Court of Appeal allows appeal in challenge to 'pool finding' in care proceedings

The Court of Appeal has overturned a Family Court decision concerning an injured child because of a series of legal errors.

Giving judgment in R, Re (Children: Findings of Fact) [2024] EWCA Civ 153, Lord Justice Peter Jackson said the Family Court’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 case concerned care proceedings for three small children. In July 2022, the youngest child, C, then aged eight months, suffered a serious head injury while at home with her mother, grandmother and other family members.

In the Family Court it was held that C had been shaken by one of the relatives but the person responsible could not be identified.

C’s mother appealed and this was opposed by the unnamed local authority in the case.

Appeal judges heard that there were four children in the family which had never previously attracted any professional concern.

On the evening of the incident an aunt made a 999 call and said C had fallen and hurt her head and was not breathing.

A CT scan at hospital showed a large right-sided subdural haemorrhage. C was transferred to a specialist hospital for emergency surgery and treatment though ultimately made a full recovery.

Later investigations raised the suspicion of inflicted injury, and the parents were arrested though social work reports noted their co-operation.

Various restrictions were placed on the parents’ contact with the children through bail conditions but, despite suspicion falling on the family, the children had continued to have unbroken contact with them.

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 six female family members. The local authority submitted that if the court concluded the injuries were inflicted, then the family had colluded to invent an explanation to deceive it into believing that the injuries had been caused accidentally.

A fact-finding hearing in the Family Court heard from the family and consultants in relevant medical fields.

The mother went to the Court of Appeal over the Family Court’s treatment of the family’s evidence and the judge's approach to the assessment of the probable cause of C's injuries.

Peter Jackson LJ said: “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.”

This left the court to “evaluate a number of competing improbabilities” since the first scenario involved C suffering injuries that were highly unlikely to have resulted from a simple domestic fall.

The other two scenarios “involved other kinds of improbability” with C being “shaken by an otherwise loving relative in the midst of a good-natured family gathering” or “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”.

Peter Jackson LJ said the Family Court judge had been 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,” he said.

He explained: “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…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 or relatively consistent.”

Peter Jackson LJ said it had been necessary to reach a conclusion on whether the family were lying about the incident.

“It is not sufficient to leave the matter dangling by referring to ‘the alleged fall' [and] where the judge records 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.”

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”, Peter Jackson LJ said.

The local authority's case was that the child had been assaulted and that the family had colluded, so 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, “ Peter Jackson LJ said.

“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).”

He concluded the Family Court 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” and said “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.”

Lord Justice Dingemans and Lord Justice Snowden both agreed.

Mark Smulian