F (A Child) (Fact-Finding Appeal), Re

In a fact-finding appeal, a court must not infer inflicted injury merely because no understood medical explanation has been identified. The local authority must prove, on the balance of probabilities, that inflicted injury is more likely than not. A judge must engage sufficiently with evidence pointing against that conclusion, including an unusual presentation, the absence of expected associated injuries, and difficulties in the proposed mechanism. A treating clinician may give expert evidence and may be preferred to instructed experts, but the court must recognise the different roles and evidential foundations. The Court of Appeal may set aside inadequate findings while permitting a rehearing where it cannot properly conclude that the disputed finding has no sufficient prospect of being established after assessment of all the evidence.

The father appealed from a fact-finding judgment made by HHJ Hudson on 27 February 2019 in care proceedings. The judge had found that petechial haemorrhages sustained by the six-month-old child, F, were inflicted non-accidental injuries caused by the father, and that the local authority had established the threshold under the Children Act 1989 on that basis.

The appeal challenged the judge’s treatment of the medical evidence, including her account of a treating paediatrician’s evidence, and the adequacy of her reasons for rejecting evidence pointing towards an unknown or non-inflicted cause. The Court of Appeal also received submissions about the use of treating clinicians as expert witnesses under section 13 of the Children and Families Act 2014 and Part 25 of the Family Procedure Rules 2010. The central issues were whether the finding could stand and whether a rehearing should be ruled out.

1. Appeal allowed and fact-finding judgment set aside. The judge was entitled in principle to prefer the evidence of a treating clinician to that of experts instructed for the proceedings. However, she misstated Dr Flowers’ evidence by recording that Dr Flowers favoured a combination of smothering or suffocation and chest compression as the probable cause. The later finding of a mechanism involving compression and smothering was therefore unsupported by the evidence.
2. The judge also failed sufficiently to engage with evidence pointing against inflicted injury. Relevant features included the absence of sparing on the back of F’s head, the absence of other injuries, the speed of F’s apparent recovery from a potentially life-threatening event, and the practical difficulty of applying pressure to the face while applying compressive pressure elsewhere. The judgment did not explain how those features were outweighed by the evidence relied upon.
3. The absence of an identified medical explanation could not, by itself, establish inflicted injury. The issue had to be determined on the balance of probabilities and by considering the totality of the evidence, including the possibility of an unknown cause.
4. On the proposed guidance concerning treating clinicians, section 13 of the Children and Families Act 2014 and Part 25 of the Family Procedure Rules 2010 may in suitable cases be applied with a light touch where a treating professional gives expert evidence without having initially been engaged as an expert. The court and parties must nevertheless recognise the difference between a treating professional and an expert instructed for proceedings. The treating clinician’s different focus, role and extent of research remain relevant to the assessment of the evidence.
5. The Court of Appeal could not properly conclude that the disputed finding had no sufficient prospect of being established after consideration of all the evidence. The local authority was therefore permitted to pursue a rehearing if it chose to do so.

• Court of Appeal (Civil Division): [2019] EWCA Civ 1244 — appeal allowed and the fact-finding judgment set aside; the local authority was permitted to pursue a rehearing.
• Newcastle-upon-Tyne Combined Court Centre: HHJ Hudson, sitting as a High Court judge, gave a fact-finding judgment on 27 February 2019 finding that F’s injuries were inflicted by the father.