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Local authority overcomes "high hurdle" to secure rehearing over injury to two-year-old girl

A judge’s decision in a case concerning an injured child was “unsustainable” and the matter must be heard again, the Court of Appeal has ruled.

In S (A Child : Finding of Fact) [2020] EWCA Civ 1382 Lord Justice Peter Jackson said the main issue in the proceedings brought by Hertfordshire County Council was how A (a girl then aged two) had a subgaleal haematoma - bleeding between the scalp and the skull. The local authority alleged this was inflicted by A's mother or by her mother's partner, T.

After hearing evidence from three doctors and five family members, HHJ McPhee found this had not been established.

Hertfordshire appealed supported by the children's guardian and A's father.

Peter Jackson LJ said an appeal could succeed only where there had been a material error of law, or serious flaw in evaluating evidence, or where the conclusion cannot reasonably be justified.

HHJ McPhee had formed “a poor view of the credibility” of the mother’s family.

He found that the mother had misinformed a hospital about when the bruise to A’s forehead had occurred and had asked a relation not to tell the authorities about the bruising to A's eyes.

He also observed that the mother’s failure to describe at a hospital an incident when A supposedly hit herself on a car door “raised the obvious question as to whether it was a manufactured explanation or a real event whose significance had not been realised at the time”.

Despite these negative findings he described the mother as “a very impressive witness”, and found a bruise on A’s forehead had been caused accidentally and “despite anomalies in the evidence (which he did not reconcile), particularly about dating, that the bruising to the eyes had been caused in a later accidental fall as described by the mother and Mr T”, Peter Jackson LJ said.

Hertfordshire argued that the judge's assessment of the medical evidence around the ‘car door’ incident was flawed and his analysis of the bruising to A's eyes inadequate.

Peter Jackson LJ said: “I am of the view that the appeal must succeed and that the matter must be reheard.”

This was because the true effect of the medical evidence was not brought into the final reckoning.

“This evidence did not mandate a conclusion that the injury was inevitably an inflicted one, but the emphasis placed by the judge on the doctors' willingness to entertain less likely possibilities has led to him giving demonstrably insufficient weight to their clear opinions, to the extent that the scenario of inflicted injury by hair-pulling is not mentioned in his final analysis,” he said.

HHJ McPhee had been greatly impressed by the oral evidence of the mother and Mr T, “but he does not explain how that impression is to be reconciled with his finding that they had given false evidence to him and unreliable accounts to others on a number of matters”.

The mechanism for the injury was not adequately explored, and the judgment did not resolve the conflicts in the evidence about the bruising to the eyes.

Peter Jackson LJ concluded: “These errors of approach lead me to conclude that the judge's conclusion is unsustainable.”

The Court of Appeal was not in a position to substitute its own conclusions, and the case would be heard again by HHJ Vavrecka.

Mark Smulian

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