K and G (Care Proceedings: Fact-Finding)

In care proceedings, a judge need not structure a fact-finding judgment by slavishly following the local authority’s threshold document. The essential requirements are procedural fairness, sufficient notice of the findings sought, and a judgment that addresses the known parameters of the case. A judgment need not mention every item of evidence or every argument, provided it explains the conclusions reached. Appellate restraint applies equally where a trial judge concludes that a perpetrator cannot be identified, or that a further evaluation cannot safely be made. Where inflicted injury is proved but the perpetrator remains uncertain, findings may nevertheless establish the threshold under Children Act 1989 s 31(2), leaving future safety and welfare to be addressed through risk assessment.

A local authority appealed findings made by Recorder Hennessy after a fact-finding hearing in care proceedings concerning two young children in the Family Court at Liverpool. The recorder found that injuries to the child G’s cheeks and shoulder were bite marks, and that either parent was a possible perpetrator, but she could not identify the perpetrator on the balance of probabilities. She found an ear injury unexplained and made no specific finding on failure to protect. The appeal was supported by the children’s guardian and both parents, all seeking a rehearing. The central issues were whether the recorder’s judgment was defective because it did not follow the threshold document, inadequately analysed the evidence, failed to address the ear injury and failure to protect, and wrongly applied the law concerning inflicted injury.

1. Appeal dismissed. The parties’ agreement that the appeal should succeed did not determine the issue, which was for the appellate court.
2. A fact-finding judge need not structure the judgment in accordance with the local authority’s threshold document. The judge must ensure a fair hearing, including sufficient notice of the findings and evidence relied upon, and must determine matters within the known parameters of the case. A schedule of findings appended to the order may be helpful, but a formalistic structure is unnecessary.
3. Where an aspect of the findings is omitted or unclear, the parties should first seek clarification from the trial judge in accordance with Re YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71. The omission must be material before an appeal is justified.
4. The recorder’s analysis of the bite marks was sufficiently clear and cogent. She was entitled to find that the medical evidence, although making the father more likely, did not establish his responsibility on the balance of probabilities, and that both parents remained in the pool of possible perpetrators. The submission that she should have identified the father was rejected.
5. A judgment need not recite all the evidence or address every argument. As explained in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, reasons need only show the principles applied and the reasons for the decision. The absence of reference to particular evidence does not establish that it was overlooked. Applying Volpi v Volpi and another [2022] EWCA Civ 464, the recorder was entitled to find the ear injury unexplained.
6. The failure-to-protect allegations were added after the evidence and were linked to identification of the perpetrator. In light of the recorder’s inability to determine where the truth lay, it was unnecessary and disproportionate to remit the case for a specific finding.
7. Appellate restraint extends to findings of primary fact, evaluations and inferences, and to a first-instance judge’s conclusion that a fact cannot safely be found or that a complete evaluation cannot be made. The findings were sufficient to establish the threshold under Children Act 1989 s 31(2). The children’s future care required a risk assessment, potentially using the Resolutions model.

• Court of Appeal (Civil Division): The local authority appealed the fact-finding outcome of Recorder Hennessy in the Family Court at Liverpool. Permission to appeal was granted on 3 June 2025. The appeal was dismissed.