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

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

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

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.

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.

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.

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.

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.

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.

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:

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.

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.

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.

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.

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.

"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:

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.

"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."

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.

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

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.

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.

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".

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.

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.

"[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."

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.