England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BLACKBURN DISTRICT REGISTRY
(HIS HONOUR JUDGE RAWKINS)

		Royal Courts of Justice Strand London WC2A 2LL
		4 July 2013

LORD JUSTICE McFARLANE:

1. This is an appeal which is brought by permission of the trial judge where the appellants are the local authority in care proceedings in relation to two young children. Nothing that has been said during this hearing or that I may say during this judgment is to lead to either of the children or the family members to whom they are related being identified as being involved in Children Act proceedings.
2. The eldest child, a boy whose first initial is S, was born on 28 March 2011 and is therefore 2 years and 3 months of age, and the younger child, another boy, A, was born on 18 February 2012 and therefore is now just 1 year and 4 months of age. The hearing which has generated the application for appeal is one which was a fact-finding hearing investigating how it was that on 16 May 2012, when young A was taken to a local hospital and was subject to a screening x-ray test, he was found to have two healing fractures of the left sixth and seventh posterior ribs.
3. The fact-finding hearing was conducted before HHJ Rawkins, who is the designated family judge for Lancashire. The hearing lasted for five days in early March, and on 21 March the judge issued a draft judgment expressing his conclusion that the allegation that the two rib fractures had been inflicted as non-accidental injuries on A had not been proved to the requisite standard by the local authority. That being the only allegation of substance that was there to support a finding of the CA 1989, s31 threshold, the finding of fact effectively brought the application for care orders in relation to both boys, which had been made on the back of the discovery of injuries to A, to an end.
4. However, because the judge was persuaded to grant permission to appeal, he maintained some statutory protection over the two boys during the period pending this hearing before this court today, and he made care orders under section 40 of the Children Act 1989.
5. Consequent to issuing his draft judgment, the judge was invited to clarify matters. He conducted a short oral hearing on 8 April where counsel for the local authority in particular sought to achieve further clarity of the judge's views. Counsel had previously submitted a helpful note pointing to the deficits in the judgment as were seen from the local authority perspective. The judge in turn issued his own note on 11 April providing further clarity, and he then delivered a composite judgment which effectively was his original draft with some slight amendment, but it had annexed to it the additional 11 April note.
6. Notice of appeal was promptly issued by the local authority on 19 April, and today we have heard full argument by counsel on behalf of the local authority and on behalf of the mother.
7. I should explain that the father, who is, if the allegation turns out to be substantiated, in the pool of perpetrators, is not present and is not represented before this court today. On completely separate matters he is apparently in custody on remand and he apparently does not have legal aid cover to put forward his own representation at this hearing. In addition, the children's guardian has submitted a helpful skeleton argument which effectively supports the position of the local authority.
8. The local authority's case in short terms is that the judge's conclusion, which was that the allegation that young A had sustained a non-accidental injury whilst in the care of one or both parents was not proved, was an outcome that simply was not open to the judge if the judge had applied the law correctly to the evidence that was before the court.
9. Initially in their skeleton argument and indeed orally before us today, the local authority had sought a direction for a re-trial of the factual issue if the appeal is successful. However, on further consideration, their position is now that if this court takes the view that any outcome other than the positive finding of fact that they sought was outwith the judge's discretion, then this court should simply substitute the correct finding, but remit the rest of the case for determination to the lower court.
10. The appeal is resisted on behalf of the mother by Miss Janet Bazley QC and her case in short terms is that the judge was justified in coming to the view that he did on the evidence, that he approached the legal test correctly and that the appeal should not succeed.
11. Miss Bazley also invites the court to look at the proportionality of this process. She points, on the scale of possible child abuse, to the relatively modest injuries in this case, and she points to the fact that the local authority plan has been and remains for both children to be rehabilitated to the mother's care in due course. The boys have, since these matters came to light in May 2012, been accommodated under the umbrella of interim care orders with members of the paternal family. We are grateful to counsel for the local authority, Miss Frances Heaton QC, who over the short adjournment has clarified the local authority's position. If the appeal is unsuccessful, then any formal public law orders will evaporate, and it is the local authority's proposal that they will on a voluntary basis assist the paternal family and the mother to re-establish her care of the children by Friday of next week.
12. In any event, Miss Heaton tells us that if the allegation made by the local authority of non-accidental injury is one that this court substitutes for that of the judge after allowing the appeal, then, even on that basis, rehabilitation to the mother's care would proceed on a slightly longer time span of some four weeks under interim care orders in the hope that there would be a final hearing in the case in some three months or so, with the expectation that the local authority at that stage, if they sought a public law order, would limit the extent of their application to one for a supervision order.
13. Having set the scene, I need say little about the factual background, other than to establish the relationships in the family and the set up as it was in this small family shortly before A was taken to hospital in May 2012.
14. A's parents originate from Pakistan. They became married to each other in September 2004 as a result of an arranged marriage. Each of them is now either 27 years of age or about to become 27 years of age. They did not cohabit until the mother came to this country in May 2005, and it is clear from what both of them apparently said to the judge that this arranged marriage never achieved a marriage of hearts, as it were, between them and there were difficulties in their relationship going forward from the time that the mother began to live with the father. In particular, she left him in June 2008 and lived in a refuge for a period of some nine months before being persuaded to return to his home. There were difficulties in conceiving any children, but, as it happened, shortly before fertility treatment was to start, the first child was conceived, and as I have indicated, he was born in March 2011. The birth of the child, however, did not assist in strengthening the relationship between the couple. As the judge described, the father had enjoyed a bachelor life before settling down to live with the mother, and he hankered after that existence once he had started to live with her. He would be away from the home frequently. He was unfaithful to her, and at least on one occasion he was violent to her.
15. In December 2011 when young S was only 9 months old, the father left the family home never to return to live with the mother. However, despite what I have just described, they remained on relatively amicable terms and he visited her in the home several times a week. By the time he departed from that house in December 2011, she was already well-established in the second pregnancy which was to bring about the birth of A in February 2012. She had conceived A some two months after having given birth to S. A's birth was a difficult and traumatic experience. The judge describes it in terms in paragraph 31 of his judgment, and it is plain that the description given by the judge, namely "that this was a difficult time for the mother" is apt.
16. As well as the difficulty of the birth, which was a caesarean section with the mother's physical inability to care for A during the first days of A's life, she also, once she established herself back at home with the two children, had to look after them both in circumstances where she was the sole carer and in a relatively isolated position.
17. The next significant event occurred in or around the beginning of May, when A would have been just 2 months or so of age. Both he and his elder brother developed worrying coughs which were later diagnosed as whooping cough. So concerned was the mother about A that she took him to an NHS walk-in centre on 13 May, but after a very short encounter with the doctor, she was simply given some general advice. Things took a significant turn for the worse on 11 May, where A was seen by the mother to be really very unwell, not feeding, blue around the lips and presenting in terms of the movement of his limbs as if he may be having a fit or some other similar presentation. She brought him (around noon) to the local hospital. They were concerned about him. He was transferred eventually to the Manchester Paediatric Intensive Care Unit, but in the course of that process, as I have already described, a full body x-ray was undertaken and the presence of the two posterior rib fractures was identified.
18. Later when the x-rays were examined by experts, the experts were able to agree that the fractures by the time they were seen on 16 May had begun to heal and therefore the window of time in which fractures were likely to have been sustained was between 18 April and 2 May. In addition to these fractures, scanning by CT and later by MRI detected bilateral subdural haemorrhages in A's head. I need not do more than refer to that finding at this stage, although its causation was a current and live issue before the judge up to the beginning of the closing submissions. By that stage the local authority and the judge were satisfied that the medical evidence was insufficiently clear to support against either parent, or indeed any other person, a positive finding that this head injury had been inflicted upon A, and so in terms of the judge's consideration, the subdural haemorrhages were removed from the court's agenda. It had been those features, however, that had caused the case to be elevated to the High Court and caused Judge Rawkins to be sitting as a Deputy High Court Judge to hear the proceedings.
19. Once these worrying signs had been detected in A, care proceedings were commenced, and, as I have indicated, both children -- A once he was discharged from hospital as he happily was on 1 June -- had been in the care of paternal relatives.
20. The judge heard evidence at the hearing. He had prior to the hearing received detailed expert reports from Dr Karl Johnson, a consultant paediatric radiologist, Dr Philip Chetcuti, a consultant paediatrician, and Mr Peter Richards, a consultant neurosurgeon. At the hearing, live evidence was given by Dr Chetcuti and Mr Richards, and in addition the judge heard from the paternal grandfather, the mother and the father.
21. In summary, the judge's conclusion was that the medical evidence did not establish as a matter of certainty that these were non-accidental injuries. Other explanations proffered by the family or entertained by the experts were very unlikely to be the cause of the fractures, but nevertheless they could be contemplated. The judge also looked at the context of the way in which life was being lived by the mother as the primary carer of the children. He identified certain features of that life which might in some circumstances establish a context in which a parent might be more likely to lose their temper or lose their control momentarily and handle a young baby more roughly than they would otherwise do. Against those findings, it is plain that the judge was very impressed with the openness, the honesty and the general credibility of the mother and the father. So at paragraph 56 of his judgment he expressed his conclusion in this way:

1. "I arrive at the conclusion that I cannot be satisfied to the requisite standard that the rib fractures sustained by [A] were deliberately inflicted upon him. I am unable to identify how or when they are occurred. I have determined that the medical evidence is not certain, as it purports to be, and there is no empirical evidence which would support such a finding. Accordingly I do not make it, and it therefore follows that the court should not go on to consider other issues, and particularly not that of perpetration."

22. It is against that conclusion that Ms Heaton on behalf of the local authority now seeks to make good her case.
23. The grounds of appeal can be summarised in this way. The primary ground is to submit that this decision on the facts was simply one that was not open to the court. This was an infant who would have been something of the order of 7 weeks of age at the time the fractures were sustained; he was immobile and yet he sustained two fractures. They can only have been visited upon him by the application of some external force. The experts discounted any medical explanations or organic causes for the injuries, but the family put forward two possible accidental applications, one being that A, when about 2 months of age, had slipped out of a baby swing. That explanation was not put forward forcibly by the parents and really was not, it seems, accepted by any party or the judge as being a likely explanation. The second one was given more credence by the judge. It was that the elder boy, S, when aged about 13 months and then a budding toddler, had tripped as he toddled past baby A, who was lying on the floor on his back. S fell on top of A and the suggestion was that that impact of older brother on younger brother might have caused the fractures to A's back.
24. Both of the possible explanations given by the family were discounted by the experts. The only other event in A's short life prior to the x-rays taking place had been this infection causing whooping cough, and again that was dismissed by the experts, both as a matter of bio-mechanics in terms of the unlikely nature of the coughing to cause rib fractures, but also because the family put the period during which the cough was a feature at starting at the beginning of May, whereas the window for the fractures to be healing by the time they were seen ended on about 1 or 2 May. The judge is plain in his judgment and his further note that "on the basis of the medical evidence it is very, or highly, unlikely that either the whooping cough or the fall was the cause". The ground that I am summarising, therefore, put forward by the local authority is that in that context there simply was not any other tenable explanation to explain these fractures and that the conclusion must be that they had been inflicted by way of non-accidental injury by one or other of the two parents.
25. Secondly, the local authority submit that the wording of the judgment is unusual and indicates that the judge applied a higher test than the simple balance of probability which at the beginning of his judgment he reminded himself was the test as established by the Supreme Court in the case of Re B.
26. Focus is put upon the word "deliberately", to which I have already made reference in paragraph 56 of the judge's judgment. Focus is also put on the phrase "very or highly unlikely", which again I have just referred to, and the submission is made that the judge having opened up a small window of possibility on the basis of the medical expert testimony, which was not in the judge's view entirely probative of a certainty of causation, and which allowed the judge to expand that tiny window to one which caused him to make the finding, and the submission is made that simply that was not a proper application of the balance of probability.
27. Thirdly, complaint is made that if the judge was to depart from the medical evidence as he did, he failed to explain why he had done so. Finally it is said that the judge was wrong to hold that there was no evidence to support a finding other than the medical evidence because, as the judge made plain, there was evidence of the context, as I have referred to it, of difficulties and stresses in the mother's life in the period leading up to May 2012.
28. Having explained the basis of the appeal, it is necessary to say a short additional word or two about just what that context of stress was. First of all, there was the unsatisfactory marriage to which I have already made reference, and the lack of support that the mother was receiving from the father. In particular, he had separated from her only two months prior to A's birth. That resulted in her being a single mother at this time, and that she was looking after two very young children. In that context the relationship that she had with young A immediately following his birth had not got off to an auspicious start following the impact upon her of the difficult birth and the fact that he was being looked after by ward staff and other carers rather than his mother in the early days because she simply was physically unavailable to do it.
29. In addition, an odd feature of the case was that the mother had never registered A with her GP at any stage prior to these matters coming to light in May. Another feature was that the mother had been supported by the paternal grandmother. The family all live, as I understand it, in one fairly close area, but that lady had gone on a visit to family in Pakistan in April 2012. Then, as the chronology becomes closer to the admission to hospital, there is the onset of the whooping cough infection that both children sustained, and at paragraph 35 of the judgment the judge gives some colour, as it were, to that aspect. He says this:

1. "During the course of May both boys developed coughs. It is clear that both of them were unwell and even in the early stages the symptoms were obvious and distressing."

30. Later in the same paragraph, the judge says this:

1. "The court can readily infer that this must have been a troubling and distressing time for the mother, trying as she was required to do to cope with two babies, both of whom were ill."

31. The judge, having summarised these concerns, and his description of them occupies a significant part of the judgment, draws matters together at paragraph 55 of the transcript. He says this:

1. "Most helpfully, it was acknowledged on behalf of the Local Authority by Mrs Tenkel [counsel] that the court would have to look for other evidence in order to reinforce the attribution of non-accidental cause in respect of the rib injuries. Earlier in this judgment, and I hope fairly, I have highlighted areas which might excite justifiable concerns either because of the mother's personal circumstances, the unconventional state of the parents' relationship, the pressures placed upon the mother looking after two small children who became very ill, the missed appointment with the Health Visitor, the failure to register [A] with the Doctor and other matters which emerged in evidence. All of them could have placed her under extreme pressure. Casting the harshest possible criticism on the lapses of parental responsibility which she acknowledged, too readily perhaps, there are legitimate concerns.

2. 55. Notwithstanding, the reality is that this mother appears to have been described by everybody as a good and loving mother, who did not show any sign of wavering in the care which she gave to her children under the strains which she was bearing, and who has demonstrated since the removal of the children an obvious determination and commitment to the children."

32. It seems to me impossible for the local authority to sustain the criticism that the judge failed to have proper regard to the legitimate concerns arising from this context. Insofar as the judge does say, as he does in his judgment, that there was no empirical evidence to support a finding, I read that observation as not referring to the context that I have described, but as a conclusion of the judge that there was no positive evidence identifying a particular event at which injury was inflicted on this child.
33. Moving on, and looking at the judgment more fully, I am conscious that this is an appeal against a fact-finding determination by a very experienced family judge, who holds a senior position in the family justice system and who must, week in week out, be undertaking cases of this nature. The Court of Appeal in any event when entertaining a fact-finding appeal gives an enormous margin of discretion and respect to the position of the trial judge. The trial judge, as is often said, is the person who has been in the court room, has been exposed to the oral evidence of the witnesses and has made his or her own detailed assessment of it. We who sit in this part of the system, who do not have that privilege, are at a substantial disadvantage in trying to understand the subtlety, the nuances and the sophistication of the judge's analysis based, as our understanding can only be, upon the written word that comes before us.
34. Again, in discussing the approach of the court, it is right to record that counsel referred in opening to the recent decision of the Supreme Court in Re B [2013] UKSC 33, which indicates that in certain circumstances the previously accepted test of establishing that the judge was "plainly wrong" now has to be substituted for a finding merely that the judge was "wrong". Counsel submitted that this test applied to a fact finding appeal. I am clear that it does not. This is a straight fact-finding decision and the challenge to it is on conventional terms by the local authority.
35. Again, in looking at the judgment, the judge shortly, but entirely correctly, states the law, and states that the test he has to apply to the evidence is to consider it under the simple balance of probability, and a finding will be made if the evidence establishes on a simple balance of probability that the allegation that is made by the local authority has been proved.
36. It is also of note that the judge expressly refers to the importance of courts striving to reach a finding of fact if possible in any particular case. Miss Heaton accepts that the judge's exposition of the law is entirely correct. Her submission, however, is that he did not go on to apply that approach to the evidence before him.
37. Looking at the judgment, a number of features stand out. First of all, the judge, perhaps uncharacteristically for cases that are heard in the family justice system, was able to express himself as being satisfied that none of the family witnesses from whom he had heard had been evasive or had, in his view, been deliberately attempting to mislead the court.
38. He said this at paragraph 13:

1. "In the case of the parents, I observed at the end of the hearing that I considered each of them to have behaved with great dignity and decorum throughout. It is easy to lose sight of the ordeal which proceedings generally and hearings of this kind specifically must represent for parents because by their nature their purpose is inquisitorial and therefore examination of testimony must be rigorous. Accordingly, the parents each are owed significant credit for the way in which they conducted themselves."

39. He returns to this theme in the last sentence of paragraph 21 when he said: "I did not form a view at any stage any of these witnesses were seeking to consciously mislead the court"
40. The judge was thus impressed with the lay witnesses and, particularly in the context of the injury, the mother, who either was the sole carer at any one time of young A or was physically present with A whenever the father was visiting him.
41. The judge deals with the episode where S was said to have fallen on top of A at paragraph 46 onwards in the judgment. He expresses concern that perhaps inevitably because of the process, but in any event it was the result, that the description of the fall that was given to the experts was lacking in clarity and to a degree was incorrect and unsatisfactory. He was referring to the fact that the parents had set out their account of matters in written statements prior to the hearing, and it was that material which had been put before the experts for their consideration.
42. The judge is plain that it was not for either the mother or the father to prove that a particular episode was the innocent explanation for the injuries, and the judge in particular was struck by the fact that the parents, seemingly prior to the arrival of the expert evidence, had described an unusual cry being given by baby A, which was congruent with the description that Dr Chetcuti was later to give as being the likely sort of cry that a child who had sustained this sort of injury would give.
43. The judge deals with that at paragraph 48, and stresses the point that I have just made. At paragraph 50 he deals more generally with Dr Chetcuti's evidence. He says this:

1. "The opportunity was taken to explore with Dr Chetcuti in the course of his live evidence the matter of the rib fractures, and in particular the explanation which had been proffered by the parents following [S's] fall. He was cross-examined on behalf of the mother and asked for his understanding of what had happened. He referred to his understanding that an 18-month old toddler [of course S was only 13 months at the time] had fallen sideways on to [A] whilst he was lying on the changing mat."

44. The judge goes on to indicate that this was a clear illustration as to why it was that a fully detailed explanation should have been provided to the doctor, and it is plain from what is said in the remainder of paragraph 51 that the judge felt that this opened up a lacuna in the case which rendered the medical evidence on this point less than satisfactory.
45. On the question of the cry following the fall of S onto A, it is the case that the doctors' evidence was that such a cry could have lasted, in terms of change of quality, for 2 or 3 days. In the quotation in paragraph 47 of the judge's judgment, the doctor is recorded as saying this:

1. "It is possible that this crying could recur for at least three to four days after the rib fractures."

46. In submissions Miss Heaton submitted that the medical evidence was that the changed crying would be a feature for three or four days after the impact. My reading of that evidence is that it was not at that high level, and that it remained no more than a possibility. Therefore, the judge, in my view, was entitled to put some weight on the fact that the parents, when describing this particular incident, did record crying which was congruent with that predicted by the doctor.
47. Another feature of this part of the case is what the judge came to say on 8 April, which we find in the centre part of page C55 of the bundle. The judge says this:

1. "So I was anxious on two counts, first of all, that the doctors weren't really very clear as to what the mechanism of the fall was and what the consequences could have been and hadn't been asked about the fact that these were injuries to the posterior, I accept absolutely what is said in here that they knew that the injuries were to the posterior area of the ribs, but they weren't actually asked about that, it wasn't the place of the court to ask that question I don't think in these circumstances, and Doctor Chetcuti in particular applied this analogy which is an often repeated analogy of the stresses and pressures which are required during the course of a resuscitative process as being a reason why what was described couldn't have been the cause of injury, without knowing what was alleged to have occurred in the accidental form in detail."

48. That chimes in with words in the actual judgment where the judge indicates that neither of the doctors knew what "it" was when they were being asked to give an opinion as to whether "it" caused the injury.
49. It seems to me that the judge was entitled to express his uneasiness with this aspect of the evidence in the way that he did. The judge at paragraph 53, and indeed elsewhere, seems to have been occupied by the phrasing of the statement of expert opinion that followed an expert's meeting or discussion. The phrase that particularly drew the judge's attention is at paragraph 53, and it is this:

1. "The injuries were caused by application of moderate squeezing while A was grasped tightly around the chest."

50. The judge said that the degree of certainty expressed in the clear words "were caused" was unsustainable because in oral evidence Dr Chetcuti had accepted that there was a possibility that some other explanation might be available for these injuries.
51. Again, it seems to me the judge was able to make those observations. For my part I suspect it was the legal drafting of that phrase which drew the judge's attention rather than any genuine expression of 100 per cent firm opinion by the doctors. Experience of these sorts of cases shows that doctors will say "never say never" and that medical science is always open to the outlying possibilities of rare or odd events, but however the judge got to that state of mind, the fact that he was entertaining the concept of there being, albeit a highly unlikely innocent explanation for these injuries, was a perfectly tenable position for him to have on the evidence.
52. The judge also stresses on more than one occasion that the expert evidence was only part of the evidence in the case and he had to look at the whole evidence.
53. In this context he seems to have been particularly impressed by one aspect of the material to which I have not yet made reference. That was a report from the health visitor, who, perhaps unusually, had been the health visitor involved with this family from the start following S's birth. He describes that evidence initially at paragraph 30, and he describes it as being "a very helpful piece of evidence" in contextualising the history leading up to the events, and he records the general impression gained from reading that evidence, which was that "mother and baby were bonding well, and that S was developing normally".
54. The judge returned to the health visitor's evidence in paragraph 55 of the judgment. I have already read part of paragraph 55, but it continues in these terms:

1. "Most impressive of all is what is said of the mother in a report prepared by the Health Visitor, notably from stage 73 onward. [I quote directly from the summary at C52]:

2. 'Throughout my involvement with this family I have observed a close loving relationship between the mother and her children. The children have been well cared for and the mother has been responsive to their emotional and physical needs. There is a history of domestic violence which predates the birth of S, but I have had no concerns about the vulnerability of either of the children during my involvement with the family. In my professional opinion, the mother has always put the children's needs before those of her own and her husband.'"

55. The judge then says immediately following that quotation:

1. "There is no evidence by which I am swayed that this was a mother who gave way to the pressures which she was under and who snapped, as was suggested might have been the case."

56. So that, in the course of the summary I have given, shows that the judge was alive to the preponderance of the medical evidence which was in favour of a finding of non-accidental injury, but he was alive to the ability to entertain the idea that the fall described of S on to A might, albeit on a highly unlikely basis, provide an explanation. He was alive to the negative and stressful influences in the mother's life, but he was also alive to the positives that he identified: her openness, her honesty, and what was generally said about her in positive terms by the health visitor. He drew all these matters together in paragraph 55, which I have now largely quoted, to produce the conclusion at paragraph 56 with which I started this judgment.
57. In terms of the use of the word "deliberately", Miss Heaton rightly draws our attention to it because it indicates that the judge might have been considering that he could only make a finding against the mother if he was able to find that in some premeditated way she had deliberately inflicted the rib injuries on the child by some form of deliberate assault. Whilst that submission is initially attractive, it is hard to understand how an experienced judge would have that mindset. The judge elsewhere refers to the injuries in less deliberate terms, and for my part at paragraph 9 of the note that he prepared in response to counsel's written document, he puts the point to rest because there in the conclusion of paragraph 9 he says this:

1. "For all the reasons set out in the judgment I have concluded that it is not, with the consequence that relying on the medical expert alone, I am unable to make a finding as to the infliction of non-accidental injuries by either parent on [A], nor to arrive at any conclusion at all as to how the injuries were caused".

58. There he is expressly referring to non-accidental injuries, and that in a document produced before he finally gave his judgment.
59. So against that background, striking though the medical expert evidence is, it seems to me that the judge does identify the reasons that led him in his experienced view to come to the conclusion that the allegations made by the local authority were simply not proved. The judge, in the course of his judgment, does not set out the allegations in the schedule that had been prepared by the local authority. With hindsight, that might have been a wise course for him to take because it would have established for him the precise nature of the allegations being made by social services, which was not of a deliberate inflicting of injury, but of a momentary loss of control. But it is plain from what the judge does say in the additional sentence which I have quoted that it was plain that the suggestion that she had "snapped" was before him.
60. In reading this material, it is obvious that the judge could have made the finding that the local authority sought. If he had, it may well have been that this would be unappealable. But the fact that he could have made a positive finding does not mean that the local authority can establish before this court that he had to make a positive finding, and that is the relatively high hurdle that Miss Heaton has to surmount in order to succeed in this appeal.
61. The grounds of appeal, to which I have already made reference, can now be seen in the context of what I have already said. Taking them in a different order from the order relied upon, first of all it seems to me the judge was entitled to depart from the medical evidence, as is accepted, and he did explain why he had done so. My reading of the judgment is that he departed from the medical evidence because he was so impressed with the mother's openness and candour, and clear that she was not describing any event that could have explained the fractures occurring as a result of her care and he accepted her word on that, and that shifted the balance of probability away from the direction in which it was relentlessly heading after the medical opinion had been given.
62. Secondly, as I have already explained, he did entertain other evidence which might have pointed to an adverse finding against the mother, but he put that in the balance with the more positive evidence.
63. Thirdly, I am satisfied that he did not adopt a higher test than the balance of probability. He might have set his judgment out in clearer terms had he had more time to do so, but it was plain that he was looking for a non-accidental injury and then, if possible, the perpetrators. He could have referred to the allegations, as I have indicated, but that does not represent a fundamental flaw in his judgment.
64. Finally, for the reasons that I have given, I think it was, just, open to the judge to come to a conclusion which did not find against the mother here, and in expressing that view, I return to the factor that I have uppermost in my mind, which is that the judge sat there for five days, heard all the evidence and was impressed by the mother and the father in the way that he describes. For my part, it is not for me to second guess that process, and I therefore afford to the judge the respect that this court should give unless it is absolutely plain that the finding to which he has come was not open to him on the evidence. This case does not quite get to that level. I therefore would therefore dismiss the appeal.

LORD JUSTICE TOMLINSON:

65. So would I, and for the same reasons.

LORD JUSTICE RIMER:

66. I also agree. I too would dismiss the appeal.

Order: Appeal dismissed