O (Children: Fact-Finding), Re

In a fact-finding appeal, an appellate court must respect the trial judge’s advantage in seeing and hearing the evidence. It must nevertheless intervene where the findings cannot reasonably be explained or justified. Strong, coherent expert evidence may be displaced by lay evidence only where the latter is compelling and reliably established. A judge must not speculate about an ungrounded medical explanation or treat theoretical possibilities as sufficient to reject expert consensus. The court must assess medical and non-medical evidence in the correct order, giving proper weight to objective clinical evidence and testing the reliability of the carers’ account. Where the evidence permits only one outcome, the appellate court may substitute findings rather than remit for a complete rehearing.

Care proceedings concerned severe head injuries suffered by a three-week-old child. The parents had initially maintained a false explanation involving an accidental injury, but later admitted that the father had assaulted the mother while she was holding the child.

After an eleven-day fact-finding hearing, the Family Court at Norwich found that the local authority had not proved that the child’s diffuse axonal injury and skull fracture were caused between two hospital attendances. The judge considered that all the injuries were probably sustained during the admitted assault on the previous night. The local authority appealed, supported by the Children’s Guardian, challenging the treatment of the expert evidence, the assessment of the parents’ credibility and the weight given to the family’s background.

The central questions were whether the findings were reasonably open to the judge and, if not, whether the case should be remitted or findings substituted.

1. Appeal allowed. The appeal concerned the weight given to evidence by a specialist fact-finding judge, so the appellate threshold was exceptionally high. The governing principle was that intervention is justified only where the decision cannot reasonably be explained or justified: Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600.
2. The medical evidence distinguished between mechanism and timing. The experts allowed that the injuries could have resulted from the admitted assault, although that was unlikely. But they were united that the child’s diffuse axonal injury, and probably the fracture, could not realistically have been sustained on the previous night. The evidence indicated a very recent injury before the second admission, while the first admission recorded a child assessed as normal.
3. The trial judge had no evidential basis for finding that signs of diffuse axonal injury had been missed at the first admission. The alternative of a declining or slow-burn course was excluded by the experts. The caution that present medical certainty may later be revised, referred to in R v Cannings [2004] EWCA Crim 1 and Re U (A Child) [2004] EWCA Civ 567; [2004] 3 WLR 753; [2004] 2 FLR 263, did not justify speculation where no expert suggested that the relevant medical knowledge was uncertain or at the frontier of research.
4. The parents’ evidence required careful assessment, but their lies did not automatically require its rejection. In this case, however, the medical evidence was so strong that only a compelling and reliably supported parental account could displace it. The judge made no positive finding that either parent was reliable about the crucial period between the admissions. His conclusions that a second event was vanishingly unlikely and that deliberate intent would have to be shown did not reasonably follow from the evidence. The family’s social background could not make the occurrence of a further injury less probable once it was established that the child had been injured.
5. The findings that the local authority had failed to prove its case and that there had been only one incident were therefore not reasonably open to the judge. The court set aside the relevant findings and, pursuant to the parties’ agreed position, remitted the matter for an urgent fact-finding rehearing focused on causation, failure to protect and dishonesty. The rehearing was to proceed on the basis that there had been a second undisclosed event between the admissions during which the diffuse axonal injury, and possibly other intracranial injury, was caused, with the existing expert and treating evidence standing.

• Court of Appeal (Civil Division) — The court unanimously allowed the local authority’s appeal from the Family Court at Norwich. The relevant findings were set aside and the matter was remitted for an urgent fact-finding rehearing on an agreed evidential basis.
• Family Court at Norwich — HHJ North, in judgment dated 23 January 2025, found that the local authority had not proved that the child’s most serious injuries were caused between the two hospital attendances and considered that all injuries were probably sustained during the admitted assault.