England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HER HONOUR JUDGE PLUMSTEAD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th September 2007

Lord Justice Thorpe:

1. HHJ Plumstead, in the Cambridge County Court, delivered an extempore judgment on 19 July at a preliminary fact finding hearing in a public law case, in which a very young child had suffered some very serious injuries which must have been caused by one or other of his very young unmarried parents.
2. At the conclusion of the extempore judgment, Miss Elliott, who appeared for the father, sought permission to appeal, which was refused by the judge; and accordingly she issued a notice of appeal on 8 August, which was considered by Wall LJ on 14 August, when he directed an oral hearing on notice, with appeal to follow if permission granted.
3. There appeared this morning Miss Elliott for the father, and Mr Bennett for the local authority. I, as a matter of ordinary experience in public law proceedings, would expect the local authority to be opposing; but in reality they are supporting Miss Elliott, and no contrary argument is addressed either by the mother or the children's guardian. The guardian has written to say that her position is one of neutrality.
4. So, what were the judge's tasks? She had to assess the causation of injuries suffered by the child in hospital that very nearly terminated his young life. The mother was effectively the only possible perpetrator, since she was the only one of the two parents present at the hospital. The evidence against her was completely compelling, and it is hardly surprising that, as the trial developed, she made limited concessions as to her possible responsibility for the injuries that inevitably dented her credibility, since in all previous statements she had refused to accept any responsibility.
5. The judge had a wealth of expert evidence in relation to the hospital injuries, and in relation to evidence of earlier head injuries that emerged as a result of the very thorough tests subsequently carried out at the hospital. Those tests also revealed that the baby had suffered what the judge briefly described as:

"(73) So far as the left tibia is concerned, a skeletal survey has shown that there is a metaphyseal fracture at the end of the left tibia. Again, the consensus of medical opinion is perfectly clear; that that can only have been caused by a forceful twisting movement of the left ankle, and there is no dissent on that."

6. When that tibial fracture occurred was impossible to determine, and as the judge said in paragraph 105:

"So far as the fracture is concerned, a very broad window has been given, but it could have occurred any time up to the end of November."

7. As the judge approached conclusion, she explained why she had no difficulty in concluding that the mother alone was responsible for the injuries in hospital. The judge said in paragraph 109:

"[The mother], in my judgment, did mishandle him in a violent way in hospital, and so that is within her makeup. She has that propensity."

8. In relation to earlier head injuries, the judge said in the next paragraph:

"The balance of probabilities is the test, and I am satisfied that it is probable that [the mother] inflicted the earlier skull injuries."

9. In relation to the tibial injury, the judge in the following paragraph said:

"So far as the injury to the foot is concerned, I do not think that I can use what I know of her propensity to harm him by shaking him and dumping him on hard surfaces as sufficiently probative to say that she is the one who hurt his ankle. Accordingly, in respect of the ankle injury, I am left with two possible perpetrators; neither of them can I exonerate."

10. Before leaving the case, the judge wisely gave some indication to the parties and the professionals as to the issues that were likely to require attention and consideration in making preparation for the disposal hearing. She said, in relation to the mother, that:

"…in listening to [her] and observing her, and contrasting it with the very bland observations in the parenting assessment, it seems to me that she is a very, very troubled young woman, who demonstrated an inability to empathise with the needs of and vulnerabilities of a tiny child. I think that any assessment of her must look at those aspects very carefully and consider whether it is possible that she can safely be responsible for a tiny child, without considerable help and change."

11. Then in relation to the father, she said that her only observations were:

"…that he regarded [the baby] as, in an unreal way, a very lovely little baby, but for whom he did not have real commitment. He regarded [the baby] really as something that [the mother] was using to keep hold of him, rather than as a person in his own right. I think, if he had been more focused on his son's needs and less focused on the way in which they were manipulating each other in their unsatisfactory and ill-starred relationship, then perhaps he might have spent more time with him, and that might possibly have made [the mother's] task rather less burdensome than it was."

12. In pointing out the areas that she thought were worthy of concentration in further assessment, it is notable that all her misgivings were negative rather than positive. She did not allude, in that paragraph, to any enhanced possibility that the father was the perpetrator of the tibial injury.
13. Now the submissions this morning can be briefly summarised. Miss Elliott says that, in the light of the findings, the mother was responsible for all the head injuries. In the light of the judge's findings as to the mother's propensity to mishandle the child and to dump him on hard surfaces violently, in the light of the damage to the mother's credibility, the judge had no option but to exonerate the father. She says that it is simply improbable, in a very high degree, that a baby will have two parents that inflict injury, and she says that accordingly the judge's conclusion is so illogical, or so perverse, that it cannot stand.
14. Mr Bennett's position for the local authority is slightly different. He says that on a fair construction of paragraph 111, the judge has found that each of these parents is equally likely to have perpetrated the tibial injury. The paragraph does not say that, and I simply do not agree that that is a reasonable implication. What should have happened at the end of the trial, given that there seems to have been a degree of doubt as to the judge's position, is that either Miss Elliott should have applied for amplification, or perhaps the local authority should have questioned whether the judge was impliedly saying that the two parents were equally liable perpetrators.
15. Unfortunately, that was not done -- only an application for permission to appeal from Miss Elliott, which was refused by the judge. Clearly, in the heat of the moment, it is easy to overlook the responsibility to ask a judge for amplification. But there is then an opportunity for reflection before any notice of appeal is filed with this court, and it is within that period of reflection that the responsibility to remember the effect of the decision of this court in English v Emery Reinbold is enhanced.
16. I am in no doubt at all that all the points made by Miss Elliott do lead to the conclusion that the mother was the more likely perpetrator of the ankle injury, even if the father remained in the frame as a possible perpetrator. I would surmise with considerable confidence that, had the judge been asked to amplify paragraph 111 by recording that, although she could not exonerate either, on the evidence and in the light of her earlier findings, the mother was clearly the more probable of the two. Mr Bennett has indicated that it would be helpful to his client authority, in their future work with this family, were this court to indicate that the construction of equal likelihood is not one that can be validly adopted. I say that without hesitation. I do not think that the judge meant that these two were equally likely. Certainly she did not say it, and from what I know of the case, and accepting that I have not heard the evidence, it is manifest that, of the two, the mother is the more likely to have perpetrated the ankle injury.
17. I firmly reject the suggestion that the judge has been in any wise illogical. I fully accept her view that a distinction was to be drawn between the ankle injury and the head injuries. Having drawn that distinction, I am in no doubt that it was open to her, on the evidence, to say that she could exonerate neither parent. For those reasons, I would grant permission but dismiss the appeal, and I would also favour imposing reporting restrictions that would prevent the identification of the child or the family, given that there are continuing proceedings in the County Court.

Lord Justice Longmore:

18. I agree.

Lord Justice Maurice Kay:

19. I also agree.

Order: Application refused