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

The local authority’s grounds of appeal are:

In support of these grounds, Ms Jones submitted that the recorder had engaged in a linear approach to the findings and failed to evaluate the evidence in a holistic manner. She addressed the injuries generally without reference to the threshold document. As a result, there was no solid factual matrix to enable a thorough risk assessment to be undertaken. Although the local authority’s position remained that the perpetrator of the injuries could not be identified on a balance of probabilities and that the recorder had been right to conclude that there was a real possibility that either parent was responsible, Ms Jones contended that the judge’s reasoning underpinning her conclusion was deficient. She had recorded a superficial impression of each parent’s evidence without subjecting it to proper analysis in the context of the rest of the evidence. By way of example, Ms Jones in oral submissions cited evidence that the family circumstances had caused arguments leading to “boiling point” in the small flat. The fact that there was no evidentially grounded path to her conclusion made the next step of risk assessment impossible.

Ms Jones submitted that the judge had focused on the bite marks and failed to carry out an adequate analysis of the ear injuries. Her conclusion that they were “unexplained” arose as a result of her failure to engage with the extensive evidence about them. Furthermore, she had been wrong not to have considered the evidence about the ear injuries before reaching a decision as to the perpetrator of the bite marks. Similarly, she had failed to engage at all with the findings sought about failure to protect.

The local authority’s appeal was supported by the children’s guardian. On her behalf Mr Chris Barnes, who had not appeared at first instance, did not endorse what he described as the mechanical approach adopted by the local authority to the schedule of findings. It was his submission that, in care proceedings, neither the parties nor the judge is bound by what is in the threshold document. Mr Barnes’ principal argument in support of the appeal was that the recorder failed to carry out an adequate analysis of the perpetrator issue and the ear injuries. She had failed to form the necessary clear assessment of the parents’ credibility or to weigh her observations about their evidence against the medical evidence as to the cause and consequences of the injuries.

Although the guardian, like the local authority, did not invite the court to identify either parent as the perpetrator, it was submitted that there was a course open to the recorder which would have enabled her to identify the father as the perpetrator, or in the alternative, not to identify a perpetrator but to find that both parents remained in the pool of perpetrators. In the event, the recorder’s analysis of the perpetrator issue was insufficient, muddled and unclear, so that the pool finding was “unsafe”.

Mr Barnes submitted that the recorder’s consideration of the ear injury was inadequate. This was an additional example of inflicted significant harm that was well supported in the expert evidence. Further, in reaching a conclusion as to the perpetrator of the bite marks before addressing the evidence about the ear, she failed to consider the totality of evidence holistically and approached the injuries in separate compartments. Contrary to her decision that, in the light of her findings about the bite marks, she did not need to say any more about the ear injury, she needed to reach a clearer conclusion about the ear injury before making a finding about the perpetrator of the bite marks. He further submitted that it was incumbent on the judge to address the issue of failure to protect and in that context consider various strands of the evidence, including the fact that the mother had taken several photographs of injuries over a period of weeks without seeking medical advice and only sought medical advice after marks were seen by the grandfather. Mr Barnes submitted that the recorder had failed to engage with these aspects of the evidence.

On behalf of the mother, Mr Damian Sanders supported the local authority’s appeal, but from a different perspective. It was his submission that the recorder had erred in failing to identify a perpetrator and that she should have found, on the medical evidence, that the bite marks had been inflicted by the father. It is at least arguable that in order to advance this submission, a respondent’s notice ought to have been filed on the mother’s behalf under CPR rule 52.13, but Mr Sanders was not prevented from pursuing the argument. He submitted that there were a number of loose ends in the judgment which the recorder had failed to resolve. The overall flaws in the judgment were on such a scale that a complete rehearing was required.

In a brief skeleton argument on behalf of the father, Ms Taryn Lee KC, leading trial counsel Ms Joanne Oakes, endorsed the local authority’s argument that the judgment lacked the clarity needed for a risk assessment. In oral submissions, however, Ms Lee, without resiling from that position, very properly took up the request from this Court that, in a case where no party was opposing the appeal, it would be of assistance for counsel to identify contrary arguments. She observed that it would be open to this Court to conclude that that there was a sufficiently clear and cogent analysis of the evidence about the bite marks to support the recorder’s conclusion that it was not possible to identify a perpetrator on a balance of probabilities but that both parents remained in the pool of perpetrators. It was also open to this Court to conclude that the recorder’s treatment of the ear injury was not wrong. Ms Lee acknowledged that, despite the limited findings, it would be possible for suitably qualified professionals to carry out a risk assessment, perhaps using the “Resolutions” model, which facilitates an assessment of whether it is safe to return a child to the care of a parent who denies abusing the child. Such an approach is assisted in cases such as this where there is a supportive extended family.