Case No: B4/2008/2411
Neutral Citation Number: [2008] EWCA Civ 1573
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER DISTRICT COURT
(HIS HONOUR JUDGE TYZACK QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 26th November 2008

Before:

LORD JUSTICE THORPE
LORD JUSTICE RICHARDS
and
LORD JUSTICE GOLDRING
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IN THE MATTER OF R (A CHILD)

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Mr M Whitehall (instructed by WBW Sols) appeared on behalf of the Appellant.

Ms T Cook (instructed by Devon County Council) appeared on behalf of the First Respondent (Local Authority).

Ms L Price (instructed by Stones Sols) appeared on behalf of the Second Respondent (Father).
Ms J Ahmed (instructed by Cartridges Sols) appeared on behalf of the Third Respondents (Grandparents).
Mr C Godfrey (instructed by Tozers Sols) appeared on behalf of the Fourth Respondent (Guardian).
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Judgment

Lord Justice Thorpe:

1.	This is an appeal from a fact-finding decision of HHJ Tyzack QC, sitting in Exeter on 5 September 2008.  I say at once that we do not have the advantage of a transcript of the judgment below.  All we have is a note, and when that note was submitted to HHJ Tyzack for his approval he commented: 

“Although I am prepared to approve the note as amended it is not an actual transcript of all that I said in my judgment.  This conveys the sense of my findings but I am concerned that some paragraphs may well have been quite innocently omitted.”

2.	So I am hesitant in making any detailed analysis or criticism of the judgment given that reservation.  However, the outcome of the trial was that the judge held that two separate fracture injuries sustained by this baby of very inexperienced parents were non-accidental.  The judge rejected the explanations put forward by the parents and in those circumstances, since there was no other possible perpetrator, the likely answer to the ninth question posed by the local authority as to the identity of the perpetrator, the likely answer would have been either mother or father, since the judge had rejected all explanations advanced, and since that was the outcome that was generally anticipated at the Bar.  However, to the surprise of the Bar the judge decided that admissions that emerged from the father during the trial process were not credible, but they were advanced simply to protect the mother and that ergo the father could be exonerated as a possible perpetrator.  That conclusion did not, as it were, remove the father from professional assessment, because the judge went on his final paragraph to say: 

“[S] would be at significant harm whether with her mother or father or both.  This is not the end of the case.  There needs to be a psychiatric assessment of mother and a risk assessment of both parents.”

Given that conclusion it is hardly surprising that on 9 October an application for permission to appeal was lodged in this court by the mother.  Papers were put before me and on 8 October I directed an oral hearing on notice with appeal to follow if permission granted.  

3.	One can well understand the position of the mother.  Let us assume that she knows herself to be innocent.  Add to that, the father has himself accepted responsibility.  How can she have confidence in the justice of a judicial conclusion that she alone is responsible for the injuries?  It is not surprising to me that her appeal is generally supported.  She has the support of the father through Ms Price: hardly surprising.  What is important is she has the support of the guardian ad litem.  Mr Godfrey has submitted a skilful skeleton in which he says, in paragraph 7: 

“The central concern is that the decision appears to be one which was not squarely based on the evidence available to the court but rather appears to have been based on a large measure of speculation.”

I for my part think that analysis is well expressed, and Mr Godfrey goes on in paragraphs 12, 13 and 14 to show that the judge’s speculative conclusion is in conflict with some important areas of evidence.  

4.	So what is the position of the local authority?  Well, in the court below they had asked the judge to conclude that either parent -- either the mother or the father -- were possible perpetrators and neither could be exonerated.  So one might have expected the local authority to join the general chorus.  But Ms Swift, whose skeleton was filed first in time, had taken the decision that, although the case appeared to be one in which the order below ought to be replaced by a finding that neither parent can be ruled out, she, in her conclusion, said that the appeal should be rejected on the basis that it was all for the judge to assess, since he had seen and heard the parents.

5.	Accordingly, this morning we have invited Ms Swift to reconsider her position in the light of the later filed skeletons; and although she has not wished to consent to the allowing of the appeal, she has sensibly said that she will not oppose that course and accordingly this appeal is allowed.  The order below does not record the judge’s findings; they are to be taken only from the note of judgment and all that we need do is to answer question 9 in this different language: the perpetrator was either the father or the mother.  That will sufficiently achieve the objective for which Mr Whitehall strives.  That is the order I propose.

Lord Justice Richards:  

6.	I agree.

Lord Justice Goldring:  

7.	I too agree.

Order:  Appeal allowed