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CARE PROCEEDINGS: Re W-P (Fact-Finding Hearing) [2009] EWCA Civ 216

Date:25 MAR 2009

(Court of Appeal; Sir Mark Potter P, Smith and Wilson LJJ; 19 February 2009)

The local authority case was that the baby's injuries, a fractured femur, bruising to the chest, and a scratch, were non-accidental and perpetrated by father. The father's initial account was that all the injuries must have been caused by an elder sibling, aged 3, when he tripped up over the baby who was lying on the floor. After about 5 months the father changed his story, admitting that he had probably caused the fracture, having sat on the baby accidentally. He claimed that he had been too ashamed to admit it. The father offered no explanation for the bruising and the scratch other than that the baby had scratched himself. The judge accepted some, but not all of the father's account. The judge dealt with the three distinct types of injury separately, concluding that the injuries had been sustained in two separate incidents in which the father had behaved recklessly but not with an intention to injure the child. The judge posited that the fracture had been caused by the father sitting down on the baby, although not in the manner described by the father, and that the scratch and bruising had been caused by the father changing the baby's nappy roughly, although the father himself said that he had not changed a nappy at all in the relevant period, and there was no other evidence of such an incident.

The appeal against judge's findings of fact was allowed. The format of the judgment had been unusual and arguably unwise; the judge, having described the three injuries, had decided to address them separately. There was danger in this approach, in that the presence of the bruising and the scratch might very well have been relevant to a proper analysis of how the fracture had been caused, and vice versa. At no stage had the judge stood back and asked himself whether it was probable that a child would sustain injuries, at the hands of the same man, in two unrelated incidents of reckless behaviour on the man's part within the space of less than 3 hours. The logical order of analysis would have been to have begun with the father's revised explanation, and then to have considered the rival arguments as to its credibility, by reference, in particular, to the medical evidence. A judge was clearly entitled to accept part, but not all, of the evidence of a witness, but in circumstances in which the rejected evidence involved both an admission against interest and an exaggeration, a degree of judicial caution was required, and ought to be recognised expressly in the judgment. The judge's conclusion as to the bruising and the scratch was based on judge's own hypothesis, not on evidence, and therefore had not been tested by experts at all.