England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WATFORD COUNTY COURT
(His Honour Judge Altman)

		Royal Courts of Justice Strand London WC2 Wednesday, 11th September 2002

Wednesday, 11th September 2002

1. LORD JUSTICE THORPE: Mr T seeks permission to appeal an order made by His Honour Judge Altman sitting in the Watford County Court on 7th May 2002. The proceedings related to a little boy named K who was born on 22nd May 2000 and who is the child of PT and LTH. They were respectively 17 and 19 years of age at the date of K's birth. They separated when K was about four. The father has since lived with his parents, Mr and Mrs T, and the mother has lived with her current partner, Mr K, who is the owner or tenant of a public house. The principal care of K was with LTH, although both sets of grandparents were much involved in K's life.
2. The involvement of the local authority resulted from a hospital admission on 2nd September 2001 when K was about 14 months old. He was admitted at 3 o'clock in the afternoon and the injuries he suffered on admission were described by the judge as a spread of petechiae around the area of the join between the neck and chest and three parallel horizontal striped bruises on the back, separated by about four centimetres and each, about two centimetres in width. In relation to the petechiae, the judge found, two pages on in his judgment, that they were caused by compression associated with a degree of asphyxia insufficient to cause any brain damage. The judge categorised that injury thus. He said:

"This was not a life threatening injury, as it turned out, but obviously, within the nature of what happened, there were serious implications for what could have occurred if the process of inflicting this injury had gone on longer."

3. In the resulting care proceedings the local authority sought a split trial and sought from the court a fact-finding exercise designed to establish when the injuries were inflicted and who might have been responsible for them. The uncontroverted evidence was that K had been in the care of the Ts whilst LTH and Mr K had their summer holiday. Towards the very close of their responsibility they had placed K into the care of the THs for two hours between 8.00 and 10.00 p.m. on 1st September. Having resumed responsibility at 10.00 p.m., they remained in charge of K until 10.00 a.m. the following morning, the 2nd, when they returned K to LTH and Mr K. It was the mother and Mr K who took K to hospital at 3.00 p.m. that day, possibly accompanied by the father, PT. So, as the judge said, at page 3 of his judgment, the injuries must have been caused between 10.00 p.m. on Saturday night and 3.00 p.m. on the following day. If the injuries were caused after 10.00 a.m. that day, it must follow that they were caused whilst the child was in the care of the mother. If they were caused before 10.00 a.m. that day, then they must have been caused while the child was in the care of the father or other members of his family. He recorded then that whilst the possibly responsible adults had at one time asserted that the injuries were accidental, by the date of the trial each sought to blame the other.
4. The fact-finding exercise was conducted in two parts. The first part, in January, resulted in the judge expressing his satisfaction that the injuries could not have happened in the two hours between 8.00 and 10.00 p.m. on 1st September whilst the THs had responsibility. So, on the resumption of the process in May, the judge heard evidence over seven days from a number of witnesses, and at the end of that addressed the question: did the injuries occur in the five hours immediately preceding the hospital admission or did they occur in the 12 hours immediately preceding that? He reached the conclusion that they occurred in the five hours immediately preceding admission, and it is against that finding that Mr Hefer seeks leave to appeal. He does not suggest that the judge should have exculpated the mother from responsibility by rejecting the final five hours, but his essential submission is that the judge was wrong to exculpate the T family, who had after all had equal opportunity in the 12 hours preceding the final five.
5. He has expressed that submission in ground 2 of his proposed grounds of appeal, which reads as follows:

"The Judge correctly found that the evidence did not all point in one direction, but there was evidence to indicate that K had sustained the injuries whilst in the care of the T family. Given the same, whilst the Judge had such great concern and considerable doubts about the Ts, he was plainly wrong to exculpate them and find that K had sustained such injuries later on the Sunday whilst in the mother's care. The exculpation of the Ts necessarily involved finding against the mother. The Judge failed to apply the correct test at law when considering whether there was sufficiently cogent evidence so to exclude the Ts and find against the mother."

6. The consideration of the application on paper resulted in an order that there should be this oral hearing on notice with appeal to follow if permission granted. I made it plain that that time estimate was to enable the court to consider ground 2 of the grounds of appeal and that to argue that it would not be necessary to look in detail at the alternative grounds advanced in the notice. As I said, the essential submission for consideration is that on the evidence the judge should not have exculpated either the mother or the paternal family.
7. Mr Hefer of course relies strongly on the decision in the case of Re H and R (Minors) (Sexual Abuse Standard of Proof) [1996] AC 563, particularly of course on the speech of Lord Nicholls in which he re-emphasised the elevated standard of proof required before in family proceedings a finding of abuse can be entered. He also relied upon the decision of this court in the case of G, [2001] FCR page 97. In that case the President emphasised that the same elevated standard of proof is required before a court can identify and hold responsible an adult perpetrator. So perhaps Mr Hefer's essential submission is that the same high standard is required for the exculpation of the Ts as is required for the inculpation of the mother. He submits that that high standard was certainly not achieved in this case, given the judge's manifold criticisms and misgivings of the Ts in his review of the history and of their evidence.
8. Mr Hefer draws attention to the judge's criticisms of the father, PT, at page 63 and onwards in the appeal bundle. He emphasises the judge's like criticisms of the paternal grandmother, Mrs AT at pages 64 and 65, and he stresses the culmination of the judge's appraisal of the Ts in these two passages at page 67 in our bundle. The first passage opens at that page and these are the words:

"All those factors have caused me great concern in relation to the case against the Ts. It had been suggested, quite rightly, by Mr Heffer that they appear to have something to hide."

9. Then at line 19:

"On the other hand, in the end I have come to the conclusion that I have considerable doubts about the reliability of the Ts' evidence. They have not at times been candid with the court. There does appear to have been, perhaps through a desire that K should live with them, or for some other reason, exaggerated criticism of the mother, and an attribution of blame to her."

10. When I read these papers first I saw considerable attraction in that submission. As in the case of G, I asked myself: would it not have been safer for the judge simply to have determined that there was more or less equal opportunity? Since none of the adults had made a favourable impression, it was safer, particularly given the elevated standard that the law requires, to make no specific finding in relation to any adult perpetrator or in relation to either period of time. But a closer analysis of the judgment brings me to the conclusion that the judge was entitled to do what he did. The first thing to emphasise is that he restricted himself to making the essential choice between the two crucial windows of opportunity. Having made the finding that the injuries occurred during the particular period whilst the child was in the care of the mother, he went on to say:

"I make no findings as to who actually caused those injuries. I am not able to do so. I have come to the conclusion that a careful analysis of the evidence in this case leaves me with no alternative but to conclude that it was caused in that period."

11. As Mr Hefer has told us and as Mrs Wood has confirmed, there was during that period of five hours times when the mother had sole charge of K and other times in which K was in the shared charge of the mother and JK.
12. But the analysis of the judgment to which I refer goes thus. Between the two passages at page 67 that I have cited, passages critical of the Ts and their evidence, the judge had made a finding, and this is at line 16, in these clear terms:

"I do not find that the evidence adverse to the Ts leads me to conclude that the injuries to K were caused whilst he was in their care."

13. So that essential conclusion is not one of exculpation so much as a finding that adverse evidence was not sufficient to lead to a finding of inculpation.
14. He then turned to consider the case in relation to the mother. He starts by recording the indications contra to her holding responsibility, but again he says at page 68 of the judgment:

"After the most careful examination, and for reasons to which I shall now turn, I find that the evidence is in the end compelling. It drives me to conclude that these injuries were caused to K between 10.00 am and 3.00 pm on 2nd September when he was in the care of his mother."

15. There then follow some five pages in which he reasons, first of all, events and circumstances directly relating to the crucial period of five hours. He then goes on to consider a number of other considerations more circumstantial. He then considers, finally, factors in the wider context of the mother's life which he regarded as lending peripheral support to his conclusion.
16. Having reasoned all that out between pages 68 and 72, he returns again to the negative factors against the Ts. He says at 72 line 15:

"Against all those factors can I cast doubt upon my conclusions by looking at all the adverse evidence in relation to the father and the Ts to which I have referred? As I have said, whilst that evidence is unreliable, I find that it cannot counterbalance in any way the extensive evidence that points to the conclusion which I have reached. I bear in mind the inherent probability of an occurrence of this kind, and that it should have been committed during that particular period whilst the child was in the care of the mother."

17. It seems to me that the judge has, in effect, carried out a legitimate exercise of analysis which satisfies the requirements as defined in the decision in H & R before entering a positive conclusion. He has looked first at the 12 hour window of opportunity and concluded that the evidence in relation to that is not sufficient to lead to a conclusion of inculpation. That is a conclusion that rests on the foundation that most of his criticism in relation to the Ts and their evidence concerns not so much their conduct within the crucial period, but a more general consideration of their lives and of the evidence in which they had sought to present themselves as better than they were and the evidence by which they had sought immoderately to damn the mother.
18. He then goes on to consider those factors which would legitimately allow the inculpation of the mother, factors that more directly relate to the window of opportunity which was hers, and comes to the conclusion that they are in totality sufficiently compelling. But before inculpation he reintroduces his concerns in relation to the Ts and asks himself the question: are they sufficient to cast doubt upon his otherwise clear conclusion? He answers the question: no. So on a more careful reading of the judgment I am satisfied that the criticism advanced by Mr Hefer in ground 2 of his draft grounds is not made good.
19. This is an extremely careful judgment, and the judge has approached his task not only conscientiously but with great sensitivity to the parties.
20. For my part I would refuse this application for permission.
21. LORD JUSTICE POTTER: I agree.
22. LORD JUSTICE KAY: I also agree.
Order: Application refused. Detailed assessment of the mothers publicly funded costs.