A, B & C (Children: Perpetrator Finding)

Factual and Procedural Background

This is an appeal against a family court judge's finding in care proceedings that an injury to a young child (Child C) was inflicted by his mother (the Appellant). The proceedings concerned three children (Child A, Child B and Child C). The parties' relationship began in 2018, with repeated separations and reconciliations. Child A was subject to a child protection plan after an incident in 2020 when the father (the Respondent) slapped him; later contact and child arrangements orders were made and the parents resumed cohabitation at times. Child C sustained an incomplete fracture of the proximal left humerus between 9 and 19 November 2024. Medical experts concluded the fracture was non-accidental and would have produced pain and distress. The Local Authority (Company A) issued threshold findings and commenced care proceedings; interim care orders were made and a fact-finding hearing was held in August 2025. The trial judge (Judge Magee) found on the balance of probabilities that the Appellant caused the fracture. The Appellant's application for permission to appeal was initially refused at first instance; permission to appeal was later granted and this appeal was heard by Judge Baker with judgments agreed by Judge Arnold and Judge Dove.

Legal Issues Presented

1. Whether the trial judge erred in finding, on the balance of probabilities, that the Appellant inflicted the incomplete fracture to Child C's left humerus.
2. Whether the trial judge gave undue weight to perceived inconsistencies in the evidence of certain witnesses (notably the maternal grandmother) and insufficient weight to inconsistencies or minimising tendencies in other witnesses (notably the paternal grandmother), thereby distorting the identification exercise.
3. Whether the trial judge failed to take proper account of evidence of the Respondent's propensity to violence and therefore misapplied the "wider evidential canvas" in assessing likely perpetrator.
4. Whether the judge failed to evaluate the evidence as a whole, to apply required procedural rigour in identifying the probable perpetrator, or to explain why the chosen finding was preferred to other possible outcomes such that a rehearing is required.
5. Whether the trial judge's finding was so decisive on other issues that a full rehearing of all matters should be ordered.

Arguments of the Parties

Appellant's Arguments

• The trial judge gave too much weight to perceived inconsistencies or uncertainties in the evidence of the maternal grandmother when those matters did not assist the timing/identification of the injury and did not adequately consider reasons for uncertainty.
• The judge gave insufficient weight to inconsistencies in the paternal grandmother's evidence and to her minimisation of risk factors.
• The judge failed to take sufficient account of the wider evidential canvas, including evidence of the Respondent's propensity to anger and violence, and therefore the balancing exercise identifying the perpetrator was flawed.
• The judge misdirected herself on the absence of evidence of propensity relating to the Respondent and failed to evaluate the evidence as a whole or to explain choice between competing outcomes.
• The finding against the Appellant had such preponderant influence that a full rehearing should be ordered.

Respondents' and Other Parties' Arguments

• Company A, the Respondent and the children's guardian opposed the appeal and supported the trial judge's assessment of credibility and findings.
• It was submitted that the judge properly evaluated credibility, accepted unchallenged expert medical evidence, took account of all propensity material and was entitled to conclude the Appellant was the perpetrator on the balance of probabilities.
• It was further submitted that the judge gave adequate reasons and met the standard required for reasons; appellate interference was unwarranted absent very clear justification.

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate court emphasised the fundamental principle that assessment of credibility and weight are matters for the trial judge and that appellate intervention requires a very clear justification (Fage; Volpi). The court noted the trial judge had summarised the evidence, identified and explained the salient legal principles for identifying a perpetrator of non-accidental injury, and set out measured findings on the reliability of each witness.

The court reviewed the unchallenged medical evidence that the fracture was non-accidental and would have caused pain and distress; that evidence was not contested. The trial judge's core analysis turned on the credibility of witnesses about when symptoms were first noticed and the events of 14–18 November 2024. The judge found the Appellant to be an unreliable witness with numerous inconsistencies about when she noticed problems with Child C's arm, whereas she found the Respondent and the paternal grandmother to be generally reliable and the friend and maternal grandmother to be of varying reliability.

The appellate court addressed each ground of appeal: it held that the judge's observations about the maternal grandmother were of marginal relevance and were properly used to assess the Appellant's reliability; that the judge had considered and discounted arguments about the paternal grandmother's minimisation; and that the judge properly took into account evidence of the Respondent's propensity to anger and violence but nonetheless reached a different conclusion on the totality of the evidence. The court rejected the submission that the judge misunderstood or failed to take account of expert evidence about variable symptomatology, noting the judge expressly considered that Child C had been using his left arm and that doctors did not diagnose the fracture on the evening of 18 November. The court concluded the judge was entitled to view the Appellant's inconsistent accounts, her failure to follow advice given by the friend, the absence of attempts to contact the Respondent or the social worker, and the contemporaneous observations of others as supporting the finding that the Appellant was the perpetrator.

The court also held that the judge's reasons met the required standard of explanation: she identified crucial legal points, gave sufficient reasons for her conclusions, and was not required to address every argument in exhaustive detail. On that basis, the appellate court found no merit in the claim that procedural rigour was lacking or that a full rehearing was required.

Holding and Implications

DISMISSED

Holding: The appeal is dismissed. The appellate court upheld the trial judge's finding, on the balance of probabilities, that the Appellant inflicted the incomplete fracture to Child C's left humerus and that the Appellant failed to seek prompt medical attention.

Implications: The trial judge's fact-findings remain in place and were not disturbed; no new legal precedent was established. The court noted that a subsequent "Resolutions" style assessment of the family was under way and that the assessor intended to recommend that the children remain in the Appellant's care, a recommendation the parties were likely to accept subject to the final order. The appellate court therefore confined its decision to upholding the trial judge's findings rather than altering the case's overall management or substantive orders.