Case No: B4/2010/0781
Neutral Citation Number: [2011] EWCA Civ 195
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE JONES
SA09C00461
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 02/03/2011
Before :

LADY JUSTICE ARDEN
LADY JUSTICE BLACK
and
MR JUSTICE DAVID RICHARDS
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Between :

	H	Appellant	
	- and -		
	CITY AND COUNTY OF SWANSEA AND OTHERS	Respondent	
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Mr Stephen Cobb QC (instructed by Smith Llewelyn Partnership) for the Appellant

Mr Matthew Rees (instructed by  Lucy Moore at City and County of Swansea) for the Respondent

Mr Matthew Rees (instructed by Jeff Lock at  T Llewellyn Jones) for the Guardian

Mr Simon Slade( instructed by Davis Parson Allchurch Solicitors) for PSP (previously represented by Morgans solicitors)

Ms Carron Davies (instructed by Peter Lynn and Partners) for DSP (previously represented by Avery Naylor)

Mr Jamie Davies (instructed by Cameron Jones Hussell and Howe) for ASP (previously represented by Hutchinson Thomas Solicitors)

Hearing dates :  Tuesday 18th January 2011
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Judgment

Lady Justice Black : 
1.	CJ was born on 26 November 2007 and is now 3 years old. In January 2009, when she was just over a year old, she was found to have multiple unexplained bruises. The police and the local authority (LA) became involved. Care proceedings were ultimately commenced in May 2009. 
2.	A fact finding hearing took place in February and March 2010 in front of HHJ Gareth Jones in order to establish, if possible, who was responsible for CJ’s injuries. It culminated in a judgment of 4 March 2010. All parties accepted that the injuries had been inflicted on CJ. The assault was described as “a beating up”, “a sustained attack on a 13 month old child using significant force and perhaps an implement, for example the buckle of a belt, to cause injury”. The judge found that it was not established, on the balance of probabilities, who had caused CJ’s injuries. He explored who may have done so and concluded: 
“47……I am satisfied …. that the pool of possible perpetrators, applying the test of “real possibility”, does include PSP, the mother in this case and ASP.”
3.	The mother (M) is the mother of CJ and also of CJ’s two older half brothers. PSP was at the time M’s partner; he is not CJ’s father. ASP is PSP’s mother. There were in total 9 parties in the proceedings before the judge. In addition to M, PSP, ASP and LA, there was the children’s guardian, CJ’s father, CJ’s paternal grandmother, the father of the older two boys and PSP’s sister. PSP’s sister was actively considered as a possible perpetrator of the injuries but the judge did not believe that there was a real possibility that she was responsible. There was never any question of any of the other parties being responsible. 
4.	This appeal is brought by M who seeks to have the finding that she is included in the pool of perpetrators replaced by a finding that the pool of perpetrators is limited to PSP and ASP. LA and the guardian would consent to this course and joined with M’s representatives in submitting a proposed consent order broadly to this effect. Their position is no surprise given that, by the end of the fact finding hearing, neither of them contended that M had inflicted the injuries or was even in the pool of perpetrators. LA’s final position before the judge was that a finding should be made that PSP was the sole perpetrator of the injuries and the guardian, whilst making no allegations herself, accepted that there were grounds for identifying him as solely responsible. It was not possible for the appeal to be disposed of summarily, however, because PSP and ASP oppose it and argue that M should not be removed from the pool of perpetrators. 
5.	Stephen Cobb QC, who represents M, appeared before us to argue the appellant’s case. LA and the guardian did not attend; we indicated in advance that their attendance was not required given the positions they take. 
6.	PSP and ASP did not appear. They are no longer covered by public funding and they did not appear in person. We do have a detailed written skeleton argument from PSP’s erstwhile counsel which submits that the judge’s findings were entirely within his discretion and should not be overturned or, if they are overturned, that the matter should be remitted for a rehearing. The document helpfully sets out detailed arguments in opposition to the points that are made in Mr Cobb’s skeleton argument in support of M’s application for permission to appeal. The detail of ASP’s position is harder to work out. A skeleton argument dated 27 July 2010 was provided on her behalf in relation to the question of whether permission to appeal should be granted. I suspect that it was this document that led Thorpe LJ, at the oral permission hearing, to describe her position as “bizarre”. She did not oppose permission to appeal being granted to M. ASP herself has never sought to appeal the finding that she is included in the pool of perpetrators and it has never been part of M’s appeal to seek a substitute finding that ASP was the sole perpetrator of CJ’s injuries (although she did originally seek such a substitute finding against PSP). In these circumstances, it is not easy to see how ASP would be prejudiced by M’s appeal being allowed so that M is removed from the pool and her opposition to the appeal at this stage is puzzling. It may be that she had hoped that a by-product of the appeal would be to remove her, along with M, from suspicion, leaving PSP with the responsibility. Paragraph 2 of her skeleton argument says that “[i]t is agreed that the strongest point of appeal is that there was sufficient cogent evidence to find that PSP was the sole perpetrator of the injuries to CJ” and paragraph 6(iii) acknowledges the force of Mr Cobb’s submissions that the evidence strongly indicates that PSP was the perpetrator. The implication seems to be that a finding that PSP was responsible may be appropriate although paragraph 5 of the skeleton says that ASP makes no submission in respect of M’s application for a substituted finding against PSP.  
7.	As for the other parties, CJ’s father has not participated in the appeal process and nor has PSP’s sister. CJ’s grandmother and the father of the older boys have written to the court to say that they are neutral, not able to consent to the appeal but not actively opposing it.  
8.	The focus of the fact finding enquiry was the events of 6, 7 and 8 January 2009. M’s evidence was that she noticed CJ’s bruising at about 10.15 or 10.20 a.m. on 8 January. The judge looked closely at who had been in contact with CJ from 6 January until that point. 
9.	On 6 January and up to about midday on 7 January, CJ was in the care of M and members of the maternal family. At about midday on 7 January, she was taken to a public house where she was entrusted by M to the care of PSP. He kept her with him in the pub during the afternoon and then took her back to ASP’s house where he was living at the time, arriving by late afternoon. ASP was there and she looked after CJ alone for a brief period whilst PSP went out to buy milk. 
10.	PSP and ASP were at ASP’s house with CJ during the evening. PSP was unwell and retired to bed, taking CJ with him upstairs. PSP’s sister called at around 9 p.m. with a man whom I will call PD. On the face of it, she did not have sole access to CJ and she and PD left at some point during the evening.
11.	At around 11 p.m., M returned from her evening out. From then until 9 a.m. the following morning, there were therefore three adults with CJ in the house - M, PSP and ASP. ASP’s evidence was that, as was her regular pattern, she was awake all night and was reading a book downstairs. She said the house was tiny and she could hear a pin drop. The medical evidence was that CJ would have “screamed and been very, very upset”, inconsolable for a period of perhaps 20 or 30 minutes, when she was assaulted. ASP had not heard anything of this sort and nor did anyone else speak of having done so.
12.	At 9 a.m. on 8 January, ASP left the house and did not return until after the injuries had been noticed by M. Between 9 a.m. and the discovery of the injuries, CJ was in the care of M and PSP. 
13.	Having woken and noticed bruising on CJ, M went to a friend’s house with CJ and called the police. A medical examination was arranged. 
14.	During the fact finding hearing, records of text messages sent/received from the mobile telephones of M and PSP became available. It would seem that they were probably obtained at the suggestion of LA. The record of the text traffic on the morning of 8 January makes an important contribution to the picture of who may have been responsible for CJ’s injuries. The crucial messages are between M and PSP and begin after CJ’s injuries have been discovered and M has left the house. In indicating their content, I have translated some of the more obvious textspeak. M’s texts ask PSP what has happened to CJ, saying she was fine before she came to him. His response is to observe that M had “got me thinking that you think I battered her” and also that “my mother thinks she’s to blame”, and to deny that he knew what had happened because “she was fine til she woke up”. Interestingly, he also texts his mother in the middle of the exchange with M to say “Don’t say anything about the baby to anyone k” [the “k” is thought to signify “OK”]. The texts suggest that M persists in her plan to ring the police and an ambulance is arranged. M says to PSP, “I left her in your care something has happened to her and I don’t want to speak to her [presumably ASP] til I know the truth and I never want to see you again its over.” 
15.	In fact, the relationship between M and PSP did not end finally that day, whatever M then thought, or said to PSP by text. In his fact finding judgment, the judge said he was “entirely in the dark as to her present association with him” and whilst he thought she may have separated from PSP physically by the time of the trial, he thought she remained emotionally enmeshed with him. The priority she had given to her relationship with PSP played a significant part in the children having to be placed outside her care as, by the fact finding hearing, she recognised would be unavoidable. But the fact that the relationship resumed after 8 January does not detract from the significance of the text traffic that morning and I will return later to analyse its implications for the judge’s findings. 
16.	Mr Cobb does not take issue with the judge’s careful formulation of the law which governed the fact finding exercise. His complaint is that the judge did not weigh and analyse the evidence correctly and, if he had, he would inevitably have recognised that M should not be included in the pool of perpetrators. Although the children are not living with her now, Mr Cobb says (and I accept) that it is important that the judge’s findings reflect M’s true position vis-à-vis CJ’s injuries. This is so for a variety of reasons including the implications that the findings may have for contact, the general importance of the court identifying perpetrators of non-accidental injury with as much specificity as possible, and the fact that children are entitled to know the truth about who it was who injured them.     
17.	Mr Cobb submits that the judge was right to find on the evidence that the injuries had not been caused before CJ was entrusted to PSP’s care at about midday on 7 January. I agree with him. The judge set out convincing reasons for this finding and no one has appealed against it. He was right, therefore, to focus sharply on the period from then until M discovered the bruises next day. 
18.	Of the observations that Mr Cobb makes about the evidence as to this period, two seem to me to merit particular consideration. 
19.	Firstly, he reminds us of the medical evidence about the nature and extent of the distress that CJ would have been likely to manifest when the injuries were inflicted upon her. The judge eliminated PSP’s sister from consideration and the finger never seems to have been pointed at PB. There were few occasions when any of the other three adults were alone with CJ. Indeed, on the judge’s findings, I think there was only the time when PSP went to buy the milk, leaving ASP to look after CJ. M does not appear to have been alone with CJ at all. Unless the injuries occurred during the short time that ASP was in charge, therefore, another adult would inevitably have heard CJ’s distress. The possibility that intoxication or sleep might have prevented this was explored in argument before us but that speculation did not seem to me to gather enough weight to disrupt the foundation for Mr Cobb’s argument and I note that the judge found, at paragraph 46, that “not only the perpetrator truly knows what occurred to CJ in January 2009 but another adult, perhaps two adults, also know what happened to her”. The next stage of the argument is that one or more of the adults must therefore be covering up for another of the adults by not speaking of what they must have seen or heard. It is inherently unlikely, says Mr Cobb, that PSP and/or ASP would cover up for M in this way, There is force in this submission, particularly as, by the time of the first instance hearing, M was blaming PSP for the injuries and PSP and ASP were endeavouring to transfer responsibility in her direction. PSP’s primary contention before the judge was that the injuries occurred in the earlier period before CJ was brought to him at the pub and that the pool of perpetrators was therefore limited to M and the maternal family, his secondary contention being that, if the injuries were caused later, they were caused by M or ASP. ASP similarly suggested that the injury occurred before the SP family had anything to do with CJ’s care on 7 January. Mr Cobb acknowledges the possible incentive for PSP and/or ASP to cover up for M because it might reveal that they had failed to protect CJ if they admitted that they knew M was mistreating her and said/did nothing about it. However, he submits convincingly that that would be overridden by more powerful considerations here. They were each being accused of having done something much more serious than failing to protect CJ and if they had been aware of M causing the injuries, they would have regarded it as preferable to say what they knew than to be found to have caused the injuries themselves. 
20.	The second of the two submissions that I pick out is the more determinative one, in my view. It relates to the text messages. The judge refers to the text messages several times during the judgment and Mr Cobb submits that he asked himself the right question about them in paragraph 37 where he identifies the importance of:
“the “traffic” of the text messaging which starts on the morning of 8 January 2009 between M and PSP about CJ’s injuries. Is it just a coincidence, I ask myself, that this is recorded from that point onwards?” [I have corrected what must be a typographical error in the original by substituting PSP for ASP]
21.	Mr Cobb submits that the judge failed to answer this question or to review the texts or draw any conclusions from them and as a result, fell into error in his conclusions about the possible perpetrators. He submits that the texts clearly indicate that M did not know what had happened to her child. He says that “either the texts were a sophisticated and devious decoy (drafting text messages to implicate PSP in the hope/expectation that they would subsequently be recovered) or she genuinely was struggling to understand how the injuries were caused”. 
22.	The text messages are a valuable contemporaneous record. The judge did not make any finding that M’s part of the exchange was a devious attempt to set up a false trail. If it had been her intent from such an early stage to exculpate herself by this quite sophisticated ruse, it seems highly unlikely that she would have been content to await the accident of LA seeking the text records in order to unveil the evidence. I accept Mr Cobb’s submission that, in the absence of any real evidence that these texts of M’s were a decoy, the proper conclusion for the judge was that M was genuinely struggling to understand how the injuries were caused and by whom. They are therefore a very powerful piece of evidence against her inclusion in the pool of perpetrators. 
23.	Another important piece of evidence comes from PSP himself and contributes to the sense of a mother who was in the dark about what had happened. In his statement of 18 September 2009, he says, at paragraph 18:
“The next morning M picked CJ up and freaked out. She was asking me what the hell had happened to her daughter. I did not know what she meant and looked at CJ who was covered in bruises, her ears were dark and she had marks all up her back and on her cheek. These marks were different to the ones I had seen the night before. M was furious and kept asking me what had happened, and I could not answer as I had no idea. M said she would need to take her to the Doctor.” 
24.	This description is entirely consistent with the picture that emerges from the texts. This immediate reaction of M’s, together with the prompt steps that she took to remove herself and CJ from the house, to seek medical help and to inform the authorities all lend support to M’s case that she was not responsible for what happened to CJ.
25.	Mr Cobb submits that the judge does not set out his reasons for including M in the pool. He reaches that conclusion in paragraph 47 of the judgment. It is clearly considerably influenced by the fact that M was present during part of the time when the injuries must have been inflicted and by the absence of evidence which reliably identified either ASP or PSP as the perpetrator, they being the only other remaining candidates. It appears that another significant consideration for the judge was that M had lied. He deals with that at paragraph 45 of the judgment in which he says:
“So far as the mother is concerned in relation to credibility, she admitted to me quite frankly that she had lied to professionals about the continuing nature of her relationship with PSP in 2009. She admitted in the light of the text messaging that her relationship with PSP had ended on 8 January 2009 because of CJ’s injuries and not for other reasons, as she stated to me at an earlier part of her evidence during these proceedings. So there were aspects of her evidence which I found extremely unsatisfactory.”
26.	He had reservations about the credibility of ASP and PSP as well. The example he gave of a doubt that he had about ASP’s evidence was that she had been adamant that PSP did not tell her anything about the bruising to CJ on the morning of 8 January before she left the house and denied being challenged by PSP about it. That starkly conflicted with the evidence PSP had given on the issue and the judge found there was some support for his version in the text records. The judge said he had considerable reservations about ASP’s candour to the court. He obviously thought the same about PSP and, although he did not give a specific example with regard to him, he described his credibility as “poor”, just as he did M’s. 
27.	Mr Cobb submits that it was not a necessary step from M having lied about her relationship to her having lied about CJ’s injuries. Her lies related to an issue which was dissociated from them whereas ASP had lied about the events surrounding the injuries. He submits that the judge should have given himself a Lucas direction. I agree that that would have been helpful, particularly where presence and lies seem to be the primary (possibly the only) foundation for the finding in relation to M, although there can of course be cases in which the fact that a witness has lied may mean that the judge simply cannot trust any of their evidence. 
28.	What was certainly essential was for the judge to weigh up M’s lies and her presence during part of the critical period against the factors that pointed away from her having been responsible for the injuries, particularly the text messages, PSP’s description of her reaction on discovering the injuries and the steps she took in the immediate aftermath of the discovery and he did not complete this part of the exercise. His finding about the pool of perpetrators is therefore flawed. I am persuaded that had he considered all the relevant factors, he would necessarily have concluded that it was not appropriate for M to remain in the pool of perpetrators. In those circumstances, this is not, in my view, a case in which it is necessary or appropriate for the matter to be remitted to the court below for further consideration as to the facts as PSP suggests, but rather a case in which we should substitute the alternative finding for which M contends. 
29.	I am only too aware how anxious is the task of a judge who must attempt to identify who caused injuries to a young child, knowing that because of the way in which our legal system approaches such matters, a finding that A has caused injury is tantamount to a finding that B has not and knowing also that if one mistakenly excludes from the list of possible perpetrators the name of the person who has actually been responsible, the children will not be protected against that person. The task was all the more anxious for this judge because he had concluded, with justification, that whoever caused CJ’s injuries “represents a real danger to infant children and perhaps children in general”. The care and concern with which the judge approached his task is abundantly clear from his judgment but, for the reasons I have set out, I would allow the appeal and overturn his finding that M is included in the pool of perpetrators and substitute a finding that the pool of potential perpetrators is a pool of two, namely ASP and PSP. 
Mr Justice David Richards
30.	I agree
Lady Justice Arden
31.	I also agree