(Court of Appeal, Rimer, Tomlinson, McFarlane LJJ, 4 July 2013)
A fact-finding hearing in relation to two children, aged two and one, concluded that fractures sustained to the younger child's ribs had not been caused non-accidentally. The judge granted permission to appeal and care orders were made pursuant to s 40 of the Children Act 1989.
The local authority asserted on appeal that the finding the judge made was not one that was open to him on the evidence before the court. The judge had concluded that the medical evidence did not establish as a matter of certainty that the fractures had been non-accidental injuries. While other explanations were very unlikely to be the cause they could be contemplated.
The appeal was dismissed. The judge had clearly identified and applied the law correctly. Striking though the medical evidence was he had carefully reasoned his conclusion that the local authority had not proved the case. He had heard evidence over 5 days and was impressed by the parents. The Court of Appeal had to afford respect to the judge's conclusion unless it was plain that the finding was not one that was open to him.