G-P (A Child)

In child abuse fact-finding cases, abstract assessments of inherent probability cannot displace dependable evidence about what actually happened. Once harm is established, appropriate weight should be given to reliable expert evidence, contemporaneous evidence of the child’s condition and the trial judge’s assessment of witnesses. The trial judge should methodically analyse and synthesise the evidence. Carefully reasoned findings that are open on the evidence should not be disturbed on appeal.

A two-year-old child suffered serious head injuries, a bruised hymen, bruising and other marks while in the care of her parents and a childminder. Following a 21-day fact-finding hearing, Her Honour Judge Hallam found that the parents had caused emotional harm and neglect, while the childminder had inflicted the head injuries, certain bruises and the hymenal injury. The childminder appealed five findings, arguing that the judge had failed adequately to analyse the parents’ misconduct, the social circumstances and the reasons for departing from the local authority’s case. The central issue was whether the findings against the childminder were unsafe or insufficiently reasoned.

Appeal dismissed. The Court of Appeal held that the trial judge’s analysis was beyond criticism.

1. The evidence had to be sifted methodically. The judge was required to consider the expert medical evidence together with the contemporaneous messages, clinical evidence and other circumstances, rather than deciding the case by reference to either medical or non-medical evidence alone.
2. Inherent probabilities have a limited role in a case where abuse is established. It may be abstractly improbable that any particular carer inflicted the injuries, but that assessment must give way to dependable evidence indicating what actually occurred. Here, the expert evidence and contemporaneous information about the child’s condition, together with the period between handover and hospital admission, were crucial and virtually determinative.
3. The judge was entitled to distinguish the parents’ factitious illness behaviour, neglect and collusion from the direct physical assaults under consideration. Those findings were of a different order and did not require the judge to retain the parents as perpetrators of the physical injuries.
4. The judge was entitled to assess all three adults as untrustworthy, to attach substantial weight to the expert evidence, and to make findings that differed from the local authority’s submissions. The finding about the bite mark was discretionary and had no effect on the outcome.

Lord Justice Leggatt and Mr Justice Moor agreed with Lord Justice Peter Jackson. The appeal was dismissed, with no order for costs apart from a public funding assessment.

• Family Court at Middlesbrough: Her Honour Judge Hallam made findings of fact on 24 August 2018 after a 21-day hearing, including findings against the childminder concerning the child’s head injuries, bruising and hymenal injury.
• Court of Appeal (Civil Division): On [2019] EWCA Civ 56, the appeal was dismissed. Lord Justice Leggatt and Mr Justice Moor agreed with Lord Justice Peter Jackson.