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Re R (Children: Findings of Fact) [2024] EWCA Civ 153 (22 February 2024): Care proceedings

Appeal by M against finding that injuries to child were caused by one of 6 relatives who were present, rather than accident.

Appeal allowed & proceedings withdrawn. https://bailii.org/ew/cases/EWCA/Civ/2024/153.html

This Judgment was handed down by Lord Justice Peter Jackson on 22nd February 2024 and relates to an appeal which challenges a 'pool finding' in care proceedings concerning three small children. The proceedings began in July 2022 after the youngest child, C, then aged 8 months, suffered a serious head injury at home in the company of six female maternal relatives: her mother, her grandmother, three of her aunts and her sister, then aged 17. The judge found that the child had been shaken by one of the relatives but that the person responsible could not be identified. The application for appeal was made by the Mother, supported by the father and the other family members. The local authority opposes the appeal, while the Children's Guardian was neutral.

The appeal followed a finding of fact hearing in which findings were made that C had experienced a single episode of shaking resulting in a head injury and that her mother, grandmother, three of her aunts and her sister were in the pool of perpetrators for the injury.

The Mother sought permission to appeal in summary on the basis that the Judge had not given sufficient weight and consideration to the evidence of the family members and had placed inappropriate weight on the medical evidence. The appeal was allowed.

The full Judgment can be found at https://bailii.org/ew/cases/EWCA/Civ/2024/153.html

 

A summary of the case and relevant principles are set out below:

The key points from this case are that when considering allegations of non-accidental injury the Judge must consider and apply the following:

  • The Court must grapple with and draw conclusions from allof the evidence, medical and lay.
  • It is wrong to describe the medical evidence as the canvas against which the other evidence was to be considered. Medical and non-medical evidence are both vital contributors in their own ways to these decisions and neither of them has precedence over the other
  • It is not, strictly speaking, the court's task to determine how a child’s injuries were sustained, but its task is to thoroughly evaluate the cases presented by all the parties. The Judge should set out whether each of the witnesses case is accepted in the manner described and if not why not. That is a fundamental issue when assessing the credibility of the witnesses.

Background

The children are A (now 4), B (now 3) and C (now 2). At the time of C's injury, the parents' eldest child T (now 18) also lived at home. The maternal grandparents and the aunts (in descending age order, Aunt 1, Aunt 2 and Aunt 3) live in their own homes nearby. Aunt 2 is the manager of a children's home and Aunt 3 is a nurse. Between them, the aunts have seven children who have never attracted any professional concern. 

The local authority evidence described the family in very positive terms. Family life was very stable, filled with attending to the needs of children, father working, family gatherings, school and nursery. The parents were seen as being very capable and as showing a great deal of emotional warmth towards the children. Though somewhat overcrowded, the house was clean and well-maintained, and the children had appropriate routines, with T, A and B attending school and nursery regularly. There were no concerns about substance misuse, domestic abuse, or mental health. Extended family was very important and large gatherings were regular occurrences. There was a close bond between the siblings, nieces and nephews, grandparents and grandchildren. 

On the evening of 11 May 2022, a number of maternal family members congregated at the parents' home ahead of a trip abroad by the parents and children. The father was out of the home at work. A and B had been put to bed upstairs. Also present in the home with C were the six relatives mentioned above, and two cousins, aged 10 and 8, the daughters of Aunt 2. The ground floor of the property consisted of a living room and a kitchen, with a connecting corridor. The family (apart from the children who were asleep upstairs) gathered in the living room which, small as it was, contained three sofas.

A video of C, taken at 21.47, showed her to be happy and healthy.

At 22.24 Aunt 3 made a 999 call in which she said that C had fallen and hurt her head and that she was not breathing. An ambulance rapidly attended, and C arrived at hospital at 22.48. On arrival, a CT scan was performed, showing a large right-sided subdural haemorrhage. C required ventilation and intubation. She was transferred to a specialist hospital for emergency surgery and treatment. 

A number of investigations were conducted over the following days. They raised the suspicion of inflicted injury, and the police were involved at a very early stage. The parents were arrested and made subject to bail conditions. The family cooperated with the investigations. The initial social work statement (7 July 2022) said this:

"The parents have cooperated with the professionals both from the medical and social care settings. They have given statements to the police reporting C's fall... They have accepted the restrictions which have been placed on them and the care of the children. The parents want their children to return to their full-time care but understand that C has sustained a potentially life changing bleed to the brain and retinal haemorrhages… Both parents have been praying for C's safe recovery and have attended all supervised contact sessions to be with her.

The parents have attended all appointments pertaining to the children where it has been possible. They present as doting parents and have reported that their children have all been wanted children and therefore would not put any of them through any kind of harm.

The mother is insightful about the emotional needs of her children and having discussed their separation from their parents she has been able to consider the long-term impact for them and if they will experience any trauma from the processes which have been put into place.

The family are dedicated to the welfare of the children and are clear in their understanding of why the parents' contact is supervised, and whilst they do not accept that the parents hurt C, they accept there is a police investigation and Children Social Care involvement and wish to work with all agencies for the best interest of C, A and B." 

Following C's injury, A and B were placed with a paternal uncle and aunt. Fortunately, C appears to have made a good recovery, and on 8 June 2022 she was discharged into the care of her maternal grandmother. Until August 2023 the parents saw the children throughout each day, but bail conditions required supervision by family members. In August 2023, the father's bail conditions were varied to allow him to be unsupervised with the children, and at that point the three children moved back to the family home, while the mother and T moved out to sleep at the grandmother's home. In November 2023, the mother was allowed to return to live at the family home, but her time with the children remained supervised. On 19 December 2023, unusually as this appeal was pending, the proceedings were brought to an end with the making of a 12-month supervision order with the agreement of the parties. The mother was to remain supervised with the children for another three months, except that she could take and return them to school/nursery unsupervised. The question of T's return home remained to be considered.

It can be seen that, despite suspicion falling on the family, the children have continued to have unbroken contact with them and, in the case of the grandmother, that she looked after C for over a year after the child was discharged from hospital.

 

Fact finding hearing

In its threshold document in December 2022, the local authority alleged that C's injuries were likely to have been caused during one episode of abusive inflicted head trauma consistent with a shaking mechanism. The list of possible perpetrators consisted of the six female family members. The local authority submitted that if the court concluded the injuries were inflicted, the family had colluded to invent an explanation for the injuries and to present it to the authorities in an attempt to deceive them into believing that the injuries had been caused accidentally.

The fact-finding hearing took place before His Honour Judge Chaudhuri. The parents and T were legally represented, while the other family members were unrepresented intervenors. Additionally, the grandmother does not speak English, and required translation and interpretation throughout. The bulk of the hearing was taken up with medical evidence. The court heard from treating consultants in neurology, neurosurgery and paediatrics, and court-appointed experts in haematology, genetics, neurology, paediatrics, paediatric neuroradiology and ophthalmology. Seven days of evidence were given in February 2023. The case was then adjourned after a medical witness became ill and had to be replaced. In June 2023, evidence was heard on five more days. The seven family members (the six female relatives and the father) were last to be heard, and their evidence collectively took little over a day.

The judge gave judgment on 26 June 2023. It is a substantial decision, running to 37 pages (215 paragraphs). On 2 and 3 August, he provided a number of corrections and clarifications and refused permission to appeal in what I will describe as the second judgment.

The mother renewed her application for permission to appeal to this court. There were three grounds of appeal. Ground 1 concerned the treatment of the evidence of the family. Ground 2 concerned the treatment of the medical evidence. Ground 3 concerned the judge's approach to the assessment of the probable cause of C's injuries. On 25 October 2023, I granted permission to appeal on grounds 1 and 3 and refused permission on ground 2.

The medical findings

Prior to 9:47PM on 11 May 2022 there was nothing that I have read or heard to indicate that C was unwell in any way.

"167. Drawing all the medical evidence together it appears that:

The judge summarised and assessed the complex medical as follows:

At some time between 9:47PM and 10:25PM on 11 May 2022 C suffered a head injury.

iii. These injuries were identified as multifocal subdural bleeding (the largest collection being over the right cerebral convexity, with collections on the left and in the posterior fossa), global severe hypoxic ischaemic brain injury, a ligamentous injury to the cervical spine, a thrombosed bridging vein and multiple and extensive retinal haemorrhages extending from the posterior pole into the peripheral retina. Both optic discs were pink in slightly congested and there were prominent perimacular folds in both eyes."

"178. The medical evidence, therefore, points to the following conclusions:

C's subdural haematoma could have originated as a result of the fall but more probably were attributable to a single shaking event.

C became acutely encephalopathic at home sometime between 9:47PM and 10:25PM on 11 May 2022.

iii. The multiple and extensive retinal haemorrhages extending from the posterior pole into the peripheral retina together with the prominent perimacular folds in both eyes could have been caused by raised intracranial pressure, though unlikely to have been caused by surgical intervention, but more probably were attributable to a shaking event between the times that I've stated above.

C suffered a thrombosed bridging vein. I accept that these are often seen in anterior to posterior motion head trauma. This motion avulses the subdural veins and some injured veins go on to thrombose or clot off.

C suffered a severe, global hypoxic ischaemic brain injury. I accept that her brain was diffusely and globally abnormal. This injury is more probably attributable to a shaking event, again between the times I've stated above.

C also suffered a cervical spinal ligamentous injury. It is unlikely that this injury was caused by a fall but more attributable to a shaking event."

Refusal for permission to appeal on Ground 2

Lord Peter Jackson refused permission to appeal on ground 2 on the basis that the judge did not treat any aspect of the injuries as diagnostic. The debate about serious head injury from low-level falls is well-trodden territory and the medical picture was bound to remain that these injuries were a very unlikely, but not impossible, consequence of the event described by the family. Indeed, having assessed the medical evidence, the judge then immediately and rightly directed himself in these terms:

"179. As I've already stated the court cannot consider the medical evidence in isolation. The evidence in this case cannot be assessed and considered in separate compartments. I therefore now consider the medical evidence alongside the other evidence, particularly the evidence given by the parents and the family members, and consider the wider canvas."

Findings made at the Fact Finding Hearing

Following conclusion of the Fact Finding hearing the Judge made the following findings:

"211. I therefore find on the balance of probabilities that: 

between 9:47PM- 10.25PM on 11 May 2022, C sustained multi focal subdural bleeding (the largest being over the right convexity, with collections on the left and in the posterior fossa), encephalopathy, a severe global hypoxic ischaemic brain injury, ligamentous damage to the cervical spine, a thrombosed bridging vein and multiple retinal haemorrhages extending from the posterior pole into the peripheral retina and prominent perimacular folds in either eye.

I cannot identify the perpetrator. 

I do not find evidence of collusion between those named on the list.

I acknowledge that these are serious findings for the mother, her daughter, her sisters and C's grandmother. Future assessments will have to determine whether C can be returned to the mother and father's care.

The findings that I have reached should not prevent any social worker from keeping an open mind as to the future return of not just C but her two siblings to the care of her parents. Much will depend on their response to my judgment and how they propose C and her siblings can be protected in future if they were returned to their care. 

I note that in so far as the maternal aunts are concerned, they have looked after their children, where appropriate, without any concerns by any agency. That is a significant factor to be borne in mind. Some are in responsible roles. I appreciate this judgment may have implications for their employment. I can only hope that their historically, trouble free time in their employment and the fact that they have looked after and cared for their children without any prior concerns are given serious consideration and weight by the relevant authorities. 

The maternal grandmother has looked after C since the 8 June 2022. Whilst in her care, C has not come to any harm. I sincerely hope she will be allowed to continue to look after C despite this court's finding. I appreciate that may be unusual in the light of my findings, but the grandmother had provided care to C for over 12 months and the risk of emotional harm in moving C from her care is a factor I consider to be very important."

The Appeal

On 2nd August 2023 clarification and permission to appeal was sought on behalf of the Mother which was refused and on 3rd August 2023 the Judge provided further responses in the context of the application for permission to appeal.

On 25th October 2023 the Court of Appeal gave permission for appeal on grounds 1 and 3 namely - Ground 1 concerned the treatment of the evidence of the family and Ground 3 concerned the judge's approach to the assessment of the probable cause of C's injuries.

In the substantive appeal hearing Counsel for the Mother Mr Newton argued that the medical evidence left open the possibility of accidental causation and that the judgment was so flawed in respect of the assessment of credibility and probability as to be invalid. The judge made mistakes and wrongly described the witnesses as giving "widely differing accounts" (paragraph 203). He was further wrong to find in the same paragraph that those differences cast doubt on their veracity, when (as the judge accepted) witnesses will not always see an event in the same way.

Mr Newton further submitted that the judge failed to take account of the high degree of improbability surrounding both an inflicted injury and a subsequent cover-up. He did not evaluate this aspect of the evidence with due regard to the good character of the witnesses, the particular circumstances existing in the home and the quality of the family's evidence.

Responding for the local authority, Mr Jonathan Bennett, who did not appear at trial, rightly reminded us of authority that emphasises the high degree of caution that must be shown by an appeal court when it is asked to disturb considered findings of fact: see Re T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475 at [56-57], citing Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114] and Volpi v Volpi [2022] EWCA Civ 464 at [2]. That approach applies with no less force in the family jurisdiction. 

Mr Bennett relied on the fact that the judge had correctly evaluated the complex medical evidence, which formed a crucial element of the case. He remarked that this formed an important basis against which the other evidence fell to be considered. While he accepted that the medical evidence was not diagnostic of inflicted injury, observations made by some of the medical experts did not fall far short. Any other explanation was not a real possibility. In defence of the judge's commentary on the family's evidence, Mr Bennett's skeleton argument grappled with a number of the evidential details, but in his oral submission he very fairly accepted that there was a core consistency to the family's account. However, he submitted that none of the judge's errors were substantial enough to vitiate his overall findings, and he was not obliged to refer to every piece of evidence. In relation to the assessment of probabilities, the judge took account of their good character and his reference to Re B was apposite. Within his conclusion that C's injuries were a consequence of a single episode of shaking lay an implicit rejection of the family's account of a fall; alternatively, and more probably, the judge was satisfied on the strength of the medical evidence that a low-level domestic fall as described would not have caused C's injuries. He did not have to go further than he did and the conclusions he reached about infliction and collusion were ones that were open to him.

Decision of the Appeal Court

Lord Peter Jackson made the following conclusions:

I start by acknowledging that this appeal and the proceedings before the judge are not symmetrical. As noted above, the bulk of the trial was taken up with medical issues that are not open to the appellant on this appeal. The judge had to deal with a considerable amount of complicated medical evidence and argument, pursued in great detail by Mr Newton both before and after the delivery of judgment. The limited basis upon which permission to appeal was granted allows the essential contours of the evidence to emerge more clearly without detracting from the judge's weighty and undisturbed medical findings.

This was an unusual case. Adopting a familiar metaphor, the canvas of evidence was small, densely filled, and the court could see it all. C's injuries were sustained in a confined space during an extremely short time window in such close proximity to eight other family members (including the cousins, aged 10 and 8) that they must all know more or less what happened to her. 

As to that, there were just three scenarios. The first is that C fell as described and sustained these very serious injuries. The second is that C fell as described but was also shaken. The third is that C was shaken and did not fall at all. 

The court was therefore called upon to evaluate a number of competing improbabilities. The first scenario involved C suffering injuries that were highly unlikely, individually and collectively, to have resulted from a banal domestic fall. The other two scenarios involved other kinds of improbability. In the second scenario, that of a child being shaken by an otherwise loving relative in the midst of a good-natured family gathering; in the last scenario, that of a sustained cover-up on the part of an entire family whose history contains none of the general risk factors that are associated with child mistreatment, while all of the protective factors are strongly present: cf. Re BR (Proof of Facts) [2015] EWFC 41at para. 18. The court's evaluation had to take account of the fact that unlikely events occur all the time, although the probability of them arising in any individual case is extremely low: ibid at para. 7. 

I do not agree with the judge's concept of speculation at paragraph 204. Of course he was right to say that the court's task was to determine whether the local authority had proved its case on threshold on the balance of probability. However, that involved grappling with and drawing conclusions from all of the evidence, medical and lay. The medical appearances were clear and the explanation for them was highly likely; but it was not certain, as the judge acknowledged by his finding at paragraph 178i. Against that, the court had the accounts of six people who were with C at the time she was injured. It is wrong to describe the medical evidence as the canvas against which the other evidence was to be considered. Medical and non-medical evidence are both vital contributors in their own ways to these decisions and neither of them has precedence over the other. 

I consider that the submissions about the details of the judge's assessment of the family's evidence (paragraph 26 above) have force, though they might not on their own lead to a successful appeal. My concern about the judge's approach is a broader one. It was not, strictly speaking, the court's task to determine how C's injuries were sustained, but it was its task to thoroughly evaluate the cases presented by all the parties. Unfortunately that did not occur. Most obviously, the judgment does not tell the reader, or the family, whether the judge accepted that C fell over in the manner described. That was a fundamental issue when assessing the credibility of the witnesses. The judge's commentary on their evidence consists only of a number of relatively superficial and not always accurate observations about matters of detail, and it is not clear whether he considered their accounts to be widely differing (first judgment at paragraph 203) or relatively consistent (second judgment at paragraph 50). It was a necessary part of the judicial task, and involved no element of speculation, to reach a conclusion as to whether these witnesses were telling the truth or lying about a simple described event. It is not sufficient to leave the matter dangling by referring to "the alleged fall" (paragraph 203), and the second judgment, where the judge records (paragraph 27) that he rejected the case regarding an accidental fall, equally leaves uncertainty about the basis for the rejection. In short, if the family's explanation for the injuries was disbelieved, it was the court's responsibility to explain in clear terms why that was. This was important, firstly because C's relatives were entitled as a matter of fairness to know what the judge had made of their sworn evidence, and secondly because the nature of the risks differed as between the second and third scenarios. In the third scenario, the court would be faced with an entire family that was prepared not only to dishonestly suppress the truth but also to plausibly invent a lie, something that would have implications for child protection and the level of risk. 

When providing clarification or refusing permission to appeal (however excessive the parties' request) it is inadvisable for a court to enter into the degree of detail that occurred here. As it is, the judge's approach is further undermined by the emphasis he placed upon Re B at paragraphs 47-48 of the second judgment. As Baroness Hale made clear in the cited passage at paragraph 73, the inherent probabilities no longer apply when an assault is known to have occurred. In this case, an assault was not known to have occurred and the judge's disavowal of the need to assess the improbability of one happening in such a witnessed setting was a clear legal error.

The same error of approach can be seen in relation to the treatment of the allegation of collusion. On the facts of this case, a finding of collusion was an inevitable consequence of a finding of inflicted injury (indeed the judge appeared to come close to finding collusion at paragraph 201), and his explanation at paragraph 210 for not following through on his first impression is not sustainable. Here, there was no analogy between failure to protect and collusion, because the irresistible evidential consequence of a finding of inflicted injury was that the other family members were bound to know what had happened and who had done it. A finding of collusion would not be a 'bolt-on' but the result of the normal process of drawing inferences from evidence. The fact that the court could not know precisely how the family had conspired did not mean that it would be indulging in suspicion or speculation, and to find that the local authority had proved one part of its case but not the other was not coherent.

There are two unsatisfactory consequences. The first is that the judge did not take account of all relevant matters before reaching a conclusion about infliction. The local authority's case was that the child had been assaulted and that the family had colluded. It was the court's task to assess the evidential likelihood of the allegation as a whole: by separating the two elements, it deprived itself of the opportunity to take account of the whole picture, and to ponder the limited opportunity for the family members to have given a broadly consistent account of a fall immediately in the 999 call and then to police the following day, while at the same time colluding to suppress any reference to an assault. Secondly, by making one finding but not the other, the court pulled its punches. A finding of collusion (which involves sustained, deliberate lying by a number of people who could be expected to have C's best interests at heart) might be thought to be worse in some ways than a finding of infliction (which may be the result of a momentary loss of control). It is also difficult to understand how the judge's closing remarks, sympathetic to the two aunts who are in responsible professional positions, could reasonably stand alongside a finding that carried the necessary implication that they had culpably lied to the court and to the child protection authorities.

Stepping back, I therefore conclude that the judge did not carry out the necessary evaluation of the evidence for and against the local authority's case or meaningfully synthesise an assessment of the probabilities. There may be cases where the court has good reason to be inherently sceptical about a witness's evidence, but this was not one of them. The digest of the family's account in the APPENDIX shows that this family's account deserved careful consideration and, if it was to be rejected, clear and cogent reasons. Apart from the judge's relatively peripheral comments about the evidence, no such reasons were given. This was particularly pointed in the case of Aunt 1, whose account clearly deserved attention. 

At paragraph 200 the judge referred to R v Lucas [1981] QB 720, but he had no cause to give himself this direction as an awareness of other possible reasons for lying will self-evidently only come into play after the court has found that a witness has indeed lied. In the present case there were no admitted lies and the judge did not explicitly find that lies had been told or identify what they were. The most that he said was that he was "concerned" about the family members' reliability. In the following paragraph he said that the simple explanation for the family's "united front" was to protect the perpetrator or themselves. That might of course be so, but another explanation was that the family members were telling the truth, and it is unclear why the judge rejected that possibility.

For all of these reasons, the judge's reasoning does not sustain his conclusions. The demanding test for interfering with finding of facts has been met. I would allow the appeal.

The remaining question concerns consequential orders. The situation is unusual in that the underlying proceedings were concluded in December and the children are at home under a supervision order. In those circumstances, Mr Bennett told us that if the appeal was allowed the local authority would not seek a retrial but would instead apply to this court to withdraw the revived proceedings. The result would be that the cause of C's injuries would remain unexplained and that there would be no finding against family members. In the particular circumstances, that appears to me to be a sensible and realistic position for the local authority to take, but we will need to know the position of the family members and the Children's Guardian (to be communicated within 7 days of the handing down of our draft judgments, accompanied by a draft order) before we reach a conclusion about it.

Post Appeal

Having received the judgments in draft, the parties filed an agreed draft order, which was approved in these terms:

1) The appeal is allowed.

2) The findings of fact made by His Honour Judge Chaudhuri in a judgment of 26 June 2023, formally handed down on 19 July 2023, are set aside.

3) The supervision orders in respect of the children made on 19 December 2023 are discharged.

4) The 1st respondent local authority is granted permission to withdraw its revived application for public law orders, and the proceedings in respect of the children are concluded, on the following basis:

  1. a) The local authority proposes to work with the family under a Child in Need plan for a period of time.
  2. b) The appellant mother, and the respondent father agree to work with the local authority with the provision of Child in Need services for a reasonable period.
  3. c) On that basis, the local authority does not seek to relitigate the fact-finding hearing.
  4. d) The mother confirms that she does not wish for there to be a rehearing of the fact-finding hearing.
  5. e) The mother's solicitors have obtained written confirmation from the father and guardian's solicitors and from each of the five interveners that they do not seek a rehearing of the fact-finding hearing.
  6. f) In consequence of the above, the injuries sustained by child C remain unexplained.

5) There shall be no order as to costs, save detailed assessment of the publicly funded parties' costs.