(Court of Appeal; Thorpe, Wall and Moore-Bick LJJ; 21 January 2009)
The child died at the age of 7 months, because a subnormal level of oxygen had restricted the blood supply to the brain. The child had suffered earlier injuries, including a fracture of the arm and damage to his ribs. In care proceedings relating to the child's two older siblings, the local authority sought threshold findings that a contributory factor in the child's death had been neglectful and harmful parenting practices and that the parents had failed to give a clear and consistent account of events leading to the child's hospitalisation. At the hearing the medical evidence was that the cause of the child's death was unknown. The judge asked whether this had been, on balance, an unlawful killing. The expert replied that he had no pathological findings to support such a conclusion, although it was possible. Despite prompting from the judge, the expert refused to state that unlawful killing was probable. The father requested an adjournment to obtain medical evidence to address this issue, but was refused. The judge went on to conclude that it was more likely than not that the child had been unlawfully killed, and that the father was more likely than not to have been the perpetrator. The father appealed.
The judge should have allowed an adjournment and had been wrong, in the absence of any supporting evidence, to make findings of unlawful killing and that the father was the likely perpetrator. In cases in which, as here, the local authority had prepared its schedule of proposed findings with some care, and the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross-examination, it required very good reasons for the judge to depart from the schedule of proposed findings. If the judge were to make findings of fact not sought by the authority or not contained in its schedule, the judge must be astute to ensure that any additional or different findings made were securely founded in the evidence and that the fairness of the fact-finding process was not compromised. The welfare hearing would be heard by a different judge.