A (A Child) (Fact-Finding: Head Injury), Re

In fact-finding care proceedings, expert medical evidence must be evaluated holistically with the evidence as a whole. A medical consensus that an injury was traumatic does not, without more, establish that it was abusively inflicted. Before making that finding, the judge must consider accidental explanations, timing, the wider circumstances, credibility and whether either parent could have caused the injury without the other knowing. Speculative reasoning and unsupported assumptions about how a parent would behave are impermissible. When considering an uncertain perpetrator, the court must assess each possible perpetrator separately and apply the prescribed pool-of-perpetrators approach. Both appeals were allowed and the proceedings were remitted for directions on the appropriate next step.

A was two months old when she suffered a serious subdural haematoma. The medical evidence agreed that the injury resulted from trauma, but differed about the extent and mechanism of the injuries. Following a lengthy fact-finding hearing, the Family Court at Bristol, HH Judge Cronin, found that A had suffered an abusive head injury while in the care of both parents. The judge could not identify which parent was responsible and placed both in the pool of possible perpetrators.

The mother and father appealed. They argued that the judge had treated the medical evidence in isolation, failed to evaluate the wider evidence and credibility issues, and applied the wrong approach to accidental injury, timing and the pool of perpetrators. The central issues were whether the findings were adequately reasoned and whether the Court of Appeal could determine the local authority’s case on the available material.

Both appeals allowed. Baker LJ delivered the judgment, with which Nugée LJ and Falk LJ agreed.

1. The judge’s finding that A had suffered an acceleration or deceleration injury, with or without impact, was contrary to the weight of the medical evidence. Having found no multifocal bleeding or contusions, she failed sufficiently to address the unusual picture of a major ruptured vein without other signs of injury.
2. The judge adopted a linear approach. She treated the medical evidence as establishing both trauma and abusive infliction before evaluating the parents’ evidence and the wider circumstances. The governing approach requires the evidence to be assessed holistically. The roles of court and expert are distinct, and the court must weigh expert evidence against all other evidence, as explained in Re T (Children) [2004] EWCA Civ 558 and A County Council v K D & L [2005] EWHC 144 (Fam).
3. The possibility of accidental injury should have been considered as part of the overall evaluation before the conclusion that the injury was abusive. The judge wrongly excluded an undisclosed accident on the unsupported assumption that a parent would admit it. Her treatment of timing also involved speculation and improperly assumed that a parent had withheld information before analysing the timing evidence.
4. The approach to an uncertain perpetrator requires the court to identify those with opportunity, consider whether the actual perpetrator can be identified on the balance of probabilities, and only then consider separately for each person whether there is a likelihood or real possibility that they were the perpetrator. The judge instead asked whether she could distinguish between the parents and did not sufficiently analyse the factors pointing towards and away from each parent. The principles in Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 and Re A (A Child: Adequacy of Reasoning) [2019] EWCA Civ 1845 were not properly applied.
5. Because transcripts were unavailable, the Court of Appeal could not determine whether the local authority’s case was proved or safely separate the sustainable findings from the flawed reasoning. The proceedings were remitted to Judd J, the Family Presiding Judge for the Western Circuit, to decide whether a rehearing was necessary and, if so, whether it could proceed on a curtailed and proportionate basis.

The Court also observed that transcripts should ordinarily be obtained where a fact-finding hearing is adjourned for any length, and that clarification of reasons should ordinarily be addressed in a separate document where a response is merited: Re YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71.

1. Court of Appeal (Civil Division): On 12 April 2024, both appeals were allowed and the proceedings were remitted to Judd J to determine the appropriate next course.
2. Family Court at Bristol: HH Judge Cronin found that A had suffered an abusive head injury while in the care of both parents and that both remained possible perpetrators. The finding was clarified on 15 November 2023 in proceedings numbered BS22C50071.