D (Fact-finding appeal)

In suspected child-abuse fact-finding, the court must assess the whole body of evidence. It must not compartmentalise causation and perpetration. Evidence bearing on whether a proposed perpetrator had an opportunity to cause an injury may also affect whether the injury was inflicted at all.

Where fresh evidence materially changes the assessment of accounts and credibility, the court must reconsider its effect on medical evidence and the child’s evidence. A child’s individual statement must be assessed against the totality of the child’s recorded statements. Confused and inconsistent accounts may prevent significant weight being placed on one isolated comment.

Care proceedings concerned an anal laceration sustained by a three-year-old child. At the original fact-finding hearing, the Family Court found that the injury was inflicted by Y and made a care order.

After fresh Automatic Number Plate Recognition evidence challenged Y’s opportunity to have caused the injury, the judge reopened perpetration. He found that Y was not responsible but maintained the finding of inflicted injury. He further found that an unidentified male caused the injury and that the mother knew both his identity and responsibility.

The mother appealed. The central issue was whether the fresh evidence required a full reconsideration of causation as well as perpetration, including the medical evidence and the reliability of the child’s statements.

1. Appeal allowed. The findings made at the rehearing could not stand. The case was remitted for a full fact-finding rehearing before a different judge.

2. The judge erred by confining the rehearing to perpetration. Although no party formally sought to reopen causation, it remained the judge’s responsibility to determine the proper ambit of a rehearing in non-adversarial care proceedings. The fresh evidence about Y’s whereabouts was relevant both to whether he could be the perpetrator and to the weight properly given to the evidence said to establish that the injury was inflicted.

3. In suspected-abuse cases, the court must survey the wide canvas and evaluate each item of evidence in the context of all the other evidence. The exercise of identifying a perpetrator, or a possible pool, forms part of deciding whether there was an inflicted injury. Medical evidence which, viewed alone, supports an inflicted injury does not remove the need to assess evidence bearing on whether anyone could have caused it.

4. The simple balance-of-probabilities standard applied. The inherent probability of an event is relevant, where appropriate, to deciding the truth. It becomes irrelevant to identifying the perpetrator only once the evidence clearly establishes that a non-accidental injury occurred. The first-instance judge had treated that latter proposition as governing the prior question of causation.

5. The judge should also have reassessed the child’s nursery comments. Their apparent consistency with the medical evidence was required to bear more weight than was reasonably possible when the child’s other recorded accounts were confusing and inconsistent. No significant weight should have been attached to an isolated statement without evaluating all of those accounts. The absence of an Achieving Best Evidence interview reinforced the need for caution, though the nursery worker was not criticised.

6. All issues, including the medical evidence and Y’s whereabouts, were to be reconsidered. The matter was remitted to MacDonald J, as Family Division Liaison Judge, for a case-management hearing on allocation.

• Court of Appeal (Civil Division) Allowed the mother’s appeal in [2019] EWCA Civ 2302, set aside the challenged fact-finding conclusions, and remitted all issues for a rehearing before a different judge.

• Family Court at Preston At the reopened hearing in May 2019, exonerated Y but found that an unidentified male had inflicted the injury and that the mother knew his identity and responsibility.

• Family Court at Preston At the original fact-finding hearing in July 2018, found that Y had inflicted the injury and made a care order.