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

Under ground 1, the local authority’s argument is that the recorder’s judgment was fatally flawed because she failed to follow the schedule of findings sought in the threshold document.

In Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145 at paragraph 15, Wall LJ said:

“a judge … is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority. To take an obvious example: care proceedings are frequently dynamic and issues emerge in the oral evidence which had not hitherto been known to exist. It would be absurd if such matters had to be ignored.”

In Re EY (Fact-Finding Hearing) [2023] EWCA 1241 at paragraph 72, having cited Wall LJ’s dictum in Re G and B, I observed:

“In exercising these powers, however, a judge is of course required to ensure that the process is fair to all parties. In particular, a party against whom findings may be made is entitled to a fair hearing, including sufficient notice of the findings which may be made and the evidence relied on in support. The practice of the local authority filing a threshold document setting out the findings it seeks and identifying the evidence relied on in support addresses that requirement of fairness, and a judge is only entitled to make findings that go beyond those sought in the document if they are within the “known parameters” of the case: Re W (A Child) [2016] EWCA Civ 1140; [2017] 1 WLR 2415, Re L (Fact-finding Hearing: Fairness) [2022] EWCA Civ 169. If a court is considering making findings that go beyond those parameters, the party against whom those findings would be made must be given fair opportunity to challenge them.”

In some cases, the judge structures the judgment in line with the threshold document. But he or she is not obliged to do so. It all depends on the facts and issues in the case. Provided the judge in a fact-finding hearing ensures that the parties have a fair hearing and delivers a judgment that covers the ground within the known parameters of the case, it does not matter that the structure of the judgment departs from the threshold document. To insist otherwise would be to impose on judges an unnecessary and unhelpful formalistic approach. It will, however, be helpful if the findings made in the judgment are distilled by counsel into a schedule, or similar document, and appended to the court order approved by the judge.

If the judge has omitted to deal with an aspect of the findings sought by the local authority, the first option for the parties is to invite the judge to clarify the reasons. In doing so, they must, of course, comply with the guidance given by this Court in the series of cases culminating in Re YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71, including the observation at paragraph 90(1) of my judgment in that case:

“A judgment does not need to address every point that has arisen in the case. The court should only be asked to address any omission, ambiguity or deficiency in the reasoning in the judgment if it is material to the decisions that have to be taken in the proceedings.”

In the present case, it is said that the recorder failed to deal adequately with three aspects of the findings sought by the local authority: (1) the identity of the perpetrator of the bite marks as expressed in paragraph 8 of the threshold document; (2) the injury or injuries to the ear referred to in paragraph 9 of the threshold document and in the amended paragraph 10 of the final version of the document filed after the evidence, and (3) the allegations of failure to protect added in the final version of the document at paragraphs 13 to 17. The local authority could have gone back to the judge seeking clarification about those matters. But having decided that the whole judgment was defective, they elected to proceed by way of appeal.

If we shared the local authority’s view, expressed in grounds 2 to 5, that these matters amounted to omissions or deficiencies in the reasoning which were material to the decisions about the children’s future, it would of course be open to this Court to allow the appeal on those grounds and remit the matter to the recorder to make additional findings. In this case, however, such a course would be unnecessary and wrong.

Neither the local authority nor the guardian contend that the recorder was wrong to conclude that she could not identify a perpetrator of the bite marks. The local authority’s case at first instance and on appeal has been that no perpetrator could be identified on a balance of probabilities and that there was a real possibility that either parent was the perpetrator. The guardian identified a course of reasoning which would support a finding that the father was the perpetrator, but did not expressly advocate for such a finding, and accepted that the pool finding was open on the evidence. The complaint of both the local authority and the guardian is that the analysis was insufficiently detailed and lacked coherence.

I disagree. In his often-cited judgment in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at paragraph 115, Lewison LJ described the judge’s obligation in giving judgment in these terms:

“He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury.”

The recorder’s analysis of the issue of the perpetrator of the bite marks plainly satisfies this requirement. Contrary to the submissions advanced on behalf of the local authority and the guardian, the analysis of this issue was sufficiently clear and cogent to enable any reader to understand the basis for the decision. It is true that her reasons are not expressed in the way they would have been had the recorder handed down a written judgment. This was an ex tempore judgment delivered from notes. I acknowledge that there may have been, as Mr Sanders submitted, some loose ends, but not ones which, when examined, cause the judgment to unravel.

I do not accept that, in reaching her conclusions about the perpetrator issue at paragraphs 106 to 145, the judge failed to take into account her earlier analysis of the parents’ evidence and credibility at paragraphs 44 to 78. On the contrary, the difficulty she had in interpreting the parents’ evidence, for the reasons spelt out, in particular, in the passages from the judgment quoted above, plainly contributed to her overall conclusion that she was unable to identify a perpetrator and that both parents were in the pool.

The recorder concluded that she was unable to identify which parent was the perpetrator. She reached that conclusion after setting out her analysis of the evidence. Although she plainly did not refer to all of the evidence, her reasoning is sufficient to demonstrate to this Court why she reached her decision. In short, while the medical evidence suggested that the father was more likely to be the perpetrator, the recorder concluded that it was insufficient by itself to support such a finding. Other evidence pointed away from the father being responsible – in particular, that the father was hardly ever alone with the children and that the mother denied ever hearing an abnormal cry. Insofar as it was permissible for the argument to be put on behalf of the mother before this Court that the recorder erred in failing to identify the father as the perpetrator of the injuries, I would reject it. Taking everything into account, and given her concerns about the reliability of the parents’ evidence, the judge was unable to identify a perpetrator on a balance of probabilities. That conclusion is unassailable in this Court.

The passage in the judgment dealing with the ear injury or injuries is much shorter than those passages dealing with the bite marks. Ms Jones is right to say that it does not refer to some of the evidence about this aspect of the case, including material parts of the expert evidence. But no judgment recites all of the evidence. As Lewison LJ observed in Volpi v Volpi and another [2022] EWCA Civ 464, at paragraph 2:

“The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it…. The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him….”

It is arguable that the recorder ought to have expanded on her analysis of the evidence about the ear injury, but in my view her reasoning was sufficient to explain the conclusion, open to her on the evidence, that the injury was unexplained.

It is also arguable that she ought to have considered the evidence about the ear injury before reaching a decision about the perpetrator of the bite marks. Good practice requires that “a judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof” (per Dame Elisabeth Butler-Sloss P in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at paragraph 33). But given her conclusion that the ear injury was “unexplained”, I am unpersuaded that, had she taken this course, it would have had an impact on her decision about the perpetrator.

The recorder did not make a specific finding that either parent had failed to protect G. The only direct reference to failure to protect in the conclusions in the judgment is in paragraph 160, in a brief reference to a submission made by the guardian. It is arguable that she should have addressed this issue. But for my part, I would not allow the appeal on this ground for the following reasons.

First, the paragraphs in the final version of the threshold document relating to failure to protect were only added after the evidence. Without a transcript of the evidence – and of the submissions which were delivered orally, not in writing – it is difficult for this Court to discern the extent to which the issue of failure to protect was fully explored in the evidence. It is clear from the judgment (see in particular the passages in paragraphs 56 and 67 quoted above) that it was explored with the mother, but it was not a feature of the local authority case at the outset of the hearing.

Secondly, the way in which paragraphs 15 and 16 of the final version of the threshold document are drafted (“if the injuries were not inflicted by the father/mother, then he/she failed to protect.”) link the failure to protect with the identity of the perpetrator. Given the recorder’s conclusion that she could not identify the perpetrator, it would be unsurprising if she thought it unnecessary to go on to make the finding that the non-perpetrator failed to protect the child.

Thirdly, the summaries of the parents’ oral evidence in the judgment, which I have quoted at some length above, show that the recorder found it impossible to discern whether the parents were telling the truth about the key issues. I do not accept the premise of Mr Barnes’ submissions that she failed to form the necessary clear assessment of the parents’ credibility, or that she failed to weigh her observations about that evidence against the medical evidence. The judgment contains an exposition and analysis of their evidence, in the context of the medical evidence, and a clear explanation as to why the recorder found it impossible to determine where the truth lay. Although she did not expressly say so, it seems likely that this impeded her ability to make a finding on the issue of failure to protect which had been added to the threshold document by the local authority at the end of the hearing. In those circumstances, given her findings that the injuries to G’s cheek were inflicted by bites and that the perpetrator was either the father or the mother, it would be unnecessary and disproportionate to allow the appeal on ground 3 and require the recorder to make a specific finding on the issue of failure to protect.

Ultimately, she was able to make findings that were sufficient to establish that the threshold criteria under s.31(2) were satisfied, but unable to make more definitive findings because of the problems and limitations of the parents’ evidence. The question whether it is in the interests of the children’s safety and welfare to be returned to the care of either parent must now be explored in a risk assessment.

It is axiomatic, as Lewison LJ said in Fage, at paragraph 114, that:

“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them.”

This principle of judicial restraint by appellate courts extends to decisions by judges at first instance that they are unable to make findings of fact or, although they are able to make findings, unable to conduct a complete evaluation or to draw the inferences from the findings suggested by the parties. In this case, the recorder found as a fact that the bite marks had been inflicted and that there was a real possibility that one of the parents was the perpetrator. She was, however, unable to find on a balance of probabilities that either parent was the perpetrator, or to make any finding as to the cause of the ear injuries. Her evaluation of her findings did not enable her to reach any conclusion as to failure to protect. Her reasoning was set out in a detailed judgment couched in terms to be expected of an ex tempore judgment. As is invariably the case, the judgment did not cite every aspect of the evidence, but was an ample explanation of her reasoning. There is no basis for thinking that she overlooked any material point. Although it would have been preferable from the children’s perspective if she had been able to identify the perpetrator of the bite marks, she was unable to do so, and neither the local authority nor the guardian say that conclusion was wrong. In my view, it ought to be possible for a skilled risk assessor, perhaps using the “Resolutions” model, to work with the family on the basis of the recorder’s findings and judgment and produce an assessment that will enable the court to conclude these proceedings with a clear plan for the children’s future care.

For those reasons, I would dismiss this appeal.

I agree.

I also agree.