S (A Child : Finding of Fact)

An appellate court may interfere with a trial judge’s factual findings only where there is a material legal error, a serious flaw in evaluating the evidence, or a conclusion that cannot reasonably be justified. A difference of view about evidential weight is insufficient where the evidence has been considered and the conclusion adequately explained.

In a care fact-finding hearing, the court must assess the relative likelihood of realistic explanations and decide whether the local authority has proved its case on the balance of probabilities. An alternative explanation need not be disproved, but it must be evaluated against the medical and other evidence. Raising deficiencies in that explanation does not reverse the burden of proof.

Within care proceedings, the local authority alleged that a two-year-old child’s subgaleal haematoma had been inflicted by her mother or the mother’s partner. Medical evidence identified a significant shearing force and regarded an inflicted injury, such as hair-pulling, as likely or very likely. The adults relied on an account that the child had struck her head on a car door.

The Family Court at Hertford found that the local authority had not proved a non-accidental injury. It accepted the car-door account despite finding that the mother and partner had given false or unreliable accounts on other matters. The local authority, supported by the child’s guardian and father, appealed. The central issue was whether material flaws in the judge’s evaluation of the medical, lay and surrounding evidence made the finding sustainable.

1. Appeal allowed. Peter Jackson LJ, with whom Lewis LJ and Underhill LJ agreed, held that the fact-finding conclusion was unsustainable. The case had to be reheard before a different appropriately authorised judge.

2. The judge had correctly directed himself as to the civil standard, but did not bring the true effect of the medical evidence into the final evaluation. The evidence did not compel a finding of inflicted injury, but its central message was that a significant shearing force, likely or very likely caused by conduct such as hair-pulling, had produced the injury. The judgment gave insufficient weight to that conclusion and did not address it in the final analysis.

3. A trial judge may give great, even determinative, weight to an assessment that a witness is truthful. However, where that assessment is preferred to evidence pointing the other way, the reasoning must explain the preference. The judge did not reconcile his favourable assessment of the mother and partner with his findings that they had given false evidence and unreliable accounts, or explain how that assessment led to his ultimate findings.

4. The car-door mechanism was not adequately analysed. Even accepting that the incident occurred, the accounts did not explain how an apparently minor impact could have generated the required shearing force, or how the delayed presentation of the visible injury was medically plausible. The conflicts about the timing and cause of the earlier eye bruising also remained unresolved.

5. The court’s task was to compare the realistic explanations for the known shearing force and then decide whether the local authority had proved inflicted injury on the balance of probabilities. The existence of a possibility that the car-door incident caused the injury did not itself answer that question. The local authority did not reverse the burden of proof by identifying difficulties in the alternative explanation.

The Court of Appeal did not substitute its own factual findings. It directed case management for a rehearing and left all evidential and welfare issues to the judge who would conduct it.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal, held the fact-finding conclusion unsustainable, and directed a rehearing.
• Family Court at Hertford: HHJ McPhee found that the local authority had not established on the balance of probabilities that the child’s subgaleal haematoma was a non-accidental injury.