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Re YW (A CHILD) (ADEQUACY OF REASONS) [2021] EWCA Civ 1174

The Court of Appeal considers the adequacy of reasons given by the judge at first instance and concludes that the judgment did not sufficiently explain the judge's reasoning for making the findings and did not properly have regard to each piece of evidence in the context of the totality of the evidence before reaching her conclusions.

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These care proceedings concerned YW who was taken to hospital with a large bruise and swelling over the left forehead extending to under the right eye and behind the left ear. At the fact-finding hearing the parents, three interveners (NA, SA and SN) and the mother's sister gave evidence as well as two social workers. No evidence was called from the treating physicians or the court appointed medical expert. The father acted in person with the assistance of a translator.

The Local Authority sought a range of findings including that YW had sustained significant facial bruising which, "had a high likelihood of non-accidental injury" and was inconsistent with the suggested mechanism; that the mother, NA and SA had colluded to provide misleading and false explanations of the causation of the injury; that the injury was inflicted "deliberately, recklessly or negligently" by NA, SA or SN (not, it should be noted, the mother); and that, in the absence of a finding against one perpetrator, "neither [sic] can be ruled out".

At the conclusion of the evidence the LA expanded the schedule of findings sought to include reference to an earlier injury (details of which had emerged during the oral evidence); and failure to protect on the part of the father who, the LA said, knew about the mother's lifestyle and therefore the risks to YW.
The judge found that the mother had inflicted both injuries. In the case of the latter injury, NA had seen and heard this but failed to take steps to protect YW.  The mother had failed to take steps to protect YW by not seeking medical attention following the earlier injury. The mother had made false allegations against NA. Both had lied about the circumstances surrounding the mother's trip abroad around the time the latter injury was inflicted. The mother's lifestyle was chaotic/itinerant and led to instability for the child. The father had been aware of this and had left YW at risk.

The mother filed a notice of appeal. Permission was granted in respect of the grounds concerning the findings relating to the injuries to YW. The father sought permission to appeal on the grounds that the process by which findings had been made against him was unfair.

With regard to the mother's appeal the Court of Appeal concludes that the judgment at first instance was insufficiently reasoned. The criticisms are set out at paragraph 56 onwards.  

The judgment lacked a clear structure such that elements one might expect to see were absent. There was no summary of the issues, or the findings that each party was seeking on the issues. There was only a partial chronology. There was no discussion section drawing together the different threads of the evidence. A rigorous and coherent analysis was required before the judge arrived at her conclusions.

The Court again highlights the observation of Dame Elizabeth Butler-Sloss P in Re T [2004] EWCA Civ 558 at paragraph 33:


"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof."

In this case there was no explanation of why the judge concluded that the mother's lies were probative of her responsibility for the injuries when: (1) NA and SA had also lied repeatedly about the circumstances of the injury on 31 October; (2) there were plainly many other reasons why the mother might have lied; and (3) the medical evidence was, at least, capable of supporting the conclusion that each of the injuries had been sustained accidentally. Having accepted that the accident mechanism proffered as an explanation for the latter injury had in fact occurred the judge concluded that this was not the cause of the injury but had not explained why she reached this view in light of the more nuanced views of the medical expert (who did not give oral evidence). In this case the judge had fallen into the trap of evaluating the evidence in separate compartments and failed to exercise an over view of the totality of the evidence (paragraph 61)

The Court of Appeal is critical of the judge's approach in providing a "running commentary" as to her views of the credibility of each the witnesses as she went through the evidence. The conclusions should have been reached after she had considered the totality of the evidence. An inconsistency in the way in which the judge dealt with the lies of the mother as compared to the lies of others is noted.

Ultimately the Court of Appeal, considered that the judge had fallen into the same error observed and cautioned against by Macur LJ in Re Y (A Child) [2013] EWCA Civ 1337 at paragraph 7:

"… I consider the case appears to have been hijacked by the issue of the mother's dishonesty. Much of the local authority's evidence is devoted to it. The Children's Guardian adopts much the same perspective. It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case. No analysis appears to have been made by any of the professionals as to why the mother's particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance. "
 

The findings made by the judge as to the mother's lies, and to her character and lifestyle, may be relevant to her overall analysis, but she did not provide any or any sufficient explanation of why they led her to the conclusion that the mother had inflicted the injuries.

The mother's appeal was allowed. It was unnecessary to resolve the father's appeal as the matter was remitted for a full hearing before a different judge.

Case summary by Kieran Pugh, Barrister, Coram Chambers

For full case, please see BAILII