S (A Child: Adequacy of Reasoning), Re

This appeal is a reminder of the pressure under which judges of the family court are working. Between 20 and 23 May 2019, Her Honour Judge Mellanby conducted a fact finding hearing in care proceedings. Over three days she heard ten witnesses, the hearing being interspersed with short hearings in other cases. On 23 May, she received submissions from three represented parties and an unrepresented intervenor. It was not possible for the court to sit on the following day and at 4.30 pm the judge, no doubt anxious to give the parties a decision, delivered an oral judgment that lasted until 6.45 pm. It is an unhappily familiar situation.

As we told the parties at the end of the hearing, this appeal must be allowed. In reaching that decision, we do not overlook the reality. Judges are encouraged to give extempore judgments where possible and appeals will not succeed simply because matters might be better expressed with the luxury of extra hours of preparation or because judgments may contain imperfections. What matters is that the parties know the outcome and the reasons for it. Where the essential evidence has been considered and the decision has been adequately justified, that will do. In this case however, it did not happen. Despite the judge’s efforts, the parties were at the end of the judgment unsure what she had decided about the two main issues in the case. Clarification was sought. It to some extent makes the judge’s intentions clearer but too many actual or arguable inconsistencies remain and important conclusions are inadequately explained. There will regrettably have to be a rehearing.

The case concerns a 3 year old child, S, who arrived at nursery one morning with a broken arm, a mark to his neck and a bruise to his clavicle. The arm injury had occurred no earlier than the afternoon of the day before and S had been in the care of his mother and her boyfriend Mr C throughout the intervening period. The questions that the judge therefore had to ask were these (Footnote: ¹):

Had the local authority proved that the injuries were inflicted as opposed to being accidental?

If the injuries were inflicted, who had the opportunity to cause them?

Of those people, could one person be identified on the balance of probabilities as having inflicted the injuries (a conventional ‘known perpetrator’ finding)?

If only two people (the mother and Mr C) could have caused the injuries, but the one responsible could not be identified it necessarily followed that there was a real possibility that each of them may have caused the injuries (an ‘uncertain perpetrator’ finding).

Once these questions had been answered, had it been proved that the mother had failed to protect S from being injured or covered up what she knew about how he was injured?

Unfortunately the judge did not approach matters in this way. (Footnote: ²) Once she had decided to give the parties her decision that day, it would have been better if, rather than delivering a 30 page judgment under time pressure, she had simply set out and answered the necessary questions and given her essential reasons in a few additional lines. This is in any event a useful discipline, particularly where a party is unrepresented. Everyone knows exactly what has been decided and why. The full decision could follow, either then or at a later date.

The mother was very young when S was born and there was concern about the father’s history, the parents’ relationship and the mother’s vulnerability. By the relevant time, she was living in her own accommodation with S and had recently started a relationship with Mr C.

On 22 November 2018, after Mr C had taken him to nursery, S was seen to be looking sad and to be holding his right arm down by his side. His hand and wrist were swollen and his arm was immobile. He told his teachers that he hadn’t seen his mother that morning. The nursery initiated child protection measures and the mother eventually came in. S said that “I did a wee on the sofa and [Mr C] smacked me.” S was taken to hospital, accompanied by his grandparents. A child protection medical investigation was carried out. It disclosed fractures of the right arm that conveyed a high suspicion of abuse. The mother and Mr C were arrested and interviewed. No charges have been brought. By agreement with the mother, S was placed with his maternal grandparents, where he remains, subject to an interim supervision order and with frequent supervised contact with his mother.

On 17 December 2018, the local authority issued proceedings on the basis of S’s injuries and his exposure to abusive relationships and the mother’s fluctuating mental health. S’s father did not play an active part in the fact-finding as S was not in his care at the relevant time. Mr C became an intervenor but due to funding issues represented himself at the hearing. I will say more about this below.

A full child protection medical report concluded that S had without reasonable doubt been subjected to a serious assault which was likely to have taken the form of a very significant blow.

Further expert advice was obtained from Dr Coren (consultant paediatrician) and Dr Watt (consultant paediatric radiologist). Both doctors gave oral evidence.

Dr Coren’s opinion was that it was unclear whether the fracture had an accidental or non-accidental cause, noting that fractures in toddlers’ forearms are not unusual.

Dr Watt advised that this type of injury is common in children up to the age of 10 due to the relative frequency of falls. A blow to the forearm or another undisclosed inflicted injury, whether intentional or unintentional, could account for the injuries, as could accident. The nature of the fractures was indicative of less force than that required to cause a complete or displaced fracture. It was unlikely that the fractures were caused by S being picked up by his arm without any blow or impact. Based on the statements and clinical findings, it was likely that they occurred between 21 and 22 November.

The mother and Mr C both described an event on the evening of 21 November when S had urinated on the sofa and was told off by Mr C. The mother says that Mr C lifted S off the sofa by one arm. She did not say anything about this at the time as it did not seem to upset S. Both adults gave evidence that S appeared to be unharmed. Neither described any accident that might account for the broken arm.

The relationship between the mother and Mr C ended immediately after the events of 22 November. By the time of the hearing, the mother’s case was that Mr C must have inflicted the injuries to S on the walk to nursery. She gave evidence that S had appeared unhurt and waved to her before going to nursery that morning. She said (for the first time) that he had waved with his right hand, a detail the judge rejected as a lie. Mr C denied causing any injury. He suggested it must have been caused at nursery on the previous day.

At the trial, the local authority alleged that the injury was inflicted by one or other of the adults and that they were both concealing what had happened.

The note of judgment begins with what is described as a summary. It then moves to what is described as the main judgment. That describes the factual background, the law and the evidence of each witness in the order in which they were called, with commentary from the judge. It ends with a section entitled ‘findings’. At the same time as giving judgment, the judge handed down a copy of the 11 page Scott schedule of findings that had been used during the trial, to which she had added her findings in a narrative manner that to some extent, but not entirely, duplicated what was said in the judgment.

At the outset the judge found that S had undoubtedly sustained the injuries described by the medical witnesses. She fixed the time window as being between 2 or 3 pm on 21 November and 9 am on 22 November. She said that it was more likely than not that all the injuries occurred during the same timeframe though not necessarily during a single episode.

Noting the medical evidence, she determined that the mechanism was a significant blow, and continued:

I next identify some passages where the judge expressed herself dissatisfied with the evidence of both the mother and Mr C:

As to the sofa incident:

The judge further found that:

Having heard the judgment, the parties requested clarification and a direction was made for an expedited transcript and for the matter to be listed for a further hearing on 5 June 2019 so that these issues to be addressed. Unfortunately the court tape was such poor quality that none of the evidence or judgment (except the evidence of Dr Watt, given by video link) could be transcribed. (Footnote: ³) The advocates agreed a note of judgment which was amended by the judge and handed down electronically on 12 June 2019.

The questions asked by the parties were:

Whether the court had concluded that the injuries were non-accidental on the balance of probabilities;

If so, whether the court had identified the perpetrator;

What evidence from Dr Coren and Dr Watt had been accepted and what had not;

What evidence of Mr C had been accepted and what had not.

In response, the judge gave these answers in an additional paragraph [89]:

On behalf of the mother, Ms Teggin and Ms Stout advance five grounds of appeal, which can be boiled down to two core submissions: the judgment was (1) internally inconsistent (2) perverse as being against the weight of the evidence.

Ms Teggin describes the judgment as chaotic. As to inconsistency, the finding at [62] – see paragraph 18 above – that Mr C was “hiding his knowledge and not being honest with either himself, the court or the mother about what had happened earlier in the morning or late at night” cannot sit alongside a finding that the mother may have caused the injuries. She also points to the judge’s statement, referred to at [89] that the “likelihood” was that S injured his arm whilst in the care of Mr C.

As to perversity, Ms Teggin argues that the judge simply did not take into account a mass of evidence that compellingly pointed to a finding on the balance of probabilities that the injuries had been caused by Mr C:

The grandmother’s evidence was that S had said to her in the car on the way to the hospital that Mr C had hurt his arm. He had repeated this on other occasions. S is a bright child, able to say who injured him.

S made many statements to adults that he was scared of Mr C.

In contrast, S has showed no anxiety when with his mother.

As a result the inappropriate delegation of care to Mr C, he had a major opportunity to injure S.

The judge assessed Mr C as a man with a short fuse.

She was critical of his demeanour during the hearing.

There was a manifest inconsistency in his oral evidence that there was nothing wrong with S when he dropped him at nursery and his statement in police interview that he had told the nursery that S was “going on about his arm”.

As to the outcome if the appeal succeeded, Ms Teggin submitted with a realistic lack of conviction that this court could substitute a finding that Mr C was responsible for the injuries.

The local authority and the Guardian do not accept the complaint of perversity. Ms Ancliffe submits that, although the judge did not say in terms why the injury was not accidental, the basis for the conclusion can be gleaned from material within the judgment: medical opinion, opportunity, no account of accident, not caused at school, pervasive lies by both carers, statements by the child. However, in addition to the inconsistency about the mother’s state of knowledge, she contends that the judgment contains a central confusion as to whether accident had indeed been ruled out and, if it was inflicted, who was responsible. In particular, there is a discrepancy between paragraphs 4 on the one hand and paragraphs 87 and 89 on the other.

I am conscious that these arguments have not been balanced by legal submissions on Mr C’s behalf. He attended before us in person to deny responsibility for S’s injuries and express his dissatisfaction at the process. His lack of representation at the trial, while not in itself amounting to unfairness, placed him at a disadvantage and created difficulties for the other parties and the judge. He told us that although he did not want there to be another hearing he would want to be represented if there was one. We strongly encourage all possible steps being taken to achieve this, either by the grant of legal aid or through an application for pro bono assistance.

In my view the main problem with this decision is not so much that it is internally inconsistent as that it has not been sufficiently reasoned.

In Re N - S (Children) [2017] EWCA Civ 1121 , McFarlane LJ said this:

For all these reasons, there needed to be as much clarity as possible about what had happened to S. Even though the other unchallenged findings of fact of emotional harm and neglect on the part of the mother are serious enough to cross the threshold, a finding that a parent has or may have caused serious injury to a small child is one that resonates. Here, there is no attempt by the judge to reason why there had not been an accident: she

I would accept the submission that the judgment contains within it evidence that could have been gathered up and assembled to justify the findings contained in the judge’s clarification at [89]. I would also accept that a judgment must be read as a whole and a judge’s explicit reasoning can be fortified by material to be found elsewhere in a judgment. It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself. In my view, there is so little reasoning underpinning the judge’s conclusions that we would have to do this in order to uphold her decision, and if we were to attempt it there is no knowing whether we would arrive at the same conclusion.

I am also troubled by the procedural history. There were undoubtedly inconsistencies in the oral judgment, but one main ground for concern is that the parties had to seek clarification on such fundamental issues at all. As to the suggested inconsistencies, Ms Teggin is right that the clear statement at [62] that Mr C was hiding what he knew had happened from the mother is not compatible with the conclusion that she may have caused the injury. If the judgment as a whole was soundly reasoned this might not be fatal but as matters stand it is a serious anomaly. I am less struck by the argument made by the respondents about paragraph 89 and the “likelihood” that S injured his arm while in the care of Mr C. Read as whole the paragraph shows what the judge had meant by that observation. It is nevertheless a good example of the imprecision of language that pervades the judgement and causes doubt as to what standard of proof the judge was actually applying. She repeatedly says that she can or cannot be ‘certain’ or ‘sure’ about a fact and at one point says that she “cannot be sure even on the balance of probabilities” [74]. Occasional colloquial use of language is to be expected but when it is so frequently found in the context of important findings of fact it undermines confidence in the solidity of the findings.

I would therefore allow the appeal on the basis that the judge’s conclusions as eventually expressed were inadequately reasoned and further that there are too many actual or arguable deficiencies in the structure and content of the judgment for it to be upheld.

In the light of these conclusions, it is unnecessary to express a view on Ms Teggin’s perversity submission. Indeed, given that there will be a rehearing it would be unhelpful for this court to comment on the significance or otherwise of aspects of the evidence; that will be a matter for the judge conducting the retrial.

Lastly, I note that the resulting order did not recite the threshold findings as it should have done, but merely referred to the Scott schedule. A schedule of this kind is a useful document in preparation for a trial but it is not the end product. For reasons of clarity of thought and clarity of communication to others, a simple statement of the grounds on which the threshold was crossed should have been created.

We have allowed the appeal and directed a retrial before a different judge. We cannot substitute our own conclusions. That would only be appropriate if the result of the appeal allowed for only one realistic outcome. The matter will be remitted to the Designated Family Judge for an urgent case management hearing. At that hearing he will determine what needs to be done to move the case towards a final decision on S’s future and our order will include a list of issues he will no doubt want to consider. These will include: whether it is necessary for the medical evidence to be recalled, given that it may be capable of agreement; whether there is any need for there to be a separate fact finding hearing or whether it could be incorporated into the five day final welfare hearing already fixed for February; last and not least, what steps should be taken to help Mr C to obtain representation if he wants it and is prepared to cooperate. Lady Justice Asplin

I agree.