A v Cardiff City Council & Ors

In care proceedings involving a serious injury to a child, the court must investigate each objectively realistic explanation on its merits and assess the evidence across the broad canvas before reaching findings. It should not exclude explanations sequentially in a way that risks default findings. A judgment must clearly identify the findings made, the evidence supporting them and the underlying rationale. Where a witness is found to have lied, the court must consider why the lie may have occurred and what, if any, effect it has on the disputed facts. Case management must secure relevant information at an early stage, especially in a single-issue case. The court also stressed that a care and welfare decision cannot rest on virtual acceptance that a fact-finding conclusion determines the outcome.

The mother appealed against orders made by HHJ Parry in the Family Court at Cardiff on 12 April 2019. The judge found that the younger child’s displaced femoral fracture was inflicted while in the care of one or both parents, rejected an accidental explanation involving the child’s 11-year-old cousin, found the threshold criteria established and made care orders for both children.

The appeal concerned the judge’s evaluation of the medical and factual evidence, her treatment of the parents’ credibility and her approach to the Lucas direction. The Court of Appeal also considered the earlier case management of the proposed third-party explanation and the adequacy of the welfare analysis.

1. Appeal allowed. The findings that the fracture was inflicted and that one or both parents knew of the causative event could not stand. The judgment below was set aside and the matter was remitted for rehearing before a different judge.
2. The appellate court should interfere with findings of fact only where the conclusion was unsupported by evidence, based on a misunderstanding of the evidence, or one which no reasonable judge could have reached: Re B (A Child) [2013] UKSC 33 [52]. That restraint did not prevent intervention where the trial judge’s reasoning was materially flawed.
3. The judge’s narrative judgment lacked a coherent structure. It did not make sufficiently clear the timing and nature of the fracture, the surrounding circumstances, or how those findings fed into the ultimate conclusion. A judgment must identify the finding, the underlying evidence and the rationale.
4. The judge had excluded possible explanations in turn instead of assessing the evidence for and against each explanation and then standing back. In particular, the detailed criticism of the cousin’s ABE interview risked separating that evidence from relevant medical evidence, including Dr Cartlidge’s view that the described mechanism could have caused the fracture.
5. A Lucas direction requires the court, after finding that a witness has lied, to consider why the witness may have lied, what other explanations may exist, and what effect, if any, the lie has on the facts in dispute. The judge had moved from findings about the parents’ account of a police call to findings of a cover-up, despite the absence of any benefit to the parents and without adequately considering misunderstanding or other explanations.
6. In care proceedings the court must ensure that each objectively realistic possibility is properly investigated and assessed. The local authority should use a staged, neutral evidence-gathering process where a plausible alternative explanation is raised, or explain why it has not done so. The court and the representatives of the children must be proactive in securing information relevant to the parents’ and children’s Article 6 and Article 8 rights.
7. The Court also expressed concern about the making of care orders. The welfare analysis was limited, relied on dated material and did not sufficiently address the welfare interests of each child or the balance of risks in possible reunification. The fact-finding outcome could not be treated as determining welfare by virtual acceptance. All findings and outcomes remained open at the rehearing.

• Court of Appeal (Civil Division): allowed the appeal, set aside the judgment and remitted the matter for rehearing before a different judge.
• Family Court at Cardiff: HHJ Parry made findings of inflicted injury, found the threshold criteria established and made care orders for both children on 12 April 2019.