Case No: B4/2010/1721
Neutral Citation Number: [2011] EWCA Civ 1034
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION
BRISTOL DISTRICT REGISTRY
(MR JUSTICE COLERIDGE)
(LOWER COURT No: BS08C10086)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Tuesday, 8th March 2011
Before:
LORD JUSTICE JACOB
LORD JUSTICE LLOYD
and
LORD JUSTICE WILSON
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IN THE MATTER OF L-R (CHILDREN)

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(DAR Transcript of
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Miss Caroline Elford (instructed by Wards Solicitors) appeared on behalf of the Appellant Child G, a Boy.
Mr Stuart Fuller (instructed by the Legal Services Department of Bristol City Council) appeared on behalf of the Appellant Local Authority.
Mr Benjamin Jenkins (instructed by Foster & Partners) appeared on behalf of the Respondent Mother and Father.
Miss Kate Branigan QC and Miss Melissa Barlow (instructed by Henriques Griffiths) appeared on behalf of the Respondent Child D, a Girl.
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Judgment

Lord Justice Wilson:

1. G, a boy, who was born in July 1999 and is thus now aged 11, appeals, by his Children's Guardian, against findings of fact made by Mr Justice Coleridge in the High Court, Family Division, Bristol District Registry, in the course of a reserved judgment handed down on 19 February 2010.  The findings of fact were made following a bespoke fact-finding hearing within care proceedings brought by the relevant council ("the local authority") in relation to two children, namely G and a girl, D, who was born on 2 August 1996 and is thus now aged 14.

2. In the proceedings before the judge the local authority were therefore the applicants.  The first respondent was the mother of D.  On any view, she was biologically unrelated to G.  At the expense, however, of biological accuracy, it is convenient to refer to her as the mother.  In the proceedings the second respondent was the father of D and the husband of the mother.  The second respondent may also be the father of G.  A direction by the judge, at an earlier stage of the proceedings, which would, by scientific evidence, have laid that doubt to rest in one way or the other was set aside by this court on an earlier appeal on the part of D.  Thus the second respondent's paternity of G remains unclear.  At, therefore, the possible expense of biological accuracy, it is convenient to refer to him as the "father".  The third and fourth respondents were G and D by their separate Children's Guardians.  Unfortunately the guardian who directs G's present appeal was not appointed to act on his behalf until days prior to the hearing which took place over eight days in November 2009 and which resulted in the judgment now under appeal.

3. Both of the parents and both of the children emanate from the Ivory Coast.  Following some years in Germany, the father arrived in England in 2003; the mother followed in 2006; and it was she, I believe, who collected the children from the Ivory Coast and brought them here in July 2007.  For almost a year, namely until June 2008 when, at the outset of the care proceedings, the children were removed into foster care, they lived with the parents in cramped and unsatisfactory accommodation, with only one bedroom, in the west of England.  At least for D it was a reunion with both of her parents.  For G, however, although it may or may not have been a placement into the care of his biological father, it was a placement with two adults and with an older girl with whom (I believe) he had never previously lived.  In the Ivory Coast G seems to have been looked after by wider members of the father's family.  The shock for G attendant upon the precipitate change in his surroundings, including of course the difference of language in that in the Ivory Coast he had spoken a dialect called Gouro and he knew English hardly at all, combined with a new life with those with whom he had not previously lived, caused within him during the next few months a grave emotional disturbance.

4. Although he found that between July 2007 and June 2008 the parents had been guilty of physical and emotional ill-treatment of G, and of emotional ill-treatment of D, which sufficed in the cases of each of them to cross the threshold set by s.31 of the Children Act 1989, Coleridge J refused to make two findings in relation to injuries to G which the local authority had sought.  It is against his contrary findings that G appeals.  His appeal is supported by the local authority but is opposed on behalf of the parents and of D.  

5. On 16 February 2008 the father caused G to be taken to the local children's hospital, where he was examined in particular in relation to cuts on his head.  He was however also found to be suffering a number of lesions to his trunk, legs and buttocks which, as was common ground, could not have been self-inflicted.  They were caused by his having been beaten.  It was the case of the parents before the judge that the beatings had been inflicted by those who had been caring for G prior to his arrival in the United Kingdom in July 2007.  But the speed with which the lesions healed between the date when on 16 February 2008 they were first photographed and the date when on 6 May 2008 they were again photographed led the judge to exclude that hypothesis.  He found that, whatever the degree of provocation arising out of the difficulty which G was encountering in settling in England early in 2008, it was either the father or the mother or both of them who, between about 19 January and 16 February 2008, had inflicted them, probably by beating G with a stick and indeed by doing so with considerable force.  This finding is not a subject of G's appeal.

6. At the hospital on 16 February 2008, three cuts to G's head were duly noted.  Following his early discharge, G was again caused by the father to be brought to the hospital on 20 February 2008, when six further cuts to his head were noted.  These nine cuts form the centrepiece of today's appeal.  It was the contention of the local authority before the judge that it was either D who had cut G's head, making first the three incisions and then the six incisions, or that it was the father and/or the mother who had done so.  This allegation was strenuously resisted by the father, by the mother and by D through her guardian.  The primary ground of the appeal is a complaint that it was perverse for the judge to have found, as he did, that it was likely that G had inflicted these incisions upon himself.  As it happens, yet further cuts to G's head appear to have been noted on later dates in March 2008 but the local authority did not seek a finding in relation to them.

7. On 18 April 2008 a burn mark was seen on G's leg.  The judge's finding in relation to the burn forms the subsidiary ground of appeal.  The local authority had asked the judge to find that the burn had been caused when D had set fire to G's bedding or that it had been caused by the father and/or the mother.  The judge declined to make that finding; indeed he went further for on balance he concluded that G had himself started the fire which, when he tried to extinguish it, caused the burn to his leg.  In the appeal G, again supported by the local authority, asks this court to set that finding aside as, again, not having been properly open to the judge on the evidence which he had received.

8. G's appeal to this court was filed in July 2010, namely about four months late; and in due course the judge decided, without, I believe, dissent from any of the parties, to proceed with the outcome stage of the hearing notwithstanding the pendency of the appeal.  We are told that, at the outcome stage, conducted last autumn, Coleridge J decided to allow D to return to live fully with the parents but that, in relation to G, he made a full care order on the basis that G would continue in the long term to live in foster care and indeed preferably in his present foster home which appears to be highly suitable for him.  A question has therefore been asked as to the purpose of this court's enquiry, at this stage, into the judge's refusal to make findings and indeed into his contrary findings, in the course of a judgment in which he explained, by reference to other matters, that the threshold set by the subsection was crossed.  Miss Elford, on behalf of G, is at pains to stress that she does not ask this court to direct a re-hearing of the issues as to the causation of the cuts and of the burn but rather that it should do no more than to set aside the findings that G was himself responsible for them.  It seems to be agreed that, were we to set aside the judge's findings in those regards, as asked, we would, by inference if not expressly, be consigning G to a pool of possible perpetrators of those injuries along, presumably, with D and with each of the parents, whom, in the alternative, the local authority had charged with responsibility for them.  Miss Elford argues that, in that at any rate more recently G has been contending that he was not himself responsible either for the cuts or for the burn, it is important for his guardian to be able to tell him that ultimately the court has reversed a finding that he was responsible for them and that, instead, the court has left open whether it was either he or D or the father and/or the mother who was responsible for them.  Today Miss Elford adds that G's knowledge that this court has set aside findings about which he has been told and to which he objects might also assist in the resolution of outstanding issues of contact between G, on the one hand, and the parents and D on the other.  Although, with respect to her, I am not convinced by Miss Elford's arguments in favour of the practical utility of this appeal, I would no doubt be wise to proceed without more to address the substance of it.  

9. Of course this court must keep its doors open to appeals against findings of fact.  Otherwise there would be forensic tyranny.  On the other hand Miss Elford undertakes a heavy task when she seeks to persuade us that a judge of the Division, in a reserved judgment in which he recognised the difficulty of the enquiry and in which he weighed the significance of his finding that it had been the father and/or the mother who had inflicted the beatings on G, ultimately declined to find that they, or D, had inflicted the cuts and the burn, and proceeded to find that G had done so himself.  Even steeper becomes Miss Elford's path when one surveys the evidence of the parties given to the judge.  Each of the parents gave evidence that neither of them had inflicted the cuts and the burn and that it must have been G who had inflicted them on himself.  It is not we who have received that evidence, even in transcript let alone orally.  It was the judge.

10. Then again the judge had the benefit of watching videotaped interviews undertaken with D in June 2008 and in May 2009.  In both those interviews D asserted that the cuts and the burn had been caused by G himself.  

11. More valuably, however, the judge also had the benefit of two videotaped interviews with G himself.  The first, conducted on 17 February 2008, was an interview in which, however haltingly and monosyllabically, G accepted that the cuts discovered on his head on the previous day were caused by himself.  In the second, conducted on 22 June 2008, G again contended, rather less haltingly, that he had himself caused the injuries and sought to explain and indeed to demonstrate how he had done so.  It was only in a third interview, not videotaped, on 22 December 2008, in relation to the conduct of which the judge found "clear shortcomings", that G changed his story and alleged that the cuts had been caused by D.  

12. How can even Miss Elford, very brave this morning in the face of a sceptical court, climb this mountain?  She seeks to do so by reference to the medical evidence which was to the effect that self-harm would be highly unusual in a male child, in particular in a male child aged only eight, and that self-harm by a child's infliction of cuts to his head is unknown in the experience of the doctors who gave evidence and is unreported in the literature.  Miss Elford asks us in effect to say that the medical evidence was so powerful that it disentitled the judge from accepting the evidence of the parents, the videotaped evidence of D and the first versions of the evidence given by G and that it should have driven him to a conclusion that one or other or more of the four members of the family had inflicted the cuts; and that responsibility for the burn should reflect such a conclusion about responsibility for the cuts.

13. The cuts seen on 16 February, and again on 20 February, were neat incisions clearly effected with a sharp knife.  They were not evidence of a frenzied attack.  If they were inflicted by D or indeed by the parents, G's head must somehow also have been held remarkably firmly so that it did not move while they were being inflicted.  Equally, if they were self-inflicted, he must again have held his head remarkably still.  Dr Brooks, the consultant paediatrician who examined G at the children's hospital on 16 February considered, as did her whole team, that the cuts were self-inflicted.  Doubts about such an aetiology began to be articulated only in May 2008 by the CAMHS team to whom G had been referred.  On 14 May 2008 Dr Allport, a consultant paediatrician, together with Dr Somarib, his specialist registrar, examined G at some length; and the upshot was a medical report on their part to the effect that, notwithstanding G's continued assertions to them that he had been responsible for the cuts, self-harm in a child aged eight was very unusual; that the pattern of injury was still more unusual; and the cuts had been made at sites on the head which it would be difficult for G, being right-handed, to reach.  Later Dr Allport was to withdraw that last observation.  It was soon after that examination that Dr Allport watched the recorded interviews with G conducted on 17 February and 22 June 2008, as a result of which, in a report commissioned by the police and written in September 2008, Dr Allport swung to the view that the cuts were probably self-inflicted.  By the time of the hearing before the judge in November 2009, however, and in the light in particular of the clear evidence that one or other or both of the parents had beaten G, Dr Allport had swung back to the view that the cuts were not self-inflicted.

14. For the purposes of the hearing three other professional contributions were collected, namely from Dr Adesida, a consultant child psychiatrist, who not only surveyed the papers but interviewed G and the parents; from Professor Payne-James, a consultant forensic physician, who surveyed the papers; and from Dr Watkeys, the consultant paediatrician well-known in the Division, who also surveyed the papers.  The nub of Dr Adesida's contribution was that in his view G had been and was suffering significant emotional disturbance, adjustment difficulties and low self-esteem and exhibiting attention-seeking behaviours but that he did not have a psychiatric disorder.  It was in effect the evidence of Professor Payne-James and of Dr Watkeys that self-harm in the manner suggested on behalf of D and the parents was highly unusual in boys rather than girls, and was particularly unusual in children as young as eight; and that it was unknown in their experience for any such self-harm to take the form of neat cuts to the head.

15. The judge addressed the medical evidence as follows: 
"46. Once again the medical evidence is very clear and unanimous. It is set out on the attached schedule. All are agreed that, if this is self harming, it is not classic self harming. These are neat almost surgical incisions so [G] must have held, or been held, very still when they were inflicted. The doctors are clear in saying it is very unusual if not unknown for children of this age to injure themselves. And it is unknown on the head. They say it would be very difficult for a child to injure himself in this way. And they point to the fact that it stopped after [G]'s removal from the flat (although in fact it had already ceased long before removal).

47. However all doctors remained mystified and neither Dr Watkeys nor Dr Allport not Dr Adesida had seen the all important videos when they first opined as to causation. After Dr Allport saw the video where [G] demonstrated how he had harmed himself he firmly changed his mind and said so in writing. However he then stepped back from self harm when he realised there were further disclosures implicating the parents and [D]. In the end I am clear the causation of these injuries cannot be determined by reference to the medical evidence only or even mainly. It is consistent with both explanations." 
16. The criticism by Miss Elford in her skeleton argument of the last sentence of the passage quoted perhaps represents the high point of her appeal.  The judge's reference to "both explanations" must be a reference to self-harm on the one hand and to harm inflicted by another or others on the other hand; and, in context, his word "it" must refer back to the judge's immediately prior reference to "medical evidence".  It was patently wrong, wrote Miss Elford, to say that the medical evidence was consistent with both explanations.  The puzzle is that it is clear from the judge's prior sentences, also quoted above, that he had well in mind the weight of professional opinion adverse to the hypothesis of self-harm.  In his short oral submissions on behalf of the local authority in support of G's appeal, Mr Fuller is constrained to accept that para [46] of the judge's judgment, quoted above, was a precise yet concise, and entirely accurate, summary of the effect of the medical evidence; and Miss Elford confirms that no relevant material failed to find reference in the judge's judgment.  After careful thought, I believe that the last sentence of paragraph [47] of his judgment represents no more than his reminder to himself that the doctors had not gone so far as to exclude the possibility of self-harm; and to that extent, taking a strict view of the word "consistent", the judge felt able to say that the medical evidence was consistent with both explanations.  

17. Thus, cross-examined by leading counsel on behalf of D, Dr Allport said:
"I think 'self-inflicted' and I think 'inflicted by another person'.  And the latest explanation from [G's] video interviews that it was [D] who inflicted them [means that they] have to both remain in my mind relevant possibilities."
Then, asked whether he pinned his colours to one or other of those masts, Dr Allport said:
"I think I would not.  I think I would leave it to the court.  I think both of those remain."
18. Thus also, it was put to Dr Watkeys that the injuries appeared on the face of them more probably to have been self-inflicted than otherwise and in response she said:
"I could not exclude either…  I thought initially when I looked at them, … he probably could not reach but he actually can reach."
19. Thus also, Professor Payne-James, having stated that he had searched in vain in the literature for an example of self-inflicted harm of the sort being suggested to him, which he had never come across in the course of his practice, nevertheless stressed in evidence that he did not exclude self-infliction.

20. In his judgment the judge observed that the task of determining the causation of the cuts to the head was the most difficult task set for him in the proceedings.  He said that he had thought long and hard about the issue.  He turned to consider whether the evidence of G's emotional state in February 2008 represented an aid to explanation.  In the end he concluded that it did not do so.  On the one hand (observed the judge) it could be said that his disturbed mental state, attendant upon his precipitate removal from an environment so totally different from that at home with his parents, might have given rise to self-harm.  On the other hand (reasoned the judge) there was evidence that the emotional shock which had thus been visited upon G had given rise to disturbed behaviour which had apparently attracted the wrath of the parents, who after all had inflicted the beatings on him, and that it might also have attracted the angry frustration of D.  Then, again, while observing that the accounts given by G in the recorded interviews in February and June 2008 appeared cogent and were supported by graphic demonstrations on his part of the manner in which he had inflicted the cuts, the judge properly reminded himself of the dangers of attaching too much significance to interviews given by a boy who was as young as G, as suggestible as G and as disturbed as G, and with such difficulties in communicating with English-speaking interviewers.  There were (found the judge) a number of factors which might have precipitated G's change of account from about September 2008 onwards, in particular in the interview conducted on 22 December 2008, when he had articulated in particular a substantial and entirely understandable preference for the life which he had begun to lead in the foster home over a return to life with the parents and D, indeed a preference born not just of the greater degree of physical comfort in the foster home but of the greater degree of love and attention there apparently afforded to him.

21. Finally the judge turned to the oral evidence on the subject which each parent, and which by recorded interview D, had given to him.  He said: 
"52. Of course the parents and [D] are quite clear at all times that these injuries were self inflicted, all caused by [G] himself with a large kitchen knife.

53. How should I treat the parents' evidence on these all important injuries in the light of the finding I have made about the beating injuries? Unusually perhaps given the previous finding, but I can say with confidence, I found the parents' evidence on this part of the case spontaneous and convincing. There were no inconsistencies in their accounts and the fact that the injuries happened so close together and on both occasions [G] was taken to hospital more or less promptly seems to me to lend heavy support to their version of events.

54. Having considered all the evidence (and I emphasise ALL) I am satisfied, despite the medical evidence as to likelihood and my misgivings about the parents' credibility in relation to the beating, that the injuries were more likely to be self inflicted in the manner described by [G] himself in the early videos and repeated to Dr Allport and Dr Somarib. It seems to me to be entirely consistent with the rest of the surrounding evidence in the case and the context save only, of course, the later revelations by [G] to his social worker, foster carer and finally the last interview."
22. Mr Fuller points out that not only did the judge not appear to attach great weight to D's denials of responsibility for the cuts but also that the evidence of the parents, on which by contrast he attached substantial weight, could only have been that they themselves did not inflict the cuts.  How, asks Mr Fuller in a question not articulated in his skeleton argument, could the parents have been categorical that D had not been responsible for them?"  In fact, when we started to examine the new point, it became clear that, even in their written evidence, without attempted regard to the oral evidence of which we have no transcript, the parents, or at any rate the mother, had marshalled various reasons why D could not have been responsible for the cuts.

23. In the end Mr Fuller is reduced to complaining that the judge has underplayed the significance of the medical evidence and had overplayed the significance of the evidence given by the parents.  Under our system, however, the weight to be attached to evidence is essentially within the province of the trial judge -- and for reasons too obvious to require re-articulation by this court today.  Although Mr Fuller's request to the judge had been for a positive finding that D had perpetrated the cuts, or alternatively that one or other or both of the parents had perpetrated the cuts, or perhaps as a fall-back that D and the parents should be consigned to a pool of those three possible perpetrators of the cuts, he now submits that the evidence should have driven a conclusion in favour of a pool of possible perpetrators including four persons rather than three persons, namely including G himself.  I do not exclude the possibility that, had I been in the shoes of the judge, I would have felt myself driven to fall back on that inherently less satisfactory form of determination.  But the judge considered that he could make a finding in the positive form which in principle is always the more satisfactory.  The attack by Miss Elford and by Mr Fuller on the careful process of reasoning articulated in the judgment in favour of the positive finding in my view fails by a long way to entitle G to success in this court.

24. I would dismiss the appeal in relation to the finding of G's own perpetration of the cuts and also, being a matter upon which we have received no separate argument, would dismiss the appeal against the finding of his own responsibility for the fire which caused the burn.

Lord Justice Lloyd:

25. Despite the able and well-directed submissions of Miss Elford for the appellant, G, and of Mr Fuller for the local authority supporting G's appeal, I agree with my Lord that the appeal should be dismissed for the reasons he has given.

Lord Justice Jacob:

26. I too agree.  This case vividly brings out the fact that legal proceedings can never be said to bring out the absolute truth, if there ever is such a thing.  The best that the judge can do is to go by the evidence he has before him.  If the judge does that fairly, taking into account everything which he has heard and rejecting things he has not heard, then that is the best that the human system can devise and that is what the judge in this case did, fairly weighing everything up.  

27. What the absolute truth is, nobody will ever know, but we do know that the judgment that the judge gave was one he was fully entitled to reach on the materials he had.

Order:  Appeal dismissed