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A-C (A Child) [2013] EWCA Civ 1321

Appeal by father and grandmother of findings of fact within care proceedings

The father and paternal grandmother appealed findings of fact made within care proceedings  which concerned a child, M, but in which the focus had been on rib injuries suffered by a previous child, S. S had died in babyhood of natural causes but had been found, post mortem, to have suffered multiple rib fractures.

Following M's birth, proceedings ensued during which the trial judge made a finding against the father that he had been the perpetrator of the injuries to S. She also found that the paternal grandmother (who was a practising social worker) had advised the mother to conceal a history of domestic violence and had deliberately attempted to hide information from the court relating to a previous historical incident of violence involving the father.   

The local authority, supported by the guardian (although having originally sought only for both parents to remain in the "pool" of perpetrators) considered that the findings should stand, as did the mother.

Having decided that the father should have permission to appeal, Black LJ considered it would be artificial to treat the grandmother otherwise and therefore granted leave to both for a full appeal.

In his judgment for the appellate court, McFarlane LJ set out the context and background, namely that:

 -    In a hearing over ten days, the focus had been on the timing and degree of force of the injuries (which were found to have been non accidental and to have occurred during an "unpremeditated act") and on the past behaviour of the parents, including past alleged violence of the father and the mother's behaviour to professionals.

•  That there were four possible perpetrators (both grandmothers being subsequently ruled out).

• That there had been a "deal" of evidence in respect  of the parents' relationship and additional evidence in relation to the paternal grandmother.

• That the trial judge had made findings in respect of violence against not only the father, but also the mother (during the relationship). She had also found that it was likely that the father had "damaged internal and/or external inhibitors". She had further found that the mother, father and paternal grandmother had all lied. She had nevertheless accepted the veracity of the mother's evidence of the paternal grandmother's advice to her to conceal the history of domestic violence

• That (in a judgment described as " rich in detail and striking in the clarity of language used") the trial judge had set out fully the factors she considered relevant to the infliction of the injuries, including having considered that the lack of evidence of the father having had sole care of S did not preclude his having had the opportunity to inflict the injuries when others had been "present but not in the immediate vicinity".

The father's case, as finally put to the appellate court in submissions, was that the judge had had insufficient material upon which to conclude that he was the sole perpetrator and that (in the absence of expert evidence on the point) she had gone too far in making findings as to his "damaged internal/external inhibitors". Moreover, she had failed to balance her analysis; leaving out evidence in respect of the mother's character and behaviour that should have lead her to conclude neither parent should be ruled out.

The paternal grandmother's case was that the judge had been unfair in her interpretation of her oral evidence (mistaking inadequate memory of past events for obfuscation). She had also been wrong, given her findings as to the mother's general credibility, to rely on the mother's evidence in respect of the grandmother.

Dealing briefly with the case law (which he regarded as "uncontroversial") McFarlane LJ reminded himself of the "real possibility" test to be applied to the "pool" of perpetrators and that a finding of a sole perpetrator could only be supported if, on the balance of probabilities, the evidence supported that conclusion.

Although "highly reluctant" to interfere with decisions of first instance and having regard to the "unique perspective" of the trial judge, there would be a duty to intervene if the court concluded that she had acted in a way "outside the legal context" and had made impermissible findings based on "mere suspicion or conjecture" rather than "established fact".

Although the established evidence was more than sufficient to support a finding against the father, it could equally be said to support a similar conclusion in respect of the mother. To move beyond suspicion, there was a need for established fact(s) in respect of the father upon which an inference of sole responsibility for the injuries could be based.

Whilst neither the local authority nor the mother argued that the historical allegations went beyond propensity, the mother identified a list of factors which she asserted supported a finding against the father only. McFarlane LJ was struck by the extent to which these could equally be applied to support a finding against the mother and concluded that they were not sufficient to support a positive finding that the father was the sole perpetrator.

Whilst it might be understandable that the judge had thought the father to have been the more likely perpetrator, without even some small finding of fact to go to in the evidential balance (upon which a reasonable inference of perpetration could be based) the conclusion that the father was the sole perpetrator could not stand.

The finding should be set aside and replaced by one leaving both parents in the pool of potential perpetrators.

In respect of the first limb of the grandmother's appeal (the trial judge having found, in the light of the quality of her evidence about previous violence, that the grandmother knew or suspected that her son had inflicted the injuries), given that the finding that he had been the sole perpetrator had been overturned, the conclusion that the grandmother had known could not stand and should be set aside.

With respect  to the remainder of her appeal, given the judge's assessment of the grandmother (which fell plainly within her role as trial judge) and given evidence of the father's previous violence that had been made available to the court through other sources, the judge had been fully entitled to conclude that the grandmother had been economical with the truth.

Similarly, the finding in respect of the grandmother conveying to the mother that she should keep quiet about previous domestic violence, should stand, even though the source was the mother. The judge had found the mother to have "flashes of truth" and it was for her to evaluate the credibility of witnesses.

Accordingly, McFarlane LJ set aside the finding in respect of the father as sole perpetrator and allowed his appeal in full. The grandmother's appeal was allowed only on a limited basis only, with all other aspects of the judge's findings in relation to her being upheld.

Summary by Katy Rensten, barrister, Coram Chambers


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Case Nos: (1) B4/2013/1429
(2) B4/2013/1462
Neutral Citation Number: [2013] EWCA Civ 1321
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PONTYPRIDD COUNTY COURT
(HER HONOUR JUDGE MIFFLIN)

Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday, 4th September 2013

Before:

LORD JUSTICE PATTEN

LORD JUSTICE McFARLANE

and

LORD JUSTICE FLOYD
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(1) IN THE MATTER OF A-C (A CHILD)

(2) IN THE MATTER OF A (A CHILD)
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(DAR Transcript of WordWave International Limited
A Merrill Communications Company
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- - - - - - - - - - - - - - - - - - - - -

Ms Frances Judd (instructed by Spicketts Battrick Law Practice) appeared on behalf of the First Appellant father and Second Appellant paternal grandmother.
Mr James Tillyard QC and Mr Matthew Barry (instructed by Rhondda Cynon Taff  County Borough Council) appeared on behalf of the First Respondent local authority.
Ms Ruth Henke QC (instructed by RDW Harris) appeared on behalf of the Second Respondent mother.
- - - - - - - - - - - - - - - - - - - - -

Judgment
(As Approved)
Crown Copyright©

LORD JUSTICE McFARLANE:   
1. This is an appeal brought by, respectively, the father and separately the paternal grandmother, of a young child, a girl, M, born on 7 May 2012 and therefore now some 16 months of age.  The appeal arises in the course of care proceedings which have been ongoing in the local county court in relation to M, but in fact the focus of the proceedings has been upon the tragic life and death of the first child born to this family.  She, a girl, S, born prematurely on 2 May 2010 but discharged home some three weeks of age to the care of her mother, but living with at that stage the maternal grandparents, died on 9 August 2010, by which time she had been living for a period of some weeks in the care of the mother and, as the judge found, for most of the time the father, although the relationship between the mother and father was described by both of them, and found by the judge to be, a volatile one at that stage. 

2. The cause of S's death is unrelated to these proceedings.  No sinister findings are sought in relation to the tragic fact that she died of natural causes.  But in the process of investigating her death, it became understood and then established by the medical investigators that during her life she had sustained no fewer than eight fractures to the posterior ribs.  The fact that she had sustained those fractures obviously caused concern and led initially to a police investigation, which came to be closed without any charges being brought.  When the local authority understood that the mother was expecting a second child, M, the subject of these proceedings, steps were taken to protect that child following her birth, and then to investigate within these care proceedings how it was that baby S came to sustain the eight rib fractures. 

3. So far as M is concerned, and the case in general, we are informed that effectively from birth she has been cared for by her maternal aunt, and the care proceedings following the finding of fact hearing conducted by HHJ Mifflin, which concluded in a judgment on 13 April 2013, are due to conclude at a final hearing listed for 1 October.  The two appeals relate to the findings of fact made by HHJ Mifflin in her judgment given on 13 April.  The findings made by the judge, insofar as they relate to the father, were that on the balance of probabilities the father was the perpetrator of the one incident which caused young S to sustain these fractures. 

4. So far as the paternal grandmother is concerned, the judge made separate findings in relation to her.  Those findings were, firstly, that the grandmother had advised the mother not to tell any of the investigating social workers of any history of domestic violence, because it might lead to a suggestion that the mother had failed to protect the children; and secondly, that when she gave her evidence to the judge, the grandmother, when asked about an occasion in 2003 when her own son, M's father, was himself only 16 years of age, the grandmother apparently accepted that there had been an incident when the father had been seen by the police, but she was very vague about the circumstances, and the judge found that her vagueness, which subsequently came to be clarified to a degree by her and then clarified in more detail by other family members, was a deliberate attempt by her to hide the circumstances from the court.  The significance of that finding, serious though it is in one respect in any event, is more serious to this grandmother because she is a practising social worker, and we are told that the finding has had an impact upon her own professional circumstances, and her relationship with her employers.

5. Any appeal in relation to a fact-finding determination faces an uphill task in the Court of Appeal, and it was with that filter in mind that Black LJ approached the case when considering whether permission to appeal should be granted.  However, Black LJ was persuaded that there was sufficient merit in this case to grant the father permission to appeal, and she was also persuaded that if the father was to be having a full appeal, it was artificial to do anything other than grant the grandmother permission as well.  So we have now heard the full appeal of both of those parties.

6. In order to set the matter in context, it is necessary to describe the hearing as it was before HHJ Mifflin.  The judge primarily, obviously, focused upon the rib injuries.  There was a dispute on the medical evidence, and a need to resolve it as to the timing or the window of time during which it was probable that the injuries had been sustained.  It was necessary for the judge to be advised about the degree of force likely to have been required to cause a young baby to sustain these injuries, and that inquiry was also complicated, at least in the early stages of the proceedings, by the fact that one of the experts considered that baby S might have a weakness to her bones.  There was also a need to consider evidence about the past behaviour of the parents. 

7. In relation to the mother, the local authority sought findings as to her behaviour in the special care baby unit, or the neonatal intensive care unit, and elsewhere from time to time when relating with professionals.  In addition there was a need for the judge to consider evidence relating to the past alleged violence of the father.  And it was also the case at the start of the hearing that the court had to consider the possibility of four potential perpetrators.  Plainly, the mother and father were in the pool, but also both the paternal grandmother and the maternal grandmother were considered sufficiently proximate to what had gone on in terms of the care of S to require consideration as potential perpetrators.  Those two ladies were therefore interveners in the proceedings and separately represented.  In addition, there was it seems to me quite a deal of evidence given as to quite when it was that the mother and father and baby S moved out of the maternal grandparents' home and set up home on their own.   Following on from that, the judge plainly heard a deal of evidence from the parents and other family members as to the relationship between them as a couple, the parents, and also their relationship with S. 

8. Finally, there was the additional evidence in relation to the matters found against the maternal grandmother.  And all of that was laid out before the judge in writing and orally, in order for her to find such facts as were relevant.  The purpose of the hearing was both to assist planning for M and her future care, but also to determine whether the threshold criteria in section 1 of the Children Act was established.  The hearing lasted ten days.  The judge heard live evidence from four of the experts, and heard from 24 other live witnesses.  Thirteen of those were family members or neighbours; eight of them were nurses of the neonatal unit, two were social workers; and one was the health visitor.

9. Turning to look at the judge's conclusions in more detail, the judge found that the rib fractures were indeed non-accidental injuries and that they were not related to the cause of S's death.  She found as to the timing that they probably occurred in the window of time between 19 July and 26 July 2010.  She found that the degree of force required was out of the ordinary, and she in particular adopted the formulation of the paediatric expert, Dr Cartlidge, which she repeats at paragraph 94 of her judgment:

"if it happened in the same room and you were watching somebody that a responsible adult would intervene, because of the severity of the rough handling would be such that it would cause alarm to the responsible adult observing what was happening."

10. The judge found that this was an unpremeditated act, undertaken in a moment of loss of control; however whoever had acted in this way would have realised and known that they had injured the child. The judge therefore found that the perpetrator knows what they have done and, in not confessing, is therefore lying.

11. The  judge held that the father had displayed serious violence in the past and was violent to the mother (although, in this regard, it was found that the mother herself had also been violent during this relationship). The combination of their personalities was a 'toxic' and volatile mix in which each was irresistibly drawn to other, despite the destructive nature of their relationship.

12. The couple had remained in a relationship of sorts until the summer of 2011.  In the latter stages of that period, they had been out with other members of the family to a night club on the evening of 5 March 2011.  It is plain that there was an altercation between them on that occasion.  Again the mother, as the judge found, sought wrongly to embellish that as an allegation against the father, and indeed the judge found that if anything the mother was the perpetrator of physical force against the father on that occasion, punching him and resulting in a split to his lip. 

13. So far as the other findings of the judge are concerned, I would read into the judgment paragraph 71 of the judge's judgment, which deals with the findings in relation to the paternal grandmother, and the raising of the possibility of a finding of failure to protect:

"What is more worrying is that Mother did not tell the Social Worker or the Case Conference in January 2012 before the birth of MA, about the violence and aggression that she now says was experienced by her at the hands of the Father.  The Mother is Prone to exaggeration and in my judgment is more likely to embellish rather than hide.  This Court is inclined to believe Mother when she says that she had been told by JW,  Paternal Grandmother, that to do so would give rise to a possibility of a finding against Mother of 'failure to protect.'  The Court accepts this for two reasons, first because it is an unusual phrase for the general public to use but common usage to someone with a Social Worker background.  Secondly because this attempt to cover violent behaviour is in keeping with the actions of JW before this Court.  However, residual concern remains as this analysis does not provide a complete explanation as to why Mother went along with this suggestion."

14. The judge went on at paragraphs 73 and 74 to make findings about the behaviour of the mother generally.  I do not include those in detail in this summary, but it is right to note that the judge found that "at times this mother is clearly not able to manage her emotions and behaviour", and that as recently as March 2013, prior to the hearing, the mother demonstrated a lack of control in the course of discussions with the social worker.

15. The judge then went on to deal with the mother's honesty.  She was not impressed with the mother as a witness, and she found that the mother had "deliberately lied" to the court about the incident where S was left alone with the grandmother.  But the judge found that this was a "calculated" lie, in order to gain some revenge against the grandmother, or possibly as tit for tat because the father had suggested that the maternal grandmother had on one occasion sole care.  Moving on, the court had heard some evidence that there had been two occasions when baby S had become what was said to "floppy", and experienced an episode of interrupted or discontinued breathing.  There was some concern as to the mother's actions in holding S at that time.  The judge discounted those as being in any way an explanation for the rib fractures, and I spend no more time on it. 

16. Finally, there was a dispute as to how much time the father spent in the family home during the period after they moved out from the grandparents, and prior to S's death.  The father, the judge found, had sought to minimise this period, but the judge found that he was there regularly, and that when he was there he took his part in caring for S.  In particular, she found that if he was there overnight, he would take turns with the mother to get up and tend to S should she need it.

17. Turning to the judge's conclusions, those are set out at paragraph 83 onwards of the judgment.  They start with a finding that S, during her short life, exhibited colic and cried a lot.  The remaining findings are under a general heading, although it is not set out as a heading, at the beginning of paragraph 84, in which the judge says:

"It is important to have regard to the context of the infliction of the injuries."

She then goes on to set out some five or six factors that she considers identify a context.  I do no more than list them now; the judge plainly gives more detail in the course of her descriptions:

(a) that the mother would regularly goad the father in order to gain a reaction from him, and to wind him up emotionally;
 
(b) that the father was jealous, whether that had any foundation or not, of the mother's apparent relationship with his own brother, M, and that this added to the father's ability to become emotionally wound-up;

(c) that the father did not welcome the involvement of the maternal grandmother in continuing to assist the family from time to time in caring for S;

(d) that the mother was adept, as I have indicated, at deliberately seeking to wind the father up into some form of emotional state, and then exhibit once again the volatility of the relationship that they had;
 
(e) the judge referred to the one occasion overnight when the father got up to S, and was unable himself to deal with her needs and put her back to rest.  What had happened was that S had soiled herself to a significant degree, such that, rather than being contained in the nappy, the soiling had travelled right up her back, and in the end when the father had raised the mother they had to bathe the baby, and the mother had had to hold baby S in the bath to calm her down before she could be put back cleanly and quietly to bed. 

Finally, the judge at a stage after she actually announced her conclusions, said this at paragraph 98:

"The Father had displayed serious violence in the past and was violent during the relationship with the Mother (although the Court has found that the Mother was also violent to Father within this relationship).  It is said that the trigger is alcohol but that is unlikely to be the only factor.  It is also likely that the Father has damaged internal and/or external inhibitors."

So those were the factors that established "context" that the judge had concluded was the context in which these injuries were sustained by S.

18. Insofar as opportunity to inflict injuries to S is concerned, the court had understandably focused upon whether the father had ever been totally alone with S.  Paragraph 88 of the judge's judgment deals with the two occasions that the family had been able to refer to, but neither of those were held by the judge to be either relevant in terms of time or indeed established.  So there was no evidence that the father had been at any time in the accommodation alone with S, or indeed out and about with her.  But the judge concluded that the opportunity to inflict injuries did not of course depend upon someone being alone to that high degree.  She said:

"Opportunity can arise even when others are present but not in the immediate vicinity of the child.  It has to be remembered that the injuries sustained by S would have resulted from a momentary loss of control."

19. So the judge, having reviewed the mass of material that was before her and having made the detailed conclusions that I have described, turned at paragraph 92 to her main conclusions:

"92.  Having considered whether on the balance of probabilities the Court can identify a perpetrator, the Court has come to the conclusion that it can.  I remind myself that both parents have shown themselves capable of violence.  That Mother, Father and Paternal Grandmother has lied to the Court.  The Court has to look at all the evidence to see whether on the balance of probabilities one of the four in the pool is responsible for the harm caused to S.

93.  Having weighed the evidence, in my judgment the most likely explanation is that the Father inflicted the injuries on S in a moment of frustration.  It is more likely that his exasperation was with the Mother, her behaviour and their difficult, destructive and unpredictable relationship rather than with S or her care.  From what the Court has seen and heard, in my judgment, the Father would have found the ongoing volatility within the relationship more difficult to deal with than the Mother.  It was an emotional rollercoaster, where Mother seemed to revel in the turmoil and histrionics.  She was very much in the driving seat, for the most part fuelling the difficulties and anxieties of the Father.  The Mother however despite this feature of her personality provided good care for S.  She was a capable and very attentive Mother relishing the duties of a new mother.  She was very aware of the fragility of her young child and took steps to accommodate that, initially with the assistance of her own mother.  The maternal family also continued with their support after the move to  [.....].

94.  This Court also wishes to record that the Father also loved his daughter S.  This court is sure that Father did not intend by his actions to inflict the injuries but the force he used was excessive on a young child.  Probably on a night that he had care, when he had other things on his mind, he squeezed her ribs when his hands were around S's ribcage causing them to fracture.  The force was excessive and he would have known that to be the case.  Although the precise amount of force is unknown, it has to be seen against the formula set out by Dr Cartlidge and accepted by all the other experts:

'if it happened in the same room and you were watching somebody that a responsible adult would intervene, because of the severity of the rough handling would be such that it would cause alarm to the responsible adult observing what was happening.'

95.  As the Court has found the Mother continued to engage in behaviour designed to cause the Father to be jealous and resentful.  If what she now says is correct, that he had flashes of aggression, she had good reason to consider the effect of her behaviour upon him.  In my judgment it was a deliberate and calculated course of action on her part, it became an integral part of their relationship.  It fed part of an ongoing need for the Mother; in all probability she liked the attention and sense of control.  Her conduct therefore must play a contributory part in the situation that the Father found himself in.  Although she did not inflict the injuries on S she was a major contributor to the circumstances around which the injuries were inflicted."

20. Insofar as the paternal grandmother is concerned, I have already referred to the finding the judge made in relation to "failure to protect" at paragraph 71 of the judgment, and at paragraph 97 of the judgment the judge set out her conclusion in relation to the grandmother:

"In my judgment having seen and heard JW this Court is driven to the view that she either knows that her son inflicted the injuries (because he has confided in her and sought advice) or suspects that to be the case.  This is the most probably explanation for why she tried to conceal the issue of previous violence by not mentioning it herself when she had an opportunity to do so and by persuading the Mother that to tell the Local Authority about previous violence in the relationship might run the risk of a finding against her of 'failure to protect'.  That is also the reason why she went to great lengths to keep the truth about her son's violence away from the Court.  She of all parties would know the importance of the Court having all available information.  She was not truthful with the Court.  This is a serious finding against JW in light of her professional work at Women's Aid supporting the victims of domestic violence."

21. Having set out the background, what is the basis for these two appeals?  We have been greatly assisted by Miss Frances Judd QC not only for the preparation and presentation of the father's appeal, he being the client who she was instructed to represent, but also because she has taken instructions, with a small "i", from the grandmother, and assisted her as a litigant-in-person in presenting her own separate appeal. 

22. The basic submission made by Miss Judd is that there was insufficient material upon which the judge could conclude that the father was the sole perpetrator.  Miss Judd submits that there was no direct evidence that the father had inflicted any injury on the baby.  The only evidence of previous violence were the two occasions that I have referred to, and, in relation to the first of the two, there is no suggestion that anybody actually was injured on that occasion.  There was evidence of the volatility of the relationship of the couple, but in the same way that there was evidence that the mother despite that volatility cared well for S, there was no criticism of the father's own care of his baby. 

23. Miss Judd, therefore, submits that the judge went too far so as to rely on the previous incidents of violence as moving the father up from the position of a possible perpetrator to one of being the sole perpetrator of these injuries.  She points to the fact that there was no psychiatric or psychological evidence before the court at the time of this fact-finding hearing, and that the judge had therefore gone too far, and in an impermissible way, by holding that there were "damaged internal and/or external inhibitors" in the father's personality that in some way justified the judge's finding.  Miss Judd submits that the judge failed to balance her analysis; that the analysis was all focused upon factors that might indicate that the father was more likely to be the perpetrator, whereas the judge left out evidence in this analytical stage of her judgment about the mother's character and behaviour, and her own violence and aggression towards the father, and indeed to others.  Miss Judd goes on in the course of her submissions to go further than simply submit that the proper finding was one in which both parents were in the pool of perpetrators.  Her pleaded case is that the judge should have concluded that the mother was the sole perpetrator.  However, before us in the course of oral submissions this morning, she realistically has put that more adventurous submission to one side, and the basis of her case before us is that really there was nothing to choose between these two individuals as potential perpetrators, and the judge was unjustified in making a choice. 

24. So far as the grandmother's appeal is concerned, she seeks the overturning of the findings that have been made.  I have indicated the importance of those to her, and her basic submission is that the judge's findings were unsupported by the evidence, and that the judge unfairly and unreasonably interpreted her oral evidence in the way that she did, whereas in fact all she was failing to do was to have an adequate memory of the event some ten or more years after it had taken place.  Further, insofar as the findings against the grandmother rely upon what the mother herself has said, and in this context relates to the failure to protect aspect of the case, then the judge should not have relied upon the mother, given the judge's general findings of mother's credibility, and in particular because the judge had found in another but not unrelated context that the mother had deliberately and in a calculated way lied to the court in order to implicate the grandmother in caring for S alone on one occasion, when that was simply not the case.

25.  Before this court, the local authority accept that at first instance they were not seeking a finding other than that the two parents were in the pool of perpetrators.  But the finding now having been made by the judge, Mr Tillyard QC and Mr Barry, who acted before the judge at first instance, say that the judge's conclusions are unassailable on appeal, and they would support the judge's findings.  They submit that the findings made by the judge are more subtle than is being portrayed by the father in the course of his submissions.  In particular, in the context of the "more subtle" argument, Mr Tillyard submits that the father's case, which suggests that the finding was based upon propensity and the personality of the father, fails to take into account the wider consideration of the personality traits, both good and bad, of both parents.  The submission is made that the judge became steeped in the personality, insofar as it was presented, of these two parents, and she was able to form a balanced view of the evidence and then move forward from that to make her findings.  The local authority also stress that this was not a finding of deliberate or sustained violence on the part of the perpetrator, and that therefore what was required by the judge did not need for its foundation findings of gross or unacceptable behaviour in any other respect.  Mr Tillyard submits that it is perfectly permissible, and indeed the duty of a judge, to make reasonable inferences from such facts as are found; what is impermissible is to work on the basis of suspicion and mere conjecture.

26. Ms Henke QC on behalf of the mother, who did appear below, seeks to uphold both sets of findings.  She in the course of her helpful skeleton argument takes us to the law, and reminds us of the premium that rightly has to be attached by any appellate court to the privileged perspective that the trial judge has in relation to the witnesses who appear before her, and the degree of detail into which she is able to go in conducting an analysis of the case.  The Court of Appeal is simply not in that position, and must be extremely cautious to do anything other than uphold the judge's conclusions. 

27. The children's guardian has indicated that he adheres to the submissions being made by the local authority, and he has not appeared before the court to argue the case today.

28. Insofar as the law is concerned, the matters are uncontroversial.  In the course of her skeleton argument, Miss Judd rehearses the relevant case law as to perpetrators that is well known to all before this court and all who will read this judgment, and I do not intend even to go to the detail of the case names.  The test to be applied is whether there is a real possibility that A, B, or C, or even more individuals, could be the perpetrator; if there is a real possibility in relation to any two or more people, they will be in the pool of perpetrators.  A finding that someone is the sole perpetrator can only be supported if, on the balance of probabilities, the evidence supports that conclusion.  Miss Judd reminds the court that the authorities establish that judges should not strain to identify a perpetrator in an individual case if the evidence does not support such a finding, and judges should be careful not to rely upon mere conjecture.

29.  So far as the appeal process is concerned, as I have indicated Ms Henke has taken us to the authorities, and in particular the summary given by Munby LJ in the case of Re A and L (Children: Care Order) [2011] EWCA Civ 1261, where he draws attention to the early relevant authorities, and in particular the House of Lords' determination in Piglowska v Piglowski [1999] 1 WLR 1360.  Again, for my part, those aspects of our task are plainly in mind, and I do not burden this judgment by referring to the law in any greater detail. 

30. Against that background, and now turning to discuss the issues in the appeal, I start the process by being highly reluctant to interfere with the determination of a trial judge.  We have to have a clear focus, however, upon the legal context within which the judge herself was required to conduct her analysis of the evidence.  If we conclude that she has, despite the care that she has brought to a particular case, acted in a way which is outside that legal context, then despite the position of respect in which the trial judge role must be regarded, it will be our duty to intervene and uphold the appeal.  Mr Tillyard summarised the matter neatly by indicating that the line between what was permissible and what was not permissible fell between, on the one hand, the drawing of reasonable inferences from established facts, which is a permissible basis for findings, and on the other hand mere suspicion or conjecture, even within a context which may be founded on establish fact, which is not permissible.

31. In this case, the judge has provided the parties, and now in turn this court, with a judgment which is rich in detail and striking in the clarity of language used.  From it, we are able to gain a very clear understanding of the detailed facts that the judge found, the detailed evidence that supported those findings, and then the structure and analysis that the judge brought to bear in coming to the overall finding, the macro-finding as I might call it, that the father was the perpetrator.  It is plain that she was fully immersed in the detail of this complicated and difficult exercise.  The exercise before her was not made any easier by the fact, as she found, that at least three of the key witnesses were to a greater or lesser extent telling lies.  We were not in the courtroom; crucially, we did not hear and see the witnesses give their evidence, and unusually for an appeal against a finding of fact decision, we do not even have a transcript of the relevant evidence.  The need for us to proceed with the utmost caution, and with the greatest regard for the privileged and unique perspective of the trial judge, could not be more clearly placed at the forefront of my consideration.  That said, we do have the benefit of the judge's very clear distillation of the evidence, and not only the macro conclusions to which she came but the micro conclusions that are set out stage by stage in the course of my judgment.  No party has suggested that a transcript of the evidence is necessary because of the clarity of the judge's judgment, and the whole appeal has been conducted by taking the judge's micro findings as read on the specific evidence in the case and then moving on from there.  Approached in that way, to a greater degree than might be possible in many cases, we are in a position to analyse the structure of the judge's thinking, and to ask the all-important question, which is: what was the evidence upon which the judge was entitled to rely in distinguishing between the mother and the father, and holding that, on the balance of probabilities, the father was the sole perpetrator. 

32. The evidence of the toxic and volatile relationship within which this small family unit were existing is well-established, as are the relative and differing characters of the two parents.  The context described by the judge is more than sufficient to support a theory that it was the father who behaved in this momentary and unpremeditated manner.  But it would be possible to use exactly the same context, and similar factors, to construct a theory, as indeed Miss Judd tells us she did in her closing submissions, to support a conclusion that it was the mother who was the sole perpetrator.  In order to move the case from the realm of theory and suspicion, there was a need for some established fact or facts upon which a reasonable inference that it was the father who did the deed could be based. 

33. In the course of submissions, we asked for the local authority and the mother to identify what this was.  Neither of them pointed to the historical two occasions of violence found against the father as being more than an indication of possible propensity.  Mr Tillyard on behalf of the local authority identified two factors.  Firstly, that the father was likely to feel exasperated by the mother's attempt to goad him and to wind him up; secondly, that the father failed in caring for S on the one occasion when he was required to call the mother overnight and seek her help. 

34. Ms Henke on behalf of the mother identified a different factor, and it was that the mother was plainly relishing the role and duties of being a new mother, and was well aware of the fragility of her young child.  She was observed by a number of witnesses to be a very attentive mother.  At the beginning of her skeleton argument, Ms Henke helpfully sets out some eight or nine bullet points which she says were findings on the evidence, and which supported a finding against the father.  I will list them in short terms:

(a) the father had violent outbursts and was capable of violence;

(b) the triggers for those outbursts were not known;

(c) he was likely at the time S was injured to have been exasperated by the mother and their relationship difficulties;

(d) the injuries S sustained could have resulted from a momentary loss of control;

(e) S cried a lot as a result of suffering from colic, and may not even have raised any suspicion had she been hurt by anyone in the vicinity;

(f) the father had the opportunity to injure S, and there was at least one occasion that stood out when the father was caring for her alone overnight and unable to cope;

(g) there was at least one occasion during the relevant window when the father had been caring for S alone and been unable to manage; and finally,

(h) that the father's actual role in the child's life was "stark contrast" to the impression the father tried to give to the court, which was to minimise his involvement. 

35. Having read those matters in preparation for this morning's hearing, I was struck by the fact that, with very little alteration of the wording, a similar case could be mounted for a context in which a finding could be made against the mother.  Many of the same factors were in play in relation to her: the volatility of the relationship; the opportunity that she would have to be alone with S or cause momentary injury to her; and her own propensity for losing her control and for violence.  In submissions, Ms Henke accepted that the tables could be turned, and if a judge had used those sorts of factors to support a finding against the mother, then the appeal would no doubt be mounted on the reverse basis to the one that is before us.

36. With respect, and knowing that both the counsel for the local authority and for the mother were doing their best to assist the court and their clients, none of the suggested factors that they put forward to us in support of the judge's conclusion are, in my view, sufficient to support the positive finding that the father was the sole perpetrator.  Exasperation, which the local authority rely upon, is no more than context, and is similar to the points made in Ms Henke's written skeleton.  The one occasion of overnight care is one which is described in detail in the judge's judgment.  It is a description of a young and inexperienced father being presented with a child who required more than the ordinary degree of care.  What is important about the finding and the description in relation to that episode is that there is absolutely no emotional overlay in the description of the father's reaction.  There is no account of him having lost his temper with the baby or with the mother; he simply sought her help.  So far as the mother relishing her role as a mother and being attentive, those are plainly established, and they are welcome and positive findings in relation to the mother, but there is no sign on the evidence before the judge that the father in his own secondary role was anything other than positive and caring towards S when he was with her. 

37. The reality is that, as the local authority had submitted before the judge, there was ample evidence to conclude that there was a real possibility that either of these parents had inflicted this one-off assault, but no sufficient evidence to support a reasonable inference so as to hold that one as opposed to the other was, on the balance of probabilities, the perpetrator.

38.  Whilst I understand the judge's judgment, and the context which she developed in support of her conclusion, and whilst it might be understandable that of the two the father might be thought to be more in a context that might cause him to be the perpetrator, that in my view is not enough without some finding of fact, even if it is a small positive finding of fact; an ounce, as it were, to go in the evidential balance.  But it has to be there; there has to be a factor upon which the reasonable inference for him to be found to be the perpetrator can be based, and it simply was not the case that no positive evidence existed.  Regrettably, despite the undoubted care the judge brought to this process, I am driven to the conclusion that her own conclusion that the father was the sole perpetrator cannot stand.  As I have indicated, Ms Judd does not suggest to us that we should replace the mother for the father in the finding; there is certainly not a case for any party to indicate there should be a rehearing.  For my part, I would set aside the judge's finding against the father, and replace it for a finding that each of the two parents are in the pool of potential perpetrators.  The judge, I should say for the record, had readily excluded both of the two grandmothers as potential perpetrators at an early stage of the process.

39. I turn now to the second appeal, which is the appeal brought by the grandmother.  I have already summarised the nature of the appeal, and the findings that she seeks to have overturned.  The first element of those findings is to be seen at the beginning of paragraph 97, and it is these terms:

"In my judgment having seen and heard JW this Court is driven to the view that she either knows that her son inflicted the injuries (because he has confided in her and sought advice) or suspects that to be the case.  This is the most probably explanation for why she tried to conceal the issue of previous violence by not mentioning it herself when she had an opportunity to do so..."

It seems to me that if the judge was making a positive finding that this lady "knew" that her son had inflicted the injuries, there was a need for positive evidence to support that serious finding, particularly if the judge is to go on as she did expressly to indicate that that could be because her son had confided in her and sought advice.  All parties are agreed that there was absolutely no evidence to indicate that the father had said anything to indicate that he was responsible for this injury, either to the grandmother or indeed to anyone.  Had he done so, that would have been very prominent evidence for evaluation in the case against him. 

40. No-one knows when the injury was inflicted on S; there is no suggestion that the grandmother was in the room when the injury was inflicted, and there is no suggestion in the evidence that she would in some other way "know" that her son was indeed the perpetrator.  That would be the case irrespective of my conclusion in relation to the father's appeal.  But once, as I have done, I have concluded that the evidence is insufficient to identify him as being the perpetrator, it seems to me that the judge's conclusion that the grandmother knew that her son had inflicted the injuries cannot stand, and I would set that conclusion aside. 

41. But having decided in favour of the grandmother in that respect, I am afraid I am not persuaded that the rest of her appeal can succeed.  The judge's ability to assess what she said to the court and how she said it, falls absolutely plainly within the role of the trial judge.  It has been explained to us by Ms Henke, but her explanation did no more than add colour to what the judge herself said at paragraph 71 of the judgment, that in relation to the 2003 incident of violence, the grandmother effectively accepted that there had been some event, but then was not able to give more detail.  The incident had been raised, first of all, by the mother in a position statement before the court, and in the course of that the mother had said that she had been told by a member of the family that the father had assaulted his mother on an occasion some five or six years earlier.  In her response to that, the grandmother says this: 

"1) Statement 2 (7) I state that:

•  I have never been assaulted by [father]. 

•  I have never alleged that I have been assaulted by [father] to the police. 

•   [The father] has never been arrested for an alleged assault on me."

The position is that the father was arrested by the police; other family members spoke of that, and the judge found that to be the case.  And we now know from the police records that have been produced that the allegation made to the police was that the father in this case had assaulted his own father, and the police records do not indicate that there was an assaulted alleged on the grandmother.  So in that respect, the three bullet points in the grandmother's response are precisely right.  But the judge's conclusion in relation to this aspect is that the grandmother had been economical with the truth, and that the detail that she was going to give the court had to be drawn out of her in the course of cross-examination, and the full detail only became apparent when other family members came to give their evidence.  So it seems to me that the judge was fully entitled to come to the conclusion that she did, having seen this witness give her evidence, and not only give her evidence but present her evidence, in that way before the court; and we are just not in a position to second-guess in that respect, and nor are we in a position to do so in the absence of any other detail about the case.

42. So far as the allegation that the grandmother had communicated with the mother that she should keep quiet about domestic violence in order to avoid the risk of a finding of failing to protect, the judge again heard the evidence about this.  The judge was all too well aware of the significance of the adverse finding against the grandmother that she was going to make as a thing in itself, but also because of the grandmother's professional background as a social worker, and yet the judge, having heard the evidence, went forward and made that finding.  Nothing that I have read has indicated that that finding cannot be sustained.  I take account of the fact that its source is the mother; but the judge found that the mother on occasions would have, to use the judge's phrase, "flashes of truth", and that she was not incredible in relation to every single aspect of the evidence that she gave.  The judge is in the room to evaluate the credibility of the witnesses, and having heard both the grandmother and the mother on this point, she made the findings that she did.

43. On that basis, it therefore seems to me that it is not open to this court to do more than I have done, which is to remove the very first finding of knowledge that the father was the perpetrator of the injuries.  The only other course open to us on the evidence and the judge's judgment, it seems to me, is to uphold the judge's conclusions in relation to the grandmother in all other remaining respects.  On that basis, I would allow the father's appeal in full effect, but allow the grandmother's appeal only on that limited basis.

LORD JUSTICE PATTEN:
44. I agree.

LORD JUSTICE FLOYD:
45. I also agree.

Order:  Appeal allowed