A Local Authority v A Mother & Ors

In fact-finding care proceedings, an appellate court must assess whether the trial judge’s conclusions reflect the expert evidence and the totality of the evidence. A medical explanation described by experts as theoretically possible but very unlikely cannot safely be elevated to a real likelihood without adequate evidential support. The court must consider injuries together and in their wider context, including admissions concerning other injuries, rather than treating each injury as an isolated issue. A favourable assessment of a parent’s credibility cannot replace that analysis. Where the trial judge’s reasoning is materially flawed, and the appellate court cannot safely substitute a finding on the existing record, the judgment should be set aside and the matter remitted for rehearing.

The local authority appealed from findings made by HH Judge Middleton-Roy in care proceedings in the Family Court at Watford concerning injuries suffered by an infant. The judge found that the child’s torn frenulum had been caused by the father during feeding, but that four rib fractures had probably been caused accidentally when the mother overlaid the child while co-sleeping. He found that other injuries had been caused accidentally, subject to a later clarification concerning bruising and a petechial rash around the mouth.

The local authority challenged the rib-fracture finding, arguing that the judge had misunderstood the expert evidence, failed to assess the injuries and other evidence together, and failed adequately to consider the father’s admission and the development of the mother’s account. The central issue was whether the findings could safely stand.

1. Appeal allowed. The finding that the rib fractures were caused by overlaying was set aside. The court also set aside the judgment as a whole and remitted the matter for rehearing.
2. The judge materially mischaracterised the expert evidence. The experts did not support overlaying as a likely cause of rib fractures. Their evidence was that it was theoretically possible but that the possibility was very low. The judge also failed to address whether lying or rolling on the child would generate the significant compressive force required to cause the fractures.
3. The judge’s conclusion that the evidence elevated an accidental explanation to a real likelihood rested principally on evidence that the mother sometimes slept deeply and did not respond to the child’s cries. That evidence could not, by itself, justify the change from a very low medical possibility to a real likelihood.
4. The judge repeatedly stated that he had considered the totality of the evidence, but the structure and substance of the judgment showed that he considered the injuries separately. He failed adequately to place the rib fractures in the context of the father’s late admission that he had caused the torn frenulum and lower-lip injury through rough handling while feeding, and failed properly to address the expert evidence that the child had an ensemble of injuries typically seen in abused babies.
5. The judge was entitled to take account of his assessment of the witnesses, but he became overly influenced by his favourable impression of the mother. Credibility findings could not cure the defects in the evaluation of the medical and circumstantial evidence.
6. The judge went beyond rejecting the local authority’s case and made a positive finding that the mother had caused the fractures by overlaying. On the evidence, that positive finding could not safely be made. The appellate court declined to substitute a finding that the local authority had failed to prove non-accidental injury because the defects required the case to be reviewed as a whole.

Lord Justice Peter Jackson and Lord Justice Moylan agreed with the judgment of Lord Justice Baker.

• Court of Appeal (Civil Division) — The appeal from the Family Court at Watford was allowed. The judgment was set aside and the matter remitted for rehearing: [2019] EWCA Civ 799.
• Family Court at Watford — HH Judge Middleton-Roy made findings in care proceedings concerning the causes of the child’s injuries, including a finding that the rib fractures were caused by overlaying during co-sleeping. Case no WD18C00668.