Case Nos: B4/2012/1811, B4/2012/1828 and B4/2012/1827
Neutral Citation Number: [2012] EWCA Civ 1408
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(DISTRICT JUDGE O’MALLEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 31st August 2012
Before:

LORD JUSTICE WARD
LORD JUSTICE TOMLINSON
and
LORD JUSTICE LEWISON
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	IN THE MATTER OF G (a child)		

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(DAR Transcript of 
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Ms Tanya Zabihi (instructed by Bath and North East Somerset Council Corporate & Community Law Team) appeared on behalf of the Appellant local authority.
Ms Claire Wills-Goldingham QC (instructed by Angell & Co Solicitors) appeared on behalf of the First Respondent mother.
Ms Louise O’Neil (instructed by Withy King Solicitors) appeared on behalf of the Second Respondent father.
Mr Moradifar (instructed by Mowbray Woodwards Solicitors) appeared on behalf of the Third and Fourth Respondents, the maternal grandparents.
The Children’s Guardian did not appear and was not represented.
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Judgment
Lord Justice Ward:
1.	At 2.02 in the morning on 14 March 2011 the mother of a baby, A, then five and a half months old, made a call to the emergency services because, as she said, “My baby has been screaming all night and looks like he is dying -- has gone floppy and is breathing weird and making weird noises”.  The baby was taken to the Royal United Hospital in Bath, and then to the Frenchay Hospital in Bristol.  It was discovered that the child had suffered a bilateral subdural haemorrhage.  There was a boggy swelling on the right side of his head.  But happily he has made a full recovery and there is no lasting damage.  In the light of that, however, care proceedings were begun by the local authority and in due time a fact-finding hearing was heard by Deputy Judge O’Malley, spread over two hearings in February with a resumption in June.  I think the hearing lasted five days in all.  The local authority had placed before the court a schedule of findings it sought to establish, and the judge duly addressed each of those matters.  The order drawn by the court in fact does no more than recite that upon such findings having been made as set out in the judgment dated 25 June 2012, without making an actual order that those were the findings.  Nevertheless, the judge had addressed the issues, and we know precisely what he did find.  He went on to give further case management directions for the continuation of these proceedings, about which I may comment later.

2.	The findings in the Scott Schedule invited the judge to find that on an earlier occasion a few days later, on 10 March 2011, the baby had sustained a particular rash to both wrists, and the local authority sought the finding that that was caused non-accidentally by tight gripping of the wrists, and that the injuries were caused either by the mother, in whose care the baby was, or by a young man, I shall call him AP, who was present in the house.  The judge’s finding was the particular rash was caused, as stated by Dr Mecrow (he was a consultant paediatrician jointly instructed to provide an overview of the injuries) “by a mechanism such as squeezing him through clothing, or by handling him inappropriately by gripping him too tightly or picking up by the wrists, or by an adult sucking his wrists, as with a love bite”.  It was caused, found the judge, by the mother or an adult at her home but the marks were so relatively minor that they should not be regarded as constituting significant harm for the purposes of the Children Act 1989.

3.	Then the judge was asked to deal with the head injuries, and he found, and the findings are set out on the Scott Schedule, that the baby did indeed suffer a bilateral subdural haemorrhage with associated encephalopathy, and suffered some retinal haemorrhages to the left eye, and that those injuries were non-accidental, due to a single episode of shaking.  He further found that the boggy swelling was also non-accidental and was caused by a blunt impact to the right side of the baby’s head.  Importantly, for this application for permission to appeal, he found that all of those injuries were caused by AP and not by the mother.  

4.	Finally, he was asked to find and did find that the mother had allowed AP to remain in her home and to consider in the care of the baby, knowing he was an unsuitable person and habitual drug user.  He found, and this too is important from the mother’s point of view, that she failed to protect the baby from suffering significant physical injury, but the judge answered that question: “Yes, in the manner set out in my judgment”.  That judgment has caused consternation to such an extent that the local authority seek to appeal the findings by the judge that AP was the perpetrator of the head injuries, and invites this court to substitute for that a finding that the head injuries were caused either by AP or by the mother.  The local authority also challenged the finding in respect of the petichial rash, but principally I think as the argument developed more in respect of the judge’s observation that it was not enough to amount to significant harm.  The mother seeks to appeal the judgment on similar grounds.  The mother seeks to appeal the finding of a failure to protect, and the guardian for the children has made helpful observations in respect of those applications.  

5.	The matter was listed before us for permission to appeal to be considered on notice, with the appeal to follow, and we have accordingly dealt with the matter on the basis that they are applications for permission, and I say immediately that we refuse permission in all cases.  That being so, this will not be in any way a full judgment, but sufficient only to satisfy the parties why we consider there is no real prospect of success for any of those proposed appeals.  Undoubtedly, the first matter in time was the rash on the boy’s wrists, seen on 10 March.  The mother was worried that he might have meningitis, and so, and one pauses to add acting responsibly, she took the baby to the Royal United Hospital, because there were spots around his mouth and this rash on his wrist.  He was found to be generally well.  He was released after several hours of observation, and it is relevant to observe that there was no suggestion by any of the treating doctors that this was a non-accidental injury, or that it was serious, or that it involved further investigation by the local authority.  But for the head injury a few days later, this visit to the hospital would have been treated as no more than a responsible act by this young 19 year-old mother.  

6.	The judge dealt with that at the end of his judgment, and there is some criticism that really it was first, and it should have been dealt with first, because it could have an impact on the court’s approach to the head injuries, the thinking being that if there are two non-accidental injuries it is likely or a little more likely than not that the same person was responsible for them.  The judge observed that this injury did not feature as potential non-accidental injury in the strategic discussions that were held on 15 March following the head injury, nor in the original application to the court for a care order, nor in the initial draft of the findings that were sought by the local authority.  There was no evidence produced in the court from the treating doctors, though there may have been a report from the treating doctor.  But the experts who were called were asked about this, and the tenor of their evidence as I understand it is that but for the subsequent head injury, no-one would have thought twice about the injury to the wrist.  But in the light of the head injury, then their finely balanced opinion was that it was a non-accidental injury, and the judge so found.  So there can be no complaint about that finding.  He went on to say that it must have been caused when the child was in the care of the mother or some other adult, but he declined to make any finding as to how the marks had in fact been caused.  There result, therefore, of the finding is that the mother is in the pool of perpetrators, and the real nub of the local authority’s criticism is the added remarks by the judge that the injuries are “so relatively minor that they should not be regarded as constituting significant harm for the purposes of the Children Act 1989”.  It is submitted on behalf of the local authority that he should not have made that finding; that there is no evidence to support it, and that it should be expunged from the Scott Schedule findings that he did make.

7.	I reject that submission.  This was a helpful observation by the judge, because it was moreover a thoroughly justified observation, given the way the matter was dealt with by the treating hospital, and in the immediate aftermath of the head injury.  It came in very much as an afterthought, and in my view that is a helpful observation for a judge who has still to consider whether the case as a whole amounts to crossing the threshold set by section 31 of the Act.  There is, in my judgment, no prospect of success in appealing that part of the judge’s order.

8.	So I turn to the head injuries, which is the real worry in this case.  In paragraph 34 of this judgment, the judge made the finding that the injuries could not have been self-inflicted.  They were sustained at the baby’s home when the only two other persons present were his mother and AP.  There had been another young man in the home but he had left at about midnight, and no suggestion is advanced that he had any responsibility for these injuries.  So the judge is perfectly correct to identify the two people in the frame as mother and AP.  He went on to say: 

“Unless it can be established that the injuries were inflicted by only one of these adults, to the exclusion of the other, they must both be regarded as possible perpetrators.”

I can see nothing wrong with that at all.  Then he said:

“The findings of the court must be based on all available material, not just on the medical evidence, and regard must be had for the wider context of social, emotional, ethical and moral factors.”

Again, the judge was approaching the matter correctly, and in the light of that observation it seems to me to be unarguable to submit that he did not have regard to the case in the round, and look at it having regard to all material factors.  He says exactly the opposite.  He continues:  

“Facts must be proved to have happened on the balance of probabilities.”

Again, he is correct.  Thus far, his approach and directions to himself seem to me to be short but impeccable.

9.	The judge then dealt with the medical evidence as to the timing of these injuries.  He recited the evidence from the various paediatricians and radiologists; I need not set it out, because in paragraph 35 he came to the conclusion: 

“In the light of the above medical evidence I consider that it has been established that [A] suffered a shaking injury together with an impact injury to his head very shortly, if not immediately, before his collapse.”

Again, I can see no reason to doubt that finding.  How long very shortly is, how long immediately before his collapse may be, whether it is one minute or two minutes or five minutes or ten may be difficult to be sure about.  But it certainly was not half an hour earlier, it was as the judge said very shortly before if not immediately before the baby’s collapse, and on the baby’s collapse the baby was taken up to the mother, and she phoned the hospital immediately, as I have already indicated.

10.	So the judge goes on to consider the question of who hurt the boy in that way.  He recites the evidence of the mother in her police interview and in her statement, and in her oral evidence, that she was upstairs in her bedroom, and the boy was brought up to the bedroom by AP following his collapse downstairs.  The important point is that AP gave the same account to the police in the interview.  Then the judge said: 

“The local authority criticise the mother and point to inconsistencies in her evidence.  They point to unfavourable reports from the hospital about her demeanour.  They suggest that she has lied and failed to give a plausible account of how [AP] could have caused the injuries.  They invite a finding that she is the sole perpetrator.”

11.	The whole tenor of the submission of Ms Zabihi for the local authority in challenging what is essentially a finding of fact is that the judge failed to have regard to the innumerable inconsistencies in the mother’s evidence as between the accounts she gave the doctors, her police statement, her various witness statements and her evidence.  Again, I say that the judge having expressly taken account of the inconsistencies, well set out I have no doubt in the written submissions from which he was working, not having heard oral argument and the close of the case, he was well aware of those inconsistencies, and it seems to me impossible again to say he was plainly wrong, or misdirected himself, or failed to have regard to any material evidence.  So he decided that one of the mother or AP was lying, because at least one of them had to know how the baby was injured, and neither of them had given any explanation.  AP himself, although at one stage an intervener, took no part in the proceedings at all.  The judge said it is hard to see why, if they are both lying about what happened, they should tell that particular lie; the particular lie being that he, AP, was downstairs with A during the short period before the baby was in obvious distress.  The judge continued: 

“The prospect of [AP] giving an untruthful account which potentially implicates him and exonerates the mother is unlikely in the extreme.”

I agree.  He pointed out that that was consistent with the police reports made a week or so afterwards, and if they were going to tell a pack of lies they would have made a better shot of it.  Thus, the judge concluded: 

“I find [a finding of fact] that the accounts given about events in the house that night, despite the criticisms of the mother’s evidence [again, he is emphasising he is aware of the criticisms of her evidence], are essentially truthful and accurate, save that I am driven to the conclusion that [AP] has concealed the fact that it was he who injured [the baby] in the moments before he collapsed.”

When a judge who has heard this case over five days comes to a conclusion that he believes one of the essential parties to the events over which he has to exercise judgment, it is extremely difficult, if not well nigh impossible, to challenge that finding of credibility for such it is.  Thus, I have no doubt at all that there is no prospect of successfully appealing the conclusion that AP was the perpetrator of the baby’s head injuries.

12.	So we turn to the lack of protection, which is the subject of the mother’s application for permission to appeal.  The difficulty she has is that in her second witness statement, as it is summarised by the judge in paragraph 26 of the judgment, she acknowledges that she knew AP had a criminal record and a history of violence; that he was prone to losing his temper, although she did not believe he would have harmed the baby intentionally; and she there suggested that he could have lost control and done something to injure him.  She knew he was an habitual drug user and had not smoked that day due to lack of funds and was therefore irritable and paranoid.  In her third witness statement, as the judge recounts it in paragraph 27 of his judgment, she accepts that she should not have allowed the baby to be exposed to anyone who could potentially have caused him harm; her mistake was in allowing AP into her home and her life, and she said, and the judge is here quoting from her statement: 

“I must ... of course take my share of responsibility for allowing [Mr P] into my home.”

Though she attributes her poor judgment to her vulnerability, to the unhappy relationship she had with the father of the child, who was it is said violent to her from time to time, and from whom she sought some protection.  She spoke of her immaturity, and doubtless she is immature.  So that is the disadvantage of her position.

13.	When the judge came to make his judgment on it, he recounted in paragraph 36 that she accepted some criticism for allowing AP into her home.  The judge found that it was clear to him that the mother was willing to welcome him into her home regardless of his background, and regardless of any risk he presented.  If she had made fuller enquiries, she would have discovered he was not an appropriate person to have living in a house with a young baby.  Now here the mother does make a complaint, with which I have a degree of sympathy.  AP was on bail at the time he was allowed into the house.  The probation service had contacted this young mother seeking to find out whether she consented to have him living in the house.  The probation officer did not say, “Now, young thing, this is a dangerous, wicked, horrible man and do not allow him in your home at any cost”.  There was no such advice.  Social services were involved at least to the extent that they were aware of the alleged domestic altercations between mother and father, and the need to keep an eye on that.  They had not given any warning, and I do not suppose anybody knew the full extent of AP’s criminality.  So to that extent, the mother is able to say “I am guilty, but I am not very guilty”, a well-known Irish plea as recounted by the late Comyn J in his memoirs of the Munster circuit. 

14.	The judge therefore was of the view that, as he said: 

“I take the view that when [the baby] needed attention in the early hours of 14th March 2011 she should not have allowed [AP] to collect him from her room and she should not have left [the baby] with him because there was the potential for some harm to [the baby].  She should have tended to [the baby] herself and resisted the distraction of her mobile phone [which she went upstairs to charge].”

Then he added: 

“Clearly she did not foresee the extreme violence which [the baby] suffered, nor could she reasonably have foreseen it, but by having [AP] in the house and leaving [the baby] with him on the night in question she does in my view share a small part of the blame for the injuries which befell him.  Overall I consider that a finding that she failed to protect [the baby] from harm is justified.”

15.	The Scott Schedule findings, as I have said, record that the judge was satisfied of that failure to protect in the manner set out in the judgment, so anybody reading that finding has to read paragraph 36 to find out what the judge was in fact saying.  It seems to me perfectly obvious what he is saying; it seems to me he is saying he knew that he was undesirable to embrace Ms Wills-Goldingham’s phrase in her submissions to us on the mother’s behalf.  He is finding that she should have cared for the baby herself, and not left him alone at any time with this undesirable young man.  To that extent, she failed to protect him.  Equally, she did not know and could not have reasonably known that he was to suffer the extreme violence to which he was subjected.

16.	On behalf of the guardian, Mr Moradifar complains about the judge’s describing this as her having a “small part of the blame” for the injuries which befell the baby.  As my Lord, Lord Justice Tomlinson, observed in the course of argument the adjective is helpful because it does precisely explain the limited degree of responsibility for which he is holding her liable.  He is exonerating her from having any knowledge or having any reasonable foresight of knowledge of actual harm; but in allowing this undesirable young man into her life, she was in error, as indeed she had admitted in her own statement.

17.	So for my part, I can see no prospect of those findings being overturned, and I would dismiss the mother’s application for permission, just as I dismiss the local authority’s applications, and the father’s applications.

Lord Justice Tomlinson: 
18.	I agree.  Appeals against the findings made by a judge in a fact-finding exercise should in my view be rare and are not to be encouraged.  Here, in my judgment, none of the parties seeking permission to appeal has come close to demonstrating that the judge failed to approach his task in the correct manner.  I too would refuse permission to appeal.

Lord Justice Lewison: 
19.	I also agree.  The judge was engaged on a fact-finding exercise.  His self direction on his approach to the evidence, which my Lord, Lord Justice Ward, has quoted from paragraph 34 of the judgment, was impeccable.  No question of law therefore arises.  A trial judge’s job is to decide between conflicting evidence and conflicting theories about what happened.  That is precisely what this judge did.  He was not required to recite all the evidence as if summing up to a jury.  His job was to reach a conclusion and to give sufficient reasons to explain how and why he reached that conclusion.  That too is what this judge did.  There is in my judgment no real prospect that his findings would be overturned.  I therefore agree with my Lords, Lord Justice Ward and Lord Justice Tomlinson, that these applications should be dismissed.

Lord Justice Ward:
20.	Can I add this, and you may make the use of it you can.  I confess to being disappointed at the way the case has been managed.  This injury occurred on 14 March.  The fact-finding hearing did not start until February, 11 months later.  If by then the local authority did not know what facts it was going to assert constituted the significant harm attributable to the care the parents gave (I emphasise the parents) then it seems to me any matters they now wish to raise must be looked at with at least a degree of scepticism.  They have to relate back to the institution of these proceedings, and I do not know what further matters are going to be suggested amount to significant harm, and I do not know why they were not advanced before the judge.  I do not know why he was not invited not only to find the facts, but to find whether or not the threshold of section 31 had been crossed.  That is precisely the purpose of a fact-finding hearing, to divide this into two manageable halves -- the threshold is or is not crossed for these facts as I find them -- and then go on to part two of the exercise, the welfare disposition.  

21.	We are now left, as I understand it, in the lamentable position that another five days are set aside for this case in which another judge is going to have to review this judgment, and for what it is worth the comments that have fallen from us, to decide whether the threshold has been crossed.  It is a complete duplication of effort and I deprecate it.  Far from it taking five days, I do not know what you are taking five days over, and I do earnestly put before you all that there comes a time -- I am sorry that this sounds harsh and critical, and especially I am sorry that it sounds critical of poor Ms Zabihi because I do not intend to disparage her at all and it is a general observation of my too many years in dealing with these cases.  The lawyers are there to advise as lawyers, not as social workers, and the lawyers have the responsibility of taking a decision whether the facts that are established or the facts that are likely to be established, stack up sufficiently to amount to significant harm.  It is not a social worker question, it is a legal question, and that is a matter for lawyers to answer, and if this case does not stack up to significant harm, the sooner it is ended the better.  Obviously welfare issues do or can arise, and even there it may require some input from the lawyers; but please, will the lawyers take some responsibility for the future conduct of this case?

Order:  Applications refused.