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M (Children) [2008] EWCA Civ 1261

Appeal by mother against findings of fact arising in care proceedings. Appeal dismissed.

The mother had been found to be the perpetrator of head injuries suffered by her child, although her explanation as to the non-accidental nature of the injuries had been supported by some medical witnesses. The mother appealed originally on four grounds which by the time of this hearing had been reduced to just two: i) that the judge had reversed the burden of proof and ii) that the trial judge’s finding that the mother had been the likely perpetrator was inconsistent with her not ruling out the father.

Wall LJ rejected the first ground on the straightforward grounds that the trial judge is “entitled to look critically at any parental explanation of such serious injuries”. However he found that the judge did err in not ruling out the father as

“If the judge finds as a fact that X is the perpetrator, then X alone is the perpetrator. Such a decision has to be reached on the balance of probabilities. It was thus not open to the judge, in my judgment, to say that she found the mother was the most likely perpetrator and then to go on to include the father as a possible perpetrator. “

As this finding affected the father more than the mother, the appeal was still dismissed though Wall LJ required the trial judge to reconsider the relevant passage. He then makes comments concerning the application of English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 to family proceedings, reiterating that counsel have a

“positive duty to raise with the judge not just any alleged deficiency in the judge's reasoning process but any genuine query or ambiguity which arises on the judgment”


Neutral Citation Number: [2008] EWCA Civ 1261
Case No: B4/2008/2079(Z)/PTAP


Royal Courts of Justice
Strand. London. WC2A 2LL

B e f o r e :


ZM (Appellant)

JM (Respondent)

M (Children)

Richard Clough (instructed by Messrs. Rootes & Alliott - Solicitors) for the Appellant
Brian Jubb (instructed by Messrs Rixon - Solicitors) for the Respondent
Graham Crosthwaite (instructed by Kent County Council) for the Local Authority
Hearing date: 22nd October 2008

Crown Copyright ©

Lord Justice Wall:

1. This appeal, in which the mother of the child concerned challenges findings of fact made by the judge, arises out of pending care proceedings under Part IV of the Children Act 1989 (the Act) being conducted by Her Honour Sandra Andrew in the Canterbury County Court. The judge has concluded what has commonly become known as the first limb of a split hearing: that is to say a hearing in which she was invited by the applicant in the proceedings, Kent County Council (the local authority), to make findings of fact which, on the local authority's case, would be sufficient to satisfy the so-called threshold criteria under section 31 of the Act and thus enable the case to proceed to a welfare (or, more unattractively, a "disposal") hearing at which the court would decide what (if any) order to make in relation to the child concerned.

2. In the instant case, we are concerned with a female child whom I will only identify by the initials LM. LM was born on 15 November 2007 and was thus 8 months old when the judge conducted the hearing on 15 and 17 July 2008. LM is currently living with foster parents, with whom she was placed on 1 February 2008. The parents, who are married to each other and living together, have an older child, a boy, AM, who is currently living with them albeit that he is the subject of a supervision order in favour of the local authority.

3. The appellant is LM's mother, although, as I shall relate, her father has filed a respondent's notice in which he seeks exoneration from an apparent finding by the judge that he was a perpetrator of LM's injuries. There is also a respondent's notice from the local authority supporting the judge's reasoning.

4. Having heard evidence on 15 and 17 July 2008, the judge handed down a reserved judgment which is not dated but which we were told was made available to counsel prior to its being perfected on 30 July 2008. On that date, the judge made a number of orders, and refused permission to appeal against her findings of fact.

5. The judge found that LM had suffered two distinct sets of injuries. The first set had come to light following the child's admission to hospital on 10 December 2007, at the age of under 4 weeks. The second emerged following a further admission to hospital on 20 January 2008, at the age of approximately two months.

6. We have in this appeal concentrated on the second group of injuries. The reason for this is that there is no appeal against the judge's findings in relation to the first group. In summary, these involved metaphyseal fractures of both of LM's lower limbs. The judge found that these injuries were non-accidental and had been caused by LM's mother. Although the judge's language is not altogether felicitous, her conclusions are, I think, clear enough:-

I find that on balance of probability these injuries occurred between the 4th and 14th December, most probably on 10th December, were by their very nature non-accidental, and occurred whilst the child was in the care of her mother. If it were to be argued that there is no positive identification of the mother as perpetrator, I have no hesitation in finding that there is a real likelihood or real possibility that the mother was the perpetrator of the inflicted injuries resulting in (LM's) admission to hospital on 10th December 2007.

For the avoidance of doubt, I find that there is no evidence to persuade me that either the dog, or (AM) could have caused such injuries to (LM), nor is there any evidence to implicate the short term baby sitters or (the maternal grandmother). I believe that (the mother) does know what caused the injuries to LM but is too afraid to reveal it. I regret that I do not believe that I have heard the truth from her concerning these injuries. The only evidence there is that the baby had not moved her leg for 24 hours, comes from her, there is no evidence as to that from (the father), and I do not accept that.

7. Speaking for myself, it is not clear to me why the judge did not say: "I find as a fact that mother was the perpetrator of the inflicted injuries resulting in (LM's) admission to hospital on 10th December 2007" in the second sentence of the first paragraph of this citation, particularly given that she had in the first sentence made findings as to time, non-accidental injury and perpetration. However, no point is taken by the mother in relation to these injuries and, in my judgment, wisely so. There was clear and unequivocal medical evidence to support the judge's findings, and she was plainly entitled on the evidence to reach the conclusions she did.

The second set of injuries
8. The mother's appeal relates to the manner in which the judge dealt with the second set of injuries suffered by the child. It will, therefore be necessary to examine several passages from the judgment.

9. The judge sets the scene in relation to what she describers as "Issue 2" on page 14 of her judgment:

On 21 January 2008 LM was admitted to (A&E) and found to have the following injuries: -

(1) a small bruise to the right side of the soft palate;
(2) a 4 cm x 4 cm swelling over the right fronto-temporal region (just above the front of the ear on the body map) with a depression within the selling;
(3) a 3 cm x 1 cm eurythemateous [i.e. symmetrical] and bluish bruise on the left cheek;
(4) a 1 cm x 0.5cm brownish bruise of the left side of the abdomen 2cm below the costal margin.

A skeletal survey conducted on 21st January reported by Dr P stated "There is a large right parietal fracture extending from the coronal and lamboid sutures". (there follows the evidence on the leg injuries). Review of the CT scan 20.01.08 - "there is a right parietal fracture with a large separated bone fragment. In view of these two separate recent injuries (i.e. head and legs), non-accidental injury is suspected".

10. The case of both parents was that all the injuries described were innocent, and that LM had fractured her skull in an accident on 20 January 2008 when the mother's knees gave way whilst she was holding the child. As a result, the mother dropped LM, whose head came into forcible contact with a door and, possibly, a brass door handle. There is no dispute that the mother suffers from a long standing and well documented instability of her knees, which derives from a sporting injury. Furthermore, and unlike the metaphyseal fractures to LM's lower limbs, the mother's explanation for LM's fractured skull was accepted by a number of the medical experts. It was, however, rejected by the judge.

11. It should perhaps be said that the judge had the advantage of written evidence from a number of medical experts comprising two consultant paediatricians and two consultant paediatric radiologists, although only one of the experts, a consultant paediatrician, gave oral evidence - by telephone link. The judge also had reports from the mother's consultant shoulder and orthopaedic surgeon.

12. In argument, we looked in particular at the following paragraphs of the judge's judgment:-

"The evidence of Drs C [one of the paediatricians], C [one of the radiologists] and H [another radiologist] is that the parents' explanation for the injuries sustained to LM and presented at the hospital on 20th January 2008 is plausible. Plausible it may be, but I have to consider the totality of the evidence. Dr T [another paediatrician] was not convinced. Whilst I accept that there was a fall by mother whilst holding LM, I cannot find on balance of probability, that that fall necessarily caused all the injuries apparent at the hospital on 20th January. (emphasis supplied).

The reported inconsistencies in the parents' evidence coupled with Dr C's [the paediatrician] evidence as to the ability of medical staff to miss a swelling to the skull, persuade me that I cannot dismiss as an inherent probability, that the skull fracture occurred at a different time within 7 days of 20th January 2008 to the injuries to the left side of LM's face, and that (the father) did not notice any swelling, particularly as LM has a lot of hair. He was not her primary carer, and not pro-active in supporting the mother.

In my judgment the injury to the left side of the face and the graze to her left cheek is more likely to be consistent with mother's description and demonstration in the witness box, of the position of LM in her arms prior to the alleged fall, than her evidence that both sides of the head were injured at the same time.

I bear in mind Dr C's evidence of the likely consequences of a domestic fall from 80-100 cms are far less serious than the fracture recorded here and that none of the doctors were in that court to see a mother to give her a demonstration or her evidence of the mechanism of the fall, which in my view were far from convincing. In particular Dr. C was dealing with the evidence by telephone and trying to visualise mother's description of her movements as described to him by counsel. He was clearly struggling to account for injuries to both sides of Lisa's head occurring in the fall described by mother. Given Mr M's apparent lack of support in what I find it was likely to be a stressful family situation and his arduous working hours, it is more than likely that he was not as vigilant around L as one not so occupied."

13. The judge then concluded her judgment with the following paragraph: -

"As a result of considering all the evidence I regretfully have to conclude, that on balance of probability, the cause of the totality of the injuries sustained by LM and presented at the hospital on 20th January 2008 have not been truthfully explained by (the mother), that (the father) is likely to have followed her lead in explanation, and that they were non-accidental. Given that mother was the main carer, I find that she was the most likely perpetrator, but I cannot exclude (the father), particularly as he was present in the home up to the 20th January, his evidence was that he gave LM her bottle on the evening of 20th January, that she made an odd noise whilst he was giving her bottle, and also bearing in mind his perceived lack of proactive care commented upon by the health visitor. (emphasis supplied)

The mother's grounds of appeal
14. The mother advanced four grounds of appeal. They were in the following terms:

The judge has made four errors: -

(1) She has put the burden of proof on the mother. The burden of proving non-accidental injuries lies on the local authority and it is for it to prove that the injuries were not caused as the mother claimed, not for her to prove that they were.

(2) There was no evidential basis on which to find that the skull fracture has occurred at a different time to the bruises. It was a possibility because no precise time of injury could be established by the medical findings but there was no basis for finding that it was an inherent probability that the skull fracture occurred at a different time. Further in the judge saying she could not dismiss the proposition she is not in fact finding it to be proven. (Emphasis in the original)

(3) The non-acceptance of a witness' account does not in itself justify a finding that the converse is true - although it can be an important factor. The judge accepted that the mother fell whilst carrying LM but did not accept the account of the fall was convincing and that it did not account for all the injuries. The medical evidence was (and remained after Dr C's [the paediatrician] live evidence) that the mother's account could account for all the injuries. The judge gave no explanation as to why she accepted the fall caused the bruising but not the fracture other than to state the mother hadn't proved the fall caused all the injuries.

(4) The judge's finding that the mother was the likely perpetrator is inconsistent with her not ruling out the father. Either she must find the mother is the likely perpetrator or, if she could not rule out the father, she must find it was one or other or both of them and any suspicion pointing at one rather than the other remains just that and not a finding."

15. Hughes LJ, who dealt with the mother's application for permission to appeal on paper, granted permission to appeal on grounds (1) and (4) but otherwise refused it. He gave the following reasons for taking that course:-

"The judge found, and was entitled to find, that the presence of injuries on both sides of the face and to the soft palate, as well as to the abdomen and the fractured skull, were not consistent with being sustained on the same occasion, nor with the mechanics of the only incident postulated by mother. The fact that there was no medical evidence differentiating the age of the separate injuries does not mean that there was no basis for finding that, on the balance of probabilities, there was more than one incident."

16. On 9 October 2008, when I heard the mother's renewed application for permission to appeal, and fixed the case for hearing on 23 October, I decided to expand the grant of permission in order to permit the mother to advance whatever arguments she thought sustainable. Having now heard full argument, however, I am satisfied that Hughes LJ was right to restrict his grant of permission to grounds 1 and 4. In my judgment, the reasons which he gives, and which I have set out in paragraph 15 above, succinctly dispose of grounds (2) and (3) in the notice of appeal.

17. All that I would add to them is to say that on a fair reading of the judgment; (1) the judge gives a number of clear reasons why she rejects the mother's account; and (2) it was plainly open to her on all the evidence to disagree with those doctors who took the view that the mother's account of AM's fall allegedly leading to a fractured skull fully explained the child's injuries. Questions of credibility are, of course, essentially for the judge.

The judge's approach to the law
18. This leaves grounds 1 and 4. For reasons which will, I think, become apparent, I propose to discuss the latter in the context of the father's respondent's notice. Ground 1, however, must be addressed. Did the judge reverse the burden of proof? I do not think she did, and will endeavour to give my reasons for reaching that conclusion.

19. Early in her judgment, the judge gave herself a number of directions as to the law. Mr. Clough, for the mother, made no complaint about these directions, which begin with these words: - "The burden of proof is upon the local authority to establish the facts upon which it asserts that section 31(2) (of the Act) is satisfied. The standard of proof is the balance of probability".

20. Furthermore, towards the end of this section of her judgment, the judge sets out an extract from paragraph 70 of the speech of Baroness Hale of Richmond in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141:-

"the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."

21. There can, therefore, be no doubt that early in her judgment the judge correctly directed herself as to the burden and standard of proof. The question, therefore, has to be whether or not in the process of making findings of fact she either forgot her earlier and correct self-direction, alternatively that she simply got the burden wrong in relation to a material part of the case.

22. In my judgment, there is much helpful guidance in Baroness Hale's speech in Re B which is, in turn, of direct relevance to the instant case. Apart from its vigorous reassertion of the fact based approach taken by the majority in Re H and others (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, the speech contains the following illuminating passages:-

"31. In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability." (emphasis supplied)

32. In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.

23. Thirdly, in paragraphs 72 and 73, Baroness Hale deals with probability: -

"72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum.

73. In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Someone looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied."

24. In my judgment, the citation from paragraph 31 of Baroness Hale's speech aptly summarises how a judge goes about sifting and analysing the volume of evidence which disputed care proceedings involving allegations of non-accidental injury nearly always produce. In so doing, the judge may well adopt different approaches to different parts of the evidence. The judge may, for example, wholly disbelieve a witness. What matters, I think, is that when the judge reaches his or her conclusion on the facts, it should be clear that in reaching that conclusion he or she has done so on the basis that the burden of proof remains on the local authority and that the essential facts have all been found on the balance of probabilities.

25. It is very easy, in the cerebral atmosphere of the courtroom, when the judge's language is under intense scrutiny, to forget that Judge Andrew was dealing with a child of only two months with an extensive fracture of the skull, who only a month or so earlier had suffered metaphyseal fractures to her legs. In such circumstances, the judge is entitled to look critically at any parental explanation of such serious injuries, and in my judgment it is not a reversal of the burden of proof for the judge to disbelieve the mother or to find, as the judge did, that the mother's explanation did not explain all the injuries which the child had.

26. In my judgment, the correct analysis runs along the following lines. This very small child had a fractured skull and a number of other, unexplained injuries. The local authority's case was that these injuries were non-accidental and had occurred on more than one occasion. The judge disbelieved the mother's explanation as to how the injuries occurred. In the criticised paragraph she accepted that the mother fell whilst holding LM, but was unable to make a finding that the fall necessarily caused all the injuries. In my judgment the judge's rejection of the mother's case is simply part of her overall analysis, as envisaged by paragraph 31 of Baroness Hale's speech in Re B, and does not derogate from the two important propositions, namely; (1) that the burden of proof remained on the local authority throughout, and; (2) that the judge's finding on the balance of probability that LM's injuries were non-accidental remained premised on the proposition that the burden of proof was on the local authority.

27. It is, perhaps, instructive to note that Baroness Hale regards the minority position in Re H and others (Minors)(Sexual Abuse: Standard of Proof) as involving a true reversal of the burden of proof. She spends a number of paragraphs citing from the speech of Lord Nicholls in the earlier case, and at paragraph 41 she records him as saying:-

"Third, if this were the case, it 'would effectively reverse the burden of proof in an important respect'. Once apparently credible evidence of misconduct had been given, those against whom the allegations were made would have to disprove them. 'Otherwise it would be open to a court to hold that, although the misconduct has not been proved, it has not been disproved and there is a real possibility that the misconduct did occur. I do not believe Parliament intended that s 31(2) should work in this way'."

28. In my judgment, this has not occurred in the instant case, and I would dismiss the mother's appeal.

Ground 4
29. I am, of course, conscious of the fact that I have not addressed ground 4 of the mother's grounds of appeal. As I intimated earlier, however, it seems to me that this ground affects the father more than the mother. In this court, as I have already noted, the father had put in a respondent's notice. Moreover, he appeared before us by counsel, Mr. Brian Jubb.

30. What Mr Jubb described as "the core point" is identical to Mr. Clough's ground 4 and arises from the paragraph in the judgment which I have set out at paragraph 13 above. Here, it seems to me, the judge has fallen into error, albeit one which derives from what Lord Hoffman in paragraph 2 of Re B describes as the "binary system" operated by the law in which "the only values are 0 and 1". Baroness Hale puts the matter in a way more familiar to family lawyers in paragraph 32 of her speech, which I have already set out at paragraph 22 above, and which I will not repeat.

31. In my judgment, the inescapable logic of this approach renders it impossible for a judge to find as a fact, in case where it is plain that either X or Y inflicted a particular injury or injuries to a child, that X is the perpetrator, but that Y cannot be excluded as a perpetrator. If the judge finds as a fact that X is the perpetrator, then X alone is the perpetrator. Such a decision has to be reached on the balance of probabilities. It was thus not open to the judge, in my judgment, to say that she found the mother was the most likely perpetrator and then to go on to include the father as a possible perpetrator.

32. Identification of the perpetrator is often the most difficult task faced by a judge. Sometimes, a child is injured whilst in the care of both parents, and the judge is unable to decide which of the two is responsible. Sometimes one parent is held to be responsible, and the other is held to have failed to protect the child. Sometimes a judge can be satisfied that both are responsible.

33. In the instant case, it seems to me that the highlighted passage in this particular paragraph of the judge's judgment is capable of several different meanings. We were asked by counsel to interpret it. That is an invitation which, speaking for myself, I would decline. The judge conducted the hearing. She knows what she meant. It is, I think, for her to elucidate, not for this court.

34. Fortunately a simple remedy is at hand, and one, moreover, which should have been used at a much earlier stage. I propose to spend the remainder of the judgment setting out what should have happened. Since we are, however, where we are, I would (1) dismiss the mother's appeal; and (2) remit the paragraph under discussion to the judge for her to reconsider it in the light of this judgment and to explain in writing what she meant by it. Quite how she goes about this I propose to leave to her. I would not have expected that it would be necessary for her to hear any further evidence or receive any further submissions: that, however, I am prepared to leave to her.

35. Given the course which I propose I do not wish to say anything about the respondent's notice or the skeleton argument put in on behalf of the local authority.

English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409
36. It is high time that the Family Bar woke up to this case, and to the fact that it applies to family cases: - see (inter alia) Re B a child) [2003] EWCA Civ 88, where Thorpe LJ cited from the judgment of Arden LJ in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 FLR 531. In her judgment in the latter, Arden LJ specifically considered whether the principle identified in a civil appeal should equally apply to quasi-inquisitorial proceedings under the Act. She saw no reason why not, and went on in the following paragraph to offer some general guidance:-

"In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge's attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ... ; and in some cases, it may follow from the advocate's duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity so to do. Unnecessary costs and delay may result."

37. I respectfully agree. What should plainly have happened in the instant case is that, following receipt of the judgment, counsel should have raised with the judge any queries which arose and invited her to deal with them. Had this occurred, I doubt very much if the matter would have reached this court -certainly the query which we are sending back to the judge would not have done so.

38. I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge's reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and - where appropriate- to obviate the need to come to this court for a remedy.

39. This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.

40. The present case is a particularly blatant example because it is plain that counsel received the judgment in advance of it being perfected, and proposed corrections, some of which at least the judge incorporated. There were, moreover, attendances before the judge on 30 July 2008. Quite why the question of the father as perpetrator was not raised at the time I do not understand. I did not find the explanation proffered convincing. Henceforth, however, I hope that Re B (A child) and Re T (Contact: Alienation: Permission to Appeal) will be followed. Advocates who fail to do so are likely to find themselves in some difficulty.

Arden LJ
41. I agree. As to ground 1, if indeed the judge had reversed the onus of proof when she came to her conclusions on the mother's explanation for the injuries (the fall), she would not have found it necessary to go beyond rejecting the mothers explanation for the injuries. But she did go further than that and consider the matter by reference to the totality of the evidence. I therefore agree with the analysis and conclusion of Wall LJ on this ground. I also agree with his judgment on the other issues with which he deals.

Sir Mark Potter P
42. I agree with both judgments.