CA-2025-001041 - [2025] EWCA Civ 910

The events which formed the subject of the fact-finding hearing took place in the Spring of 2023. These proceedings have therefore been ongoing for over two years. Parliament has provided that the court conducting care proceedings must draw up a timetable with a view to disposing of the application without delay and in any event within twenty-six weeks: Children Act 1989, s.32(1). Despite the best efforts of judges, many cases take longer than twenty-six weeks, but the delay in these proceedings – which are not yet concluded – is alarming and unacceptable. As will become clear from the summary below, the issues are not complex. Indeed, they fall at the less serious end of the scale for care proceedings. We did not investigate the cause of the delay in any detail – we were told that there had been uncertainties about the scope of the expert evidence. That is often the cause of delay in proceedings, but it is difficult to understand how it can account for or justify a delay on this scale. Whilst the injuries suffered by the child were very concerning and unpleasant, the forensic investigation of the cause of the injuries ought not to have been particularly complicated.

Fortunately, the children have been living with members of the extended family throughout the proceedings. It is to be hoped that this has ameliorated the harm they will have suffered as a result of the delay in concluding the case.

On 11 May 2023, the mother took G, then aged five months, to the family’s GP surgery seeking medical attention for an injury to his ear which was said to have been noticed by the maternal grandfather the day before. After examining the child, the GP referred him for a child protection medical examination which was conducted the following day.

The injuries observed at the medical examination were subsequently described by the paediatric expert witness Dr Kunnath as follows:

The appearance of the bruises on the cheek and shoulder gave rise to concern that they were bite marks. As a result, the matter was referred to the police and social services.

Following the initial child protection medical, the mother disclosed three photographs of G showing similar injuries to his left cheek:

In addition, the parents said that G had an earlier bruise on his left ear on 27 April 2023 which had disappeared after a few days.

On 14 June 2023, the local authority started care proceedings in respect of both children. The children were initially accommodated with their maternal grandmother under section 20 of the Children Act 1989 but on 25 May 2023 they moved to live with their maternal grandfather and his partner, in whose care they remain. On 25 June 2023, the children were made subject to interim care orders which remain in place. Throughout the proceedings, the parents have continued to have regular contact with the children, facilitated by the carers. In the course of the proceedings, the parents separated. They are no longer in a relationship.

Following an order under Family Procedure Rules Part 25, expert evidence was obtained from Dr Roland Kouble, a forensic and dental surgeon, Mr Rupert Parsons, a consultant odontologist, Dr Mohammed Kunnath, a consultant paediatrician, and Dr Russell Keenan, a consultant haematologist. In his reports, Dr Keenan was able to discount the suggestion that G had an abnormal propensity to bruising and took no further part in the proceedings.

In accordance with standard practice, the local authority set out in a “threshold document” the findings it sought in support of its case that the threshold criteria for making a care or supervision order under s.31 of the Children Act 1989 were satisfied, and the parents duly filed responses to the findings sought. As is not uncommon, the document went through various iterations during the proceedings. The version filed four days before the start of the fact-finding hearing was in the following terms:

“Introduction

1.

At the date protective measures were taken for K and G, there was reasonable cause to believe that G and K had suffered significant harm and/or was likely to suffer harm in the care of their parents and that harm, or the likelihood of harm, is attributable to the care given to the children if the protective measures were not taken; not being what would be reasonable to expect a parent to give.

2.

The nature of the harm/likelihood of harm alleged is physical harm.

Physical harm

3.

G was the subject of a child protection medical examination which was carried out … on 11 May 2023.

4.

The Court appointed expert paediatrician, Dr Kunnath, has identified the following injuries from the child protection medical [there followed particulars of the injuries as summarised at paragraph 7 above].

5.

Following the initial child protection medical, the mother had shared with professionals three photographs of G which were taken previously showing similar injuries to his left cheek [there followed a description of the photographs as summarised at paragraph 9 above].

6.

G has been the subject of haematological testing (including blood clotting and genetic testing) which has concluded that the bruising … should be considered to have occurred in a child with a normal blood clotting system.

7.

The injuries set out at paragraph 4 above would require a significant amount of force to have caused such injuries compared to normal handling of a child which would have been very painful for G resulting in his crying immediately and loudly until he was picked up and consoled. The … would be different to other cries due to care needs which a reasonable carer would be able to discern.

8.

The injuries [the cheeks and shoulder] were caused by a human bite and such injuries were inflicted by the mother or the father.

9.

The injury [to the ear] was caused by the pinna being crushed between a hard surface or, in the alternative, a heavy blow directly to the pinna. Such an injury was inflicted by either the mother or the father.

10.

The injuries [to the left calf] were inflicted by either the mother or the father.

11.

The injuries [shown in the photographs as summarised at paragraph 9 above] were caused by a human bite and such injuries were inflicted by the mother or the father. This would have caused G significant discomfort when inflicted.

The local authority reserves the right to amend this threshold document on receipt of further medical evidence.”

There was then a change of counsel for the local authority. The brief was taken over by Ms Claire Jones, who represented the authority at the hearing before the recorder and subsequently at the appeal hearing. In a case summary filed on behalf of the local authority at the start of the hearing before the recorder, Ms Jones summarised the key issues for the fact-finding hearing as follows:

“(1)

Significant physical injury to the child, G, following his presentation at his GP’s practice on 11 May 2023 and subsequent child protection medical examination on 12 May 2025 where injuries were noted as follows (a) bruising to right cheek (b) bruising to left cheek (c) bruising to left shoulder (d) haematoma on left pinna (e) injuries in proximity to each other situated on the middle and lower left leg.

(2)

Further injuries were noted from photographs supplied by the mother as follows: (a) bruising to left cheek 2.2.23 (b) bruising to left cheek 6.3.23 (c) bruising and marking to left cheek 18.4.23.

(3)

Risk of physical harm to both children.

(4)

In the event that either parent is found to have caused the injury, the other parent was aware and has failed to give a truthful account.”

In summarising the local authority’s case, Ms Jones stated:

“Pool of perpetrators

The mother and the father each had care or were present when others were caring for the child G during the relevant period and therefore fall within the pool of perpetrators and/or were in a position to be aware of such injuries.”

The hearing took place over three days between 17 and 21 March 2025. It was listed before Recorder Hennessy, an experienced family judge who had had no previous involvement in the case. The recorder heard oral evidence from Dr Kouble, Mr Parsons, Dr Kunnath, the mother and the father.

After the evidence, an amended threshold document was filed by the local authority. The references to the bruising to the left calf in paragraphs 4 and 10 were deleted. A new paragraph 10 was inserted in the following terms:

“The parents accept that the child had an injury as set out at paragraph 5(d) on 27 April 2023. That injury was similarly (to paragraph 4(d)) caused by the pinna being crushed between a hard surface or, in the alternative, a heavy blow or application of force directly to the pinna. Such injury was inflicted by either the mother or the father.”

The revised threshold document also included additional findings in the following terms:

“12.

The person who inflicted the injuries to G was aware that they were using excessive and significant force.

13.

In the event that the mother inflicted the injuries, then she is aware that she has caused the injuries and has failed to give a truthful account.

14.

In the event that the father inflicted the injuries, then he is aware that he has caused the injuries and has failed to give a truthful account.

15.

If the injuries were not inflicted by the father, then he failed to protect.

16.

If the injuries were not inflicted by the mother, then she failed to protect.

17.

Both parents have failed to protect and to seek prompt medical attention for G in relation to each of the injuries.”

Closing submissions were delivered orally and the recorder then reserved judgment.

On 11 April the recorder delivered her judgment. In the first section (paragraphs 1 to 24), headed “Introduction”, she identified the parties, their representatives, and the witnesses, stating:

“I do not propose to summarise the whole of the oral evidence that was given to me within the ambit of this judgment, it would make it overly long and convoluted, save to say this: The oral evidence was very largely consistent with the written evidence that I had received from mum and dad, and so was the medical evidence. It was expanded on, explained, but the final opinions of the doctors had already been crystallised and put into writing.”

In the second section (paragraphs 25 to 34), headed “Agreed Facts”, she summarised the background. In the third section (paragraphs 35 to 43), headed “Legal Framework”, she summarised the applicable legal principles, drawing on an agreed summary prepared by counsel. The reported authorities cited in the judgment included two cases in which this Court gave guidance about the correct approach to the identity of the perpetrator of inflicted injuries on children – Re B (Children: Uncertain Perpetrators) [2019] EWCA Civ 575 and Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348. It was not suggested to us that there was any material error or omission in this summary.

In the next section, paragraphs 44 to 78, the recorder set out passages from the parents’ evidence. She recorded that the mother had accepted in cross-examination that:

“she had an awful lot to cope with at the time these injuries occurred, in that she had K, and she had had G, who had come along as a bit of a surprise, because she told me that she did not know she was pregnant until very shortly before the birth. She was also undertaking her own studies, which required her to attend a placement on a Monday and work during the evenings on a regular basis to take part in tutorials or individual study.”

The recorder said that the mother had also accepted that there has been some tension with the father, who was working long hours, because she did not feel she was getting as much support as she needed.

During the investigation, the experts had given careful consideration to the possibility that the bite marks had been inflicted by K. Ultimately, this possibility had been rejected. The mother’s reaction to this conclusion was described by the recorder in these terms:

“She accepted that she had originally thought that K may have caused these injuries, and, when she learned via the police investigation that K was not the cause, she used the word "disappointed" to describe when she found out about that, and it was suggested to her in cross-examination that that was a surprising word to use in that context.”

The recorder observed “I have to say, I agree”, but added:

“I do understand and I do temper that part of her evidence by the knowledge that actually K was in and out of the frame throughout the course of these proceedings.”

The recorder then considered the mother’s evidence about why she had not done more to investigate the injuries she photographed, and which she discussed with the maternal grandmother in text messages. The recorder observed that she did not have a very satisfactory answer as to why she did not do more about the marks she saw, adding:

“it did seem to me that that was quite an important thing to address the suggestion that she had just allowed these to happen without real enquiry or real worry.”

The recorder noted the mother’s evidence that she had never heard him cry in an abnormal way, which the experts said would have occurred if his face was bitten.

She concluded her summary of the mother’s evidence with the following observations:

“66.

Overall, my impression of her evidence was that she was doing the best she could within the remit of what she recalled, what she brought to mind, and what she could offer and tell me. I do not necessarily form any impression from any of that evidence drawing the conclusions that she was trying to lie or make things up, but that is of course a different issue from saying witnesses' memories are perfect or they are recalling, or saying, everything that they know or actually did once know.

67.There is at least a concern … that these are parents, and I am particularly referring to mum here, who do not see risk or perhaps, as has been put to her, she buried her head in the sand, for example looking at the pregnancy. Did she really not know?”

Turning to the father’s evidence, the recorder described it as being characterised by denials and the words "I don't know, I don't remember". She continued:

“69.

It was suggested to him at one point that he was simply following a script that him and mum had put together between them, and that he was looking over to her regularly for assistance and help, and was generally unhelpful to the court as a result.

70.

To an extent I think that is true. A lot of his evidence was characterised by denials and ‘I don't know’. But I also think there were elements of his evidence that were given very naturally and ‘off the cuff’, and were very helpful to my enquiry. For example, there was quite considerable enquiry as to whether he was ever alone with these children, did he have the opportunity to do this? Effectively the answer was no, although he corrected himself quite quickly and quite, in my words, ‘off the cuff’ when he said, ‘Actually she did go out shortly before Christmas, she was out about an hour to get her nails done, and I had the children’. It struck me that that was a very honest, instinctive comment, and one which I accept as being factually correct.”

She recorded his evidence that nighttime feeds had been shared, but added that they “were always in earshot of mum, and certainly it seems to me earshot of mum if there had been this sort of out of the normal crying that is described by the doctors.”

The recorder said that he “would simply not be drawn on whether he knew who had caused the injury.” She continued (paragraph 66):

“At the end of his evidence, I felt driven to clarify to him what my role was in the case, that I did not want to risk making the wrong decision for his son, and that if, as was the impression I had of him, he had something in his mind that he perhaps wanted to say but was not saying, now was his time to say it. If there was something that he felt he had missed or not covered or not been asked. I wanted to make sure that he had that final opportunity to say something that he might have wanted to. However, he said no, he did not, and therefore of course I left the matter. But that had been the impression I had of him at the end of his evidence, that there might have been something more that he wanted to say and just could not.”

She said that to a large extent she agreed with the guardian’s counsel who had described the father’s evidence as being like “a rabbit in the headlights”. She thought he had found it very difficult to give evidence, although some parts of his evidence had been given “very naturally”. She concluded:

“What I simply cannot determine on the evidence is why he presented in that way. I simply do not know, and it is no part of my role to guess, and I am not going to do so.”

The next section of the judgment, paragraphs 79 to 84, was headed “The Position of the Parties”. The recorder noted that the local authority’s position was that the injuries were inflicted but that it was an “uncertain perpetrator case … that the court simply cannot decide between the two parents.” Each parent argued that, if the court concluded that the injuries were inflicted, the other parent was the perpetrator. For the father, who had declined in evidence to say who he thought had caused the injuries, counsel’s argument that the perpetrator was the mother was “based in a very large part on the opportunity for a parent to have done this.” The recorder summarised the guardian’s position in these terms:

“… the guardian's position is probably that my conclusion should be that the perpetrator is dad, but it would be open to me to say that it is an uncertain perpetrator. Either of those two courses is open to me, the inference being that I cannot safely conclude that it is mum.”

In the next two sections – paragraphs 85 to 102, headed “The Medical Evidence”, and paragraphs 103 to 105, headed “Findings – Are They Bites?” – the recorder considered some of the expert evidence about the injuries to the cheeks and concluded that the injuries seen in the child protection medical examination and in the earlier photographs were indeed bites. Given the issues raised on this appeal, it is unnecessary to consider this part of the judgment any further.

The next section of the judgment, paragraphs 106 to 145, was headed “Who caused them?” Under this heading the recorder addressed in very considerable detail those parts of their evidence in which the experts – in particular Dr Kouble and Mr Parsons – had been asked to compare the marks on G’s cheeks with dental casts taken from the parents and K. Mr Parsons had initially thought there was a strong possibility that K could have inflicted the bites, but Dr Kouble always thought this unlikely, and ultimately both experts agreed that she could be excluded. In their written reports, and after an experts’ meeting, their position was, in short, that from the dental casts neither parent could be excluded, but that it was less likely to be the mother than the father.

Having summarised the experts’ evidence, the recorder proceeded to set out her conclusion on the question of perpetrator. Although the medical evidence suggested that it was more likely to be the father than the mother, she concluded that it was not possible on the medical evidence alone to identify a perpetrator. The evidence as to opportunity pointed to the mother being the perpetrator because she was “ever present” and denied ever hearing an abnormal cry. The recorder therefore concluded:

“On the totality of the evidence, when I put the wider context into the frame, and I ask myself who is on the list, can I identify a perpetrator, and, if not, is there a likelihood or a real possibility they should be placed in the pool, I come to the conclusion that both of them are on that list, I cannot clearly identify a perpetrator, and there is a likelihood or a real possibility that they should be placed in the pool.”

The next section of the judgment, paragraphs 146 to 150, was headed “The Ear Injury”. This was considerably shorter than the sections dealing with the bites. The recorder quoted parts of Dr Kunnath’s report about the ear and considered but excluded the possibility that it could have been caused by K throwing a toy at G. The recorder concluded:

“I think I probably have to say this injury is unexplained. We do not know how that was occasioned. We do know that it was a haematoma and an injury, but I think, in light of the remaining findings in this case, I need say probably no more about that.”

In the final section of the judgment, paragraphs 151 to 161, headed “Conclusion”, the recorder added some further comments. She reiterated her finding that there was a reasonable opportunity of each parent being the perpetrator. At paragraph 157, she said:

“If one considers the opportunity was there for both parents; either mum was the perpetrator, in which case dad may or may not know I suppose; or dad was the perpetrator, and mum must know. But I simply cannot take that finding any further.”

She cited a passage from an assessment of the maternal grandfather and his partner in which they had expressed concern about G being harmed in the parents’ care through lack of supervision. The recorder added:

“As an aside, although it does not form the basis of the finding, that in itself may go some way to playing into the findings that I have already made.”

Finally, the recorder added, at paragraph 160:

“As a final comment, I cannot escape the fact that whilst the injuries in February, March and April were noticed by mum, and she took some photographs, the injuries that prompted the medical examination were noticed by her father; and the other injuries noticed by the doctor when he undressed G for the purposes of examining him had not been noticed at all. Again, I have to mention that as to having some misgivings there given the ‘failure to protect’ argument advanced as an additional argument by the guardian.”

The recorder’s findings can therefore be summarised as follows:

After handing down judgment, the recorder made an order in which she “stood the matter down for the parties to reflect on the directions sought from the court for onward timetabling”. Although the parties agreed that there would have to be an assessment of the parents to determine the extent of future risks to the children if they return to live with, or have contact with, either parent, there has not yet been any further case management hearing to consider proposals for such an assessment. Instead, on 30 April 2025, the local authority filed a notice of appeal against the recorder’s findings, and the other parties filed responses pursuant to CPR PD52C paragraph 19 supporting the proposed appeal. On 3 June, I granted permission to appeal.