(Court of Appeal; Sir Mark Potter P, Arden and Wall LJJ; 19 November 2008)
At a fact-finding hearing it was established that the baby had suffered two sets of injuries, first metaphyseal fractures of both lower limbs, and subsequently injuries to the head, face and abdomen, including an intensive fracture of skull. Some of the experts considered that the mother's explanation for the second set of injuries was plausible. However, the judge rejected the mother's innocent explanation of both sets of injuries, finding that the mother's account had not been truthful and in any event did not satisfactorily explain injuries to both sides of the baby's head. The judge found that both sets of injury had been non-accidental, and that the mother, as the main carer, was the most likely perpetrator, but that the father could not be excluded as a perpetrator in relation to the second set of injuries. The mother appealed, arguing, inter alia, that the judge had placed the burden of proof on the mother to establish that the injuries were accidental and that it was inconsistent to identify the mother as the most likely perpetrator while not ruling out the father.
The appeal was dismissed. As Re H (Sexual Abuse: Standard of Proof)  AC 563 made clear, judges were guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and their overall impression of the characters and motivations of the witnesses. What mattered was that when the judge reached his or her conclusion on the facts it should be clear that in reaching that conclusion the judge had done so on the basis that the burden of proof remained on the local authority and that the essential facts had all been found on the balance of probabilities. The judge had correctly directed herself as to the burden and standard of proof and the question therefore had to be whether, in the process of making findings of fact she either forgot her earlier and correct self-direction, or that she got the burden wrong in some material way. Given the serious injuries sustained by the child, the judge had been entitled to look critically at any parental explanation of the injuries. It was not a reversal of the burden of proof for the judge to disbelieve the mother, or to find that the mother's explanation did not explain all the child's injuries. The case would, however, be remitted to the judge for clarification of her judgment as regarded the father as possible perpetrator of the second set of injuries, as it had not been open to her to find that the mother was the most likely perpetrator but go on to find that the father was a possible perpetrator. It was high time that the Family Bar woke up to the fact that English v Emery Reimbold & Strick Ltd  3 All ER 385 applied to family cases, and to cases involving children in both public and private law, as much as to any other case. Following receipt of this judgment, counsel should have raised with the judge any queries that arose, inviting her to deal with them; had this happened it was most unlikely that the perpetrator aspect of this case would have reached the Court of Appeal. Counsel had a positive duty to raise with the judge not just any alleged deficiency in reasoning process but any genuine query or ambiguity arising on the judgment. Judges should welcome this process, and any who resented it were likely to find themselves the subject of criticism in the Court of Appeal. It was to be hoped that in the future the Court of Appeal would not be faced with matters that were plainly within the province of the judge, and were properly capable of being resolved at first instance.