B4/2006/2240
Neutral Citation Number: [2006] EWCA Civ 1881
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEICESTERSHIRE COUNTY COURT
(HIS HONOUR JUDGE MAYOR QC)
 
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 14th December 2006
 
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE THOMAS
LORD JUSTICE LEVESON
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IN THE MATTER OF K (a Child)

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  (DAR Transcript of 
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MS K THIRWALL QC and MR C HOLT (instructed by Messrs Dodds & Partners) appeared on behalf of the Appellant.

MS R LANGDALE (L.A.), MR ROCHE (Mother) and MS H MARKHAM (Guardian) (instructed by Messrs Cruickshank, Messrs Emmery Johndon, Messrs Straw & Pwaece and Leicesterhire County Council) appeared on behalf of the Respondent.
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J U D G M E N T
1.	LORD JUSTICE WARD:  This is an appeal against findings made by HHJ Mayor QC in the Leicester County Court on 28 September 2006.  He was dealing with a case in which the local authority in care proceedings sought findings of fact as to the causation or the perpetration of four injuries to a month-old baby.  

2.	The child concerned was born on 28 December 2005 and was taken to hospital exactly a month later when it was found that he was suffering from a complex fracture of his skull with significant contusion of the brain.  He was suffering from a fracture of the right femur and both those injuries were established by the medical evidence to be in the region of one to ten days old, the fracture of the femur possibly no older than a week.  But there were two other injuries from which this little baby had suffered.  There was a fracture to the right clavicle which was between one and three weeks old and there was a fracture to the left lateral sixth rib, again between one and three weeks old.  So, it is apparent from those injuries that there were at least two occasions but separate occasions on which they had been caused.

3.	The parents had, as the judge rightly found, told a pack of lies at the beginning to explain those injuries.  It started with the father saying that he had dropped the baby onto a bath.  The mother was unwilling for him to accept the blame but she could not adequately otherwise explain the injuries.  As the case unfolded, shortly before the hearing, the father broke down in conference with counsel and stated for the first time that he had seen the mother shake this baby on two occasions and that on another occasion had seen her swing the child violently by the leg and fling him onto the wooden arm of their sofa.  

4.	The local authority, perfectly properly, on the evidence available at the opening of this hearing invited the judge to ascertain who had perpetrated the injuries.  The trial was fraught with emotion because this young mother, who is about 19 years of age, was from time to time obviously upset and in the result the father first gave evidence of the events that had happened during this first month of the baby’s life.  

5.	I can take this all very shortly because at the conclusion of this appeal we have reached the stage where all parties are agreed that we ought to set aside the judge’s finding, which was that whereas he was satisfied the mother had shaken the child so as to cause the injury to the shoulder and to the rib, he simply could not say who had caused the more serious injury.  His conclusion was that the only finding the court could make was that the guardian is correct in stating that the court has not yet heard the full truth of the matter.  Both parents are at least guilty of extremely serious sins of omission in giving protection to and seeking attention for their child.  As to which one of them caused the most serious injuries, the court simply did not know, but it was one or other or both of them.  

6.	It is now accepted that the judge erred and that we should substitute for those findings a finding that the mother was the perpetrator of all of the injuries but that the father’s culpability, which may be at least if not more grave than a distressed ill mother, should at least be as recorded in paragraph 51 of the skeleton argument that: 

a) he was guilty of a serious failure to protect by virtue of witnessing the mother’s three episodes of violence to the child but not reporting her; 

b) on each of these occasions he culpably failed to seek any or any prompt medical treatment for the child; 

c) he lied to professionals and to the court throughout these proceedings in an attempt to cover up the truth of what occurred; and 

d) that he thus prioritised his needs and the mother’s over those of the child.

7.	In the light of that agreement, it is unnecessary for us fully to go into the facts of the case, save to say that we have come to the conclusion that the agreement now put before us is correct, essentially for this reason: when the father was giving his evidence he had spoken of the first shaking.  He spoke of the second shaking of the child.  He explained that he was too scared to tell anybody for fear of losing everything and then he dealt with the important matter of the major injury to the baby:

“MR HOLT: … You have come in from the bedroom into the living room and you have seen Hannah standing up in the living room, and where was Deagan?

“A: Basically swinging in midair.  She flung him on the settee.

“THE JUDGE:  Sorry, say that again, if you would please.

“A:  He was …

“MR HOLT:  Just slow down.

“THE JUDGE: Did you say the child was in midair?

“A:  She had him by the ankle and flung him on the settee.

“MR HOLT: I know it is not very easy to talk about, but take it … It is very important, because this is … Just take it from the moment you stepped in there, what the first thing you saw was. Where was Deagan in relation to Hannah?

“A:  She was holding him like that. He was facing down.

“Q:  You have shown me her … You have made an action there like a fist.

“A: (inaudible)

“Q:  Because, obviously, the tape cannot see, so …

“A:  He was facing down.

“Q:  Where was Deagan?  So, facing down. How did she have a hold of him?

“A:  She had him like that. Up in …Like … I’m not too sure. Up like that.

“Q:  What part of his body was in that fist you just made?

“A:  His ankle

“Q:  You have already done it once just then, but can you just show then what you saw Hannah do?

“A:  Just like that.

“Q:  And how did you feel when you saw Hannah do that?

“A:  I shouted at her and told her to get out of the flat and get some fresh air.  She went out.

“Q:  Yes. That is what you did.  I asked you how you felt?

8.	For the purpose of this judgment, I take up however the question asked by counsel of the father how did he feel about what he had seen: 

“A:  I cried.

“Q:  I am sorry?

“A:  I cried.

“Q:  Why were you crying?

“A:  Because it’s not very nice seeing that, especially to a little person that is your son and you love. It is not very nice.

“MISS K: I’ll get out of your face then, yeah. I don’t love you no more. Fuckin’ stay on your own.  I never want you.  Look at me.  Look at me. Go on, look at me.  Don’t bother coming finding me again.  You don’t know how useless I felt.

“MR  N: You wasn’t useless.

“MISS. K: I couldn’t even fuckin’ make my own baby stop crying (inaudible)  My mum come in the hospital and took the baby off me. I had him for a second and she took him off me, and everyone (inaudible) just thinks I’m an evil cow.

“MR  N: You ain’t. 

“MISS  K: (inaudible)”

9.	At this point she stormed out.  That was clearly a moment of high emotion.  It was a moment where one was likely to get a true understanding of how this mother felt.  It was therefore an important moment.  When the mother came to give evidence about it the judge asked her about that outburst:

“Q: So I ask my earlier question then, how do you know he did not do anything while you were out on the Saturday for the ten minutes?

“A:  Because I just know.

“Q. Why do you just know that?

A. Like I said, how he was with him.

“Q. Was it more than just how he was with him: that, in fact, you know what did happen to him?

“A. He wouldn’t have hurt him.

“Q. He would not have hurt him?

“A. No.

“Q. So that means you did then?

“A. Obviously, yes. That’s why when Dwaine told me that I swung him by his ankles and swung him onto the sofa, that’s why I believe him, because I know he wouldn’t touch Deagan.

“THE JUDGE:  So why did you get so angry yesterday afternoon in court? Do you remember when you ran off out after swearing? You were extremely angry yesterday afternoon, were you not?

“A:  Yes. I went out because, like I said, it was his son that he loves and I’ve caused that to his son who he loves and that just got me upset.

“Q:  You did not say that at all, did you?  You said: “Look at me and look at the …. You listen to the something evidence that you are giving.  Look at me. Look at me,” and he would not. Do you remember yesterday afternoon?  It is not twenty-four hours ago.

“A. Yes, I know I said: “look at me.  Look at me,” but I didn’t say anything about evidence.

“Q. What was it that made you so angry?

“A. Like I just said, when Dwaine said, because he was finding it upsetting because it’s son that he loves. That’s why I got up and said: ‘Well I’ll go then. I’ll get out the way,’ something along them lines. That’s what I said when I got up.

“MISS LANGDALE:  I think I had asked him: ‘How did you feel when you saw her throwing him on the sofa?’ and he said: ‘It wasn’t very nice to see that happen to someone you love,’ and then you got up.

“A. Yes, because I felt like I (inaudible) I’ve caused that to his son and I’ve wrecked it for him because he ain’t got a son.

“Q. And you said: ‘You don’t know how useless I felt.’ Did you say that? Can you remember saying that?

“A. Yes, I think so.

“Q. And what did you mean by: ‘You don’t know how useless I felt.’?

“A. Because no-one does understand.”

10.	The crucial passage is the judge’s intervention, when he asked why she was so angry.  This was clearly an important matter for the judge.  Indeed it rather appears that he hung his judgment upon it.  But it also appears to us on closer analysis that he had misunderstood or misheard what the mother had said the previous day.  She was not asking him to listen to the evidence.  Nor, with respect to the judge, was she doing as he described in his judgment.  Paragraph 14 of his judgment (page A24) he records the matter in this way:

“There was an outburst from her.  It is true that during that outburst she said things about her own abilities as a mother.  It is also true that during that outburst she was exceedingly angry with the father and that she challenged him to look her in the eyes and repeat, and, in effect, to repeat when facing her, the accusations he was making against her.  He declined to do so.”

11.	I fear that the judge, who of course did not have the benefit of the transcript we have, misunderstood what the mother was saying.  She did not intervene when he described what had happened.  Intervention came when he was responding to the question how he felt about it, how he had cried, because his son whom he loved had been hurt.  

12.	Her response was an emotional response because what she was complaining about was that nobody understood; as she put it, “You do not know how useless I felt”.  It is the link between how he felt and how she felt that promoted this outburst.  She went on to explain her inadequacies, which were frankly obvious, and they were that she had come out of hospital.  She was physically suffering from a difficult childbirth.  She was probably postnatally depressed and she was unable to control her actions.  

13.	So it seems to me that with the judge effectively pinning his judgment on that fact based upon a misunderstanding of the material evidence, I for my part would agree to this appeal being allowed.  

14.	I do not find it necessary therefore to entertain other aspects of the appeal which relate to the judge cutting short the father’s cross‑examination after the mother had again stormed out of court.  It is unnecessary to consider the extent to which the judge erred in regarding the mother as the father’s puppet, with father the one pulling the strings.  It is enough to say that on a vital plank in the judgment he misunderstood the evidence.  

15.	Therefore, I would allow the appeal.  I would substitute the findings I have recited, namely that the mother was the sole perpetrator of all the injuries but that the father’s failings were manifest and are sufficiently accurately recorded in paragraph 51 of the skeleton, which I have recited.  The matter therefore can go back to the county court in February for the final disposal of the case based upon those findings.

16.	LORD JUSTICE THOMAS:  I agree.

17.	LORD JUSTICE LEVESON:  I also agree.

Order: Application refused.