Re B (A child) (Fact-finding)

This is an appeal by a mother against a finding that she was the perpetrator of serious physical injuries inflicted on her small baby, hereafter referred to as B.

The mother is 25 years old, the father is 20 years old. They met in December 2020 and began a relationship. Within weeks the mother was pregnant. In January 2021, the father moved into the mother’s house. They married in May 2021 and in September of that year they moved into their own accommodation.

On 29 October 2021, the mother gave birth to B. It was a difficult birth, requiring a forceps delivery, in the course of which the mother lost blood and needed stitching and catheterisation. The stitches split and she developed an infection. As a result, when the family returned home from hospital, the father looked after both mother and baby for the two weeks he was on paternity leave.

The general routine established by the parents was that the mother would give B night feeds on Sunday night and during the week, the father would be responsible for night feeds on Friday, and they would share feeding during the night on Saturdays. Both parents described B as an unsettled baby, who cried a great deal. On 8 November, B was taken to hospital because he was crying inconsolably. He was discharged after no cause could be found for his crying.

The father returned to work on 14 November and was away in another part of the country until 17 November. He was then at home until 25 November when he returned to work during the day, returning in the evenings. On 26 November, the parents took B to hospital again because they were concerned about his crying. On that occasion he was examined by two consultants who found nothing of concern.

On Friday 3 December (as the judge found), the father arrived home from work at 2.30pm. Neither parent reported B being particularly unsettled that day. The family were then together over the weekend. The father looked after B overnight on 3 to 4 December. On 4 and 5 December, B was reported as being unsettled. On 5 December, the mother noticed that B’s left leg was hard and swollen. On 6 December, he was taken to the GP and then to hospital where he was admitted that afternoon. A radiological examination revealed that he had an oblique fracture of the mid-shaft of the left femur, a fracture to the left proximal tibial metaphysis, seven healing rib fractures and other changes to five more ribs.

On 14 December, the local authority started care proceedings and at the first hearing the court made an interim care order. On discharge from hospital, B was placed in the care of his paternal grandmother (“the grandmother”) and her partner, where he has remained ever since.

On 7 April 2022, the mother called the police to complain that the father was shouting at her. She asked for their help in getting him to leave the home. During her call to the police, the mother alleged that the father had committed an act of sexual assault on her while they lay in bed together on 16 March 2022 when she was under the effects of medication. This allegation was investigated by the police but they took no action about it.

Following this incident, the parents separated. In August 2022, however, they resumed communications. During a conversation, the father raised the possibility that he had inflicted the injuries to B. On the mother’s case, the father told her more than once that he had in fact caused the injuries but could not remember doing so and that she had not hurt the baby. The mother later said that she thought he was testing the waters to see how a confession might be received. The father’s case was that he was exploring whether he could have injured B, having found his memory of the early weeks of the baby’s life to be “a blur”. He denied saying that he had caused the injuries. Both had heard from a friend about dissociative disorders and that a sufferer might experience blackouts. The father attended an appointment with his GP about the possibility of a dissociative disorder, either supported or encouraged by the mother. When he spoke to the grandmother about the possibility, she was dismissive of the idea and said that she thought the mother was manipulating him. The father subsequently alleged that the mother had manipulated him on this issue. His doctor rejected the possibility that he had suffered from a dissociative disorder.

The fact-finding hearing took place over 15 days between 29 March and 27 April 2023. At first, the local authority sought findings that one or both parents had caused the injuries to B. Each parent denied that they had caused the injuries. The mother sought findings on her allegations of sexual assault on 16 March 2022 and on her allegations that the father had made a quasi-confession to her in August 2022. The witnesses who gave oral evidence included four medical expert witnesses, including a consultant paediatrician, Dr Kavita Chawla, both parents and the grandmother. At the end of the evidence, the local authority, supported by the guardian, amended its case to plead that the mother was responsible for B’s injuries.

On 27 April, the judge handed down a judgment in which she found that the mother had inflicted B’s injuries. She found that in the first five weeks of B’s life the mother had been under enormous stress and pressure as a result of health difficulties, that she loved B and would never harm him intentionally, and that the injuries had been caused as a result of a loss of control rather than any malice or intention. She found that the father had behaved selfishly and inconsiderately towards the mother in relation to his sexual demands and his preoccupation with his work and did not support the mother sufficiently following his return to work. She found that the father had “failed to notice on 3, 4 or 5 December 2021 that B’s leg had been harmed, that he did not notice the decreased movement which was present and in this respect he did not meet B’s needs”. She found that on 16 March 2022, the father “had attempted to initiate sexual intercourse with the mother by removing her pyjama bottoms and masturbating”. Finally, she found that “in August 2022 the parents had discussed the possibility of the father having caused B’s injuries but not remembering doing so, that the mother was aware that this was not a possibility as she had caused the injuries and that she manipulated the father by encouraging him to explore this possibility.” Following judgment, a case management order was made, making directions leading to a final hearing at the end of July 2023.

An application for permission to appeal was made to the judge by the mother and refused on 11 May 2023. On 26 May, the mother filed a notice of appeal to this Court. Permission to appeal was granted on 20 June.

In view of the challenge to the judge’s approach to the issues, it is necessary to set out passages from her judgment in some detail.

The judge started her judgment by summarising the issues and the finding she was being asked to make. She then set out the background in more detail. She recorded her impressions of the parents at paragraphs 28-9:

The judge then considered in some detail the findings sought by the mother, starting with her allegation of sexual assault. In the course of the prior investigation and the hearing, the father had changed his account of what had happened in a number of respects. The judge concluded that he had lied about the incident in a number of respects and found the mother’s allegation “in all aspects proved on the balance of probabilities”. She observed that, if the mother had wished to bolster her allegation, she could have lied about it. She accepted that it “came out as a result of the police questions, not because the mother was intent on damaging the father”. The judge expressed her finding as “the initiation of sexual intercourse by the father”, rather than sexual assault.

The judge continued:

The judge then considered the second issue on which the mother sought findings, relating to the father’s statements in August 2022. Having summarised the evidence about this, she set out her conclusions on it at paragraphs 58 to 61:

The judge then turned to B’s injuries. She started by setting out the agreed facts. The injuries had been inflicted and the parents were the only possible perpetrators. The evidence of the expert radiologist was that the two sets of rib fractures had been sustained on two different occasions, between seven and fourteen days apart, the windows being 9 to 23 November 2021 for the first set and 23 November to 6 December 2021 for the second. The leg fractures and second set of rib fractures could have been sustained at the same time but required two separate applications of force. The force needed to cause the fractures was excessive, more than any normal handling.

Next the judge considered the expert evidence, focusing in particular on the evidence of Dr Chawla. She had drawn a contrast between the symptoms of rib and leg fractures. Rib fractures can be difficult to identify clinically. The symptoms are non-specific and a carer who is unaware of what happened may notice that the child is unsettled without knowing why. In contrast, there are almost always clinical signs of a broken limb, including swelling, decreased movement, and pain on movement. It was Dr Chawla’s evidence that she would expect a carer to notice decreased movement of the affected limb, for example when changing a nappy. She said that an observation that the leg is visibly swollen and hard, as the mother noticed in B’s case on 5 December 2021, was consistent with the injury having occurred within the previous 48 hours. Dr Chawla also said if the fracture was present the previous evening when B was bathed, it is unlikely that there were no clinical signs then. On admission to hospital at 4pm on 6 December, B was described as being in pain. Dr Chawla’s evidence was that the pain from the fracture would have been likely to settle within 72 hours of the injury. Thus on her evidence, the window during which the injury was inflicted was between 4pm on 3 December and 4pm on 5 December.

The judge then recorded Dr. Chawla’s evidence about crying. A cry of pain would be different from a cry when hungry. It would be an obvious change in cry, but if the baby was already crying that change might be momentary. A person who was, in Dr Chawla’s words, “not right there” (i.e. physically present) may not notice the change, but the person who had used force on the baby and heard the change in cry would realise that the force they had used was excessive even if they may not realise that they had caused a fracture. Later, she added that a person not observing the incident, but present in the house would be aware of an escalation in the crying but may not know why.

On the issue of B’s crying, the judge noted the parents’ evidence that he was an unsettled baby who cried a lot. She described the house as small and said that it was “clear that sound travels through the relatively thin walls, and between up and down stairs” adding that there were “texts from each of them to the other referencing hearing B crying in another room, indicating that that sound was being heard from another room”. As to their night time routine, she recorded (paragraph 77):

The judge recorded the local authority’s case that, if the father was the perpetrator, he must have injured B twice in the house when the mother was also in the property and it was very unlikely that she would have missed the change in his crying. Under the next section of the judgment, headed “Opportunity”, the judge noted that the mother was alone with B for much more time than the father. It was not feasible to consider every moment when she had been alone with him but it was “possible to gain a pretty clear picture of when the father cared for B either alone entirely or when the mother was also in the house”. She then indicated that she was going to consider the evidence relating to the father’s care of B.

The judge first considered evidence about the father finding things difficult on 5 November and the mother suggesting he might go to stay with the grandmother, but dismissed this because it was too far outside the radiologist’s time window to be considered as a realistic time when the first set of rib fractures might have been caused. She also referred to a video of B being winded on 13 November during which B did not appear to be in pain, and the fact that a health visitor who examined B on 12 November and did not notice anything wrong.

The judge also considered in some detail the evidence in relation to the period from 17-21 November during which the father had cared for B overnight on two occasions and also during the day. During this period the mother had been largely present in the house but had been away visiting a neighbour for about 25 minutes on 19 November. During the mother’s absence, the father had texted her indicating that B was “screaming” but it would seem he had settled by the time the mother returned. The mother did not suggest that the father had injured B during this time.

In relation to the second set of rib fractures, the judge accepted a submission by Ms Grief KC for the mother to focus on the period 24 to 26 November, continuing (paragraph 91):

The judge also referred to evidence that B had been observed by a health visitor to have been very unsettled on 26 November, that the mother had sent a text indicating that she thought B was in pain, and that the parents had taken B to hospital on the evening of 26 where he was kept in overnight and examined by two consultants, who diagnosed oral thrush but no other injuries.

At paragraphs 94-95 the judge dealt with the evidence concerning the leg injury. She said,

After considering evidence about the occasions when there had been an opportunity to inflict the injuries, the judge said (at paragraph 96):

The judge then set out her conclusion as to the cause of the leg injury in a section headed “Discussion”:

The judge then said that, in addition to relying on the lack of evidence against the father in that time period, she relied on four other matters in making her finding against the mother which she considered at paragraphs 126 to 133 of the judgment. The first related to a short video recording taken on the afternoon of 3 December after the father had returned from work which showed B in a buggy. She observed that

Thirdly, the judge considered the evidence about a phone call made by the father to the grandmother on the evening of 5 December in which he mentioned that B’s leg was swollen, and in the course of which the father sent the grandmother a photo of B’s leg which had been taken on 31 October. The judge agreed that it was “very odd” that he had not mentioned the call either to the police or to the mother or within the proceedings until November 2022. But she rejected a number of submissions by Ms Grief about the call, in particular that the father had used the call to gain support for not seeking medical attention that night, observing that, if that were the reason, he would have told the mother about the advice which he received from the grandmother, which was to call the health visitor the next day.

Fourth, the judge considered evidence of the mother Googling about the swelling on the night of 5 and 6 December. She described this as “equally consistent with her hoping against hope that she might find that there could be another reason for the swelling, which in fact she knew she had caused”.

Turning to the rib injuries, the judge said:

Six grounds of appeal were put forward on behalf of the mother by Ms Alison Grief KC leading Ms Charlotte Keighley. They can be summarised in these terms.

First, it was submitted that the judgment was not an evaluation of all the evidence in a holistic manner but an exercise in demonstrating “the lack of evidence against the father” and in so doing the judge ignored relevant evidence and/or used evidence only so as to inculpate the mother. Ms Grief submitted that the judge made a finding to fit a hypothesis without considering the totality of the evidence. Secondly, and following on from the first ground, it was argued that the judge decided the evidence in compartments and ignored, in very material respects, evidence that would point towards or support a finding that the father was the perpetrator of the injuries.

Thirdly, it was said that the judge adopted an approach in respect of the evidence as to what the mother ‘would have heard’ or ‘would have done’ in respect of the leg injury that was considered in isolation, to underpin findings regarding the other injuries and was unsound because it:

Fourth, Ms Grief submitted that the finding that the father cared for B in the bedroom on the night of 3 December 2021 was made without a factual or evidential basis for doing so and in doing so, the learned judge failed to consider relevant evidence which makes such a finding unsustainable, namely:

Fifth, having concluded that the most likely time for the second set of rib fractures was 25/26 November (para 87 of the judgment), the judge erred in making a finding that “it is unlikely in that period (40-45 minutes) that the father would become so stressed as to lose control”:

Finally, it was submitted that the judge failed to engage with or consider the broad canvas and credibility issues which would point towards the father as a possible perpetrator and which, if considered and/or weighed properly, would have sufficiently pointed away from a finding that the mother was the perpetrator.

At the conclusion of the fact-finding hearing, the children’s guardian supported the local authority case that the injuries had been inflicted by the mother. On further reflection, however, the guardian changed her position and supported the mother’s appeal.

On her behalf at the appeal hearing, Mr Simon Bickler KC leading Ms Catherine Mason submitted that the judge had failed to conduct a holistic and balanced analysis of the evidence and instead concluded that the mother was the perpetrator of the injuries by way of a process of elimination. The key flaw in the judge’s reasoning was her starting point that the injuries could not have been inflicted while both parents were in the house. She found that a non-perpetrating parent present in the house would have been alerted to the child’s reaction and crying immediately following infliction and that the absence of a description of such an event by either parent led her to the view that the injuries must have occurred whilst only one parent was present in the house. But in concluding that the mother “would have been aware” if the father had injured the child while she was in the house, the judge departed from the evidence of Dr Chawla that a person “not right there” may not have noticed a change in cry or, if they did, may not have known the reason for it. Mr Bickler further submitted the finding that the father was upstairs when looking after B on the night of 3 to 4 December was reached on a questionable evidential basis. Indeed, the text messages would tend to suggest that he was, in fact, downstairs.

Mr Bickler also submitted that having wrongly started on the basis that the injuries could not have been inflicted while both parents were in the house, the judge went on to examine the four occasions that the father was alone with the child. She dismissed them all and went on to attempt to identify an opportunity for the mother to have inflicted the leg injury in father’s absence. In doing so, the judge created a hypothesis of the mother inflicting the leg injury on the afternoon of 3 December, notwithstanding that this was outside the timeframe provided by Dr Chawla. Furthermore, in coming to the view that the leg injury was caused by the mother in the short time before the father returned home on 3 December, the judge failed to recognise that the time at which the father arrived home would have been in the immediate aftermath of the injury having been caused and that the evidence of B’s presentation later in the afternoon on 3 December was not of a child who had just been injured.

The appeal was opposed by the local authority and the father. On their behalf, counsel stressed the well-established principle that appellate courts should not interfere with findings of fact by trial judges unless compelled to do so, citing the familiar passages from the judgments of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at paragraphs 115 to116 and Volpi and another v Volpi [2022] EWCA Civ 464 (considered below).

Mr Frank Feehan KC, leading Ms Chloe Ogley for the local authority on appeal, identified the judge’s observations about the small size of the house, and the inferences that she drew from that fact, as paradigm examples of the sort of finding made by a trial judge with which an appellate court ought not to interfere. He made the same point about the judge’s finding, at paragraph 119 of her judgment, that on a balance of probabilities the father cared for B overnight on 3 and 4 December in the parents’ bedroom rather than downstairs. Mr Feehan submitted that the judge was entitled to infer that this was what happened on the basis that this was the normal practice and equally entitled to infer that, if the fracture had been inflicted that night, the mother would have been woken by the change in cry. Mr Feehan further submitted that the judge had plainly and properly considered whether the father was the perpetrator and took us to several references in the judgment to support that submission.

On behalf of the father, Ms Charlotte Worsley KC leading Mr Oliver Latham acknowledged that this was not an easy case, but stressed that both parents had given evidence and that the trial court room was the place where credibility was assessed, not on appeal. She submitted that the judge’s finding at paragraph 123 (“the fact that there is no evidence of B being in such pain, in pain like Dr Chawla described, from the point when the father came home on 3 December, causes me to find on the balance of probabilities that he was not injured after the father came home”) was another example of the sort finding made by a trial judge on the evidence with which an appellate court ought not to interfere.

I agree with Ms Worsley’s observation that this was not an easy case. Family proceedings involving complex injuries to children rarely are. Analysing evidence from a variety of sources presents a challenge to the judge. It is clear from her judgment that the judge in this case approached that challenge carefully and conscientiously.

I regret to say, however, that I have reached the conclusion that the judge’s findings as to the perpetrator of B’s injuries cannot stand. I find myself in the same position as in Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149 (see in particular paragraph 44). The findings cannot stand, not because they are necessarily wrong, but because of the way the judge arrived at her conclusion. As in Re O, there are three overlapping problems with the judgment. First, the reasoning is, in a number of respects, insufficient and flawed. Secondly, in reaching her ultimate conclusion, the judge failed to take into account some material factors. Thirdly, she looked at the evidence in compartments and did not have regard to each piece of evidence in the context of the totality of the evidence before making her findings.

In reaching this conclusion, I have not overlooked the clear case law as to the proper approach of an appellate court to an appeal against findings of fact as identified and repeated many times by courts at the highest level and summarised by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at paragraphs 114-115 and in Volpi and another v Volpi [2022] EWCA Civ 464 at paragraph 2. An appellate court must not interfere with findings of fact by trial judges, including the evaluation of those facts and to inferences to be drawn from them, unless compelled to do so. An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. This approach is followed by this Court hearing family appeals just as it is in other appeals in civil cases. Those passages from Fage and Volpi have been cited and applied in this Court hearing appeals in family proceedings on many occasions, most recently in Re T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475 when allowing a second appeal after the first appellate judge had failed to follow that approach when setting aside findings made by the trial judge.

The appellant’s argument, supported by the guardian, is that the judge manifestly failed to take specific parts of the evidence into account when reaching her decision that the fractures had been inflicted by the mother. As Lewison LJ observed in Volpi, an appeal court is bound to assume that the trial judge has taken the whole of the evidence into consideration unless there is a compelling reason to the contrary. The appellant’s argument here is that there is a clear and compelling reason to the contrary in this case.

Judges in care proceedings are invariably reminded of the principle identified by Dame Elizabeth Butler-Sloss P in Re T (Children) [2004] EWCA Civ 558 at paragraph 33:

As Peter Jackson LJ observed in Re S (A Child: Adequacy of Reasoning) [2019] EWCA Civ 1845 at paragraph 33, “what was required was an analysis of the factors that pointed towards and away from each adult as being the perpetrator”. Here, by focusing on the night of 3 and 4 December and drawing conclusions about what the mother “would have done”, the judge ignored relevant evidence about what had happened at earlier points. The judge may have been right to start with the events of that night, but not to start and finish there. She had to consider the totality of the evidence.

The judge’s findings are really based on a linear process that eliminated the father and therefore led to the conclusion that the mother was the perpetrator. Put simply, the line of reasoning was as follows: (1) the leg fracture cannot have been sustained during the very limited occasions when B was in the sole care of the father; (2) it cannot have been inflicted by the father when the mother was in the house because she would have heard a change in cry; (3) therefore, it must have occurred when B was in the sole care of the mother before the father returned home at 2.30pm on 3 December 2021; and (4) since there can only have been one perpetrator for all of the injuries, the mother must also have inflicted the rib fractures on one or more occasions when B was in her sole care.

The judge said that in addition to relying on the lack of evidence that the father had caused the leg fractures, she relied on a number of other matters identified in paragraphs 126 to 133 of her judgment and summarised above at paragraph 25 of this judgment. But in reality, none of the four points identified in those paragraphs as matters which the judge said she relied on to make her finding against the mother in fact supported the finding. As described above, the four matters were: the video evidence of B looking untroubled in his chair on 3 December; the reason for the father’s changing his evidence about the time he arrived home that day; the phone call made on 5 December by the father to the grandmother about the swelling of B’s leg; and the mother’s Google searches about swelling on the same evening.

On the first three matters, the judge rejected submissions on behalf of the mother that the evidence supported a finding that the father was the perpetrator. On the fourth matter – the Google search – the judge seems to have found that it was equally consistent with the mother being the perpetrator searching for another reason for the swelling as with an anxious mother who had not caused the injuries searching for an explanation. None of the four matters amounts to a positive ground for finding that the mother was the perpetrator. It follows that the reason given by the judge for her finding was simply the lack of evidence against the father.

All then turned on the process of elimination. In fact, as Lewis LJ observed during the hearing, it all turned on one small point in the judge’s reasoning, contained in paragraph 119 of her judgment, which was really no more than an assumption that the father had cared for B upstairs in the parents’ bedroom on the night of 3 and 4 December “because that was the couple’s usual practice”. As recorded in paragraph 94 of the judgment, neither parent gave any clear evidence either way as to where the father had cared for B that night. The mother’s evidence was that she could not remember whether the father was upstairs or downstairs that night, and the father’s evidence was that he only cared for B overnight downstairs on one or two occasions, but he could not remember that being the case on 3 December.

In their statements, as recorded at paragraph 95 of the judgment, the father had said that B had an unsettled night on 3 December whereas the mother said that he went to sleep pretty quickly. The judge was aware of this difference in the evidence but thought it irrelevant. At paragraph 119 of the judgment, she said that “the father says that B was very unsettled that night, the mother says not, so I do not derive much help there”. However, the judge seems not to have considered that one explanation of the difference in evidence might be that the mother was simply not present in the same room with the father and B, and that the mother slept straight through. This, coupled with the text messages that passed between the couple, including the message the following morning in which the father described the child’s feeds and changes overnight, undermined the judge’s finding that the father cared for the child overnight in the bedroom and not downstairs, a finding based solely on the fact that this was their normal (though not invariable) practice.

If the mother was not in the same room as the father and baby overnight on 3 December, the basis on which the judge approached her subsequent findings of fact is also undermined. In paragraph 120 of the judgment, the judge said that she simply did not accept that the mother would have slept through B’s reaction to having his leg fractured. But Dr Chawla’s evidence was that a change in the child’s cry could have been “momentary” and might not have been noticed by someone who was “not right there”. Dr Chawla’s evidence also plainly assumed an observer who was conscious. But if the mother was asleep upstairs when the father and child were downstairs, she would not only have been, (in Dr Chawla’s phrase), “not right there”, but would also not have been conscious, so may well not have noticed any change of cry, even though this was a small house in which sound travelled up and down stairs.

In these important respects, I find the judge’s reasoning insufficient.

In addition, as stated above, I have further concerns about the process by which the judge reached her findings. In reaching her ultimate conclusion, the judge failed to take into account some material factors, looked at the evidence in compartments and did not have regard to each piece of evidence in the context of the totality of the evidence.

The important pieces of evidence which were not taken into account by the judge in finding that the mother was the perpetrator of the injuries are as follows.

The first, and in my view most glaring, omission from the judge’s analysis was her failure to take into account the absence of any evidence that B was distressed or unsettled on the afternoon of 3 December. Had B sustained a fracture to his leg shortly before the father’s return at 2.30 that afternoon, he would have shown symptoms of the sort identified by Dr Chawla. In particular, she said that he would have been in distress for 30 minutes to 2 hours after the injury and thereafter he would have demonstrated signs of pain when the leg was moved. There was no evidence from either parent of any such symptoms at all on the afternoon or evening of that day. The short video clip taken on 3 December showed B in his buggy being wheeled over a cobbled path, with no sign of distress. In contrast, the evidence of both parents was that B was very unsettled over the weekend of 4 and 5 December, especially when he was pushed over a cobbled path on 5 December. The judge found that the earlier video did not assist her because she was not satisfied that the ground over which he was travelling was “uneven enough to disturb his leg”. However, during this period, as the video clip showed, the child was taken in a buggy into town wearing a winter coat. The judge seems not to have considered the fact that getting B into his winter coat and into the buggy would have required movement of his limbs. The absence of any symptoms consistent with fracture being present at that stage is evidence that the leg fracture did not occur before the father returned that afternoon. This was an important factor which should have been weighed by the judge as part of her evaluation of the evidence. Instead, it does not seem to be considered at all.

The judge stated at paragraph 123 that “the fact that there is no evidence of B being in such pain, in pain like Dr Chawla described, from the point when the father came home on 3 December, causes me to find on the balance of probabilities that he was not injured after the father came home”. In my judgment, however, the more obvious inference from the fact that there is no evidence of B being in such pain from the point when the father came home on 3 December is that at that point he had not yet sustained the leg fracture. There is no indication that the judge considered that possible inference at all.

Secondly, there was the evidence of Dr Chawla about the timing of the injuries. She gave two markers – what might be called coordinates – for plotting the timeframe for the leg fracture. First, noting that B had exhibited pain in his leg on admission to hospital at 4pm on 6 December, it was her evidence that the injury had been sustained up to 72 hours earlier. Secondly, it was her further evidence that it would have been inflicted up to 48 hours before the appearance of the hard swelling. This second “coordinate” is, admittedly, less reliable than the first because, as Mr Feehan rightly observed, it does not follow from the fact that the swelling was only seen on the evening of 5 December that it was not present earlier. With that caveat, however, the evidence as to timing was plainly inconsistent with the judge’s finding that the injury must have been caused before 2.30pm on 3 December.

The way in which the judge dealt with this evidence was to my mind not acceptable. She did not take the expert evidence as to timing into account as part of her assessment of the totality of the evidence before reaching her finding as to the perpetrator. Rather, she made her finding on the basis of the process of elimination described above and then noted that it required “some extension” of the expert’s timeframe. She dismissed this on the basis that it was “only by a few hours, and that seems valid to me, given the variability of a child’s reactions”. Had she considered the totality of the evidence, she ought to have noted that the absence of any sign of injury shortly after the father returned home on 3 December was consistent with the expert evidence as to the most likely timeframe for the injuries.

Thirdly, there is the judge’s approach to the evidence of the father’s conduct outside the timeframes for the injuries. The judge acknowledged, for example, that on 5 November there was evidence that he was finding things difficult, but she disregarded this on the basis that this took place outside the radiologists’ window when the fractures could have been sustained. But the evidence of the behaviour of the possible perpetrators of the injuries was plainly relevant whenever it occurred. There was evidence that the mother asked the father to bring B to her if he was crying. One example is the occasion on 24 November when the father was caring for the child and there was an escalation in cry which cause the mother to text “he’s in pain again”. But this evidence needed to be considered in the context of the father’s behaviour and the evidence that he had found it difficult to cope at times. The judge ought to have considered whether that evidence indicated that the father might have injured the child and weighed it against the evidence that the mother was the perpetrator.

Fourth, the judge when reaching her finding failed to give any consideration to the evidence about the father’s comments in August 2022. She was entitled to reject the evidence that he had suffered from blackouts or a dissociative disorder. The suggestion that the father had suffered blackouts was a red herring. But that did not eradicate the fact that the father had said that, while he knew he had not hurt B, he had wanted to explore the possibility that he might have done. This piece of evidence was plainly relevant to the question whether he had inflicted the injuries. The judge made a number of observations about it. She said that she found it “very difficult to make sense of”, that she had “struggled” with the father’s statements about it, and that “he must at that stage at least have been having doubts, otherwise what was there to explore?”. She concluded that his “actions were equally consistent with both exploring this possibility and also testing the waters for a reaction to a confession”.

Whichever explanation was correct, these statements by the father were plainly relevant as part of the totality of the evidence as to the perpetrator of the injuries, yet when it came to considering her finding, the judge seems not to have taken them into account at all. Instead, having made the finding that the mother was perpetrator, at paragraph 144 of her judgment, the judge then relied entirely upon that finding to conclude that “it follows” that the mother had manipulated the father into exploring the possibility of blackouts. That reverse engineering did not, however, explain the father’s comments which the judge had found difficult to make sense of and with which she had “struggled”. This is another example of the judge putting evidence into different compartments and not considering each piece of the evidence in the context of the totality.

Finally, the judge’s treatment of the rib fractures is peremptory. She found that the mother was responsible for the leg fracture and on that basis simply concluded that she was also responsible for the rib injuries because it had been agreed that there was only one perpetrator for all of the injuries. But in my view the judge should have looked more closely at the evidence about what was happening in the period when the rib fractures were sustained before reaching her finding as to the perpetrator, rather than base her conclusion on the narrow process of elimination described above.

For these reasons I have reached the conclusion that the process by which the judge arrived at her findings was flawed and the analysis of important parts of the evidence insufficient. In those circumstances, if my Lords agree, there will have to be a rehearing of the fact-finding hearing. I therefore propose that the case be remitted for rehearing by another circuit judge. I stress that nothing I have said in this judgment should be read as indicating any view about the findings which should be made as to the perpetrator of B’s injuries. That will be a matter to be determined by the judge allocated to conduct the rehearing.

I have reached this conclusion without reference to the additional evidence which the appellant sought to adduce on appeal. In short, that evidence was a single emoji which had been included in a text message sent by the father to the mother on 19 November 2021. The text in the message was adduced in evidence before the judge but the emoji was not reproduced in the format in which the message was transcribed. The appellant submitted that evidence about the emoji should be admitted on appeal under CPR rule 52.21(2). This submission gave rise to potentially interesting arguments as to whether the application satisfied the principles in Ladd v Marshall [1954] 1 WLR 1489 but, given the view I have come to that the appeal must be allowed, it is unnecessary to consider those arguments here. No doubt the emoji will be relied on by the appellant at the rehearing.

I agree.

I also agree.