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Problems with a fact-finding hearing

Spotlight iStock 000003933485XSmall 146x219The Court of Protection team at 39 Essex Chambers look at the lessons from a Court of Appeal ruling that a judge’s fact-finding exercise was fatally flawed.

The appeal in Re M-B (Children) [2015] EWCA Civ 1027 arose from a fact-finding exercise in a family case involving the death of a 10-month-old baby, A. The cause of A’s death could not be ascertained but during post mortem examination, at least seven fractures were discovered which had occurred prior to the date of his death, affecting all four long bones and in five distinct locations. At the time of his death he was living with his mother (EB) and her partner (FB). He also visited his father (CM). As a result of the post mortem findings, EB’s four other children were taken into care.

The local authority sought to appeal the fact finding judgment on the basis that the judge was wrong not to make findings on the evidence that the fractures were the result of non-accidental injury and to identify the probable perpetrator, or otherwise the pool of possible perpetrators.

The appeal was allowed. The Court of Appeal held that the judge’s fact-finding exercise was “fatally flawed in all matters relating to the central and significant issue of A’s injuries, and the judgment rendered unreliable” and incapable of forming the basis of any future welfare evaluation of the children’s needs.

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The flaws included: confused and partial reliance on the ‘unequivocal’ medical evidence; an incorrect assumption that the local authority’s reliance on a lack of a satisfactory explanation necessarily indicated a reversal in the burden of proof (given the medical evidence); contradictory findings; and a “bewildering, confused and, in the absence of a finding of culpable harm, unnecessary attempt at attribution of fault”.

Despite the local authority’s request, it would not be appropriate for the Court of Appeal to substitute its own findings of fact in place of the first instance judge in circumstances where it had not heard the evidence and evaluated the witnesses. The hearing would be conducted de novo.


For those drafting a schedule of facts for local authorities in COP cases, the judgment contains a clear (and stern) warning that such schedules should focus on the substantive issue and should not descend into trivia. In a case where the local authority was asking the court to make a finding that a child had suffered serious, non-accidental injuries, “the local authority prepared a schedule of numerous findings they asked the court to make, which descended to the fact that the mother smoked in the family home […] the unnecessary distraction created does not assist the parties, case management or the efficacious use of valuable court time”.

This article was written by the Court of Protection team at 39 Essex Chambers.

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