Re B-S (A Child)

In fact-finding proceedings concerning non-accidental injury, a potential perpetrator’s failure to attend court for cross-examination does not prevent the court from identifying the perpetrator. The court must assess the effect of the absence, consider all the evidence and draw only proper inferences. It must not speculate about evidence the absent person might have given. Where the evidence permits a finding against one person on the balance of probabilities, the court need not leave the issue unresolved merely because another person remains in the pool of potential perpetrators. On appeal, factual findings will stand unless no reasonable judge could have reached them. A judgment is read as a whole, and imperfectly expressed analysis will not invalidate a decision where the reasoning is sufficiently clear.

This was an appeal by the mother of L against a decision made by Her Honour Judge Robertshaw in the Family Court at Plymouth on 22 February 2017. The judge found that the mother was the sole perpetrator of non-accidental injuries suffered by L, then five weeks old. There was no challenge to the findings that the injuries were non-accidental or had occurred on more than one occasion.

The mother argued that the judge could not safely identify her as the sole perpetrator because SP, her then boyfriend and the other person in the pool of potential perpetrators, had failed to attend the resumed hearing and had not been available for cross-examination. The central issue was whether SP’s absence prevented, or materially undermined, a finding that the mother alone had inflicted the injuries.

Lady Justice King, with whom Lord Justice Henderson agreed, dismissed the appeal.

1. A person’s failure to attend a fact-finding hearing and submit to full cross-examination does not create a rule preventing the court from identifying the perpetrator of non-accidental injuries. The court must remain alert to the evidential effect of the absence and must not speculate about evidence the absent person might have given.
2. The court must consider all the evidence, including any adverse inferences that can properly be drawn from the failure to attend and the relevant background circumstances. Those inferences cannot replace proof and cannot justify speculation.
3. The fact that SP remained within the pool of possible perpetrators did not mean that the court had to find him responsible, or that it could not find the mother solely responsible. The judge was entitled to rely on the mother’s lies, inconsistent accounts, difficulties in caring for and bonding with L, attempts to attribute the injuries to SP, and manipulation of SP during the proceedings. The judge was also entitled to conclude that the alleged incident involving SP could not have caused the injuries.
4. The relevant appellate question was whether the findings were ones that no reasonable judge could have reached. The Court of Appeal was not entitled to substitute its own assessment merely because another judge might have adopted a more cautious approach.
5. Although the judge’s analysis might have benefited from a more explicitly rolled-up assessment, an ordinary reading of the judgment as a whole made clear why the findings had been reached. Any overstatement concerning the manipulation of SP was not essential to the conclusion on perpetration.

The finding that the mother was the sole perpetrator was therefore upheld.

• Court of Appeal (Civil Division) — In [2017] EWCA Civ 2680, the appeal was dismissed.
• Family Court at Plymouth — On 22 February 2017, Her Honour Judge Robertshaw found that the mother was the sole perpetrator of L’s non-accidental injuries.