X, T, A, E and S (Children), Re

In care proceedings, findings about inflicted or self-inflicted injuries may be made where supported by accepted expert evidence. A judgment need not contain a separate section explaining reasons if those reasons are discernible from the judgment as a whole. However, a fact-finding judge should not determine the cause of a child’s self-harming where that issue was not advanced in the case, put to the parents, or supported by evidence. The issue may be left for determination at the welfare hearing after appropriate assessment.

Two adults appealed against findings made by HH Judge Clarke in fact-finding care proceedings concerning five children. The judge found that some injuries sustained by T were self-inflicted and others had been inflicted by an adult, placing both appellants in the pool of possible perpetrators. He also found that the self-harming resulted from the adults’ conduct, emotional harm and inadequate supervision. The appellants challenged the adequacy of the judge’s reasoning, the findings based on expert evidence, and the attribution of causation. The central issue was whether the judge had made findings about the cause of T’s self-harm which had not formed part of the case presented or been properly addressed in evidence.

Baker LJ gave the leading judgment, with which Elisabeth Laing LJ agreed. The appeals were allowed in part.

1. Adequacy of reasons. Although the judge would have been better advised to state expressly the reasons for each finding, the absence of a separate reasons section was not a fundamental flaw. The reasons could be discerned from the judgment as a whole, particularly its discussion of the evidence. The findings therefore did not have to be set aside on that ground ([34]–[35]).
2. Injuries and pool of perpetrators. The judge was entitled to accept the evidence of the court-appointed paediatrician, Dr Cleghorn, and to prefer it to the hospital consultant’s opinion. That evidence supported the distinction between self-inflicted and inflicted injuries. It was also open to the judge to find that there was a real possibility that either adult had inflicted the injuries, so that both were in the pool of perpetrators ([37]–[38]).
3. Emotional harm to the other children. The judge was entitled to find that the other children suffered emotional harm through seeing T’s significant and extensive injuries. The finding did not depend on proof that the adults had willingly exposed them to emotional harm ([39]).
4. Cause of self-harming. The finding that T self-harmed as a result of the adults’ conduct, emotional harm suffered in their care or inadequate supervision was not open to the judge at the fact-finding stage. The local authority had not advanced that case in the threshold documents. It had not been properly put to the adults, and no evidence or assessment had been adduced to determine the cause of the behaviour. The causes might be multifactorial and were to be considered at the forthcoming welfare hearing ([40]–[43]).
5. The offending phrases were deleted from the findings at [188.5] and [188.6], while the remaining findings were preserved. The proceedings were remitted to Judge Clarke. Transfer to another judge would have been disproportionate and risked further delay ([44]–[45]).

• Court of Appeal (Civil Division) — In [2020] EWCA Civ 1680, the appeals were allowed in part. Findings attributing T’s self-harming to the adults’ conduct, emotional harm or inadequate supervision were set aside, the remaining findings were preserved, and the proceedings were remitted to HH Judge Clarke.
• Family Court at Watford — HH Judge Clarke made findings in a judgment handed down on 9 October 2020 in care proceedings concerning five children, including findings about the nature and cause of T’s injuries and the pool of possible perpetrators.