S (Children: Findings of Fact), Re

In a fact-finding rehearing concerning a sequence of childhood injuries, the court must evaluate all the evidence in its full context. A finding that a parent inflicted an injury and participated in concealing it may materially alter the assessment of the parents’ accounts and of other alleged injuries. It does not dictate further adverse findings, but it cannot be disregarded.

There is no need to impose artificial propensity or hindsight-bias barriers when assessing related events within the same family. A court should also be cautious before making positive findings that serious injuries were accidental, particularly where those incidents are improbable, unwitnessed or undescribed and the child may face serious risk if the assessment is wrong.

This was the local authority’s appeal from fact-finding decisions in care proceedings concerning two boys. Earlier proceedings concerning skull fractures suffered by B in 2020 had ended with findings that the injuries were accidental. In the later proceedings, the Family Court reopened that issue and considered a sequence of facial and head injuries sustained in 2021.

His Honour Judge Wicks found that the father had inflicted the severe July 2021 facial injuries and that the mother had concealed them. He nevertheless found the 2020 skull fractures, the April to June 2021 bruising, and the August 2021 head injuries to be accidental or insufficiently serious. The local authority, supported by the children’s guardian, challenged those exculpatory findings. The central issue was whether the judge had lawfully assessed the whole evidential picture at the rehearing.

Appeal allowed. The court set aside all the fact-finding conclusions and remitted the whole case for a rehearing.

1. An appellate court will not interfere with findings reached after hearing oral evidence unless a clear error of approach is demonstrated. Such an error was shown here. The fact-finding court had to assess all the evidence together and in the context of the other evidence.

2. The original finding that the 2020 skull fractures were accidental depended materially on a favourable assessment of the parents’ character and credibility. At the rehearing, the judge found that the father assaulted B in July 2021 and that both parents lied, gave a false account and concealed the injury. Those findings did not make further adverse findings inevitable, but they necessarily changed the assessment of the other evidence. The cursory reconsideration of the 2020 injury was therefore not an effective rehearing.

3. The August 2021 conclusion depended on the parents’ account of improbable accidental mechanisms without properly addressing whether, in light of the July findings, that account was reliable. The judge also erred by addressing repeated facial bruising principally as a series of individually minor injuries, instead of deciding whether its frequency and location formed a pattern indicating abusive or neglectful parenting.

4. The judge wrongly treated the matter as requiring a propensity analysis. R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 concerned behaviour towards different partners. In a sequence of events within one family, a finding about a parent’s treatment of a child may be relevant to another similar allegation without resort to that concept. Equally, hindsight bias does not prevent a common-sense assessment of the evidence as a whole.

5. Although a court may positively find an injury accidental where sufficiently confident, it should be very cautious before making positive exculpatory findings and record-cleansing directions where serious injury may recur if the assessment is mistaken. A complete rehearing was necessary and fair.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal in [2023] EWCA Civ 1113, set aside all fact-finding conclusions, and remitted the case for a rehearing.
• Family Court at Northampton: His Honour Judge Wicks gave a fact-finding judgment on 8 June 2023 and made a final order on 26 June 2023. He found one July 2021 injury inflicted by the father but made exculpatory findings concerning the other injuries.