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X, T, A, E and S, Re [2020] EWCA Civ 1680

Appeal from a fact finding in care proceedings concerning whether a child’s injuries were inflicted or self-inflicted. Court concluded certain injuries were self-inflicted and certain injuries were inflicted upon her. Appeal allowed on a very limited basis: findings as to why the child harmed herself were set aside.

The two appellants, a man DB and a woman SS, started a relationship in August 2018 in circumstances where they were each caring for children from previous relationships.

SS has 2 daughters: E aged 10 and S aged 7. DB has 2 children: T a girl aged 9 and A a boy aged 7. The mother of T and A had tragically taken her own life and DB also cared for her elder child X aged 12.

On 4 November 2019 T presented at school with widespread bruising to her face, spreading down her neck and both on and inside her ears. DB was advised to take her to hospital but did not do so until the following day. At hospital a paediatric registrar recorded DB's explanation that T had harmed herself and expressed the view it was developmentally possible. A consultant paediatrician at the hospital subsequently took a different view and concluded the injuries were beyond doubt inflicted representing a significant sustained serious assault. DB and SS were arrested and the children placed in foster care where they remained, save for X who moved to live with his father.

There were no reports of T self-harming since placement in foster care. In ABE interview T said her injuries had been self-inflicted. A said T's injuries were inflicted by B. Both adults denied responsibility for the injuries. In February 2020 T told her foster care she had been physically abused by SS, and when ABE interviewed again repeated that allegation.

A hybrid fact finding hearing commenced in July 2020, but ran into a number of difficulties including technical problems and disclosure issues. After 7 days the case was adjourned part-heard. At that point the judge discharged the ICO's with regards to SS's children but the LA's appeal against that decision was allowed. Further difficulties continued at hearings in August and September and the case finally concluded after 15 days with a reserved judgment in October 2020.

The judge concluded his judgment setting out his findings as per paragraph 30, which included that as a result of the conduct of the parents T self-harmed in August, September, October and early November, and that various injuries were caused by T to herself as a result of the emotional harm suffered by her in the care of the parents and lack of adequate supervision. The judge concluded that various other injuries were inflicted on T, there was a real possibility either SS or DB was the perpetrator and the court was unable to identify which. The judgment included consideration of the expert evidence of Dr Cleghorn, consultant paediatrician. She concluded that some of the injuries observed on T were likely to be accidental, some likely to have been inflicted but not by T, and others possibly caused by T herself.

Both SS and DB appealed to the Court of Appeal and permission to appeal was granted.

DB advanced several grounds of appeal including that the judgment was fundamentally flawed by failing to explain the judge's reasoning, and that the judge was wrong to find some of T's injuries inflicted by DB or SS rather than by T herself. DB contended the judge was not in a position to make any findings about why T self-harmed, and that the judge was wrong to find that T self-harmed as a result of the conduct of the parents. 

SS did not appeal against the finding that some of the injuries were inflicted or that there was a real possibility that both she and DB inflicted the injuries. The focus of her appeal was on the findings as to the cause of T's self-inflicted injuries.

The Court of Appeal (Baker and Elisabeth Laing LJJ) concluded that this was a particularly demanding hearing for the judge. The principal issue – whether T's injuries were inflicted or self-inflicted was unusual and difficult. The judgment was carefully structured. Whilst it would have been better if the judgment had contained a section where the judge expressly set out the reasons for his findings, that was not a fundamental flaw. Save in one respect the Court of Appeal was satisfied it was possible to discern the reasons for his findings. The evidence was plainly sufficient to support many of the judge's findings. The basis of the judge's findings as to whether the injuries were accidental, self-inflicted or inflicted by others was manifestly based on Dr Cleghorn's evidence which the judge obviously accepted. The judge was clearly entitled to accept her evidence and prefer it for reasons clearly explained. The judge was entitled to conclude there was a real possibility that both DB and SS were responsible for inflicting the injuries so that both of them were in the pool of perpetrators.

The difficulties in the appeal arose with the grounds of appeal relating to the reasons for T's self-harming behaviour. It was never asserted by the LA in their threshold document that T's behaviour was attributable to the adults' conduct. As a result neither DB nor SS adduced any evidence on the issue. Neither of them was cross-examined on that basis. It was never suggested to them in evidence that their conduct or neglect was the cause of T's self-harming. It was assumed by all parties that the reason for T's self-harming behaviour was not something to be determined at the fact-finding hearing, but that in the light of findings psychological and other assessments would be obtained to address the reasons for T's behaviour for consideration at the final welfare hearing. The Court of Appeal concluded it was not open to the trial judge to find that T self-harmed as a result of the conduct of the parents, or that the self-inflicted injuries were caused as a result of the emotional harm suffered by her or a lack of adequate supervision. The appeal was allowed against those findings and they were set aside.

As to what should happen to the proceedings, there was no reason to doubt the trial judge would be able to re-evaluate the issue as to the reasons for T's self-harming behaviour in the light of all the evidence ultimately available at the welfare stage. Given the very limited basis on which the appeal was allowed it would be wholly disproportionate to transfer the case to another judge and such a course could lead to further delays.

Case summary by Victoria Flowers, barrister, Harcourt Chambers

Read the full case X, T, A, E and S, Re [2020] EWCA Civ 1680 on BAILII