W (Appeal: Fact-Finding), Re

An appellate court should rarely interfere with findings of primary fact, credibility assessments, evaluations or inferences drawn by a trial judge who has seen the witnesses and the fuller evidential canvas. A procedural error in relying on an unexplored evidential feature does not require a rehearing if, after excluding that feature, the remaining reasoning independently supports the result. In child-injury fact-finding, evenly balanced medical possibilities may be resolved by assessing the parents’ evidence and the wider evidence alongside expert opinion. The applicant need prove that an injury was inflicted; an exact mechanism need not be established.

Care proceedings under Part IV of the Children Act 1989 were ongoing concerning two children. Following an 11-day fact-finding hearing, HHJ Marin found that the younger child, J, had suffered repeated non-accidental head injuries, that the mother was the likely perpetrator, and that the father later became aware of the mother’s responsibility. The Judge also found failures to follow medical advice and an unjustified departure from hospital.

The parents brought two linked appeals challenging 18 grounds, including the use of photographs showing linear grazes, the treatment of recurring injuries after a subgaleal haemorrhage, the finding concerning the father’s knowledge, the burden and standard of proof, credibility assessment, and the evaluation of medical and contextual evidence.

Disposition. Cobb J delivered the judgment of the court, with which Moylan LJ and Lewison LJ agreed. Both linked appeals were dismissed.

1. Appellate restraint. The Court applied the principles in Re B (A Child) [2013] UKSC 33, Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 and Volpi & Anor v Volpi [2022] EWCA Civ 464. A trial judge has the advantage of the fuller evidential canvas and of seeing and hearing the witnesses. Imperfect expression or failure to mention every item of evidence does not establish an appealable error.
2. Procedural fairness. The Judge was entitled to consider a solution not precisely advanced by the parties, but fairness required caution before making an adverse finding based on an issue which had not been explored. The mother had been denied a proper opportunity to comment on the significance of the grazes in the photographs, and the process was unfair in that limited respect. The principles in Re A (No.2) [2019] EWCA Civ 1947, B (A Child) [2018] EWCA Civ 2127 and Chen v Ng [2017] UKPC 27 were applied.
3. Materiality of the error. The unfairly derived conclusion could be left out. The Judge’s other findings, including the mother’s inconsistencies, rejection of her account of the radiator, and wider credibility findings, independently supported the conclusion that the April injury was inflicted. The error therefore did not vitiate the fact-finding decision.
4. Medical and wider evidence. The medical evidence left accidental, non-accidental and hybrid explanations open. The Judge was entitled to resolve the issue by weighing expert evidence against the parents’ accounts, their conduct, failures to obtain timely medical assistance, messages, relationship evidence and the wider canvas. The roles of expert and judge were distinct, as explained in A County Council v K D & L [2005] EWHC 144. The Judge was also entitled to find that the father’s conduct supported an inference that he knew of the mother’s responsibility.
5. Remaining grounds. The Local Authority did not need to prove the precise mechanism of inflicted injury. The Judge correctly directed himself on the burden and standard of proof, and rejecting an account as incoherent did not reverse the burden. The Lucas direction, the fallibility of memory, and the relevance of delay in seeking medical assessment were properly addressed, with reference to R v Lucas [1981] 1 QB 720, Re M (Fact Finding: Burden of Proof) [2012] EWCA Civ 1580, Gestmin -v- Credit Suisse [2015] EWHC 3560 and Lancashire County Council v The Children [2014] EWFC 3.

• Court of Appeal (Civil Division) — In [2024] EWCA Civ 1590, both linked appeals were dismissed.
• Central Family Court — HHJ Marin, judgment dated 16 September 2024 in case ZC23C50247, made findings of repeated non-accidental injuries and identified the mother as the likely perpetrator.