S (Children)

At a fact-finding hearing, the burden remains on the local authority to establish, on the balance of probabilities and from the whole evidence, that injuries were non-accidental. A judge may exclude accidental or congenital explanations in reaching that conclusion; doing so does not reverse the burden. Previous good care and parental affection are relevant but cannot determine the issue without factual context. Fact-specific first-instance decisions cannot be elevated into authorities of principle merely because the medical facts appear similar. An appellate court will not interfere where the challenge simply re-runs the evidence and fails to show that relevant material was excluded, irrelevant material used, or the conclusion was unavailable on the evidence.

The father sought permission to appeal, with the appeal to follow if permission were granted, against findings made by His Honour Judge Tyzack QC on 29 November 2013. Sitting as a deputy High Court judge, he found that R had sustained non-accidental injuries, including bruising and fractures to the skull, ribs and left radius. The mother supported the application. The proposed grounds alleged errors concerning the burden of proof, inherent probability, reliance on a fact-specific decision involving EDS III, and the evaluation of the evidence. The father also applied to admit a later medical letter as fresh evidence. The central issues were whether the judge had applied the correct fact-finding approach and whether his conclusions were open to him on the evidence.

The full court dismissed both applications: the father’s application for permission to appeal and his application to admit fresh evidence.

1. Fresh evidence. The later letter concerned K and relied on parental concerns. It had no impact on any proposed ground of appeal. That was sufficient reason to dismiss the application without addressing CPR 52.11(2)(b) or the Ladd v Marshall principles.
2. Burden of proof. The local authority had to disprove possible accidental and congenital explanations and establish, on the balance of probabilities and by reference to the whole evidence, that the injuries were non-accidental. Excluding alternative explanations during that process did not reverse the burden. In Rhesa Shipping Co SA v Edmond and Another: The Popi M, [1985] 1 WLR 948, Lord Brandon’s speech did not support the contrary submission. The description of the reasoning as linear was unhelpful and potentially confusing. The case was unlike Re M (Fact Finding Hearing: Burden of Proof), [2012] EWCA Civ 1580, where the judge had relied on an adverse inference arising from the absence of a credible parental explanation for bruising of indeterminate causation.
3. Inherent probability. The parents’ previous good care and affection for their children had to be balanced against the evidence of mental ill health, relationship strain and their effect on family functioning. Previous good care could not be determinative without the factual context. Re R, [2013] EWCA Civ 899, had to be understood in its different evidential context.
4. Fact-specific decisions. Re ED, [2013] EWHC 968 (Fam), was a fact-specific first-instance decision. Similarity concerning EDS III did not elevate it into an authority of principle.
5. Appellate review. The remaining arguments merely re-ran the evidence and submissions. No relevant material was shown to have been excluded, no irrelevant material was shown to have been used, and the judge’s conclusions were open to him. His findings concerning the bruising and the skull, rib and wrist fractures were therefore not amenable to appellate interference.

1. Court of Appeal (Civil Division): On 7 November 2014, the court dismissed the father’s application for permission to appeal and his application to admit fresh evidence: [2014] EWCA Civ 1447.
2. Exeter District Registry: On 29 November 2013, His Honour Judge Tyzack QC, sitting as a deputy High Court judge, found that R had sustained non-accidental injuries, including bruising and fractures to the skull, ribs and left radius.