S (Children: Findings of Fact)

Factual and Procedural Background

This appeal arises from care proceedings concerning two young boys, aged 5 and 3, who suffered a sequence of head injuries over a period of time. The initial proceedings in 2020/2021 concerned skull fractures in the younger child, which the court found were most likely caused by an accidental event involving the older child and dismissed allegations of parental wrongdoing. The children were returned to parental care, but following new injuries and bruising in 2021, fresh care proceedings were initiated. The local authority alleged that the parents had inflicted injuries and concealed the truth, while the parents denied mistreatment, attributing injuries to accidents. A second fact-finding hearing in 2022-2023 led to findings that the father had inflicted one significant injury in July 2021 and that the mother was aware and had concealed it, but other injuries were found to be accidental or insufficiently serious to amount to significant harm. The local authority appealed these findings, contending errors in the judge's approach, particularly regarding the 2020 injuries and the pattern of bruising in 2021. Permission to appeal was granted, and the appeal challenges the judge's conclusions and reasoning, resulting in the decision to set aside the findings and remit the case for rehearing.

Legal Issues Presented

1. Whether the judge erred in his approach to the 2020 head injury findings after reopening the factual enquiry, including his treatment of the evidence and relevance of prior findings.
2. Whether the judge failed to properly consider the overall pattern of bruising between April and August 2021 as indicative of significant harm or neglect.
3. Whether the judge misdirected himself regarding the burden of proof and the assessment of speculative events related to the causation of injuries.
4. Whether the judge correctly applied principles relating to propensity and hindsight bias in assessing the evidence.
5. Whether the judge's findings about the July 2021 inflicted injury and the parents' concealment affected the reliability of other findings, including the 2020 injuries and August 2021 injuries.

Arguments of the Parties

Local Authority's Arguments

• The judge improperly treated the rehearing of the 2020 injuries as a review of original material rather than a fresh investigation.
• The judge wrongly relied on the absence of an appeal against the original findings when the factual enquiry had been reopened.
• The judge failed to consider the 2020 injury in light of his findings that the father inflicted injury in July 2021 and that the parents lied about it, including the father's cannabis use and parental tensions.
• The judge incorrectly placed the burden on the local authority to disprove a speculative unwitnessed event explaining the 2020 injury.
• The judge misdirected himself on the issues of propensity and hindsight bias.
• The judge failed to consider the overall pattern of bruising as extraordinary and significant harm, disregarding evidence about the child's reluctance to be with the parents.
• The judge wrongly accepted speculative explanations for the August 2021 injuries and misapplied principles on burden of proof, propensity, and hindsight bias.

Guardian's Arguments

• Supported the submissions of the local authority concerning errors in the judge's approach and findings.

Mother's Arguments

• The judge's findings on the 2020 skull fractures were correct or at least open to him.
• The judge properly assessed the parents' character and credibility, which was central to the findings.
• No new evidence justified reopening the 2020 findings; the only change was the character assessment.
• The judge was entitled to find that the father's July 2021 injury did not amount to propensity for causing the 2020 injury.
• The judge's conclusions on the 2021 bruising and August 2021 injuries were supported by expert evidence and parental accounts.
• The judge’s credibility assessments justified the conclusions, and the high threshold for disturbing fact findings was not met.

Father's Arguments

• The judge was entitled to rely on his extensive familiarity with the family and to find no sufficient causal link between the 2020 and 2021 injuries.
• The judge did not compartmentalize bruises but reasonably found many to be minor and consistent with the child's hypermobility disorder.
• The judge properly distinguished between inflicted and accidental injuries.
• The judge was entitled to accept parental accounts consistent with expert evidence regarding the cause of the injuries.
• Oral submissions reinforced that the judge’s decision could be upheld on several grounds.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasized the advantages of a judge assessing evidence firsthand but stressed that the judge must consider all evidence holistically and in context. The court found that the judge erred by failing to integrate his adverse findings against the parents—specifically the father's inflicted injury and parental concealment—into the assessment of other allegations, including the 2020 injuries and the pattern of bruising in 2021. The judge's approach was criticized for treating the 2020 injury inquiry as a review rather than a full rehearing and for misapplying principles related to propensity and hindsight bias. The judge’s acceptance of speculative explanations for some injuries, and reliance on parental credibility assessments without adequately addressing contradictions, was found problematic. The court highlighted that the judge made positive findings of accidental causes for serious injuries in contexts that were improbable or unwitnessed, which warranted caution, especially given the risk to the child. Ultimately, the court concluded that these analytical shortcomings undermined the findings and justified setting them aside and ordering a rehearing.

Holding and Implications

The appeal was ALLOWED. The court set aside all of the judge's findings of fact from the second hearing and remitted the entire case for a rehearing before the Family Division Liaison Judge, who will give case management directions to prepare for the rehearing.

This decision means that the factual determinations regarding the injuries and parental conduct remain unresolved and must be reconsidered afresh. No new legal precedent was established; rather, the ruling underscores the importance of a comprehensive and integrated approach to fact-finding in care proceedings, particularly when serious injuries and credibility issues are involved.