CK (A Child: Fact-finding)

In a fact-finding appeal, an appellate court must assess the trial judgment as a whole and respect the trial judge’s evaluation of a complex body of evidence. The judge may make findings about some injuries while declining to determine the cause of others, provided the unresolved evidence does not undermine the findings that are made. A genetic or other medical possibility must be assessed against the expert evidence and the whole evidential picture; an erroneous subsidiary statement will not justify intervention if it did not affect the reasoning. Lies must be analysed by asking whether they were deliberate, why they were told, and what probative weight they carry in the totality of the evidence. A perpetrator finding may properly include the trial judge’s assessment of the witnesses’ characters and relationships, alongside the other evidence.

The mother appealed against findings made by HH Judge Gibson in care proceedings in the Family Court at Luton. The judge found that the child had sustained four non-accidental fractures and bruising while in the parents’ care, and that the mother, rather than the father, was the perpetrator. She made no finding about the cause of some marks arising during the child’s hospital admission because of poor and inconsistent records.

The appeal challenged the treatment of the bruising, a genetic variant associated with Loeys-Dietz Syndrome, the mother’s lies, and the identification of the perpetrator. The central questions were whether the judge’s findings were adequately reasoned and whether the uncertainty about some injuries prevented the findings that the fractures and other injuries were inflicted by the mother.

Appeal dismissed. The Court of Appeal held that the judge’s findings were sufficiently reasoned and were conclusions she was entitled to reach on the evidence.

1. Medical and genetic evidence. The judge had wrongly stated that Loeys-Dietz Syndrome was not associated with a propensity to fractures. That error was immaterial. The decisive expert evidence was that there was insufficient clinical evidence that the child or his father had the syndrome, and that the identified gene variant was unlikely, on the balance of probabilities, to explain the clustered fractures and bruising. The judge was entitled to attach decisive weight to that evidence. She had also expressly allowed for the possibility that medical knowledge might develop and that the cause of an injury might remain unknown.
2. Bruising. The judge was entitled to find that the child bruised more readily than other children, that the bruising in the parents’ care was more severe than in foster care, and that this suggested heavy handling, while allowing for the child’s tendency to bruise and possible eczema. She was also entitled to decline to determine the cause of marks arising in hospital because the records and body maps were materially unsatisfactory. That uncertainty did not prevent findings about other injuries. The appellate court’s function was not to engage in “island hopping” through the evidence, applying the approach in Fage UK Ltd v Chobani UL Ltd [2014] EWCA Civ 5.
3. Lies and perpetrator. Applying the principle in R v Lucas [1981] QB 720, the judge considered whether the statements were deliberate lies, why they were told, and their probative weight in the totality of the evidence. The pattern of lies, the mother’s role as main carer, the parents’ relative personalities, and the absence of evidence that she suspected the father supported the finding that she was the perpetrator. The assessment of credibility could properly include the impression made by the witnesses, consistently with Re B-M (Children: Findings of Fact) [2021] EWCA 1371.

The mother’s appeal was dismissed.

• Court of Appeal (Civil Division): The appeal from the Family Court at Luton was dismissed. The Court upheld HH Judge Gibson’s findings in care proceedings concerning non-accidental injuries and the identification of the mother as perpetrator.
• Family Court at Luton: HH Judge Gibson, in proceedings numbered LU20C04490, found that the child had sustained four non-accidental fractures and bruising in the parents’ care and that the mother was the more probable perpetrator.