K & G (Care Proceedings: Fact-Finding)

Factual and Procedural Background

This appeal arises from a fact-finding hearing in care proceedings concerning two children, a girl aged 3 and a boy aged 2. The local authority appealed against the outcome of that hearing, which had taken place before an experienced family judge. The appeal was supported by the children's guardian and their parents, all seeking a rehearing before a different judge.

The proceedings commenced following injuries observed on the younger child during medical examinations in May 2023, including bruising suspected to be bite marks and other injuries. The local authority initiated care proceedings in June 2023, and the children have lived with extended family members throughout. The parents have maintained regular contact with the children, although they separated during the proceedings.

Expert evidence was obtained from multiple specialists, including forensic and paediatric experts, to assess the nature and cause of the injuries. The local authority filed a threshold document setting out the findings it sought, alleging significant physical harm inflicted by one or both parents, including failure to protect the children.

The fact-finding hearing occurred over three days in March 2025 before a judge who had no prior involvement in the case. After hearing evidence from experts and the parents, the judge concluded that the bite marks had been inflicted but could not identify the perpetrator on the balance of probabilities, placing both parents in the "pool of perpetrators." The injury to the ear was deemed "unexplained." The judge did not make a definitive finding on failure to protect.

Following the judgment, the local authority filed a notice of appeal challenging various aspects of the judge's findings and reasoning, including alleged failures to properly analyse evidence and address findings sought in the threshold document. Permission to appeal was granted in June 2025.

Legal Issues Presented

1. Whether the fact-finding judge erred in failing to reference and adhere to the schedule of findings sought by the local authority.
2. Whether the judge failed to properly and fully analyse the evidence concerning the identity of the perpetrator of the injuries.
3. Whether the judge failed to consider and determine findings relating to the parents' alleged failure to protect the child.
4. Whether the judge erred in her assessment and analysis of the injuries to the child's left pinna (ear).
5. Whether the judge incorrectly determined the ear injuries to be "unexplained" despite the evidence.

Arguments of the Parties

Appellant's Arguments (Local Authority)

• The judge failed to reference the schedule of findings and did not outline the findings sought by the local authority sufficiently.
• She did not properly analyse the evidence or make determinations regarding the parents.
• She failed to address findings relating to parental failings, including failure to protect.
• The judge inadequately assessed the evidence concerning the ear injuries and wrongly concluded these were unexplained.
• The reasoning was linear and lacked a holistic evaluation, impairing the ability to conduct a thorough risk assessment.

Guardian's Arguments

• Supported the appeal but did not endorse the local authority's mechanical approach to the threshold document.
• Submitted the judge failed to adequately analyse the perpetrator issue and ear injuries.
• Argued the judgment lacked a clear assessment of parental credibility and did not properly weigh evidence.
• Suggested the judge's "pool of perpetrators" finding was unsafe due to insufficient analysis.
• Asserted the judge should have addressed failure to protect more explicitly.

Mother's Arguments

• Supported the appeal from a different perspective, arguing the judge erred in failing to identify a perpetrator and should have found the father responsible based on medical evidence.
• Contended the judgment contained loose ends requiring a complete rehearing.

Father's Arguments

• Endorsed the local authority's argument that the judgment lacked clarity for risk assessment.
• Also acknowledged the possibility that the judge's conclusion on the perpetrator and ear injury was sufficiently clear and not wrong.
• Noted that a risk assessment could proceed despite limited findings, especially with supportive extended family involvement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re B (Children: Uncertain Perpetrators) [2019] EWCA Civ 575	Guidance on approach to identifying perpetrator of inflicted injuries in care proceedings.	The court noted no material error in the summary of legal principles drawn from this case.
Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348	Principles relating to the identification of possible perpetrators and the concept of a "pool of perpetrators".	Referenced in the legal framework section; no error found in application.
Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10	A judge is not required to slavishly adhere to a schedule of findings; care proceedings are dynamic.	Supported the court's view that deviation from the threshold document is permissible if fairness is maintained.
Re EY (Fact-Finding Hearing) [2023] EWCA 1241	Fairness requires notice of findings sought; findings beyond known parameters require opportunity to challenge.	Reinforced the requirement of fairness and the judge's discretion in structuring findings.
Re W (A Child) [2016] EWCA Civ 1140; [2017] 1 WLR 2415	Fairness in fact-finding hearings and limits on findings beyond known case parameters.	Referenced in support of fairness and procedural requirements.
Re L (Fact-finding Hearing: Fairness) [2022] EWCA Civ 169	Fair hearing requirements in fact-finding hearings.	Used to confirm the judge's discretion and fairness obligations.
Re YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71	Clarification of reasons only required if omission is material to decisions in proceedings.	Cited regarding parties’ options to seek clarification before appealing.
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5	A judge must give reasons sufficient to show principles and reasons for decision; no need to address every argument.	The court held the judge's ex tempore judgment met this standard despite some loose ends.
Volpi v Volpi and another [2022] EWCA Civ 464	Judges need not mention every piece of evidence; weight and consideration of evidence is for the judge.	Supported the view that omission of detailed discussion of some evidence did not indicate oversight.
Re T [2004] EWCA Civ 558; [2004] 2 FLR 838	Judges should consider evidence holistically to determine if the case is made out to the required standard.	Referenced regarding good practice in assessing totality of evidence.

Court's Reasoning and Analysis

The court acknowledged the extended and concerning delay in the proceedings but noted that the issues were not complex. The judge at first instance had conducted a detailed hearing, heard expert and parental evidence, and delivered an ex tempore judgment covering the evidence and legal framework.

The court emphasized that a judge is not required to rigidly follow the threshold document but must ensure fairness and address the known parameters of the case. It found no material error in the judge's approach or reasoning in relation to the schedule of findings.

Regarding the identification of the perpetrator, the court found the judge's reasoning sufficiently clear and cogent. Although the medical evidence suggested the father was more likely responsible, the judge properly considered all evidence, including parental credibility and opportunity, and concluded that neither parent could be identified on the balance of probabilities. Both parents remained in the pool of possible perpetrators. This conclusion was not challenged by the parties and was upheld as unassailable.

The judge's treatment of the ear injury was briefer and did not reference all evidence, but the court accepted that judges need not discuss every piece of evidence explicitly. The conclusion that the ear injury was "unexplained" was open on the evidence and not erroneous.

Although it was arguably preferable to consider the ear injury before deciding on the perpetrator of the bite marks, the court was not persuaded that this would have affected the outcome.

The judge did not make a specific finding on failure to protect, largely because the relevant paragraphs were added late in proceedings and because the inability to identify a perpetrator hindered such a finding. The court found no basis to overturn this approach, noting the judge had sufficiently analysed parental evidence and credibility.

Ultimately, the judge made findings sufficient to satisfy the threshold criteria under section 31(2) of the Children Act 1989. The unresolved issues about risk and future care are to be addressed in a subsequent risk assessment, which the court considered feasible based on the findings and evidence.

The court reiterated the principle of appellate restraint, noting that it would only interfere with factual findings if compelled, and found no reason to do so here.

Holding and Implications

The court DISMISSED the local authority's appeal.

The direct effect is that the original fact-finding judgment stands, including the finding that the bite marks were inflicted but the perpetrator cannot be identified on the balance of probabilities, and that the ear injury remains unexplained. No definitive finding was made on failure to protect.

No new precedent was established. The case will proceed with a risk assessment to determine the children's future care arrangements, potentially using the "Resolutions" model, with input from suitably qualified professionals and consideration of the supportive extended family environment.