England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(HER HONOUR JUDGE HINDLEY QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd April 2009

Mr Justice Holman:

1. In her judgment handed down on 25 November 2008 the judge, HHJ Hindley QC, described this case as "deeply troubling". In my view that is an apt description. A child was undoubtedly injured. It is highly unlikely that he was injured by more than one person. A pool of three "potential perpetrators" was identified. Two of those people must be innocent or free from responsibility, yet a cloud of suspicion hangs over them. Such an outcome is plainly a deeply troubling one.
2. The essential factual background to this appeal is as follows. YW, whom I will call the mother, came to England from Jamaica as a visitor in the year 2000. She has become an over-stayer, a fact which the judge clearly found relevant to aspects of her care for her son; for and being an over-stayer she has not been able to access forms of state housing and benefits, which has imposed particular strains upon her capacity to look after her son. Her son is T, who was born on 17 July 2002. It follows that T is now aged about six and a half. In March 2007, which is the date at the heart of this case, he was aged about four and a half. T's father has played no role in his life nor in these proceedings.
3. During 2006 the mother began to live with T at an address at Audleigh House in Bellbarn Road in Birmingham. The tenant of that property was a man called ER. There was some loose connection between the mother and ER through a third party. There is no suggestion that there has ever been any kind of relationship between the mother and ER other than that ER permitted the mother and T to reside at the property of which he was the tenant. On his later evidence, ER himself principally resided elsewhere with a girlfriend.
4. The mother worked long hours as a cleaner. She accordingly had to make arrangements for someone else to care for T whilst she was at work. She encountered Mr HH and his wife, Mrs HH, through the school attended both by T and by children of Mr and Mrs H. Mr and Mrs H themselves have three children, who in spring 2007 were aged 11, 10 and one and a half. A pattern was established whereby the mother would take T at about 6.00 am each morning to the home of Mr and Mrs H T would then spend the morning there and one or other of Mr or Mrs H would take him to school at around lunchtime. As I understand it, he was collected from school and returned to the home of his mother. This pattern was followed on Monday 12 March 2007. At about 6.00 that morning the mother arrived with T at the home of Mr and Mrs H and left him there. At about 1.20 pm that same day Mrs H took T to school. There he was met by his teacher, Mrs Gemma Amnion. He had not been with Mrs Amnion for more than a few minutes when he told Mrs Amnion that his left hand was hurting. This led to Mrs Amnion looking at his hands and arms, and it was immediately apparent that there was something seriously wrong, not with his left hand but with his right hand. Mrs Amnion was later to say that his right hand felt freezing cold. It was swollen and purplish in colour.
5. Mrs Amnion took T into the room of the head teacher, Mrs Locker-Marsh, where the distorted appearance of his right hand was again plainly apparent. The school staff asked Mrs H to take T to the A & E department of the local hospital, which she did, although she deviated first to her own home. Their arrival at the hospital was timed as 14.12 pm that day. T was examined and it was ultimately found that he had a considerable number of bruises distributed on many parts of the left hand side of his body. There was bruising on his face, arms and legs. Additionally, it was discovered that he had a significant fracture in bones of his right wrist. The fracture was treated by surgery the following day. He remained in hospital for about a week until discharge on 21 March 2007. Plainly it was necessary for the local authority to become involved in this situation. There was agreement between the mother and the local authority that T should be voluntarily accommodated under the provisions of section 20 of the Children Act 1989, and he has in fact been voluntarily fostered ever since then.
6. It was apparent and obvious from the outset that Mr and Mrs H had been involved in the care of T for a significant period of time during the day in question. So, unsurprisingly, the local authority were anxious as to the well-being of their own children. There was a child protection case conference on 16 April 2007, but the conclusion of that conference was that there were no issues of concern about the three children of Mr and Mrs H. Their names were not placed on the child protection register. Notwithstanding that T had been voluntarily accommodated, the Birmingham City Council, entirely appropriately, decided that they should commence public law proceedings in relation to T and their formal application was issued on 3 May 2007.
7. On 18 May 2007, which I assume was the first or at any rate a very early directions hearing, District Judge Dowling gave directions for trial and fixed a fact-finding hearing to commence on 5 September 2007. She gave certain directions as to the instruction of medical expert witnesses. There was a series of further directions during the summer of 2007 to which it is not necessary to make any detailed reference.
8. Also during the summer of 2007 the guardian, who had been appointed, met the mother at the flat at Audleigh House. During that meeting ER happened also to be present. According to the guardian, both the mother and ER told her, the guardian, that ER had been at the flat overnight, or at some stage during the night, immediately preceding the morning of 12 March 2007. This plainly raised the possibility that ER may have been involved in some way in the injuries to T.
9. By September 2007 much medical evidence had been assembled, as a result of which it had become clear, and has not since been displaced, that the injuries to T must have occurred at some stage in the period of about 24 hours immediately preceding his presentation to hospital on the afternoon of Monday 12 March. It followed from that that if any of the injuries had been caused non-accidentally they might have been caused either whilst T was still with his mother overnight in the flat at Audleigh House or after he had been taken by her to the home of Mr and Mrs H at 6.00 in the morning on 12 March. It also followed that if, as he and the mother had told the guardian, ER had been in the flat at Audleigh House at any time whilst T was there during the 24 hours preceding admission to hospital, then he, too, might have been involved in some way in the injuries.
10. It thus came about that at a further directions hearing on 5 September 2007 HHJ Collis gave directions for each of Mr and Mrs H and also ER to be joined as parties to, or interveners in, the proceedings. It was by then plain that there could not be an effective fact-finding hearing during September 2007, as had originally been fixed, and HHJ Collis vacated any fact-finding hearing from that month and relisted it to commence on 21 April 2008 with a time estimate of seven days. Further medical evidence was assembled between September 2007 and April 2008.
11. On 21 April 2008 the case came on, as listed, for a fact-finding hearing before HHJ Hindley QC. On the first day of that hearing there was much discussion and submissions as to whether or not it was appropriate in all the circumstances of the case to proceed to a fact-finding hearing. Counsel, Mr Andrew Neaves, who appeared then as now on behalf of Mr H, very strongly submitted to the judge that in all the circumstances of the case it was not appropriate to embark upon a fact-finding hearing at all. In that, he was supported by counsel, Miss Catherine Preen, who appeared on behalf of Mrs H, and also by Ms Martine Kushner, who appeared then as now on behalf of the mother. On the other hand, Mr Dermot Casey, who appeared on behalf of the Birmingham City Council, and also Miss Elizabeth Isaacs, who appeared on behalf of the guardian, strongly submitted to the judge that she should embark on such a hearing.
12. The first complaint that Mr Neaves makes at this present appeal is that the judge erred in ever embarking upon that hearing at all. The submissions that he makes to us today essentially echo the same submissions that he made to HHJ Hindley on 21 April 2008. He submitted to her and submits to us that an appreciable period of time had already elapsed between the injuries and the proposed hearing. He says that the hearing was unnecessary, since even then the local authority were contemplating returning T to live with his mother. He submitted and submits that it was predictable that the hearing might remain inconclusive as to the perpetrator of any injury or injuries that were found to have been non-accidental. The local authority and the guardian, on the other hand, both strongly submitted that there were a number of factual issues that required resolution in this case, and that so far as possible the court should strive to find out what had happened to T and, if possible, who had caused it.
13. The judge gave a ruling on 21 April 2008, of which we now have an approved official transcript. To my mind that ruling contains within it a balanced analysis of the arguments both ways on the issue. The judge clearly summarised the submissions that had been made to her by Mr Neaves and Ms Kushner, and the submissions made the other way on behalf of the local authority and the child's guardian.
14. Mr Neaves now very strongly complains that the judge should never have embarked upon what he characterises as a "Lancashire hearing". It is significant that, if the judge correctly summarised his position in paragraph 3 of the transcript, she said:

"I am urged by Mr Neaves that the court can probably go no further, as the case now appears on paper, than by making a Lancashire finding; in other words, the child was non-accidentally injured, and there is a potential pool of perpetrators, but none of those who had contact with the child during the material period can be excluded."

The judge went on to say that the mother and the interveners say there is no further point in investigating the background and history since it would not advance T's welfare by investigating the facts any further. However, her final decision and ruling was that the court should investigate the issue further.

15. The judge concluded, at paragraph 8:

"I think therefore that this is one of those cases where the court should investigate the issue. There are those cases, of course, that come within the Lancashire spectrum, where the court takes a strong view, and indeed parties very often agree not to explore the issue. In this case there is very powerful disagreement whether the issue should be investigated. The guardian is looking at it from [T's] point of view. It seems to me right for the reasons that I have given that the court should consider the issue, and therefore I shall not exercise my case management powers to prevent any further exploration of the issue."

16. Insofar as Mr Neaves now complains that the judge should never have embarked on the fact-finding hearing at all, it seems to me that there are two answers. First, in my view the judge carefully considered the arguments both for and against doing so. She gave a balanced judgment that was well within her discretion and which is now quite impregnable on appeal. The second answer is that, in any event, there was absolutely no attempt by Mr Neaves or any of the other parties to challenge or appeal the decision at the time. They had made their submissions, the judge ruled against them and the fact-finding hearing simply proceeded. But since, as I am about to describe, there was soon an adjournment for an appreciable period, there was ample opportunity the better part of a year ago for any party who felt that the judge should not be engaged on the hearing at all to appeal to this court from that decision of 21 April 2008.
17. Having made the ruling, the judge then embarked on hearing the evidence. The evidence which she heard in the next few days that had been set aside in April included much medical evidence and also very full evidence from ER. The judge also heard full evidence from two "alibi" witnesses called by ER, namely his partner, Miss B, and his own daughter.
18. At the conclusion of that week, Friday 25 April 2008, the judge came to consider the evidence that had been given by and on behalf of ER, and also evidence that had been given by the guardian and the mother in relation to the conversation that the guardian reported at the flat, when each of ER and the mother had told the guardian that ER had been at the flat during a period before T was found to be injured. In that judgment she said:

"2 … I am going to consider the position of [ER] at this point. The case has reached its highest in terms of any involvement that [Mr R] may have. The reason for him being made an intervener in the case, is because the guardian when interviewing the mother coincidentally met [Mr R] at the flat, of which he is the tenant, where the mother was living, and the guardian had the opportunity to have a conversation with him. Her recorded note of that conversation is that he fully accepted that he was at the flat at the material time, an assertion which he has since roundly refuted in evidence. He has sought to rely on the evidence of his partner, Miss B, and his daughter, [Miss R], to support, as it were, his alibi.

3. Apart from a lie, the position is that there is no further evidence which would tend to confirm his position in the pool of potential perpetrators. It is not the local authority's case, or indeed any other party's case, that the mother's relationship with him was anything other than platonic; merely, that he was doing a favour for the mother. Overall, my assessment of Mr R was that he was a very defensive individual, which may result from his past history and his own engagement with authority at an earlier time in his life, that he is a private man, and somewhat resentful of his involvement when he was doing a favour for the mother … and now finding himself in this position. In my judgment he regrets the conversation which he has had with the guardian and he now seeks to deny its content because it tends to implicate him when he is innocent."

The judge then went on to make the finding that, as between the guardian and ER and the mother, she preferred the guardian's account of the conversation. She said:

"It seems to me that if he is lying about his whereabouts, and I accept that the guardian gave an accurate account about the conversation, then even if it is true that he was at the mother's flat at the material time the lie does not inevitably implicate the mother or indeed himself. There is no evidence which in any other respect would tend to confirm him in the pool of perpetrators. A lie in itself can have many explanations, one of which is that he is innocent of assaulting [T], which I have mentioned already."

The judge then continued with the following observation which, in my view, is highly relevant to the current appeal. She said:

"No one in this case suggests that [Mr R] can play any further useful role in continuing to be an intervener in the case, and it seems to me on my view of the evidence that he can be excluded, applying the tests that I have to apply. So, I shall discharge [Mr R] from these proceedings with no finding against him."

If the judge was being accurate when she there said "no one in this case suggests", then it would seem to follow that, even on behalf of Mr and Mrs H, no suggestion was being made that Mr R should continue to be a party in the case, or in effect remain in the pool of potential perpetrators.

19. Unfortunately, there was insufficient time to conclude the case at the hearing fixed in April. In my view deeply regrettably, it was then adjourned until 22 July when four days were available for further hearing. During the interval between April and July there was a potentially very significant development. In June there was a conversation between T's social worker, Nina Hayr, and the child's guardian. As I understand it, they happened to meet at a case conference concerning a totally different child and family, but Nina Hayr took the opportunity to inform the child's guardian that she, Nina Hayr, had been told by "a member of the family" that ER had been present around the time when T may have been injured. Nina Hayr told the guardian that she was informing the guardian of this "off the record". The guardian was appropriately deeply concerned that a piece of information of this potentially very important kind should be conveyed "off the record". On further investigation it appeared that the conversation in question had taken place with a lady called Mrs NJ. According to Nina Hayr, Mrs J had told her (Nina Hayr) simply that "he was there", leaving vague and enigmatic what exactly those words were intended to convey.
20. After she had had the discussion with the guardian, Nina Hayr did return to see Mrs J again to try and get more information, but Mrs J at that point strongly denied that she had ever made to Nina Hayr the statement that Nina Hayr attributed to her. Entirely appropriately, the guardian lay all these developments before the court when the hearing resumed in July. There was much discussion as to what should be done. As I understand it, the local authority essentially submitted that to pursue this matter further with Mrs J would be what was described as a "blind alley". On the other hand, very understandably and appropriately, Mr Neaves, on behalf of Mr and Mrs H, strongly submitted that the matter required full investigation by the court. The judge gave a ruling on 25 July 2008. She described the various conversations between the social worker and the guardian, and between the social worker and Mrs J, to which I have referred. By then, Mrs J had made a written statement in which she was denying that she had ever used the alleged words to Miss Hayr. The judge said:

"It is the case that ER was, of course, an intervener in this case. Because he was the tenant, he occasionally lived at and was the tenant at the flat where [T] resided with the mother. However, having heard his evidence and the evidence of MB, his girlfriend, and [L], his daughter, I permitted him to withdraw from the case. Mrs J's comment that 'He was there' being her initial comment and reaction to the social worker, raises, therefore, a further question about his presence and thus any knowledge he may have of events during the time when [T] was injured."

The judge continued:

"I should point out that mother herself has never accused ER of any adverse behaviour towards [T] and it is also her case that he was not there on the morning in question."

The judge continued:

"The mother and Mr and Mrs H want the matter further investigated before a resumption of the hearing …

An issue is how far, if at all, this new evidence should be investigated, given the imperative need to progress the fact finding hearing in the light of the substantial and already unacceptable delay about which I have commented on a number of occasions. How material is the evidence in question? Well, a number of questions do arise from it. If ER was present at the material time, then he may be in the pool of potential perpetrators. Next, the mother has denied he was present but, if he was, then the evidence goes to the issue of her credibility. Next, the evidence may assist in determining at least the timing of [T's] injuries, or, indeed, it may assist in revealing whether there was any collusive activity by the adults concerned in concealing [T's] injury, or, indeed, when it occurred."

The judge then commented that:

"On its face, on one consideration, the evidence is of dubious weight because [Mrs J] will, of course, have no direct knowledge of ER's whereabouts at the material time except from what she might have been told by him or others and, next, it is clear from the longer interview that the social worker had with her on 8^th May that [Mrs J] has something of an axe to grind against the mother, not least because ER became caught up in and involved in some issue in relation to [the mother] when he had done nothing more than a favour at [Mrs J's] behest for the mother in the case."

So the judge then put the submission of the local authority, namely that:

"If there is a further investigation … the likelihood is that [Mrs J] will not say that ER was present and, indeed, ER himself is unlikely to change the account that he gave to this court. The local authority, therefore, submit that, in effect, it is something of a blind alley which will not in any way assist on the main issue and it would, therefore, be disproportionate to extend the finalisation of the final hearing until some future date."

Nevertheless, the view of the judge was that:

"…it seems to me that the court cannot exclude in this case the possibility of collusive activity amongst the adults concerned and the evidence to that extent is potentially relevant and that, in itself, would warrant some cross-examination in relation to that particular issue."

Her final and overall conclusion on the point was:

"In any event, it seems to me to be vital that there has to be a fair trial of the important issues in this case and that does warrant a further investigation as to what information [Mrs J] may be able to contribute and this can be done during the inevitable period of adjournment. Consequently, Mr R will have to be given notice of this development to enable him to participate if so advised."

21. The upshot was that after four further days of hearing in July the case was again adjourned, for an appreciable period of time, to resume on 15 September. In the period 15-19 September 2008 the evidence was concluded and submissions were heard. By the time the judge rose on 19 September, the case had occupied to date fifteen days of hearing, spread over some five months. I, for my part, have to say that that is a deeply regrettable situation and one that should have been avoided.
22. During the further days of hearing in September the judge heard, amongst other evidence, from Mrs NJ and also briefly from ER. Mrs J gave considerable evidence and was the subject of much cross-examination on behalf of all parties. From first to last, however, she completely denied that she had ever made to the social worker the statement attributed to her that "he was there" and denied any knowledge or information to the effect that ER was there.
23. ER himself was also recalled and gave brief further evidence. We have a transcript of his evidence on 15 September, now at bundle page A451. It occupies only one page. At the outset ER said:

"…to be straightforward I've got nothing more to add to what I've [already said]."

The judge explained to him that there were further questions that it was now appropriate to put to him, but he simply said:

"…I've got nothing to say. That's the point I'm trying to make. I've got nothing to say."

A few lines further on he said:

"I stand exactly what I said before. I don't know nothing about this case. I haven't injured [T] and I wasn't there that morning. That's all I've got to say."

The judge asked various counsel whether they wished to ask any questions of Mr R, and Ms Preen, on behalf of Mrs H, began to do so. She said:

"Can I ask a few questions, [Mr R]? I appreciate you may not want to answer --"

He interjected:

"You can, but I'm not going to answer them.

Q. Well, can we try and see how far we get?

A. I'm not going to answer no questions."

At that point the judge immediately said:

"Alright, Miss Preen, I think he is pretty adamant. Mr Neaves?"

Mr Neaves replied:

"Your Honour, in those circumstances I do not seek to try."

Another advocate, who is identified in the transcript as "Ms Isaacs (?)", said:

"I do not have any questions."

There was then the following brief passage from HHJ Hindley, and Mr R was sent away. The judge said:

"[Mr R], it is unfortunate in many ways. I understand that the family, everyone, is very upset about being caught up in this difficult situation, and of course I have the difficult problem of trying to find out what has happened to [T], to see if he can be restored to his mum and so on, but you feel you cannot help any further as to what happened. Very well, thank you very much. You may leave."

24. The proposed other witness on this aspect of the case in September was, of course, the social worker, Miss Hayr. It was indeed very unsatisfactory that Miss Hayr never in fact came to court. A medical report was produced to the effect that she was "not fit to work", but no evidence was ever produced to the effect that she was not fit even to attend court for the purpose of giving evidence. It thus finally came about that Mrs J had given her evidence, denying that she had ever said the words "he was there" to Miss Hayr, and no oral evidence was adduced from Miss Hayr on the topic.
25. After the hearing ended in September the judge took time to prepare her judgment. It was finally handed down on 25 November 2008. She plainly had to consider a range of matters. She had to consider what in fact was the range and type of injuries to T. There was really very little dispute about that and, as I have already summarised, it consisted of extensive bruising to many parts of the left side of his body and the fracture to his right wrist. She had to consider, so far as she could, what mechanism might have caused those injuries. The medical evidence was clearly to the effect that in the absence of some accidental explanation -- and no one proffered any -- the bruising could only have been caused non-accidentally during the course of some form of abusive assault upon T. As to the fracture to his right wrist, however, the overall state of the medical evidence was that fractures of that particular kind are rarely caused by some direct abusive act; they are, however, frequently caused by a child, who is falling, putting out his arm and hand instinctively to break his fall, and falling on his hand and wrist, causing a fracture.
26. As a result, the final conclusion of the judge on the question of the mechanism by which the injuries were caused was that the bruising must have been non-accidental but the fracture "was an unintended consequence of the assault". She said at paragraph 32 of her judgment:

"…Either way, having heard the parties I did not find that any of them was likely to have been deliberately cruel to [T], more likely that he was subjected to excessive physical chastisement, thus the bruises, and then falling in consequence. In other words the fracture was an unintended consequence of the assault."

27. The judge then had to endeavour to ascertain who might have caused the assault and the unintended consequential fracture. The medical evidence was quite clear that these injuries must have happened at some time during the preceding 24 hours. It was incontrovertible, and not disputed, that during those 24 hours he had spent many hours in the care of his mother overnight, and then about seven hours in the exclusive care of Mr and Mrs H. In the view of the judge, that put those three people in the "pool of potential perpetrators".
28. After a very considerable analysis of all the evidence, the overall conclusion of the judge, at the end of her judgment, simply was that she was unable to find, to the required standard of proof -- namely, the balance of probability -- that any one of those three people was the actual perpetrator, but nor was she able positively to exclude any one of the three of them as being the perpetrator.
29. That has been characterised by Mr Neaves as a so-called "Lancashire finding". That description derives from the authority of the House of Lords in the case of Lancashire County Council v B [2000] 2 AC 147. In that case, as in this case, the care of the child was shared between the child's parents and a child minder. It was argued on behalf of the parents that it was not appropriate to proceed to a full fact-finding hearing when there was a possibility that injuries had been caused, not by either of them, but by the child minder. That argument was rejected by the House of Lords. Lord Nicholls of Birkenhead said at page 165H:

"As the Court of Appeal observed, the task of caring for children is often shared nowadays between parents and others. When questions of non-accidental injury or abuse arise, the court is frequently unable to discover precisely what happened. This is not surprising. And yet, on the appellants' [viz the parents'] construction of the attributable condition, in this common form situation of shared caring the court is powerless to make even a supervision order if the judge is unable to penetrate the fog of denials, evasions, lies and half-truths which all too often descends in court at fact finding hearings.."

The House of Lords, accordingly, firmly held that it was appropriate, and indeed generally necessary, to embark upon a fact-finding hearing even in this type of situation. They expressly recognised the risk of potential injustice, for Lord Nicholls said at page 166F:

"The judge will not know which individual was responsible for inflicting the injuries. The child may suffer harm if left in a situation of risk with his parents. The child may also suffer harm if removed from parental care where, if the truth were known, the parents present no risk. Above all, I recognise that this interpretation of the attributable condition means that parents who may be wholly innocent, and whose care may not have fallen below that of a reasonable parent, will face the possibility of losing their child, with all the pain and distress this involves. That is a possibility, …"

So the potential injustice, even to parents and the child themselves, in a situation of this kind was clearly recognised, but Lord Nicholls said at page 167A:

"I recognise all these difficulties. This is indeed a most unfortunate situation for everyone involved: the child, the parents, the child-minder, the local authority and the court. But, so far as the threshold conditions are concerned, the factor which seems to me to outweigh all others is the prospect that an unidentified, and unidentifiable, carer may inflict further injury on a child he or she has already severely damaged."

30. In the later case of In re O and another (Minors) (Care: Preliminary Hearing) In Re B (A Minor) [2003] UKHL 18; [2004] 1 AC 523 the House of Lords again considered the difficult situation where there is insufficient evidence to determine to the required standard of proof the actual perpetrator of injury. At paragraph 28 of his speech Lord Nicholls of Birkenhead said:

"The preferable interpretation of the legislation is that in such cases the court is able to proceed at the welfare stage on the footing that each of the possible perpetrators is, indeed, just that: a possible perpetrator."

In the more recent case of In re B (Children) (Care proceedings: Standard of Proof)(CAFCASS intervening) [2008] UKHL 35; [2009] 1 AC 11, in which the House of Lords firmly stated that the standard of proof in these cases is the simple balance of probability, Baroness Hale of Richmond, at paragraph 61, referred with approbation to both the Lancashire case and the case of In re O. She said:

"The decisions in In re H, Lancashire County Council v B, and In re O fit together as a coherent whole."

31. The first submission of Mr Neaves is that the judge should never have embarked on this fact-finding hearing in the first place. For reasons which I have already given, I roundly reject that submission. His next submission is that if a judge does embark on a fact-finding hearing when there is a pool of possible perpetrators, then any such hearing must be a fair one. With that submission I entirely agree. Plainly, any fact-finding hearing must be a fair one, in fairness to all relevant parties. Mr Neaves submits that the fact-finding hearing in the present case became unfair, fundamentally, around the issue of what Mrs J may or may not have said to the social worker and the subsequent investigation of it. He very strongly submits that there was an unfairness on the part of the local authority, through their social worker, Miss Hayr, by her refusal or unwillingness to give evidence. The judge was later highly critical of that refusal, and I agree with her criticisms.
32. Mr Neaves submits quite separately, though the two points are linked, that there was also unfairness in that ER was not required more forcefully to answer questions and give evidence when he was recalled on 15 September 2008. Indeed, this morning Mr Neaves went so far as to submit that the judge made an error of law in her approach to Mr R on that occasion and by her failure positively to require him to give evidence, and failure to threaten him with sanctions for contempt if he did not do so.
33. I, for my part, cannot share those criticisms by Mr Neaves, essentially for two reasons. If the 15 September had been the first occasion upon which Mr R was being required and expected to give evidence, then plainly the judge should have used as much coercion and power as she could muster to ensure that he gave answers and was cross-examined on them. But that was not the situation here. This man had in fact already given very considerable evidence at the hearing in April; he had called his two witnesses; and he had benefited from a decision and brief judgment by the judge in which she had exculpated him from any involvement and released him from the case. Several months later he was called back. He, not unreasonably, took the line that he had already said everything that he could say about the case. It is clear that Miss Preen and Mr Neaves were frustrated in their ability to put further questions to him, but it seems to me that Mr Neaves had his opportunity at the time, before Mr R was released from court that day, to submit to the judge that she should adopt a more coercive approach. As it was, he merely said to her, in a passage I have already quoted, "Your Honour, in those circumstances I do not seek to try". In light of that, the judge discharged Mr R and sent him away.
34. It does not seem to me that the judge can now be fairly criticised for not having adopted a more coercive approach to Mr R on that occasion, but there is a more fundamental answer to Mr Neaves' complaint. Underlyingly, what had changed between April and September was that the guardian had reported that the social worker had reported to her that Mrs J had said to the social worker that "he was there". Mrs J, as I have said, was later very strongly to deny that she had even said that. It seems to me that, even if ER had given more evidence and been more willing to answer questions, and even if the social worker had given evidence which led the judge to conclude that Mrs J had made the statement attributed to her, the highest outcome could have been that Mr R was brought back into the pool of perpetrators. It seems inconceivable that, on that tenuous and disputed hearsay evidence, the judge could possibly have ever reached a conclusion that not only was Mr R present at the material time but also that he had actually caused the injuries. Thus, from the perspective of Mr and Mrs H there has in reality been no unfairness. At best, from their angle, a potential fourth perpetrator has not been added to the pool. But it does not seem to me that anything that was done, or omitted to have been done, in relation to ER could ever have led to the conclusion that Mr and Mrs H themselves did not remain in the pool.
35. It seems to me that the position of Mr and Mrs H on this aspect of the case was always a very difficult one. If, in truth, they are completely innocent of in any way causing or contributing to the injury to T, then they are in the invidious position that a cloud of suspicion may still hang over them. As Mr Neaves rightly points out, that is a very serious situation for anybody to be in. There has already been some investigation by the local authority into the position of their own children. The local authority have indicated that, in the light of the judgment of HHJ Hindley, they may reinvestigate that. The local authority have also applied for permission to disclose the judgment to the police and also to Mr H's professional body. The judge has not yet ruled on that application.
36. But all of this follows from the incontrovertible facts of the case. It follows from the medical evidence of the 24-hour time interval, and from the fact that during seven of those hours, leading right up to the presentation of T with the injuries, he was in the care of Mr and Mrs H and their care alone. The only effect of the judgment is to describe these events; to find, what is in any event incontrovertible, that T was in the care of Mr and Mrs H; and not to be able to exculpate them. That, so it seems to me, is a regrettable but inevitable consequence of this sort of factual situation and of the clear decision of the House of Lords that even in this sort of factual situation the court should embark upon a fact-finding enquiry to find such facts as it can.
37. For all those reasons, in my view there is simply no substance in Mr Neaves' submissions that this fact-finding hearing should not have taken place and no substance in his submissions that there was an unfairness such that the whole judgment should now be set aside.
38. There is, however, a discrete and quite separate limb to the appeal. The judge did make a positive finding against both Mr and Mrs H to the effect that they must have appreciated during the course of that morning that there was something wrong with T and that they did nothing about it. At paragraph 30 of her judgment the judge said:

"(d) It is unlikely that he would have been able to carry out the functions of dressing himself, eating, going to the toilet without obvious difficulty.

(e) It is more likely than not that he was somewhat guarded about his reactions after the initial pain at the time of injury because he was unsure who to trust.

(f) It is more likely than not that the [H's] noticed his discomfort at the very least."

Further on in her judgment she concluded, at paragraph 66:

"I am…satisfied on a balance of probability that both [Mr and Mrs H] were at the very least aware that T had suffered a serious injury to his wrist and that there was neglectful delay in presenting him for medical treatment."

39. The basis of that finding was medical evidence to the effect that the state of T's wrist must have been "blindingly obvious". The thrust of Mr Neaves' submissions on this point is that there were a number of witnesses who gave evidence to the effect that later that day there was no display of pain by T. The schoolteacher, Mrs Amnion, to whom T first said that his arm hurt, said during cross-examination by Mr Neaves that until he told her that his arm was hurting he had not exhibited any sign of being in pain. The headmistress, Mrs Locker-Marsh, to whose room T had been taken, said that when his coat was being taken off he did not evince any pain or discomfort during the process and generally that he had not displayed pain to her. The triage nurse, Sister Kent, who first saw T when he was admitted to hospital, said, when cross-examined by Mr Neaves, that there was nothing during the course of her examination to show that he was actually experiencing pain. Thus Mr Neaves submits that if he was not displaying obvious signs of pain to two schoolteachers and a triage nurse, even at a time when they knew he had been injured, and they would have been alert for signs of pain, it is inappropriate to assume that Mr and/or Mrs H must have been aware of signs of pain.
40. There was, however, much other medical evidence, in particular from the paediatrician, Dr Plunkett, to the effect that a child with an injury of this severity must at some stage have been displaying signs of pain. Further, all these witnesses clearly say that the injury to his wrist was plainly visible. Indeed the triage nurse, Sister Kent, went on in her evidence to say that his right wrist was swollen to about five times the size of the other wrist. It was swollen and indeed displaced and deformed.
41. It is in my view unfortunate that the judge in her judgment did not expressly advert to all the passages in the evidence to which Mr Neaves has taken us today and which he no doubt pressed strongly upon her during the course of his submissions. She did, however, make reference at paragraph 29 of her judgment to the position of the schoolteachers, for she said:

"I did not find that the observations of the schoolteachers diminished the suggestion that a carer should have noticed T's wrist. Whilst the head teacher did not describe T as manifesting pain as such, she noticed that the wrist 'looked broken'. The wrist at that point was swollen, cold, hard and discoloured and the lump or step was visible. The teachers knew T well but the [H's] knew him better."

42. The judge also had to take into account some evidence from Dr Strong, to which she referred at paragraph 25:

"Dr Strong examined T at the hospital and took a history from [Mrs H]. He recorded that she told him that she had noticed that he was not using his arm but in her evidence she denied that she had said this."

The judge dealt also in her judgment with her impression of the evidence that each of Mr and Mrs H gave around this topic. Of Mr H she said:

"41. Overall his evidence was less than impressive in terms of his ability to give a clear account of what happened that morning. His answers were somewhat guarded and cautious."

Of Mrs H she said:

"She gave the impression of being emotionally flat in response to the revelation of [T's] injuries."

Later she said of Mrs H:

"Mrs H helped [T] get dressed for school. She demonstrated to the court about how she had helped [T] put his arm into his shirt. Her explanation and demonstration was plainly designed to convince the court that she could not possibly have known about the fractured wrist. Her description and demonstration were totally unconvincing."

Certainly Mrs H said in evidence that she had, when dressing T, helped him put his right arm into his shirt. When that is coupled with the other evidence to which I have referred to the effect that the injured wrist of the right arm was blindingly obvious, it seems to me that the judge was fully justified in the final conclusions that she reached on this aspect of the case. At the highest, Mr Neaves' submission is that the judge failed to give sufficient weight to the other passages in the evidence to which he referred us and which I have briefly described. It does not seem to me that that begins to undermine the essential finding that the judge made on this point.

43. For those reasons it seems to me that ultimately there are no grounds of substance in this appeal and I would dismiss it.

Lord Justice Elias:

44. I confess I have had some difficulty in understanding what the appellant is seeking from this appeal. The order which the appellant seeks is to have set aside the conclusions of the judge with respect to the appellant, and in particular the finding that he is a potential perpetrator of a non-accidental injury. It is said that the judge should never have entered into the fact-finding exercise at all; it was futile because it was always plain that no perpetrator could be identified; and in any event it was unnecessary because it was reasonably certain what steps the council intended to take with respect to the welfare of the particular child even before the hearing took place. These arguments were advanced before the judge in April 2008 and were rejected by her. I agree with Holman J that the judge gave perfectly cogent and sensible reasons for that decision and for deciding to go ahead with the fact-finding exercise. Moreover that decision was not appealed. The conclusion of course was that the appellant, his wife and the mother were all potential perpetrators of the child's injuries, but even if the appellant had been successful and another hearing had taken place, the appellant and his wife would still have been in the pool of potential perpetrators. Indeed, so much was conceded by Mr Neaves in the April hearing before the judge when he sought to dissuade her from embarking on the fact-finding exercise. He accepted that there was a potential pool of perpetrators and that none of those who had contact with the child during the material period could be excluded, and that of course included the appellant. So setting aside the judge's conclusion would not remove the suspicions hanging over the appellant.
45. Mr Neaves also submits that the hearing was in any event unfair and in breach of Article 6. Criticisms are directed both at the conduct of the judge and the earlier local authority investigation. In particular it is said that Mr R, who was found not to be a potential perpetrator, might have come back into the frame had there been a proper consideration of evidence subsequently given with respect to him.
46. I reject the notion that there has been any unfairness, essentially for the reasons given by Holman J, but, again, it would not have assisted the appellant even had Mr R come into the pool. It would have expanded the pool, but it would not have removed in any sense the suspicions relating to the appellant. In truth the appellant could only be removed from the pool and have the cloud of suspicion removed from him if there were to be a fresh hearing at which an actual perpetrator, other than the appellant, were to be identified. But the appellant does not seek any order to that effect, no doubt for very good reason. He himself has always said that the judge would not be able to identify the actual perpetrator, and the judge following the hearing came to precisely that conclusion. It is fanciful to think that any different conclusion could emerge from a further hearing now, particularly given the period of time which has elapsed since the injury in question. It follows that even if there were any unfairness, which I reject, it would go nowhere as far as this appellant is concerned. So even if the appeal had been successful it seems to me that it could not have assisted the appellant in any material way because it could not have removed the suspicions relating to him. He would inevitably have remained in the pool.
47. Both for these reasons and for those given by Holman J I would dismiss this appeal.

Lord Justice Wall:

48. I agree with both judgments and have nothing else to add.

Order: Appeal dismissed