P (Findings of Fact), Re

In family fact-finding proceedings, a finding of non-accidental injury may be made even where the medical evidence does not itself establish such an injury. The court must assess the totality of the evidence on the balance of probabilities. No category of evidence, including lies, is automatically sufficient or insufficient.

Appellate courts should be cautious before interfering with a trial judge’s assessment of witnesses. That restraint does not prevent intervention where an equivocal medical case has been treated as providing positive support for a finding without adequate explanation, and the error may have affected a finely balanced result.

The appellant had been joined as an intervenor in private law proceedings concerning two children. Following a fact-finding hearing, Recorder Judd QC, sitting as a deputy High Court judge, found that the appellant had caused a non-accidental injury to K on 30 April 2011. The finding relied on equivocal medical evidence and the appellant’s lies about possible incidents that day.

The appellant appealed. K’s mother supported the appeal, while K’s father opposed it. The central issues were whether the judge had reversed the burden of proof, whether the non-medical evidence could support the finding, and whether the judge had properly evaluated the medical evidence.

Appeal allowed.

1. The court rejected the argument that the judge had reversed the burden of proof. In an appropriate case, a finding of non-accidental injury may be made although the medical evidence does not establish that such an injury occurred. The court must consider the totality of the evidence and decide the issue on the balance of probabilities. No particular type of evidence, including lies, is automatically sufficient or insufficient.
2. An appellate court should be very cautious before interfering with a trial judge’s assessment of evidence and witnesses, especially where the assessment depends on observing a party over several days and during cross-examination. The approach discussed in Piglowska v Piglowski [1999] 1 WLR 1360 and Re A (Fact-Finding: Disputed Findings) [2011] EWCA Civ 12 supported that restraint.
3. The judge was entitled to regard the medical findings as consistent with trauma. However, she gave no adequate explanation for concluding that several features supported trauma as likely. The medical evidence was, at best, equivocal and did not provide substantial positive assistance. In a finely balanced case, the apparent reliance on that evidence may have propelled the judge to a finding she would otherwise not have made.
4. The judge’s treatment of the appellant’s lies and the other non-medical evidence was not itself shown to be impermissible. Nevertheless, the medical error may have affected her assessment of the significance of the lies and the overall evidence. The findings therefore could not safely stand.

Further submissions were invited on the orders to be made, including in light of the effect of the findings concerning the children and the appellant.

Postscript. The court continued to use the expression non-accidental injury because, unlike in Cambridgeshire County Council v PS, JS and S [2014] EWCA Civ 25, nothing in this case turned on its meaning.

1. Court of Appeal (Civil Division) [2014] EWCA Civ 89: appeal allowed against the fact-finding decision; further submissions invited on consequential orders.
2. Telford District Registry: Recorder Judd QC, sitting as a deputy High Court judge, made findings adverse to the appellant following a fact-finding hearing on 28 June 2013.