Re S (A Child: Finding of Fact)  EWCA Civ 1382
The appeal arises from a fact-finding hearing within care proceedings. In terms of background the main issue in the proceedings was how A (a girl then aged 2) came by a subgaleal haematoma (bleeding between the scalp and the skull).
The local authority alleged that it was an injury inflicted by A’s mother or by her mother’s partner, Mr T.
After hearing evidence from 3 doctors and 5 family members HHJ McPhee found that this had not been established.
The local authority supported by the Children’s Guardian and by A’s father challenged that result of the fact-finding hearing with permission granted by King LJ.
Quite rightly Lord Justice Peter Jackson in the leading judgment highlights an appeal of this nature faces a high hurdle given the important advantages enjoyed by the trial judge. It is well-established that an appeal court may only interfere with findings of fact in limited circumstances for example where there has been a material error of law or where there has been a serious flaw in the evaluation of the evidence or where it has been shown that the conclusion cannot reasonably be justified. In a case where all the evidence has been taken into account and the conclusion has been sufficiently explained, the fact that a judge has given more or less weight than might have been expected to a particular aspect of the evidence cannot lead to a successful appeal. [para 2]
The court found that a judge had erred in his approach to and analysis of the medical evidence and findings of fact relating to a serious head injury suffered by the child.
Firstly, the true effect of the medical evidence in this case was not brought into the final reckoning. There was a loss of focus on the core message from the medical evidence, which is that this injury was caused by a shearing force that was likely or very likely to have been caused by an action such as hair-pulling. [para 15]
Secondly, it is of course open to a judge to attach very great and even determinative weight to his or her judicial assessment that a witness is truthful, but a preference given to that assessment over evidence pointing the other way must be reasoned so that it can be understood. Here, it is clear that the judge was greatly impressed by the oral evidence of the mother and Mr T, but he does not explain how that impression is to be reconciled with his finding that they had given false evidence to him and unreliable accounts to others on a number of matters. Nor is there an explanation of how his assessment of their evidence fed into his ultimate findings. [para 17]
Thirdly, the mechanism for the injury is not adequately explored. There was also no investigation of how it might be medically plausible for a child to sit down to a meal without any visible injury but to end the meal showing an obvious and alarming injury to her head as a result of an incident a day earlier. [para 18]
Fourth, the judgment does not resolve the conflicts in the evidence about when and how the bruising to the eyes was caused. [para 19]
Finally, although the judge correctly directed himself on the civil standard of proof, his finding that there was “a real possibility that cannot be discounted” that the ‘car door’ incident caused the head injury suggests that by importing a concept from another context (‘pool’ findings) he was in fact rejecting the local authority’s case because he was not sure of it. Lord Justice Peter Jackson had difficulty with the assertion that the local authority was seeking to transfer the burden of proof to the mother and Mr T to prove their alternative explanation. In this case there was no mystery about what caused the injury: a significant shearing force. As to how the force arose, there were two realistic possibilities: the ‘car door’ incident or an undisclosed inflicted injury involving hair-pulling of some kind. The court’s task was to analyse the relative likelihoods of each possibility and then to ask itself whether the local authority had made out its case to the civil standard. For the local authority to have pointed out difficulties with the ‘car door’ theory involved no reversal of the burden of proof. [para 20]