Re B (A child) (Fact-finding)

An appellate court should not disturb factual findings unless compelled by a compelling reason. In child-injury fact-finding, the judge must assess the evidence holistically, considering how each piece relates to the others and analysing matters pointing towards and away from each possible perpetrator. A conclusion cannot rest on eliminating one person through assumptions about what another carer would have heard or done. Medical timing, symptoms, relevant conduct outside the injury windows and post-event statements must be evaluated in context. Where reasoning is insufficient, material evidence is omitted, or evidence is assessed in compartments, findings may be set aside and reheard even though they are not necessarily wrong.

The mother appealed findings by HH Judge Mitchell in the Family Court at York following a 15-day fact-finding hearing. The judge found that the mother had inflicted multiple fractures on B, a small baby, and made related findings concerning the father’s conduct and later statements. The appeal challenged the judge’s evaluation of the evidence, including the treatment of medical timing evidence, assumptions about what the mother would have heard, the father’s opportunities to cause injury, and the assessment of evidence in separate compartments. The central issue was whether the findings could stand despite the appellate restraint applicable to findings of fact.

1. Appeal allowed. Baker LJ, with whom Lewis and Snowden LJJ agreed, held that the findings as to the perpetrator could not stand because of the process by which they had been reached. The case was remitted for a rehearing by another circuit judge. The Court expressed no view about the findings to be made at the rehearing.

2. The ordinary appellate restraint remained applicable. An appellate court must not interfere with findings of fact, including the evaluation of evidence and inferences, unless compelled to do so. Unless there is a compelling reason to the contrary, it must assume that the trial judge considered the whole of the evidence. This approach applies equally in family appeals: Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, Volpi and another v Volpi [2022] EWCA Civ 464 and Re T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475.

3. In difficult care proceedings involving complex injuries, evidence cannot be evaluated in separate compartments. The judge must consider the relevance of each piece of evidence to the others and exercise an overview of the totality of the evidence. The analysis must include factors pointing towards and away from each possible adult perpetrator, as explained in Re T (Children) [2004] EWCA Civ 558 and Re S (A Child: Adequacy of Reasoning) [2019] EWCA Civ 1845.

4. The judge’s reasoning proceeded by eliminating the father and treating that elimination as a positive case against the mother. The assumed finding that the father had cared for B upstairs was based principally on the usual practice, despite the absence of clear evidence about that night. The related inference that the mother would necessarily have heard the injury was undermined by the evidence that the change in cry might be momentary and might not be noticed by someone absent, asleep or not physically present.

5. The judge failed to weigh material matters in the overall assessment. These included the absence of symptoms on the afternoon of 3 December, the expert evidence as to the likely timing of the leg injury, the father’s conduct outside the radiological windows, and his later comments about exploring whether he had caused the injuries. The judge also treated the rib injuries as following automatically from the finding about the leg injury, rather than examining the evidence concerning the periods in which the rib fractures were sustained. The approach reflected the three overlapping defects identified in Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149: insufficient or flawed reasoning, failure to take material factors into account, and compartmentalised assessment of evidence.

6. The Court did not determine the application to admit a single emoji under the Civil Procedure Rules 1998, rule 52.21(2), because the appeal was allowed on the existing evidence. The emoji could be relied upon at the rehearing.

• Court of Appeal (Civil Division): Appeal allowed. The findings as to the perpetrator were set aside and the fact-finding hearing was remitted for rehearing by another circuit judge.
• Family Court at York: HH Judge Mitchell found on 27 April 2023 that the mother had inflicted B’s injuries. Permission to appeal was refused on 11 May 2023, and permission was granted by the Court of Appeal on 20 June 2023.