A (Children), Re

A trial judge’s factual determination in care proceedings attracts substantial appellate respect. An appellate court should interfere only where it is plain that the finding was unavailable on the evidence. The broader appellate formulation requiring only that a decision be “wrong” does not govern a straightforward fact-finding appeal.

The local authority must prove alleged non-accidental injury on the simple balance of probabilities. Medical opinion forms only part of the evidence. A judge may decline to make the suggested finding where the whole evidence, including witness credibility and contextual evidence, leaves the allegation unproved, provided the reasons are adequately explained.

A local authority brought care proceedings concerning two young children after the younger child was found to have two healing posterior rib fractures. At a five-day fact-finding hearing, His Honour Judge Rawkins concluded that the authority had not proved that the fractures were non-accidental injuries inflicted while the child was in parental care. As this was the only substantial allegation relied upon to establish the statutory threshold, that finding effectively ended the care application.

The judge granted permission to appeal and maintained interim statutory protection pending the appeal. The authority argued that the medical evidence left no tenable accidental explanation, that the judge had applied too high a standard of proof, and that he had inadequately explained his departure from the medical evidence. The central issue was whether the negative finding was legally open to the trial judge on the evidence as a whole.

1. Appeal dismissed. McFarlane LJ held that the trial judge’s conclusion was, just, open to him on the evidence. Tomlinson and Rimer LJJ agreed.
2. A straightforward appeal against a factual determination remains subject to the conventional restraint appropriate to fact-finding appeals. The indication in Re B [2013] UKSC 33 that, in certain circumstances, an appellate court asks whether the judge was “wrong” rather than “plainly wrong” did not apply. The trial judge had heard five days of oral evidence and assessed the witnesses directly. The Court of Appeal therefore afforded substantial respect to his evaluation and would interfere only if it were plain that the finding was unavailable.
3. The applicable standard in the care proceedings was the simple balance of probabilities. The judge stated that standard correctly and did not apply a heightened requirement of certainty or deliberate, premeditated injury. Read with his later clarification, his judgment addressed whether either parent had inflicted a non-accidental injury.
4. The medical evidence strongly favoured non-accidental injury, while the suggested accidental causes were highly unlikely. Nevertheless, expert evidence was only one part of the evidence. The judge was entitled to consider the limitations in the experts’ understanding of the suggested fall, the possibility of an innocent explanation, the parents’ account of the child’s crying, the credibility and candour of the parents, and the health visitor’s strongly positive evidence about the mother’s care.
5. The judge adequately explained why the medical evidence did not carry the allegation over the balance of probabilities. He weighed the stresses affecting the mother against evidence that she remained loving and responsive and had not yielded to those pressures. Although he could permissibly have made the authority’s requested finding, that did not establish that he was required to do so.

1. Court of Appeal (Civil Division): The local authority’s appeal was dismissed. The trial judge’s finding that non-accidental injury had not been proved was upheld.
2. Blackburn District Registry: His Honour Judge Rawkins found that the local authority had not proved the alleged non-accidental rib injuries. As that was the only substantial allegation supporting the threshold under section 31 of the Children Act 1989, the care application was effectively brought to an end. The judge granted permission to appeal and maintained statutory protection pending the appeal.