Title: Court of Appeal Judgment Template
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Case No: B4/2010/2121
Neutral Citation Number: [2010] EWCA Civ 1467
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WOLVERHAMPTON COUNTY COURT
HER HONOUR JUDGE WATSON
LOWER COURT NO: VP10C00035
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/12/2010
Before:

LORD JUSTICE RIX
LORD JUSTICE WILSON
and
LORD JUSTICE STANLEY BURNTON
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| Re M (A Child) RMM | Appellant
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| HW - and - SANDWELL METROPOLITAN BOROUGH COUNCIL - and - ESM (by his Children’s Guardian) | First Respondent and Cross-Appellant Second Respondents Third Respondent

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Mr Paul Lopez (instructed by Challinors, West Bromwich) appeared for the Appellant, the father.
Miss Margaret Hodgson (instructed by Anthony Collins Solicitors LLP, Birmingham) appeared for the First Respondent and Cross-Appellant, the mother.
Mr Sylvester McIlwain (instructed by their legal department) appeared for the Second Respondents, the local authority.
There was no appearance on behalf of the Third Respondent, the child by his Children’s Guardian.

Hearing date: 10 December 2010
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Judgment
Lord Justice Wilson:  
1.	A father appeals against a finding of fact made in the course of care proceedings by Her Honour Judge Watson on 20 August 2010 in the Wolverhampton County Court. A mother appeals against another finding of fact made by the judge on that date. 

2.	At the centre of the proceedings is the only child of the parents, namely E, a boy, who was born on 8 August 2009 and is thus now aged one year and four months. The care proceedings, launched by Sandwell MBC (“the local authority”) in February 2010, are still continuing. The outcome hearing has been adjourned to a date to be fixed in the light of our determination of the appeals to this court. Meanwhile, first under voluntary arrangements and more recently under interim care orders, E has been residing with his maternal grandparents but he has been having extensive contact, presumably to some extent supervised, with the parents, who, although they clearly require to be separately represented in these proceedings, still apparently live together.

3.	On 17 October 2009 E was admitted to Sandwell General Hospital. He was thus then aged just over two months. He had suffered an Acute Life-Threatening Event (“an ALTE”). Prior to that day he had lived with his parents.

4.	It was never in issue before the judge that E had suffered the ALTE. Such was the conclusion clearly to be drawn not so much from the way in which he presented on arrival at the hospital at 12:47pm but from the way in which he had presented to the paramedics when, summoned by the father with the assistance of a neighbour, their ambulance had arrived outside the family home at 12:04. The paramedics found the following features:

(a)	E had low oxygen saturation: this means that there was a reduced amount of oxygen in his blood. It led him to appear cyanosed: this means that he exhibited the blue discolouration associated with insufficient oxygen.
(b)	E had a raised respiratory rate and a fast pulse.
(c)	E had a capillary refill time of more than four seconds, i.e. it was unduly long. A basic test for capillary refill time is, with a finger, to press hard against an area of skin at the periphery of the body, such as on the feet, until it is white and then, having removed the finger, to measure the time until the skin returns to its previous colour.
(d)	Blood was smeared around E’s nose and mouth: it is agreed that he had suffered epistaxis, i.e. a nose-bleed.

5.	The paramedics applied facial oxygen to E and after six minutes he was much improved. No observations of E at the hospital cast doubt on the conclusion that, just before midday on 17 October 2009, E had suffered the ALTE. But, notwithstanding the application of a variety of tests and examinations, no medical cause of the ALTE or of the nose-bleed was discovered. On 21 October E was discharged from hospital and he returned to the care of the parents. 

6.	I will call the event which occurred in relation to E on 17 October 2009 “the October event”.
7.	On 2 December 2009 E was admitted to the same hospital. Earlier that day the mother had contacted the health visitor about her concerns for E; the health visitor had advised her to take him to the GP, who had referred him onwards to the hospital. On 3 December a full examination of him was conducted and bruises (or sets of bruises) were noted on his left cheek, on the left side of his chin, on the left side of his abdomen and on the left side of his left leg. These injuries may have been sustained at different times and, although it seems that some had been sustained by about 30 November rather than in December 2009, I will call them “the December injuries”. 

8.	On this occasion the hospital alerted the local authority and, when the time came, namely on 11 December 2009, for E’s discharge from hospital, he went, by agreement between the local authority and the parents, into the care of the maternal grandparents. The police had interviewed both parents about the December injuries but they decided not to bring charges against either of them.

9.	In the care proceedings the decision was made to set up a bespoke fact-finding enquiry into both the October event and the December injuries. HHJ Watson conducted it on 9, 16, 17 and 18 August 2010 and handed down her judgment on 20 August 2010. 

10.	At the fact-finding hearing counsel appeared for the local authority, for the mother and for the father. A solicitor appeared for E by his Children’s Guardian; she took the basically neutral but nevertheless useful position conventionally taken on behalf of guardians at fact-finding enquiries and I am sure that the Guardian was right to decide not to be represented in the proceedings before this court.

11.	In relation to the October event, the case for the local authority was that there was a non-accidental cause for the ALTE and for the nose-bleed suffered by E and that the perpetrator of them was the father in that he had partially suffocated him. In relation to that event, there was no doubt that, if it was caused non-accidentally, the perpetrator was the father: for it was accepted on all sides that, at about 9:30 on 17 October, the mother had left the home in order to attend a sale of baby clothes and that the father had been the sole carer for E from then onwards until the ambulance arrived at 12:04. In relation to the October event, the issue before the judge therefore surrounded the prior question, namely whether it had been caused non-accidentally. The father energetically challenged the local authority’s assertion to that effect. While leaving most of the argument to the father and thus to Mr Lopez, his counsel, the mother, through her counsel, at that stage supported the father’s challenge.

12.	In her judgment HHJ Watson found that the October event had been caused non-accidentally; she therefore proceeded, inevitably, to identify the father as the perpetrator of it. Such is the subject of the father’s appeal. He contends that the evidence was insufficient to justify the judge’s finding that the event was caused non-accidentally. 

13.	In relation to the December injuries, the undisputed evidence was that the care of E during the prior few days when they must have been sustained had been in the hands primarily of the mother but also (and to a greater extent than at any earlier stage of E’s life) of the father. It was the contention of the local authority before the judge that all four of the injuries (cheek, chin, abdomen and leg) were non-accidental and that, in that (so they said) the evidence did not justify the identification either of the father or of the mother as the perpetrator of any or all of them, both parents should be consigned to what is now usually called a pool, the basis of it being that the injuries were caused by one or other of them and that each of them was a possible, but no more than a possible, perpetrator of them. The mother’s case before the judge was that none of the four injuries should be found to be non-accidental and, alternatively, that, to the extent that any of them were non-accidental, she, the mother, should not be consigned to a pool of possible perpetrators but, rather, the father should be identified as their perpetrator. The father’s case before the judge was that, although he accepted that the injuries to the cheek and chin were non-accidental, the injuries to the abdomen and leg should not be found to be non-accidental. The father went on to contend that, to the extent that the injuries were non-accidental, he, the father, should not be consigned to a pool of possible perpetrators but, rather, the mother should be identified as their perpetrator.

14.	The judge found, in her written judgment, that the injuries to the cheek, the chin and the abdomen were non-accidental and, when asked at the hearing on 18 August 2009 to indicate her finding in relation to the leg, she explained that she also found the injuries to the leg to be non-accidental. Being, so she considered, unable on the evidence to identify the perpetrator of any of the four injuries, she found that the mother and the father should both be consigned to a pool of possible perpetrators of them. 

15.	It is against that last finding that the mother cross-appeals. As originally drafted, the grounds of her cross-appeal were that she accepted the judge’s finding that the injuries to the cheek and chin were non-accidental but challenged the finding that the injuries to the abdomen and leg were non-accidental. Now, however, she has withdrawn her challenge in that latter regard. So her cross-appeal proceeds on the basis that, as the father also accepts, all the December injuries are non-accidental. Her proposed cross-appeal is now confined to the judge’s consignment of her to a pool of possible perpetrators of them. First the mother contends that, in the light of the judge’s finding that the father was responsible for the October event, it is overwhelmingly likely that he was the perpetrator of the December injuries. So the first contention is dependent on the dismissal of the father’s appeal. Secondly, however, the mother contends that, irrespective of the father’s responsibility for the October event, the judge failed to consider evidence which clearly exculpated her and thus clearly inculpated him. So the second contention is not dependent on the dismissal of the father’s appeal. 

16.	Miss Hodgson tells us that the mother’s stance in relation to the father’s appeal is neutral. With respect, in the light of the first contention in support of her cross-appeal, I consider that we should take her formally to be opposing it. Mr Lopez tells us that the father’s stance in relation to the mother’s cross-appeal is one of formal opposition. Understandably however neither counsel actively makes submissions in those respects.

17.	What was the father’s evidence in relation to the events of the morning of 17 October 2009? The father said that the mother left the home at about 9:30; that for a while E sat propped up on a sofa next to him in the living room and appeared happy; that he gave E his bottle at about 11:30; that E drank his milk appropriately; that he winded E; that E fell asleep in his arms; that, knowing that E was too young to move his body and to roll on to the floor, he laid E on cushions on the sofa; that he laid E down on his front, with his face towards the back of the sofa; that he went to the bathroom, very close to the living room, and shaved; that after about ten minutes he returned to the living room and sat down beside E on the sofa; that he saw that E had turned his face away from the sofa; that he soon noted that, from his nose down, E’s colour was pale blue, that he did not appear to be breathing and that blood was trickling down from his nostril on to his cheek; that he grabbed E, blew into his mouth and compressed his chest; that, carrying E, he rushed to a neighbour who had a functioning telephone and called the ambulance; that E started to breathe again; that E screamed for a couple of minutes; that he then calmed down; that he started to regain his normal colour; and that the ambulance then arrived.

18.	It follows that, from first to last, the father’s account never included any explanation for the causation of the ALTE or of the nose-bleed. 

19.	Dr Hinde, a consultant paediatrician, was instructed by all parties to survey the documentation, including all the records in relation to the October event (and to the December injuries) made at the hospital, and to report on the causation of it (and of them). By his written report dated 9 July 2010 the doctor summarised his conclusion in respect of the October event as being that it “may have been” due to partial suffocation. Later he referred to “the significant possibility” that the event was thus caused. He wrote:

“… there is one particular feature of this presentation which calls for careful consideration: the presence of a nose-bleed … Nose-bleeds are extremely unusual in young babies; a recent study (see Appendix 2) states that most cases have a benign explanation …, some will have no explanation but that physical abuse, especially partial suffocation, should be considered.”

	Later he wrote:

“This was a significant event and the presence of nasal bleeding combined with the absence of any other explanation must raise a serious question as to whether this episode was abusive and, indeed, partial suffocation.”

20.	In his oral evidence Dr Hinde first explained why he considered partial suffocation to be “a significant possibility”. He said that his conclusion was based on the clear signs noted by the paramedics that E had suffered an ALTE, that there was no evidence of any other cause of the event and that E had also suffered a nose-bleed. 

21.	Mr Lopez cross-examined Dr Hinde at length. The doctor’s reliance on the nose-bleed led Mr Lopez to tax him with the conclusions of the study which he had attached to his report. It was a study of 36 cases of nose-bleeds in infants in Wales between 1999 and 2004. Its conclusion was to the effect that, in 23 of the cases, there was a recognised cause for the nose-bleed, that in the other 13 cases there was no recognised cause and that “child abuse was suspected but excluded in four of the 13 cases”. Wisely, in my view, Dr Hinde stressed to Mr Lopez, albeit without going into detail, that it was important to look at what was meant by the word “excluded”: for, buried in the study, we find a statement in very different terms, namely that “the other four cases were investigated and no definite abuse found”. There is also reference in the study to “the prevalence of epistaxis in known cases of severe abuse or suffocation”. The link between nose-bleeds and, in particular, suffocation is especially interesting; but their prevalence in proven cases does not identify the weight to be placed on them in proving cases. And Mr Lopez draws our attention to the further statement in the study that “the question whether there is an association between epistaxis as a presenting symptom and physical abuse remains controversial”.

22.	There are two passages of the cross-examination which seem to make Dr Hinde’s position particularly clear. 

23.	The first is as follows:

“Mr Lopez:   There may be an entirely innocent explanation for the nose-bleed …
The doctor:   That’s possible.
Mr Lopez:   … and that has to be put into the account when        looking at the nose-bleed with the ALTE does it not?
The doctor: They could both have completely innocent explanations … but a combination is, as I have said, very suspicious.
Mr Lopez:	… the judge cannot decide things on the basis of suspicion. She has to decide on a completely different basis to that. 
The doctor:	I understand that.”

24.	The second is as follows:	

 “Mr Lopez:  The symptoms that you describe would have been similar if it was a serious event, whether somebody tried to obstruct the child’s breathing or whether there was some innocent explanation?
The doctor:   That’s correct. But the problem is that there isn’t an obvious other explanation.
	   Mr Lopez:    No.
	   The doctor:   Coupled, as I said, with the epistaxis. Both of those. As I say, with ALTEs we do not always find a cause. We don’t always find a cause for epistaxis. The two together, you are making a pattern. … It’s not mathematical, but doctors work very, very much on patterns.
	   Mr Lopez:  … What you are saying is this, each one by themselves make me worried?
	   The doctor:   Yes.
		Mr Lopez:    The two together make me more worried?
		The doctor:	Absolutely.”

25.	In all respects save one I regard the judge’s summation of Dr Hinde’s evidence as immaculate. Three times she referred to his evidence as being that there was, in the very phrase which he had used in his report, a “significant possibility” that the October event was the result of partial suffocation. She accurately noted that his concern arose as a result of the combination of the ALTE, of the lack of any medical explanation for it, of the nose-bleed (rare in infants) and of the lack of any medical explanation for it too. 

26.	In her overall conclusion about the October event the judge, however, made rather a different reference to Dr Hinde’s evidence. She said:

“It is suggested that he did not apply his mind to the legal test of the balance of probabilities but I remind myself that experts advise, and judges decide on the basis of all the evidence. I am satisfied that Dr Hinde was referring to clinical possibilities and that his evidence amounted to a clear statement that on the balance of probabilities the most likely cause for the ALTE and epistaxis on 17 October 2009 was an imposed upper airway obstruction. In the absence of an explanation which I find the father should have and could have given the doctors if this was an accidental event, then this was on the balance of probability an abusive event, probably partial suffocation, perpetrated by [the] father …”
27.	In the passage quoted the judge was correct to observe that the doctor had not expressly addressed the legal test of the balance of probabilities. Perhaps as a result of an appropriate forensic nervousness no counsel had asked him to analyse the cause of the October event in terms of the balance of probabilities. In my view however the high point of the father’s appeal is Mr Lopez’s complaint about the judge’s averment that Dr Hinde’s evidence amounted to a clear statement that on the balance of probabilities its cause was non-accidental. The doctor might or might not have accepted that proposition but there was certainly no “clear statement” on his part to that effect; and, after all, his repeated conclusion was in terms of “possibility” which, at any rate for us in the law, is importantly different from “probability”. 

28.	But should concern about that particular sentence in the judge’s judgment be taken to vitiate her overall conclusion? She was clearly correct to remind herself that her task was to survey all the evidence, i.e. to survey a much broader canvas than that surveyed by Dr Hinde. She was thus entitled, for example, to note that, during the ten months between October 2009 and August 2010, E had had no further ALTE and no further nose-bleed. In particular, however, the judge was not just entitled but required carefully to survey the evidence of the father. 

29.	We have the transcript of the father’s oral evidence. The judge allowed Mr Lopez to examine the father in chief about the October event at very great length. Then, of course, he was cross-examined, in particular on behalf of the local authority. The judge’s general verdict upon his testimony was as follows: 

“I was left with the distinct impression that there was something which father was not telling the court, whether through fear of the consequences or self-protection. I was struck by what was described as his candour in giving evidence and in every respect he was an impressive witness but there was this missing link in his oral evidence to the court. In cross-examination he candidly said that only he was there and only he knew what had happened but he did not expand further.”
30.	Then the judge referred to two specific matters arising out of his evidence. 

31.	The first matter related to the fact that, in answer to Mr Lopez, the father said that, when he grabbed E up from the sofa, his bib was over his head and covering his face. Counsel for the local authority returned to the subject in cross-examination and elicited the same answer. She then reminded the father of his police interview in which, when asked where his bib was at that moment, he had responded “I’m not sure … I don’t know if his bib had come over his … face”. To that point the father replied to counsel that the picture of E’s bib over his face at that juncture was one that he would never forget and that he might have been confused or otherwise distracted when answering questions from the police. Inevitably (so it seems to me) the judge observed that, if the picture of the bib over E’s head was one which the father would never forget, it was hard to understand his reply to the police. She concluded that this was a significant inconsistency in his accounts and was in some way associated with the missing explanation.

32.	The second matter arose out of the following area of the father’s cross-examination:

“Counsel:      … The causation of that was that [E] had been      held down. 
  The father:    That’s nonsense.
  …
  Counsel:       Are you sure about that?
  The father:    I am 100% sure.”

The judge described those answers on the father’s part as not only emphatic, which they obviously were, but “quite defensive”. She said that he had not held E down but “declined to say what had in fact happened.” Her verdict was that the father did have an explanation but was choosing not to give it to her. The judge’s adverse inference from this exchange is the subject of particular criticism on the part of Mr Lopez. In his oral submissions it ranks as his first point. What more, asks Mr Lopez, can an innocent man do than firmly to deny the allegation that he had partially suffocated his baby by holding him down? How can that particular exchange possibly be placed in the scales against him? The problem – and it is one which permeates every aspect of our role in hearing an appeal of this character – is that I and my colleagues were not in Wolverhampton to listen to the exchange. As we study the words in the transcript, we follow Mr Lopez’s point. But what was the emphasis or tone of voice adopted by the father in giving those answers? The judge, I deduce, listened to his answers and sensed that they were those of a father who – between the lines – was saying: “Well, whatever else I did, I did not hold E down”. I am sure that it would have been dangerous for the judge to attach substantial weight to the point. But her description of it was that it was “significant” and I feel unable, from this vantage-point, to conclude that she was not entitled to attach some weight to it.

33.	The main question raised by this appeal is whether the judge’s dissatisfaction with the father’s account sufficed to repair what I will assume to have been the inability on the part of Dr Hinde to state that, on a balance of probabilities, the October event was non-accidental. In my view it was possible for that deficiency in the evidence thus to be repaired. Had the father declined to give any evidence about it, an adverse inference would be likely to have been drawn against him. But unsatisfactory evidence can justify as adverse an inference as no evidence at all. What, Mr Lopez would ask rhetorically, is the use of a judge’s “distinct impression”? Such, he says, is not the currency in which the court deals in deciding whether to make a finding of such magnitude. The point is well put but, in fairness to the judge, I do not consider that too much attention should be given to her choice of a noun more suited to an art gallery than to a court of law. The gist of the judge’s conclusion, reached with all the advantages which she enjoyed, was that in that, according to the medical evidence, the circumstances were “very suspicious”, it was necessary for the father to give an account which allayed her suspicions or which, at least, did not augment them. But the father failed to do so. Both the content (or lack of content) of his account and the manner in which he gave it augmented them. The conclusion of the judge was that the October event was unexplained but not inexplicable. 

34.	I would dismiss the father’s appeal.

35.	I turn to the mother’s cross-appeal.

36.	The judge’s conclusion, no longer challenged, was that the December injuries to E’s cheek and chin were caused by a violent gripping of his face by adult fingers and that the injuries to the abdomen and leg were the result either of blows or, again, of undue pressure. 

37.	The first basis of the cross-appeal is the father’s responsibility for the October event. Is it likely, asks Miss Hodgson on behalf of the mother, that, within the space of less than seven weeks, the partial suffocation of a baby is caused by one parent and yet injuries to his body are, or even just may be, perpetrated by the other? It is certainly not unknown for judges to give a negative answer to that type of question and, by reference to it, to proceed to identify the perpetrator of a second non-accidental injury. When they do so, their reasoning is – in my view – in principle valid. In the present case (says Miss Hodgson) the judge posed the question to herself at a curious stage, namely in the final paragraph of her written judgment and, in particular, after she had announced her conclusion that she could do no more than to consign the parents to a pool. It resembled a postscript, namely that, in relation to the December injuries, she had been invited to extrapolate from the father’s responsibility for the October event that he was their perpetrator but that the matters were “quite separate and very different” and that she was unable to accede to the invitation. Of course it was quite separate. But was it very different? Yes, says Mr McIlwain on behalf of the local authority, suffocation is very different from gripping or inflicting a blow. No, says Miss Hodgson, both are born of a sudden loss of adult control.

38.	The second basis of the cross-appeal is other evidence which is said clearly to exculpate the mother. There was, says Miss Hodgson, a wealth of evidence, including from the father but in particular from the health visitor, that the mother’s care of E appeared always to be excellent. The problem about making that point at the level of an appeal against a finding of fact (or possible fact) is that in two parts of her judgment the judge recognised the very high standard of the mother’s care, as noted by the health visitor; and indeed that she also referred to the latter’s very positive observations of the father’s care.

39.	But, submits Miss Hodgson, there was one particularly relevant feature of the evidence which the judge failed properly to consider. Miss Hodgson here refers to evidence which the mother and the father gave in unison to the effect that on 28 November 2009 they had begun to implement an agreement that, in anticipation of the mother’s return to work and of the greater burden of E’s day to day care which would then fall upon him, the father should assume a greater role in attending to E’s various needs; and that injuries to E – then only marks on his face – were first noted by both of them only two days later, namely on 30 November 2009. Mr McIlwain points out, again, that the judge recited such evidence and he argues that we can thus be confident that she aptly weighed it. The trouble is that the judge recited it only after the announcement of her conclusion that she could do no more than to consign the parents to a pool. Thus (contends Miss Hodgson) she could not have weighed it prior to reaching her conclusion. There is no doubt that we judges lay ourselves open to such an objection, justified or otherwise, when we announce our conclusions prior to our recital of relevant evidence.

40.	Had I been invited by Rix LJ to deliver an oral judgment at the end of the hearing and of the brief discussion with him and Stanley Burnton LJ outside court which ensued, it would, by a narrow balance, have been to the effect that we should dismiss the cross-appeal as well as the appeal. My colleagues would, so I am given to understand, have disagreed with me and my judgment in respect of the cross-appeal would have stood as one of dissent. I would have said that, notwithstanding the brief and somewhat unsatisfactory way in which she addressed both the suggested extrapolation from the father’s responsibility for the October event and the other evidence on which Miss Hodgson relies, the judge was undertaking an exercise not, of course, of discretion but at any rate of judgement and that it would go too far for this court to rule that it had not been open to her, on the evidence, to declare herself unable to identify the perpetrator of the December injuries and thus to consign the parents to the pool.
41.	But I have changed my mind. The change, so I believe, illumines the value of a late decision by a presiding judge of this court that it would be better for the court to reserve its judgments. The decision of Rix LJ has given me more time to think; and, in particular, more time to discuss the cross-appeal with him and with Stanley Burnton LJ. Before consigning the mother to a pool of possible perpetrators of the December injuries, with all the possibly devastating consequences thereof for her future life, did the judge, in the context of this case, not need to find one iota of evidence, beyond the mere fact of her joint care of E during the days when they must have been perpetrated, which would cast doubt on the continual excellence of her care of E? There was no iota of such evidence; and, in reaching her fall-back conclusion, in favour of consignment of the mother into the pool, the judge did not, so far as I can see, recognise that such evidence did not exist. By contrast – and such is the context of this case – the evidence in relation to the father was quite otherwise. It follows that I cast my revised view upon both bases of the cross-appeal, taken together.

42.	I would therefore allow the cross-appeal; would set aside the judge’s finding that the mother and the father should be consigned to a pool of possible perpetrators of the December injuries; and would substitute a finding that the father was the perpetrator of them.
Lord Justice Stanley Burnton:
43.	I agree with the orders proposed by Wilson LJ in paragraph 42 of his judgment for the reasons he gives.

Lord Justice Rix:

44.	I also agree with the orders proposed by Wilson LJ for the reasons which he now gives.