B (A Child)

Factual and Procedural Background

This appeal arises from a fact-finding decision issued by Recorder Miller in the Family Court at Swindon on 5 July 2018 concerning a child born in October 2017, hereafter referred to as "the Child". The Child was admitted to hospital in mid-November 2017 with serious injuries including fractures to both lower legs and multiple rib fractures. The local authority initiated care proceedings, and the Child was initially allowed to return home under grandparental supervision. The parents separated in April 2018, after which the Child remained in the supervised care of the mother and subsequently the father.

The medical evidence regarding the injuries was uncontested, and the only possible perpetrators identified were the parents. The Family Court hearing in June 2018 lasted three days with extensive evidence from both parents. The local authority asserted that one of the parents caused the injuries but could not exclude either; the mother denied causing the injuries and accused the father; the father denied causing the injuries and did not explicitly accuse the mother; the Guardian remained neutral.

The recorder's judgment considered the nature of the injuries, the circumstances in the family home, the parents’ relationship and caregiving roles, and concluded that it was more likely than not that the mother caused the injuries in a moment of loss of control when alone with the Child. The father was found not to have caused the injuries and was excluded from the pool of possible perpetrators.

Legal Issues Presented

1. What is the extent of the obligation to cross-examine witnesses about accusations made against them in family proceedings?
2. What is the correct legal approach to determining responsibility for inflicted injuries where there are only two potential perpetrators?

Arguments of the Parties

Appellant's Arguments

• The finding against the mother was unfair because no other party explicitly put forward the case that she was the sole perpetrator.
• The mother was not questioned about certain matters relied upon by the recorder, depriving her of the opportunity to respond.
• The recorder applied the wrong legal test by effectively comparing the parents and convicting the mother as the likelier perpetrator, rather than assessing each parent individually on the balance of probabilities.

Respondents' Arguments

• The local authority and the father challenged both grounds of appeal, maintaining that the mother was aware of the case against her and had ample opportunity to respond.
• The Guardian maintained neutrality and did not support the mother's arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the uncontested medical evidence and the fact that only the parents could have caused the injuries. The recorder carefully evaluated the evidence, including the parents' testimonies, the nature of the injuries, the family home environment, and the caregiving arrangements.

The court noted that the injuries were caused by three separate applications of force within about ten days, likely due to loss of control rather than deliberate intent. It was improbable that both parents caused the injuries or that the father caused them unnoticed, given the small house and the parents’ teamwork. The mother had greater opportunity as the primary caregiver and was alone with the Child at times when the injuries likely occurred.

The recorder found that the mother was overwhelmed by stress and inadvertently inflicted the injuries during moments alone with the Child. The father’s evidence was consistent and unchallenged regarding his temperament and absence during the injury periods.

Regarding the procedural fairness, the court applied established principles from authorities such as Browne v Dunn and Chen v Ng. It concluded that the mother was sufficiently informed of the adverse case and had ample opportunity to respond. The absence of explicit accusations against the mother during cross-examination was justified by the limited knowledge of other parties and the nature of the case. The court rejected the argument that the recorder improperly compared the parents rather than assessing each individually. The judgment was found to be reasoned, well within the range of permissible conclusions, and consistent with the correct legal test.

Holding and Implications

The court DISMISSED the mother's appeal.

The holding confirms the factual finding that the mother caused the injuries to the Child on the balance of probabilities and excludes the father from the pool of perpetrators. The decision affirms the application of established legal principles regarding the obligation to cross-examine witnesses and the approach to identifying perpetrators where there are only two possible candidates. No new points of law were established, and the decision does not set new precedent beyond the affirmation of existing principles. The effect is to uphold the Family Court's fact-finding judgment and maintain the procedural fairness of the hearing.