Factual and Procedural Background
On 22 February 2019, following a finding of fact hearing, Her Honour Judge Bancroft delivered a judgment concerning the serious case of a baby ("A"), aged 15 weeks, who sustained two unexplained skull fractures. The Local Authority sought specific findings that both injuries were inflicted by the mother ("the mother"). The judge found that the right-sided fracture resulted either from a sudden loss of control by the mother or from the mother leaving the baby unattended, though the latter explanation was not fully analysed. The left-sided fracture was found to be an older injury, likely inflicted while the baby was in the mother's care, but the judge declined to speculate further.
The mother filed six grounds of appeal, with permission refused on most and two grounds not pursued, leaving one ground challenging the judge's failure to make a definitive factual determination regarding the right-sided fracture. The appeal was allowed by consent on this ground, prompting the court to consider the appropriate order following the allowance of the appeal, including the examination of events after trial and judgment.
Legal Issues Presented
- Whether the judge erred by failing to make a clear factual determination as to the cause of the right-sided skull fracture sustained by the baby.
- What is the appropriate procedural response upon allowing the appeal on the basis of lack of definitive findings?
- What are the limits and proper procedures for requests for clarification of draft judgments in family care proceedings?
- How should courts handle fresh evidence emerging between trial conclusion and judgment delivery?
Arguments of the Parties
Appellant's Arguments
- The mother’s counsel proposed amending the judgment’s paragraph 133 to explicitly state that the cause of the right-sided fracture remains unexplained, reflecting uncertainty rather than concluding inflicted injury.
- This amendment would require risk assessments to proceed on the basis that both fractures are unexplained rather than definitively inflicted by the mother.
Local Authority and Guardian's Arguments
- They contended that a re-hearing before a different judge is necessary to determine how the right-sided injury occurred, which is essential for a fair and comprehensive assessment of the mother as a future carer.
- The mother’s new account, submitted after trial, requires testing in conventional proceedings rather than substituting findings of "unexplained".
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 |
Procedure for addressing applications for permission to appeal on grounds of lack of reasons, including requests for additional reasons or clarifications. |
Guided the court on the proper approach to requests for clarification of judgments, emphasizing the need to limit such requests to material omissions and avoid re-argument. |
| Egan v Motor Services (Bath) Limited [2007] EWCA Civ 1002 |
Parameters limiting requests for reconsideration or amplification of draft judgments to exceptional circumstances. |
Supported the court’s view that extensive requests for clarification beyond typographical or factual errors are generally inappropriate. |
| Re A and another (Children) (Judgment: Adequacy of Reasoning) [2012] 1 WLR 595 |
Practice Note outlining advocate responsibilities to raise material omissions or ambiguities with the trial judge prior to appeal. |
Reinforced the principle that clarification requests should be limited and that advocates bear responsibility for identifying deficiencies in reasoning early. |
| R (Mohamed) v Foreign Secretary (No 2)(CA) [2010] 3 WLR 554 |
Draft judgments are circulated primarily to correct typographical errors, not to reargue cases or introduce fresh submissions. |
Supported the court’s criticism of the mother’s counsel’s extensive clarification requests as exceeding appropriate bounds. |
| Re C (Placement Order: Appeal) [2014] EWCA Civ 70 |
Discouragement of direct communications with judges regarding draft judgments to avoid undermining judicial impartiality. |
Referenced to emphasize proper conduct in handling draft judgments and related communications. |
| WM v HM [2017] EWFD 25 |
Condemnation of excessive demands for correction and amplification of draft judgments amounting to re-argument. |
Supported the court’s view that such practices should be curtailed to preserve judicial resources and efficiency. |
Court's Reasoning and Analysis
The court analysed the ambiguity in the original judgment’s paragraph 133, which presented two inconsistent explanations for the right-sided skull fracture: inflicted injury by the mother or an accident occurring while the baby was unattended. Upon review and a direction for clarification, the judge unequivocally affirmed the inflicted injury finding. However, fresh, untested evidence emerged post-trial supporting the alternative explanation, necessitating a re-hearing.
The court further examined the procedural propriety of the mother’s extensive requests for clarification of the draft judgment. It applied established authorities to reiterate that such requests should be confined to correcting material omissions and not used to reargue or dilute judicial findings. The court expressed concern over the increasing routine nature of excessive clarification demands, which burden judges and delay justice.
Regarding fresh evidence submitted after trial but before judgment, the court emphasised that such evidence must be disclosed to all parties and should not be conflated with requests for clarification. Proper procedural steps, including notice and directions hearings, are required to manage fresh evidence. In the present case, the late submission of a new statement by the mother, changing her account, was a significant factor leading to the decision for a retrial.
Holding and Implications
The appeal was ALLOWED BY CONSENT, and the matter was remitted for a retrial before a different judge. The retrial is necessary to properly determine how the right-sided skull fracture was caused, given the conflicting evidence and the mother’s changed account.
The direct effect of this decision is to delay final resolution of the care proceedings concerning the baby, now 15 months old. No new legal precedent was established; rather, the court reaffirmed established principles on the limits of clarification requests and the handling of fresh evidence in family proceedings. The ruling underscores the importance of adhering to procedural propriety to ensure fair and efficient administration of justice in care cases.