(Court of Appeal, Patten, McFarlane, Floyd LJJ, 4 September 2013)
The parents' first child died after being born prematurely. No sinister findings were sought in relation to her cause of death but it was later discovered that she had sustained eight rib fractures during her life. No charges were brought but the local authority became involved when the mother became pregnant with their second child.
From birth the child was cared for by the maternal aunt and a fact-finding hearing took place in relation to the first child's injuries. The judge found that the injuries had occurred non-accidentally by one of four perpetrators. The judge made findings in relation to two past occasions when the father had been violent towards family members.
The judge found that on the balance of probabilities the father was the sole perpetrator of once incident causing the rib fractures. A further finding in relation to the paternal grandmother was made that she had told the mother not to tell the local authority of the history of domestic violence. The judge also found that the paternal grandmother either knew that her son had inflicted the injuries or had at least suspected that to be the case. The father and paternal grandmother appealed against the judge's findings.
The court was highly reluctant to interfere with the trial judge's judgment which was rich in detail and provided a clear understanding of the judge's reasoning. The context of the evidence was more than sufficient to suggest a theory that the father was the sole perpetrator. However, it was also possible to construct a theory to support the conclusion that the mother was the sole perpetrator.
None of the facts put forward by the mother and the authority were sufficient to support a positive finding that the father was the sole perpetrator. The reality was that there was evidence upon which to conclude that there was a real possibility that either the mother or father could be the perpetrator, but insufficient evidence upon which to conclude that one of them was the sole perpetrator.
The father's appeal was allowed in full. The mother and father would remain in the pool of potential perpetrators. There was no evidence to suggest that the father had told the grandmother that he was responsible for the injuries nor that she had been in the room when the injuries were sustained. There was insufficient evidence to find that the grandmother had known the son perpetrated the injuries. The grandmother's appeal would be allowed on a limited basis and the knowledge finding would be set aside.