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O & M (Children) [2006] EWCA Civ 1367

Appeal by father against findings of fact in care proceedings. Appeal dismissed.

The father contended that the judge had been wrong to find that he had caused a fracture during a period of contact with his son, J. He claimed that the medical evidence was not conclusive but the appeal judge, while acknowledging that the trial judge had not handled that aspect of the case properly, was entitled to reach his conclusion when other evidence was considered.

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B4/2006/1567

Neutral Citation Number: [2006] EWCA Civ 1367

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HULL COUNTY COURT
(HIS HONOUR JUDGE JACK)
(LOWER COURT NO KH05P05128)

Royal Courts of Justice
Strand
London, WC2

Wednesday, 30th August 2006

B E F O R E:

LORD JUSTICE TUCKEY
LORD JUSTICE WILSON

O & M (CHILDREN)

(Computer -Aided Transcript of the Palantype Notes of Smith Bernal Wordwave Limited)
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

MISS MARISA ALLMAN (instructed by Messrs Langleys, Lincoln LN6 3SE) appeared on behalf of the Appellant (Father)
MRS DENISE MARSON (instructed by Hull Legal Services, The Guildhall, Alfred Gelder Street, Kingston -upon -Hull HU1 2AA) appeared on behalf of the First Respondent (Local Authority)
MR NICHOLAS POWER (instructed by Messrs Stamps Solicitors, Hull HU1 3QA) appeared on behalf of the Second Respondent (Mother)
MISS SARAH FEARON (instructed by Messrs Max Gold Partnership, Hull HU1 1JG) appeared on behalf of the Third Respondent (Stepfather)
MS DEBORAH ADCOCK (instructed by Messrs Myer Wolff, Hull HU1 1YE) appeared on behalf of the Fourth Respondent (Guardian)

J U D G M E N T

(As approved by the Court)

Crown copyright©

1. LORD JUSTICE TUCKEY: I will ask Lord Justice Wilson to give the first judgment.

2. LORD JUSTICE WILSON: The appellant appeals against a finding of fact made against him in the course of care proceedings by His Honour Judge Jack sitting in the Hull County Court on 30 June 2006. The finding relates to the appellant's conduct towards his son, J, who was born on 9 July 2000 and so is now aged 6.

3. The doctors at Hull Royal Infirmary discovered on 16/17 June 2005 that the left tibia of J had been fractured. The finding against which the appeal is brought is that the fracture was caused by the appellant's kicking J early in the weekend of Friday 10 June to Sunday 12 June 2005. The judge went on to make a supplementary finding against the appellant, namely that, following the kick, he must have been aware of the pain which J was suffering as a result of it and yet culpably failed to obtain medical attention for him.

4. The basis of the appeal is that, as is conceded, there was no evidence before the court that in the days following 10 to 12 June there was any bruising on J's leg and that the medical evidence was nevertheless unanimous that a kick to the leg sufficient to cause fracture would have been likely to result in a bruise. The complaint is that the judge failed satisfactorily to address the medical evidence and that, as a result, his finding against the appellant, which, because it is a serious finding which can be made only upon evidence of proportionate cogency, is unsafe and should be set aside.

5. The care proceedings concern not only J but two other children of the mother, who have fathers other than the appellant. Their fathers play no part in the history and it will be convenient hereafter to describe the appellant as "the father". The two other children are T, who was born on 25 December 1996 and so is aged 9; and L, who was born on 22 September 2002 and so is aged 3. Since November 2005 all three boys have been in short -term foster care under interim care orders granted to the Kingston-upon-Hull City Council ("the local authority").

6. The parties to the care proceedings are first the local authority; second, the mother; third, the father; fourth, the stepfather of T; and, sixth, seventh and eighth, the three boys by their Children's Guardian. The stepfather of T was able to make only a small contribution to the debate before the judge in relation to the fracture sustained by J in June 2005.

7. The judge's judgment was given at the end of the first, fact -finding stage of the hearing of the care proceedings relating to the three boys. Although the causation of the fracture suffered by J in June 2005 was the central issue before him, various other issues of fact were also raised before him. Over nine days he heard oral evidence from 22 witnesses; and 17 bundles of documents were filed for his consideration. Notwithstanding the gravity and complexity of the issues the judge does not appear to have reserved judgment; and, as typed, the judgment covers only slightly more than 12 pages.

8. The judge is due to resume and conclude the hearing over a number of days beginning on 11 September 2006. Notwithstanding a number of findings of culpably inadequate or inappropriate parenting of the three boys on her part, the mother will be contending that the boys should be restored into her care. The father aspires to contend that J should move, in fact not for the first time, into his care or, alternatively, that he should have unsupervised contact with him. It is unclear to me - and irrelevant to the disposal of the appeal - whether the local authority and the guardian will be making proposals for the future placement of the boys outside their biological family.

9. Four doctors gave evidence to the judge:

(a) Dr Vickers, a consultant community paediatrician, who was instructed by all parties to make a report;

(b) Dr Horton, a consultant paediatric radiologist attached to the Hull Royal Infirmary;

(c) Dr Osman, a consultant in paediatric accident and emergency medicine attached to the Hull Royal Infirmary; and

(d) Dr Das, a specialist registrar in the Department of Orthopaedics at Hull Royal Infirmary. It had been Dr Das who on 17 June 2005, namely the day after the first presentation by the mother of J to the hospital in relation to his leg, when X -rays of it had been taken, examined J and made the first, albeit provisional, diagnosis of fracture.

10. While, for obvious reasons, Dr Horton, the radiologist, was not able to make a contribution to the debate about the likelihood of bruising, it was he who had been the most authoritative of the four voices in relation to the likely time when the fracture was sustained. In fact, perhaps by a slip of the tongue, the judge misstated Dr Horton's evidence in this regard. The judge said that, following his study of the X -rays taken on 16 June, Dr Horton stated that the fracture had been sustained "around 7th to 10th June". What Dr Horton in fact said was that the absence of detectable healing of the fracture on those X -rays suggested that the date of the fracture was no earlier than 7th or 10th June and could have been any time thereafter up to the moment when the X -rays were taken. Dr Vickers deferred to Dr Horton in relation to the timing of the fracture; and, although Dr Osman and Dr Das offered slightly different time -frames, there is no appeal against the judge's overall conclusion that the fracture occurred "within about the first fortnight of June". That was accepted to be a period of time during which J was residing with the mother but had two periods of contact with the father. The first period of contact, namely on 8 June, was supervised, albeit lightly, and was not suggested in any quarter to have been the occasion when he sustained the fracture; the second period of contact, however, was unsupervised staying contact between after school on Friday 10 June to the afternoon of Sunday 12 June.

11. At the start of the hearing before the judge on 12 June 2006 the local authority's contention, contained in a schedule of facts allegedly relevant to the threshold set by section 31(2) of the Children Act 1989, was that the fracture was non -accidental and that the evidence would not enable the judge to do more than to decline to exclude the father and the mother from being possible perpetrators of the injury. After the father had given oral evidence, however, the local authority's counsel, Mrs Marson, amended the document so as to seek a positive finding that the perpetrator of the injury was the father or, were the court unable to make that finding, then, as before, to seek a finding that neither parent could be excluded from the pool of possible perpetrators of it. Mrs Marson's final written submissions ran along similar lines. The mother's contention at all material times was that the court should positively find both that the father had perpetrated the fracture and that she had not done so. The father's contention at all material times was precisely converse, namely that the court should positively find both that the mother had perpetrated the fracture and that he had not done so. The Children's Guardian adopted an appropriately neutral stance.

12. The stance of the parties in this appeal is as follows:

(a) The father contends that the finding against him cannot stand and that the enquiry into responsibility for the fracture should be remitted for fresh consideration. The father accepts that such a course would make it impossible for the local authority's application, at least in relation to J, to be concluded at the hearing next month but he contends that the importance that the court should reach the correct finding in relation to the fracture outweighs the damage caused by further delay.

(b) The local authority oppose the appeal and contend that, properly analysed, there was sufficient material before the judge to justify his finding. They proceed to contend, however, that, were this court to feel driven to set aside the finding against the father, it should, rather than direct a fresh hearing, go on to substitute the lesser finding for which they originally contended, namely that the father and the mother were each possible perpetrators of the fracture.

(c) The mother also opposes the appeal and seeks to preserve the judge's finding. She goes on to argue, however, that, were this court nevertheless to set aside the judge's finding, it would be inappropriate to substitute the finding suggested by the local authority and it would be necessary to remit the issue for fresh enquiry.

(d) The Children's Guardian, while seeking to retain her neutrality, argues that, were this court to set aside the judge's finding, it should proceed to substitute a finding only that the father and the mother were each possible perpetrators of the fracture. In the light of the prospect of a further, damaging passage of time, the Guardian is firmly opposed to the remission of the issue for further enquiry.

13. I need now to survey the findings of the judge in relation to such evidence as was presented to him relevant to responsibility for the fracture. In this regard I have to say that the judge has made the task of this court difficult. After considerable thought I feel driven, with respect to him, to criticise the format of his judgment. For it is not a free -standing document. The idiom of the judgment is very much to this effect, namely "we have all heard this mass of evidence; you will have it well in mind; there is no need for me to summarise it; and I will now give you my conclusions upon it." Thus, after a very brief summary of the background, an uncontroversial reference to the law and the helpful listing of the 22 live witnesses, the judge proceeded to explain that he was satisfied that "the mother was being truthful, at least in most respects, although she appeared to have a very poor recollection of many relevant events"; and that the father was "a wholly unreliable witness" and that the court "cannot take at face value" anything which he had said. Although responsibility for the fracture was the main outstanding issue live between the parties and thus requiring his adjudication, the judge afforded to it only three pages of his judgment, as typed; and, although he made references, mainly oblique references, to some of the evidence relevant to it, he did not make clear what his findings were in relation to all the evidence relevant thereto. So Mrs Marson is driven in her skeleton argument to submit that this court can and should infer what line the judge took towards evidence which he did not expressly address. There is no denying that the burden upon a judge to produce a judgment in this type of enquiry is a heavy one and that unduly long judgments, whether in this court or in courts of trial, are strongly to be discouraged. Nevertheless the judge could not reasonably have assumed that all relevant readers of the judgment would either already be aware of the evidence given to him or be able reasonably to collect it from other sources. It is not only this court but also the professionals required to develop the optimum future programme for the boys by reference to the judgment, and indeed perhaps also their future carers themselves, who need, by a free -standing document, to discern what in summary the relevant evidence was; whether it was accepted or rejected; and in either event for what reasons.

14. Having therefore done my best to collect from a variety of sources the evidence relevant to the father's alleged responsibility for the fracture between 10 and 12 June, I believe it was as follows:

(a) The handover of J by the mother to the father on 10 June was achieved with the aid of a social worker, who gave evidence that J was very reluctant to go to the father. This evidence was, I believe, unchallenged and was no doubt accepted.

(b) A maternal uncle of J, who works as a taxi driver, collected him from the father's home on the afternoon of 12 June and returned him to the mother's home. The uncle's evidence was that, in handing him over to him, the father said that J had fallen over at his home and had hurt his leg; that the father asked the uncle to tell the mother so; but that, once inside the car, J told the uncle that his father had kicked his leg for not eating his lunch. Did the judge accept the uncle's evidence? The judge said:

"We have the report from [the uncle] of what he saw and heard from [J] on the afternoon of the 12th June which suggests [J] had already suffered the injury by then. I am satisfied [the uncle] is not part of some conspiracy to shift the blame onto [the father]."

It is a clear inference from those words that the judge accepted the uncle's evidence but it would have been more satisfactory for him to summarise it than thus to have made that sideways reference to it. The uncle also gave evidence that on the following day, 13 June, he telephoned the local authority and expressed concern that J had been limping and had confided in him that the father had kicked him. Although it seems that the local authority have no written record of this conversation, the judge, in finding that "the first report, made to a person in authority, of what is likely to have been this injury, was made to Social Services on the morning of the 13th June", seems also to have accepted the uncle's evidence in that regard.

(c) Only shortly prior to the hearing the mother for the first time asserted that she had been out at work when on 12 June her brother returned J to her home; and that it had been her then boyfriend, Mr Clarke, who had been caring for the other two boys at home and who, following his arrival, cared also for J that night until she returned. Mr Clarke gave oral evidence that, following J's return, he at once noticed that he was limping very badly and dragging his left foot behind him and that he immediately telephoned the mother at work in order to tell her of the problem and to recommend her to look into it on the following morning. Did the judge accept that evidence, to which again he did not specifically refer? In that I do not understand that Mr Clarke's evidence was significantly challenged on the part of the father, I infer that the judge accepted his evidence that he had seen the limp at that critical time just following the contact period. In evidence Mr Clarke went on to say that, although he had given J a bath prior to putting him to bed, he had not noticed bruising on the leg.

(d) The mother gave evidence that, on the morning of 13 June, she noted that J had indeed hurt his leg. This would seem to have been corroborated by a note made by her solicitor of a telephone conversation with her on that day, in which she had said to the solicitor not only that on 10 June J had been reluctant to go to the father for contact on the basis, so the mother alleged, that J was complaining that the father hit him, but also that J had later hurt his leg with the result that she was proposing to take him to hospital. Although the judge did not specifically refer to this evidence, I cannot imagine that he rejected the documentary evidence of the solicitor that the mother was then alleging that J had hurt his leg. In the event the mother did not take J to hospital because, so she said, he was refusing to go there in case the result would be his further removal from her care. In his judgment the judge criticised the mother, albeit not severely, for having failed to insist upon taking J to hospital on that day and indeed for having delayed until 16 June before taking him to its A & E department.

(e) The mother also gave evidence that on various occasions on or after 13 June J alleged to her that he had sustained the injury to his leg by having been kicked by his father. This evidence on the part of the mother was expressly accepted by the judge.

(f) A social worker gave evidence that on 21 June J told her that the injury had been sustained by a kick from his father and J's school teacher gave evidence that on 22 June he had said the same to her. The evidence of these two witnesses was expressly accepted by the judge. It is true that, as Miss Allman on behalf of the father today has reminded us, the teacher's evidence was that J had said that the fracture occurred while he was living with the father, and that, whereas although between February and May 2005 J had indeed been living with him, the period between 10 and 12 June was, of course, only a period of contact; but it was certainly open to the judge to consider that, coming from the lips of a child then not yet five years old, that discrepancy was insignificant.

(g) The social worker's evidence was that, when on 24 June she first spoke to the father about the injury, he denied having seen J limping or suffering any other such problem. It seems, certainly from his written statement dated 21 April 2006, that the father neither accepted nor denied that evidence of the social worker; and, although the judge did not expressly refer to it, it must follow from the judge's overall findings about the father's credibility that he accepted the social worker's evidence in that regard. Later the father did accept that, at the end of the period of contact on 12 June, he had noted that J was limping and that indeed he had mentioned it to the uncle. In his written statement the father said that, when he first noticed the limp, he believed that it reflected only a stone in J's shoe but that later, when the uncle asked J how he had sustained the injury, he heard J say that he had fallen off a skateboard. The father's case was never that he had seen J either fall off a skateboard or indeed sustain the injury in some other way; and he contended that if, which he denied, the fracture occurred during the period of his contact, it was not an injury of which, when sustained, he had been aware, still less one which he had caused.

15. Because the evidence was that, apparently in relation to the period during which according to the medical evidence the fracture was sustained, J had said to his uncle, his mother, his social worker and his teacher that his father had kicked him, the local authority's case inevitably took shape to the effect that the fracture was not only non -accidental but that it had been sustained during the period of the father's contact between 10 and 12 June and, in particular, that it had been caused by a kick on his part. But this hypothesis faced one particular problem, namely that there was no evidence from any quarter of bruising on J's leg. The fact that, upon his ultimate presentation at A & E on 16 June, no bruising was noticed by the staff there and that, on 17 June, Dr Das noticed no bruising in the course of his examination was quickly dismissed by the medical witnesses as insignificant; for, had the injuries been sustained between 10 and 12 June, any bruising might have disappeared by 16 and 17 June. Was it significant, however, that the evidence of Mr Clarke was that he had seen no bruising on the leg on 12 June and that the evidence of the mother was that she had seen no bruising on the leg on 13, 14 or 15 June?

16. It became a major plank in the father's opposition to the suggested finding that, had he kicked J's leg in such a way as to cause a fracture, there would be likely to have been bruising on the leg, visible to Mr Clarke and to the mother, in the days after the contact period. In this regard it was, of course, the evidence of Dr Vickers, of Dr Osman and, to a lesser extent only because he has so far attained less seniority in the profession, of Dr Das, which was important. In his written report Dr Vickers wrote:

"Bruising does not always occur with fractures. The absence of bruising does not help decide how the fracture occurred although if it was due to a kick there would usually be bruising. A kick hard enough to cause a fracture is likely to also cause bruising."

On 5 June 2006 the four doctors held a discussion which was recorded. One question related to the likelihood of bruising in the event that the fracture had been caused by a kick. Dr Vickers reiterated that he would expect there to be bruising if the child had been kicked hard enough to cause a fracture. He added, however:

"I think the trouble with bruising is it can go quite quickly, and I don't think you could say that a kick on 10th and 12th of June would always mean there's bruising present four to seven days later."

He added that he did not think that one could say that bruising would occur in 100% of such cases but that it would do so in most cases. Dr Osman and Dr Das agreed with Dr Vickers. Dr Osman said that, if the kick was forceful enough to fracture the limb, you would expect some bruising at or around the time when the injury occurred.

17. This evidence led Miss Allman, counsel for the father, to submit to the judge that the absence of evidence of bruising in this case in effect precluded him from finding that the fracture had occurred as a result of a kick and that a much more likely explanation for a fracture not attended by bruising was, as had apparently been suggested by Dr Osman, a mechanism, such as falling, which did not involve impact with the skin around the leg.

18. How then in judgment did the judge survey the medical evidence in relation to bruising and how did he address the father's argument? He did so only in paragraph 47 of his judgment as follows:

"I turn to the question of whether the injury was accidental or non -accidental. The medical evidence does not assist in this regard. It is argued on behalf of the father that, according to the medical evidence, the lack of evidence of bruising to [J's] leg excludes the possibility of a non -accidental injury. I do not accept that. Firstly, the medical evidence was not conclusive in that regard. And conversely, the medical evidence was that there very well might have been bruising from an accidental fall, depending on the nature of the fulcrum which caused the leg fracture. So I find the evidence of the lack of bruising is not particularly helpful either way."

19. When, in giving permission on paper to the father to appeal, I wrote that it was arguable that in that paragraph the judge had treated the medical evidence too cursorily, I consider that I was being extremely but no doubt appropriately polite. I wonder whether, on reflection, the judge himself might agree that paragraph 47 is an unsatisfactory disposal of the issue. The following criticisms of the paragraph can be made:

(a) The father's argument was not that the lack of evidence of bruising excluded the possibility of any non -accidental injury but, rather, that it effectively excluded the possibility of a kick.

(b) In line with the overall format of the judgment, the judge referred to the medical evidence without informing the reader of its effect.

(c) It seems to me to be odd for the judge to have said that the medical evidence did not assist one way or another in his resolution of the question before him. It seems to me that the evidence clearly militated against the local authority's case that the father had caused the fracture by a kick; and that the real question before the judge was whether, although it militated against their case, there were features of that medical evidence and/or of the other evidence which nevertheless entitled him to come to the conclusion opposite to that towards which it militated.

(d) In my view the judge's observation that bruising might attend an accidental fall does not forward the argument in any logical way and specifically does not indicate that a non -accidental fall of a particular kind is unlikely or less likely to be attended by bruising.

(e) In the paragraph the judge fluctuated between referring to the "lack of evidence of bruising" and "the evidence of the lack of bruising". In that I understand the evidence of Mr Clarke and the mother to be only that they did not notice bruising rather than that they were confidently asserting that there was no bruising, it is possible that the judge's reference in the final sentence to "the evidence of the lack of bruising" was another slip of the tongue and that he there intended to repeat the phrase which he had earlier articulated, namely the "lack of evidence of bruising".

20. I have to say that in my view the way in which the judge addressed the absence of evidence of bruising has put this court into great difficulty. Although the judge made other serious findings against the father against which there is no appeal, in particular that he had ten years earlier kicked two other sons of his, there is no doubt that the finding under present review is a serious one which may well impact substantially upon the father's aspiration to resume the care of J or even perhaps to have unsupervised contact with him. It would in one sense be easy to conclude that for some reason the judge failed to conduct fairly the judicial exercise and that the issue needs to be readdressed. But, by a narrow margin, I have been persuaded, following close study of all the papers, including of course the skeleton arguments filed on behalf of the local authority and the mother, to propose that we should dismiss the appeal. I do so for two reasons:

(a) The medical evidence becomes relevant only if the court can safely conclude that there was no bruising on J's leg in the days after he sustained the fracture. There was certainly a lack of evidence that there was bruising. But does it follow that the court could conclude that there was no bruising? Mr Clarke was asked to give evidence about this matter only about a year after the night, 12 June 2005, when he had given J a bath and put him to bed and when, as he now says, he noticed no bruising. Does it follow from his evidence that there was no bruising on that night? Equally the mother, considered by the judge to have a very poor recollection of many relevant events, gave evidence that she did not notice any bruising on and after 13 June. But, as Mrs Marson in her skeleton argument points out, J suffered numerous bruises in the care of the mother; and in other parts of his judgment the judge found that the mother had culpably failed to attend to his bruises and other injuries. She was, as I put to Miss Allman this morning and as she was disposed to accept, far from being the type of assiduous mother in relation to whom the court might conclude that, were she not to have noticed bruising, then there was no bruising. Furthermore the judge's finding was to the effect that the father had kicked J early in the period of the contact between 10 and 12 June; that on 11 June J was probably showing the effects of the injury; and that by 12 June he was dealing stoically with the residual pain and was sufficiently engaging in normal activities for his condition not to be noticeable. Notwithstanding the attempts of Miss Allman this morning to persuade us otherwise, I do not perceive that the medical evidence clearly indicated that the expected bruising would continue for more than 48 hours and would thus, were the injury to have been sustained say on the evening of 10 June, still be visible in and after the evening of 12 June.

(b) The medical evidence was not that a kick causing a fracture would always result in bruising or even, as Miss Allman suggested in her skeleton argument, would almost certainly result in bruising, but, rather, that it would usually do so. The doctors left open the outside possibility that a kick could have caused this fracture without there being bruising at all. In my view such evidence would in most cases be sufficient to dissuade a judge from concluding on the balance of probabilities that there had been a kick. But, in that the doctors admitted the outside possibility that there would be no bruising, their evidence would in my view nevertheless entitle a judge to find that there had been a kick if there was so powerful a quantity of evidence which ran the other way as almost to drive that contrary conclusion. I believe that evidence of such power existed in the present case. There was clear evidence before the judge from the uncle, from Mr Clarke, from the mother and ultimately even from the father, that J was limping at the end of the contact period. To my mind this almost compels a conclusion that the fracture occurred during the contact period. When I put that point to Miss Allman this morning, she drew our attention to the notes made by the staff at A & E on 16 June 2005, according to which the mother appears to have suggested that J had been suffering a limp for about two and a half weeks. It seems to me, however, that the judge was well entitled not to take too much notice of that particular assertion by the mother, even assuming that it was properly recorded. For two and a half weeks was a longer period of time than the doctors had conceived to be the time -frame during which the fracture might have been sustained; and, to my mind most importantly, the father in evidence never said that J had been limping not only at the end of the contact period but also at the beginning of the contact period and throughout the contact period. So if, as I consider, it was clearly open to the judge to conclude that the fracture occurred during that contact period, the question arises: how did it occur? Although he was not quite yet five years old, J, for his part, was at once alleging to the uncle and, shortly thereafter, to the mother, to the social worker and to the school teacher, that his father had kicked him. What J certainly did not know, as the judge pointed out in judgment, was that it is now established that in the past the father had also kicked his older two sons. If the fracture occurred during the contact period but not as a result of a kick, how did it occur? Although the father made speculative suggestions, one flowing from his allegation of what he had overheard J say to the uncle, that he had fallen off a skateboard or off a wall, there was no clear account on the part of the parent with temporary charge over him, namely the father, as to how J had sustained the fracture; and there was certainly no account by the father of his having witnessed any incident in the course of which it might have been sustained. The medical evidence was that, in the hours following his sustaining it, the fracture would have been exquisitely painful for J and that any carer would have been aware of it and should have sought medical treatment for it. Had the fracture occurred accidentally during the contact period, there would have been no inhibition upon the father in seeking to secure treatment for it. A very strong inference is that the father was prepared to let J suffer untreated because he did not want to expose himself to an immediate enquiry into the circumstances of the injury. The father's lack of frankness to the social worker on 24 June is also strongly suggestive of his desire to hide the circumstances of it.

21. For these reasons I consider that, even had the judge properly assessed the medical evidence, he would have been entitled to come to the conclusion to which he clearly did come, namely that, notwithstanding that evidence, the other evidence before him was so strong that, if indeed there definitely was no bruising upon the leg at the relevant time, this is a rare case in which a kick to the leg caused it to be fractured without also bruising it.

22. So in the end I would dismiss the appeal.

23. LORD JUSTICE TUCKEY: I agree that this appeal should be dismissed for the reasons given by Lord Justice Wilson.

24. Miss Allman ended her succinct and helpful arguments this morning by submitting that it was not open to the judge to make a finding which did not accord with the views expressed by the medical experts. These views were of a kind on the spectrum of expertise where, she submitted, the court was required to follow them, unless there was (as she put it) a third way. That was a reference to the judgment of Charles J in A County Council v K, D and L [2005] 1 FLR 851. At paragraph 63 of his very long judgment in that case, Charles J said:

"[63] I am, therefore, able to reach a conclusion ... that is different to, or does not accord with, the conclusion reached by the medical experts as to what they consider is more likely than not to be the cause having regard to the existence of an alternative or alternatives which they regard as reasonable (as opposed to fanciful or simply theoretical) possibilities. In doing so I do not have to reject the reasoning of the medical experts, rather I can accept it but on the basis of the totality of the evidence, my findings thereon and reasoning reach a different overall conclusion."

25. Here Miss Allman submits that the medical evidence only threw up fanciful or theoretical possibilities and so the third way was not open to the judge. I do not accept this submission. The doctors' evidence did admit of a real possibility that there might have been no visible bruising, or, if there had been bruising, that it might have gone by the evening of 12th June. This, coupled with doubts about whether the evidence of the mother and Mr Clarke (to which my Lord has referred) meant that there was in fact no bruising to be seen, the evidence of J's complaints and the other evidence to which my Lord has referred lead me to the conclusion that the third way was open to the judge here.

ORDER: Appeal dismissed; no order for costs save for detailed assessment of the mother's, father's, stepfather's and guardian's publicly funded costs.

(Order not part of approved judgment)