R (Children: Findings of Fact), Re

Lord Justice Peter Jackson: Introduction

1. This appeal challenges a ‘pool finding’ in care proceedings concerning three small children. The proceedings began in July 2022 after the youngest child, C, then aged 8 months, suffered a serious head injury at home in the company of six female maternal relatives: her mother, her grandmother, three of her aunts and her sister, then aged 17. The judge found that the child had been shaken by one of the relatives but that the person responsible could not be identified. The mother appeals, supported by the father and the other family members. The local authority opposes the appeal, while the Children’s Guardian remains neutral. The background

2. I will use initials or titles when referring to family members and when quoting from passages written by others. The children are A (now 4), B (now 3) and C (now 2). At the time of C’s injury, the parents’ eldest child T (now 18) also lived at home. The maternal grandparents and the aunts (in descending age order, Aunt 1, Aunt 2 and Aunt 3) live in their own homes nearby. Aunt 2 is the manager of a children’s home and Aunt 3 is a nurse. Between them, the aunts have seven children who have never attracted any professional concern.

3. The local authority evidence described the family in very positive terms. Family life was very stable, filled with attending to the needs of children, father working, family gatherings, school and nursery. The parents were seen as being very capable and as showing a great deal of emotional warmth towards the children. Though somewhat overcrowded, the house was clean and well-maintained, and the children had appropriate routines, with T, A and B attending school and nursery regularly. There were no concerns about substance misuse, domestic abuse, or mental health. Extended family was very important and large gatherings were regular occurrences. There was a close bond between the siblings, nieces and nephews, grandparents and grandchildren.

4. On the evening of 11 May 2022, a number of maternal family members congregated at the parents’ home ahead of a trip abroad by the parents and children. The father was out of the home at work. A and B had been put to bed upstairs. Also present in the home with C were the six relatives mentioned above, and two cousins, aged 10 and 8, the daughters of Aunt 2. The ground floor of the property consisted of a living room and a kitchen, with a connecting corridor. The family (apart from the children who were asleep upstairs) gathered in the living room which, small as it was, contained three sofas.

5. A video of C, taken at 21.47, showed her to be happy and healthy.

6. At 22.24 Aunt 3 made a 999 call in which she said that C had fallen and hurt her head and that she was not breathing. An ambulance rapidly attended, and C arrived at hospital at 22.48. On arrival, a CT scan was performed, showing a large right-sided subdural haemorrhage. C required ventilation and intubation. She was transferred to a specialist hospital for emergency surgery and treatment.

7. A number of investigations were conducted over the following days. They raised the suspicion of inflicted injury, and the police were involved at a very early stage. The parents were arrested and made subject to bail conditions. The family cooperated with the investigations. The initial social work statement (7 July 2022) said this: “The parents have cooperated with the professionals both from the medical and social care settings. They have given statements to the police reporting C’s fall... They have accepted the restrictions which have been placed on them and the care of the children. The parents want their children to return to their full-time care but understand that C has sustained a potentially life changing bleed to the brain and retinal haemorrhages… Both parents have been praying for C’s safe recovery and have attended all supervised contact sessions to be with her. The parents have attended all appointments pertaining to the children where it has been possible. They present as doting parents and have reported that their children have all been wanted children and therefore would not put any of them through any kind of harm. The mother is insightful about the emotional needs of her children and having discussed their separation from their parents she has been able to consider the long-term impact for them and if they will experience any trauma from the processes which have been put into place. … The family are dedicated to the welfare of the children and are clear in their understanding of why the parents’ contact is supervised, and whilst they do not accept that the parents hurt C, they accept there is a police investigation and Children Social Care involvement and wish to work with all agencies for the best interest of C, A and B.”

8. Following C’s injury, A and B were placed with a paternal uncle and aunt. Fortunately, C appears to have made a good recovery, and on 8 June 2022 she was discharged into the care of her maternal grandmother. Until August 2023 the parents saw the children throughout each day, but bail conditions required supervision by family members. In August 2023, the father's bail conditions were varied to allow him to be unsupervised with the children, and at that point the three children moved back to the family home, while the mother and T moved out to sleep at the grandmother’s home. In November 2023, the mother was allowed to return to live at the family home, but her time with the children remained supervised. On 19 December 2023, unusually as this appeal was pending, the proceedings were brought to an end with the making of a 12-month supervision order with the agreement of the parties. The mother was to remain supervised with the children for another three months, except that she could take and return them to school/nursery unsupervised. The question of T's return home remained to be considered.

9. It can be seen that, despite suspicion falling on the family, the children have continued to have unbroken contact with them and, in the case of the grandmother, that she looked after C for over a year after the child was discharged from hospital. The hearing before the judge

10. In its threshold document in December 2022, the local authority alleged that C’s injuries were likely to have been caused during one episode of abusive inflicted head trauma consistent with a shaking mechanism. The list of possible perpetrators consisted of the six female family members. The local authority submitted that if the court concluded the injuries were inflicted, the family had colluded to invent an explanation for the injuries and to present it to the authorities in an attempt to deceive them into believing that the injuries had been caused accidentally.

11. The fact-finding hearing took place before His Honour Judge Chaudhuri. The parents and T were legally represented, while the other family members were unrepresented intervenors. Additionally, the grandmother does not speak English, and required translation and interpretation throughout. The bulk of the hearing was taken up with medical evidence. The court heard from treating consultants in neurology, neurosurgery and paediatrics, and court-appointed experts in haematology, genetics, neurology, paediatrics, paediatric neuroradiology and ophthalmology. Seven days of evidence were given in February 2023. The case was then adjourned after a medical witness became ill and had to be replaced. In June 2023, evidence was heard on five more days. The seven family members (the six female relatives and the father) were last to be heard, and their evidence collectively took little over a day.

12. The judge gave judgment on 26 June 2023. It is a substantial decision, running to 37 pages (215 paragraphs). On 2 and 3 August, he provided a number of corrections and clarifications and refused permission to appeal in what I will describe as the second judgment.

13. The mother renewed her application for permission to appeal to this court. There were three grounds of appeal. Ground 1 concerned the treatment of the evidence of the family. Ground 2 concerned the treatment of the medical evidence. Ground 3 concerned the judge’s approach to the assessment of the probable cause of C’s injuries. On 25 October 2023, I granted permission to appeal on grounds 1 and 3 and refused permission on ground 2. The medical findings

14. The judge summarised and assessed the complex medical evidence over the course of some 24 pages, reflecting the degree and detail of the questioning that Mr Clive Newton KC, for the mother, had addressed to the medical witnesses. As the medical findings are not the subject of the appeal, it is only necessary to record the judge’s conclusions, expressed in two paragraphs: “167. Drawing all the medical evidence together it appears that: i. Prior to 9:47PM on 11 May 2022 there was nothing that I have read or heard to indicate that C was unwell in any way. ii. At some time between 9:47PM and 10:25PM on 11 May 2022 C suffered a head injury. iii. These injuries were identified as multifocal subdural bleeding (the largest collection being over the right cerebral convexity, with collections on the left and in the posterior fossa), global severe hypoxic ischaemic brain injury, a ligamentous injury to the cervical spine, a thrombosed bridging vein and multiple and extensive retinal haemorrhages extending from the posterior pole into the peripheral retina. Both optic discs were pink in slightly congested and there were prominent perimacular folds in both eyes.” “178. The medical evidence, therefore, points to the following conclusions: i. C’s subdural haematoma could have originated as a result of the fall but more probably were attributable to a single shaking event. ii. C became acutely encephalopathic at home sometime between 9:47PM and 10:25PM on 11 May 2022. iii. The multiple and extensive retinal haemorrhages extending from the posterior pole into the peripheral retina together with the prominent perimacular folds in both eyes could have been caused by raised intracranial pressure, though unlikely to have been caused by surgical intervention, but more probably were attributable to a shaking event between the times that I’ve stated above. iv. C suffered a thrombosed bridging vein. I accept that these are often seen in anterior to posterior motion head trauma. This motion avulses the subdural veins and some injured veins go on to thrombose or clot off. v. C suffered a severe, global hypoxic ischaemic brain injury. I accept that her brain was diffusely and globally abnormal. This injury is more probably attributable to a shaking event, again between the times I’ve stated above. vi. C also suffered a cervical spinal ligamentous injury. It is unlikely that this injury was caused by a fall but more attributable to a shaking event.”

15. In refusing permission on ground 2, I noted that the judge did not treat any aspect of the injuries as diagnostic. The debate about serious head injury from low-level falls is well-trodden territory and the medical picture was bound to remain that these injuries were a very unlikely, but not impossible, consequence of the event described by the family. Indeed, having assessed the medical evidence, the judge then immediately and rightly directed himself in these terms: “179. As I’ve already stated the court cannot consider the medical evidence in isolation. The evidence in this case cannot be assessed and considered in separate compartments. I therefore now consider the medical evidence alongside the other evidence, particularly the evidence given by the parents and the family members, and consider the wider canvas.” The family’s account

16. In the period between the 999 call and the court hearing over a year later, the various family members were inevitably asked to give repeated accounts of what occurred in the critical half hour prior to C’s collapse. As a result the court had a great deal of evidence about that very short period of time, consisting of: (1) The 999 call, of which there is a summary. (2) Accounts given at hospital, noted by medical professionals. (3) First accounts given by family members to the police, recorded in notebooks and marked ‘not verbatim’. (4) Interviews under caution given by the mother and T. (5) Voluntary accounts given by family members shortly after the event, noted and marked ‘not verbatim’. (6) Statements made to the court. (7) Further accounts given to the police a year after the event, noted and marked ‘not verbatim’. (8) Oral evidence at the fact-finding hearing, of which we have transcripts.

17. The accounts given by the family and the judge’s treatment of them form the crux of the first ground of appeal. The evidence therefore needs to be looked at in some detail. I have extracted the salient parts and placed them in the APPENDIX at the foot of these judgments, taking the witnesses in the order in which they gave evidence, followed by the judge’s commentary on the evidence of each witness. The judge’s decision

18. The judge, at paragraph 181, referred to the positive context, including the family’s uneventful parenting history and their cooperation with authority. He then carried out a brief survey of their evidence at paragraphs 182-201, ending thus: “200. Whilst the immediate and extended family have given their oral evidence calmly without any heightened emotion I was concerned, collectively, by their reliability as witnesses. I exclude the father from this observation as I know he was not present at the time that C suffered her injuries though this court would have hoped, and still hope, that he appreciates the severity of the injuries suffered by C. I give myself a Lucas direction in so far as all the family members, including T but excluding the father, is concerned.

201. I am satisfied on a balance of probabilities that the mother and the intervenors were keen to show a united front when giving their oral evidence despite the fact that there were differing accounts as already stated. Why is that? The simple explanation is that they wish to protect the family member who was responsible for those injuries or protect themselves.”

19. The judge then stated his conclusion about the causation of C’s injuries in short order: “202. So what conclusions can I draw from the lay evidence?

203. I start with the premise that individuals when describing an incident will not always see and record events as seen by others. In this case there are widely differing accounts given on various occasions for example as demonstrated by T and her grandmother. There are other accounts given by the family members that I have mentioned already which differ with what had been said or written earlier. Those differing accounts cast doubt on the veracity of some of the evidence I heard and placing weight on how C sustained her alleged fall.

204. When I come to consider the wider canvas evidence, I am drawn to conclude on a balance of probabilities that C suffered her injuries as a result of a single episode of shaking rather than a fall. Mr Newton suggested I consider the improbability of such an event taking place in front of a lounge full of family members and children. It would be inconceivable. I agree that such an event seems highly improbable but as stated already it is not the court’s task to determine how C’s injuries were sustained. The task is to determine whether the local authority has proved its case on threshold on a balance of probability. The local authority suggest that C was subjected to a single shaking episode which in all likelihood took place outside the lounge area. I am not in a position to confirm where C sustained her injuries, but I am satisfied on a balance of probability that it took place somewhere at the parents’ home between 9:47pm to just before the call to the ambulance. Anything beyond that is speculation.”

20. Next the judge turned to perpetration: “205. So, who was responsible for the injuries that C sustained?

206. The local authority in their threshold document has provided a list of those who had the opportunity to cause the injuries suffered by C. If I cannot identify the actual perpetrator on the balance of probability, I should consider whether there is a real possibility that each individual on the list inflicted the injury in question. Having considered the medical evidence and the lay evidence, I cannot identify the actual perpetrator.

207. Having considered each individual on the list I am unable to say that any one individual, so named, inflicted the injuries to C. I am very conscious that two of the extended family are members of a caring profession and have spent a great deal of their current working lives focusing on helping others. Similarly, the mother and maternal grandmother have raised children without any concerns from social services.

208. My findings do mean that each individual on the list remains a possible perpetrator.”

21. The judge then addressed the allegation of collusion: “209. Having determined that C’s injuries were inflicted, the local authority invite this court to conclude that the named individuals colluded to invent an explanation for the injuries and present it to the authorities in an attempt to deceive them into believing that C’s injuries had been caused accidentally.

210. At first blush, such a finding would seem an obvious conclusion to draw from the findings I have made but on closer inspection the key issue to consider is, where is the evidence to support such a finding? I did not hear any evidence to suggest that one or more of the family members had met or exchanged messages to invent an explanation. Was, for example, T or the maternal grandmother involved in such remote or face to face discussions? This court may be highly suspicious but mere suspicion is not enough to make a finding such as this. In some ways the finding is analogous to a ‘failure to protect’ finding sometimes sought by the local authority. As in those cases, such a finding should not be a bolt on to the main finding/s already proved. There has to be evidence of such a failure to protect and it is no different in a case where collusion is being alleged. Whilst this court may be suspicious of what discussions may have taken place it is impossible to say when, how and who were involved in such discussions. I find this allegation not proved on a balance of probabilities.”

22. The judgment concludes in this way: “211. I therefore find on the balance of probabilities that: i. between 9:47PM- 10.25PM on 11 May 2022, C sustained multi focal subdural bleeding (the largest being over the right convexity, with collections on the left and in the posterior fossa), encephalopathy, a severe global hypoxic ischaemic brain injury, ligamentous damage to the cervical spine, a thrombosed bridging vein and multiple retinal haemorrhages extending from the posterior pole into the peripheral retina and prominent perimacular folds in either eye. ii. I cannot identify the perpetrator. iii. I do not find evidence of collusion between those named on the list.

212. I acknowledge that these are serious findings for the mother, her daughter, her sisters and C’s grandmother. Future assessments will have to determine whether C can be returned to the mother and father’s care.

213. The findings that I have reached should not prevent any social worker from keeping an open mind as to the future return of not just C but her two siblings to the care of her parents. Much will depend on their response to my judgment and how they propose C and her siblings can be protected in future if they were returned to their care.

214. I note that in so far as the maternal aunts are concerned, they have looked after their children, where appropriate, without any concerns by any agency. That is a significant factor to be borne in mind. Some are in responsible roles. I appreciate this judgment may have implications for their employment. I can only hope that their historically, trouble free time in their employment and the fact that they have looked after and cared for their children without any prior concerns are given serious consideration and weight by the relevant authorities.

215. The maternal grandmother has looked after C since the 8 June 2022. Whilst in her care, C has not come to any harm. I sincerely hope she will be allowed to continue to look after C despite this court’s finding. I appreciate that may be unusual in the light of my findings, but the grandmother had provided care to C for over 12 months and the risk of emotional harm in moving C from her care is a factor I consider to be very important.”

23. At a hearing on 2 August 2023, Mr Newton sought clarifications and corrections and made an unusually detailed application for permission to appeal. Numerous proposed grounds of appeal were advanced, the majority concerning the medical findings. The judge gave an extended response when refusing the application. The following extracts from that ruling are of some relevance to this appeal: “27 In terms of Ground 4, the judge erred in his consideration of the abnormal brain injury and in his judgment failed to consider the evidence which indicated the abnormal brain injury might have been caused by an accidental fall. I was at all times aware of the mother’s case and the intervenors’ case regarding an accidental fall, however, I rejected that.” “47 It would be useful at this stage just to remind ourselves of the legal document that [counsel for the Guardian] provided to us, and it is p.6 of the bundle of authorities. It is an extract from the House of Lords in Re B [2008] where Baroness Hale she says this: “In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Someone looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was.” And this is the important point: “The simple balance of probabilities test should be applied.” 48 So what does that mean for the intervenors? The court is not looking at the improbability of an event. That is not the legal test. The legal test is whether the local authority have managed to prove threshold on a balance of probabilities and to sit and speculate as to whether how improbable an event is, in my view not the appropriate course. So, I make reference to that dispute in p.19, (a) makes the point that I failed to take into account the improbability of a family member leaving the sitting room to take the baby, who was behaving in an annoying manner, elsewhere and had to calm them down. I do not speculate on that point, but what I can deal with is whether the local authority have proved their case on the balance of probabilities and nothing else. 49 In terms of Ground 15, the argument that was suggested here is that in determining a finding of inflicted injury did not necessarily involve a finding of collusion against all the relevant family members. I failed to take into account the necessary occurrence of collusion further increased the improbability of the account. Well, I am probably not going to take it as far as that. The local authority have to prove threshold. One of the aspects of threshold is that the intervenors had colluded. It is a very easy statement to make. In my judgment I recall making a similar comparison to failure to protect. Sometimes it is an add-on by the local authority and there are numerous cases which make it quite clear this should not be an add-on and in my view it is the same point about collusion. It has been raised, but it has not been proved. It has not been proved with evidence. In my view, that was not proved. It takes it no further than that. Collusion implies that there would be more than one of you involved in discussions. Whether that is telephone or whether by ordinary occasion(?), the local authority have not been able to prove that, and that is it. I do not have to look at the improbability of other events and analyse, “Have the local authority managed to prove that?” They were not able to prove it, hence why I did not make a finding of collusion. 50 With regard to Ground 16, again, I am being asked to remind the court that it has rightly been pointed out on Ground 16 that I failed to find that C’s injuries were caused accidentally in a fall or, alternatively, the local authority have not proved it. I considered the mechanisms. I considered the lay evidence, which, in the main, has been relatively consistent in terms of all of the intervenors suggesting that C suffered a fall. I considered that. I looked at the wider canvas and came to the conclusions that I did.”

24. On 3 August 2023, the judge provided further responses in respect of matters that had also arisen in the context of the application for permission to appeal: “4. At the conclusion of my deliberations, I dismissed the permission to appeal application. I ordered a transcript and therefore I do not intend to repeat all that I said during the course of the hearing.

5. I would, however, like to confirm that in so far as Paragraph 14 (a) of the ‘Clarification’ document is concerned I took the opportunity of listening to the digital recording and confirmed that the mother said that the child was tapping the stool and not clapping. The relevant paragraphs of my judgment are 184 and 185. Any impression given in my judgment suggesting or implying that the mother was inconsistent in so far as ‘clapping’ is concerned is not valid. I have considered this point of clarification and have concluded that it does not alter the findings I have made.

6. In respect of Paragraph 14 (d) (i) of the ‘Clarification’ document I listened to the digital recording and can confirm that the grandmother’s oral evidence was that she thought it was T who went to make milk. The relevant paragraph of my judgment was 191. I incorrectly stated that it was the maternal aunt, Aunt 2. I have considered this point of clarification and have concluded that it does not alter the findings I have made.

7. In respect of Paragraph 14(e) (i) of the Clarification document I accept that there was no reference to the evidence of the maternal aunt, Aunt 1 in the analysis of the family member’s evidence. I confirmed that I had a detailed note of her oral evidence and before yesterday’s hearing I considered her written evidence. The mere fact that I did not include her evidence in my final analysis does not alter the findings I have made.

8. The remaining points of clarification and the permission to appeal application are contained within the transcript.” The appeal

25. Mr Newton argued that the medical evidence left open the possibility of accidental causation and that the judgment was so flawed in respect of the assessment of credibility and probability as to be invalid. The judge made mistakes and wrongly described the witnesses as giving “widely differing accounts” (paragraph 203). He was further wrong to find in the same paragraph that those differences cast doubt on their veracity, when (as the judge accepted) witnesses will not always see an event in the same way.

26. Mr Newton took us at length through the evidence of the family witnesses in order to make good his submission about the witness evidence. The essential points are these: • As to the mother, (1) accepted error at paragraph 184 in relation to the mother describing C as clapping her hands; (2) error in paragraph 185 when saying that the mother had not told the police that C had fallen on the right side of her head: she had; (3) a fair reading of the mother’s police interview and the transcript of her oral evidence does not sustain the description at paragraph 185 of the former being vague in comparison to the latter. • As to father, the observation at paragraph 186 about the report of C jumping was unwarranted; neither parent was asked about it in evidence and anyhow everyone described C as having made a sudden move. • As to Aunt 2, the observation at paragraph 188 that it was unusual to use the word ‘whiplash’ when there had been no mention of mechanism in her statement some three months earlier was selective; in her first account to police she had described how C “fell back onto doll with lower back, slightly raised, so head fell backwards”. • As to Aunt 3, the comment at paragraph 189 about the account in the 999 call of C having fallen “just from sofa down to carpet” was not verbatim and she had elsewhere described C as standing on the floor and leaning on the sofa; further, she stated to the police that for her as a nurse the injury was odd as C fell from such a small height, showing that she was not trying to exaggerate the fall; the reason for the more detailed account on the later occasion was perhaps because she was asked more questions. • Aunt 1’s evidence was mentioned in passing but was not considered again. • As to the grandmother, (1) the ‘first inconsistency’ described at paragraph 191 was acknowledged to be an error, (2) the second supposed inconsistency was explicable from the fact that she had to rely on her son to prepare her witness statement, (3) as to the statement in a telephone interview in May 2023, recorded at paragraph 192, that C had stood on and fallen off a little stool, this was (as the judge accepted) possibly the result of a misinterpretation, and nobody asked the grandmother about it in her oral evidence. • As to T, the comment at paragraph 197 that there was obviously a marked difference in her statement and her account to the police in respect of whether she saw the fall or the outcome should have been seen against the consistent account given by T of seeing C on her back, and account should have been taken of her youth and the stress of the occasion.

27. Mr Newton further submitted that the judge failed to take account of the high degree of improbability surrounding both an inflicted injury and a subsequent cover-up. He did not evaluate this aspect of the evidence with due regard to the good character of the witnesses, the particular circumstances existing in the home and the quality of the family’s evidence.

28. Responding for the local authority, Mr Jonathan Bennett, who did not appear at trial, rightly reminded us of authority that emphasises the high degree of caution that must be shown by an appeal court when it is asked to disturb considered findings of fact: see Re T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475 at [56-57], citing Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114] and Volpi v Volpi [2022] EWCA Civ 464 at [2]. That approach applies with no less force in the family jurisdiction.

29. Mr Bennett relied on the fact that the judge had correctly evaluated the complex medical evidence, which formed a crucial element of the case. He remarked that this formed an important basis against which the other evidence fell to be considered. While he accepted that the medical evidence was not diagnostic of inflicted injury, observations made by some of the medical experts did not fall far short. Any other explanation was not a real possibility. In defence of the judge’s commentary on the family’s evidence, Mr Bennett’s skeleton argument grappled with a number of the evidential details, but in his oral submission he very fairly accepted that there was a core consistency to the family’s account. However, he submitted that none of the judge’s errors were substantial enough to vitiate his overall findings, and he was not obliged to refer to every piece of evidence. In relation to the assessment of probabilities, the judge took account of their good character and his reference to Re B was apposite. Within his conclusion that C’s injuries were a consequence of a single episode of shaking lay an implicit rejection of the family’s account of a fall; alternatively, and more probably, the judge was satisfied on the strength of the medical evidence that a low-level domestic fall as described would not have caused C’s injuries. He did not have to go further than he did and the conclusions he reached about infliction and collusion were ones that were open to him. My conclusions

30. I start by acknowledging that this appeal and the proceedings before the judge are not symmetrical. As noted above, the bulk of the trial was taken up with medical issues that are not open to the appellant on this appeal. The judge had to deal with a considerable amount of complicated medical evidence and argument, pursued in great detail by Mr Newton both before and after the delivery of judgment. The limited basis upon which permission to appeal was granted allows the essential contours of the evidence to emerge more clearly without detracting from the judge’s weighty and undisturbed medical findings.

31. This was an unusual case. Adopting a familiar metaphor, the canvas of evidence was small, densely filled, and the court could see it all. C’s injuries were sustained in a confined space during an extremely short time window in such close proximity to eight other family members (including the cousins, aged 10 and 8) that they must all know more or less what happened to her.

32. As to that, there were just three scenarios. The first is that C fell as described and sustained these very serious injuries. The second is that C fell as described but was also shaken. The third is that C was shaken and did not fall at all.

33. The court was therefore called upon to evaluate a number of competing improbabilities. The first scenario involved C suffering injuries that were highly unlikely, individually and collectively, to have resulted from a banal domestic fall. The other two scenarios involved other kinds of improbability. In the second scenario, that of a child being shaken by an otherwise loving relative in the midst of a good-natured family gathering; in the last scenario, that of a sustained cover-up on the part of an entire family whose history contains none of the general risk factors that are associated with child mistreatment, while all of the protective factors are strongly present: cf. Re BR (Proof of Facts) [2015] EWFC 41 at para. 18. The court’s evaluation had to take account of the fact that unlikely events occur all the time, although the probability of them arising in any individual case is extremely low: ibid at para. 7.

34. I do not agree with the judge’s concept of speculation at paragraph 204. Of course he was right to say that the court’s task was to determine whether the local authority had proved its case on threshold on the balance of probability. However, that involved grappling with and drawing conclusions from all of the evidence, medical and lay. The medical appearances were clear and the explanation for them was highly likely; but it was not certain, as the judge acknowledged by his finding at paragraph 178i. Against that, the court had the accounts of six people who were with C at the time she was injured. It is wrong to describe the medical evidence as the canvas against which the other evidence was to be considered. Medical and non-medical evidence are both vital contributors in their own ways to these decisions and neither of them has precedence over the other.

35. I consider that the submissions about the details of the judge’s assessment of the family’s evidence (paragraph 26 above) have force, though they might not on their own lead to a successful appeal. My concern about the judge’s approach is a broader one. It was not, strictly speaking, the court’s task to determine how C’s injuries were sustained, but it was its task to thoroughly evaluate the cases presented by all the parties. Unfortunately that did not occur. Most obviously, the judgment does not tell the reader, or the family, whether the judge accepted that C fell over in the manner described. That was a fundamental issue when assessing the credibility of the witnesses. The judge’s commentary on their evidence consists only of a number of relatively superficial and not always accurate observations about matters of detail, and it is not clear whether he considered their accounts to be widely differing (first judgment at paragraph 203) or relatively consistent (second judgment at paragraph 50). It was a necessary part of the judicial task, and involved no element of speculation, to reach a conclusion as to whether these witnesses were telling the truth or lying about a simple described event. It is not sufficient to leave the matter dangling by referring to “the alleged fall” (paragraph 203), and the second judgment, where the judge records (paragraph 27) that he rejected the case regarding an accidental fall, equally leaves uncertainty about the basis for the rejection. In short, if the family’s explanation for the injuries was disbelieved, it was the court’s responsibility to explain in clear terms why that was. This was important, firstly because C’s relatives were entitled as a matter of fairness to know what the judge had made of their sworn evidence, and secondly because the nature of the risks differed as between the second and third scenarios. In the third scenario, the court would be faced with an entire family that was prepared not only to dishonestly suppress the truth but also to plausibly invent a lie, something that would have implications for child protection and the level of risk.

36. When providing clarification or refusing permission to appeal (however excessive the parties’ request) it is inadvisable for a court to enter into the degree of detail that occurred here. As it is, the judge’s approach is further undermined by the emphasis he placed upon Re B at paragraphs 47-48 of the second judgment. As Baroness Hale made clear in the cited passage at paragraph 73, the inherent probabilities no longer apply when an assault is known to have occurred. In this case, an assault was not known to have occurred and the judge’s disavowal of the need to assess the improbability of one happening in such a witnessed setting was a clear legal error.

37. The same error of approach can be seen in relation to the treatment of the allegation of collusion. On the facts of this case, a finding of collusion was an inevitable consequence of a finding of inflicted injury (indeed the judge appeared to come close to finding collusion at paragraph 201), and his explanation at paragraph 210 for not following through on his first impression is not sustainable. Here, there was no analogy between failure to protect and collusion, because the irresistible evidential consequence of a finding of inflicted injury was that the other family members were bound to know what had happened and who had done it. A finding of collusion would not be a ‘bolt-on’ but the result of the normal process of drawing inferences from evidence. The fact that the court could not know precisely how the family had conspired did not mean that it would be indulging in suspicion or speculation, and to find that the local authority had proved one part of its case but not the other was not coherent.

38. There are two unsatisfactory consequences. The first is that the judge did not take account of all relevant matters before reaching a conclusion about infliction. The local authority’s case was that the child had been assaulted and that the family had colluded. It was the court's task to assess the evidential likelihood of the allegation as a whole: by separating the two elements, it deprived itself of the opportunity to take account of the whole picture, and to ponder the limited opportunity for the family members to have given a broadly consistent account of a fall immediately in the 999 call and then to police the following day, while at the same time colluding to suppress any reference to an assault. Secondly, by making one finding but not the other, the court pulled its punches. A finding of collusion (which involves sustained, deliberate lying by a number of people who could be expected to have C’s best interests at heart) might be thought to be worse in some ways than a finding of infliction (which may be the result of a momentary loss of control). It is also difficult to understand how the judge’s closing remarks, sympathetic to the two aunts who are in responsible professional positions, could reasonably stand alongside a finding that carried the necessary implication that they had culpably lied to the court and to the child protection authorities.

39. Stepping back, I therefore conclude that the judge did not carry out the necessary evaluation of the evidence for and against the local authority’s case or meaningfully synthesise an assessment of the probabilities. There may be cases where the court has good reason to be inherently sceptical about a witness’s evidence, but this was not one of them. The digest of the family’s account in the APPENDIX shows that this family’s account deserved careful consideration and, if it was to be rejected, clear and cogent reasons. Apart from the judge’s relatively peripheral comments about the evidence, no such reasons were given. This was particularly pointed in the case of Aunt 1, whose account clearly deserved attention.

40. At paragraph 200 the judge referred to R v Lucas [1981] QB 720 , but he had no cause to give himself this direction as an awareness of other possible reasons for lying will self-evidently only come into play after the court has found that a witness has indeed lied. In the present case there were no admitted lies and the judge did not explicitly find that lies had been told or identify what they were. The most that he said was that he was “concerned” about the family members’ reliability. In the following paragraph he said that the simple explanation for the family’s “united front” was to protect the perpetrator or themselves. That might of course be so, but another explanation was that the family members were telling the truth, and it is unclear why the judge rejected that possibility.

41. For all of these reasons, the judge’s reasoning does not sustain his conclusions. The demanding test for interfering with finding of facts has been met. I would allow the appeal.

42. The remaining question concerns consequential orders. The situation is unusual in that the underlying proceedings were concluded in December and the children are at home under a supervision order. In those circumstances, Mr Bennett told us that if the appeal was allowed the local authority would not seek a retrial but would instead apply to this court to withdraw the revived proceedings. The result would be that the cause of C’s injuries would remain unexplained and that there would be no finding against family members. In the particular circumstances, that appears to me to be a sensible and realistic position for the local authority to take, but we will need to know the position of the family members and the Children’s Guardian (to be communicated within 7 days of the handing down of our draft judgments, accompanied by a draft order) before we reach a conclusion about it. Postscript

43. Having received the judgments in draft, the parties filed an agreed draft order, and I would approve orders in these terms: 1) The appeal is allowed. 2) The findings of fact made by His Honour Judge Chaudhuri in a judgment of 26 June 2023, formally handed down on 19 July 2023, are set aside. 3) The supervision orders in respect of the children made on 19 December 2023 are discharged. 4) The 1 st respondent local authority is granted permission to withdraw its revived application for public law orders, and the proceedings in respect of the children are concluded, on the following basis: a) The local authority proposes to work with the family under a Child in Need plan for a period of time. b) The appellant mother , and the respondent father agree to work with the local authority with the provision of Child in Need services for a reasonable period. c) On that basis , the local authority does not seek to relitigate the fact-finding hearing. d) The mother confirms that she does not wish for there to be a rehearing of the fact- finding hearing. e) The mother’s solicitors have obtained written confirmation from the father and guardian’s solicitors and from each of the five interveners that they do not seek a rehearing of the fact-finding hearing. f) In consequence of the above, the injuries sustained by child C remain unexplained. 5) There shall be no order as to costs, save detailed assessment of the publicly funded parties’ costs. Lord Justice Dingemans:

44. I agree. Lord Justice Snowden:

45. I also agree. _______________