CA-2025-001313 & CA-2025-001318 - [2025] EWCA Civ 1044

The judgment runs to 17 pages. After concisely describing the background, the issue and the legal principles, the judge moved to his analysis and conclusion, framed with reference to the authorities. He accordingly asked himself whether it was ‘right and necessary’ to investigate Z’s death having regard to:

The main contours of the judge’s reasoning were these:

As to necessity and relevance, the judge’s reasoning proceeded in this way:

The judge’s decisive reasoning appears in these paragraphs:

“32)

… Of course, a ‘shaking’ event might be associated with a more malicious act conducted in bad faith which could include actions with a sadistic or similar motivation. Plainly that would fall far outside of the category of impulsive behaviour referenced above. However, it seems clear to me that no party in this case envisages the likely pursuit, let alone finding of such a nature. Given the passage of time and the available information (considered by both Police and Coroner) there really is scant basis for proceeding on the basis that the Court might reach a conclusion of such a character. There are very strong grounds for holding that any finding in this case would likely recognise the event as being one of temporary loss of control.

33)

I recognise it is not for this Court to attempt a mini trial on the evidence available as one does not know what the totality of evidence would be should a fact finding be undertaken. I have proceeded above on the basis that a finding were made but within a likely context of a loss of control in the moment rather than a more sustained or malicious action. I do not consider this to amount to a quasi-mini trial given it appears to reflect entirely the issues of risk before me by those seeking a fact-finding and also gives regards to the real challenges in a detailed assessment beyond that which we already know of events which occurred such a time ago. It is most likely the evidence received will closely follow that which was laid down in subsequent years.

34)

I have stepped back and reflected on this point with care. I consider it is likely to rest centrally within any conclusions I reach. I have taken the view that it is better to proceed on the assumption the LA will make out a case of the Mother being responsible for the matters alleged although I have caveated that in the manner set out above. It is only by doing this that I have been able to properly assess the impact the same will have on care planning and risk assessment. In doing so I have struggled to identify why the care planning and risk assessment will materially change as a result of this finding being made. I made this enquiry of the LA. Reference was made as to the potential for an adoptive outcome and I questioned as to how the LA’s case, which would not otherwise support adoption, could become one of adoption as a result of a finding as to events occurring almost certainly in mere seconds, many years ago when the Mother was herself a child. For my part I remain unable to conceive of circumstances that would permit this marked change of direction. Whilst the case put before the Court might be for placement I cannot see that this will have been set by any fact-finding.

35)

I accept that for those working with the Mother in the future or those planning their ability to work with the Mother in the future, that an answer to questions of this sort are bound to be helpful. By definition such a conclusion will provide a Court based determination on balance of probability. But I do not understand why those working in such a setting would be unable to bring into their care and safety planning the prospect of a range of risk outcomes including that which would be subject to fact-finding. I consider, and agree with those acting for the Mother, that the risk planning is focused on what it is that causes risk (here impulsivity). The question of how that might play out should not be limited only to those outcomes which have been established to have previously arisen as a result. Any such risk planning would be short sighted in the extreme. Rather the risk planning would take a broader approach in its evaluation of the best way to manage risk. Put simply it is most unlikely any care planning would be structured simply to guard against a future risk of ‘shaking’ given any future risk would on balance likely arise in a different way. But risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by ‘shaking’ without such a finding being made.

36)

An obvious question was as to how the current assessment has been able to conclude (as it has) without this issue being determined. I consider the LA did not have an answer to this and I judge this is the case because there is no answer that sits comfortably with the argument of need for fact-finding. The LA did reference points in the assessment which note the fact the issue had not been determined but the assessment did not restrict its ability to provide a conclusion without the same being determined.

37)

There is significant strength in the point that any assessment of current risk and the planning to mitigate the same is bound to be focused on and assisted by the existing evidence of current care informed by other available expert evidence, available network support and other present matters than it would be by the circumstances pertaining at the time of Z’s death. The Mother makes the point that as at 17 April 2025 she was being told the professional view was that she was to return into the community supported by her family. Whilst positioning has changed due to perceived difficulties arising since, it is very hard to reconcile this planning with the continuing need for the Court to undertake fact-finding to inform safety planning and risk assessment. Viewed in this way there is a fundamental question as to the extent to which any fact-finding will in fact take the case forward.”

In a concluding paragraph, the judge drew together the strands of his analysis. In summary: