice David Richards and Lady Justice Arden agreed.

• Court of Appeal (Civil Division) Allowed the mother’s appeal in [2011] EWCA Civ 195 and substituted a finding that she was not in the pool of possible perpetrators.
• Swansea Civil Justice Centre At a fact-finding hearing, His Honour Judge Gareth Jones found that the perpetrator could not be identified and included the mother, PSP and ASP in the pool of possible perpetrators.