Mother secures fresh hearing over finding she was perpetrator of serious injuries

The Court of Appeal has allowed an appeal by an unnamed mother against a ruling by a judge that she was the perpetrator of serious physical injuries inflicted on baby B.

In Re B (A child) (Fact-finding) [2023] EWCA Civ 905 Lord Justice Baker said he found HHJ Mitchell’s reasoning was “insufficient” and her handling of some evidence “was to my mind not acceptable”.

The mother is aged 25 and the father 20. B was born in October 2021 and in that December, the mother noticed that B’s left leg was hard and swollen. An X-ray revealed an oblique fracture of the mid-shaft of the left femur, a fracture to the left proximal tibial metaphysis, seven healing rib fractures and other changes to five more ribs.

After this the unnamed local authority started care proceedings and secured an interim care order. On discharge from hospital, B was placed in the care of his paternal grandmother where he remains.

The court heard that in August 2022 the father raised the possibility that he had inflicted the injuries to B. The mother said the father told her more than once that he had caused the injuries but could not remember doing so and that she had not hurt the baby. The mother later said that she thought he was testing the waters to see how a confession might be received.

But the father’s case was that he was exploring whether he could have injured B, having found his memory of the early weeks of the baby’s life to be “a blur”. He denied saying that he had caused the injuries.

A fact finding hearing was held in April 2023 at which the local authority, supported by the guardian, amended its case to plead that the mother was responsible for B’s injuries.

HHJ Mitchell found that in the first five weeks of B’s life the mother had been under enormous stress and pressure as a result of health difficulties, that she loved B and would never harm him intentionally, and that the injuries had been caused as a result of a loss of control rather than any malice or intention.

She found that the father had behaved selfishly and inconsiderately towards the mother and failed to notice that B’s leg had been harmed.

HHJ Mitchell had said: “Having found that the mother caused the leg injuries, and that there is only one perpetrator in this case, it follows that I find that the mother caused the rib fractures also. I cannot say with certainty when within the radiological windows this happened, the mother had lots of time when she was alone caring for B in those periods.”

She had added: “It is absolutely clear that the mother had a terrible night on 14 to 15 November, of the sort which could cause the most loving mother to lose control. The fact that B was relatively settled on the 15th and 16th does not mean that the fractures were not present. She says they had lots of sleep then and once he got to sleep and was still, then the pain of the rib fractures would not be so distressing for him, according to Dr Chawla's evidence.”

The judge had said the father had insufficient opportunity while alone with B to cause the injuries.

Baker LJ concluded: “I regret to say, however, that I have reached the conclusion that the judge’s findings as to the perpetrator of B’s injuries cannot stand.”

He explained: “The findings cannot stand, not because they are necessarily wrong, but because of the way the judge arrived at her conclusion.

“First, the reasoning is, in a number of respects, insufficient and flawed. Secondly, in reaching her ultimate conclusion, the judge failed to take into account some material factors. Thirdly, she looked at the evidence in compartments and did not have regard to each piece of evidence in the context of the totality of the evidence before making her findings.”

An appeal court is bound to assume that the trial judge has taken the whole of the evidence into consideration unless there is a compelling reason to the contrary, which was the mother’s contention.

Baker LJ said: “The judge's findings are really based on a linear process that eliminated the father and therefore led to the conclusion that the mother was the perpetrator.

“Put simply, the line of reasoning was as follows: (1) the leg fracture cannot have been sustained during the very limited occasions when B was in the sole care of the father; (2) it cannot have been inflicted by the father when the mother was in the house because she would have heard a change in cry; (3) therefore, it must have occurred when B was in the sole care of the mother before the father returned home…and (4) since there can only have been one perpetrator for all of the injuries, the mother must also have inflicted the rib fractures on one or more occasions when B was in her sole care.”

He said: “I find the judge’s reasoning insufficient [and] I have further concerns about the process by which the judge reached her findings.

“In reaching her ultimate conclusion, the judge failed to take into account some material factors, looked at the evidence in compartments and did not have regard to each piece of evidence in the context of the totality of the evidence.”

He said HHJ Mitchell’s handling of expert evidence “was to my mind not acceptable” as she “did not take the expert evidence as to timing into account as part of her assessment of the totality of the evidence before reaching her finding as to the perpetrator”.

She should have considered whether that evidence indicated that the father might have injured the child and weighed it against the evidence that the mother was the perpetrator.

Evidence from the father was obviously relevant “yet when it came to considering her finding, the judge seems not to have taken them into account at all.

“Instead, having made the finding that the mother was perpetrator,…the judge then relied entirely upon that finding to conclude that ‘it follows’ that the mother had manipulated the father into exploring the possibility [that he suffered] blackouts.

“That reverse engineering did not, however, explain the father’s comments [on the possibility of having harmed B] which the judge had found difficult to make sense of and with which she had ‘struggled’. This is another example of the judge putting evidence into different compartments and not considering each piece of the evidence in the context of the totality.”

Baker LJ called HHJ Mitchell’s treatment of the rib fractures “peremptory”. She found that the mother was responsible for the leg fracture “and on that basis simply concluded that she was also responsible for the rib injuries because it had been agreed that there was only one perpetrator for all of the injuries.

“But in my view the judge should have looked more closely at the evidence about what was happening in the period when the rib fractures were sustained before reaching her finding as to the perpetrator, rather than base her conclusion on the narrow process of elimination described above.”

He ordered a fresh fact-finding hearing by another circuit judge and stressed he had reached no view on who caused B’s injuries.

Lord Justice Lewis and Lord Justice Snowden agreed.

Mark Smulian