G (A Child)

Appeals against findings made after a fact-finding exercise should be rare and are not encouraged. A trial judge decides between conflicting evidence and theories. He need not recite every item of evidence if he directs himself correctly, considers the material evidence and gives sufficient reasons. Facts must be assessed in the wider context and proved on the balance of probabilities. A relatively minor injury may properly be treated as not amounting to significant harm under Children Act 1989 section 31. A caregiver may still fail to protect a child by leaving him with an unsuitable adult, even without foreseeing the extreme violence that occurs.

Care proceedings followed serious injuries suffered by a five-and-a-half-month-old child. After a fact-finding hearing in Bristol County Court, District Judge O’Malley found that a wrist rash was non-accidental but relatively minor, that the head injuries had been inflicted by an adult known as AP, and that the mother had failed to protect the child by allowing AP into the home and leaving the child with him.

The local authority sought permission to challenge the identification of AP as the perpetrator and the treatment of the wrist injury as insufficient to constitute significant harm. The mother challenged the failure-to-protect finding, and the father also sought permission. The central issue was whether any proposed appeal had a real prospect of overturning the findings.

1. Disposition. The Court of Appeal unanimously refused all applications for permission to appeal. Ward LJ gave the principal judgment; Tomlinson and Lewison LJJ agreed.
2. Appellate approach to fact-finding. Appeals against findings made after a fact-finding exercise should be rare and are not to be encouraged. The trial judge had correctly directed himself that findings must be based on all available material, considered in the wider social, emotional, ethical and moral context, and proved on the balance of probabilities. He considered the inconsistencies in the evidence and gave sufficient reasons. A trial judge is not required to recite all the evidence as if summing up to a jury. The appellate court found no misdirection, material failure to consider evidence or other basis for intervention.
3. Wrist injury. The finding that the rash was non-accidental was open to the judge. His additional conclusion that the injury was too minor to amount to significant harm for the purposes of the threshold under Children Act 1989 section 31 was justified by the way the injury had been treated and was a helpful observation for the later threshold assessment.
4. Head injuries and credibility. The judge was entitled to find that the injuries had occurred very shortly before the child’s collapse and that AP, rather than the mother, had inflicted them. His conclusion depended on his assessment of the competing accounts and was a credibility finding reached after a five-day hearing. There was no real prospect of successfully challenging it.
5. Failure to protect. The mother knew of AP’s criminal record, violence and habitual drug use. It was open to the judge to find that she should not have left the child with him and should have attended to the child herself. That finding did not imply that she knew, or could reasonably have foreseen, the extreme violence inflicted by AP. It attributed only a limited responsibility for the failure to protect.
6. Case management. Ward LJ additionally criticised the delay and duplication arising from separating the fact-finding exercise from the determination whether the section 31 threshold had been crossed. He emphasised that lawyers, rather than social workers alone, must assess whether the established or proposed facts amount to significant harm. These were additional case-management observations.

• Court of Appeal (Civil Division) — On 31 August 2012, unanimously refused all applications for permission to appeal.
• Bristol County Court (District Judge O’Malley) — Following a fact-finding hearing, judgment dated 25 June 2012 made findings concerning the wrist rash, the child’s head injuries and the mother’s failure to protect.