Family Law Hub

P (Children) [2013] EWCA Civ 1475

Application by M's partner for permission to appeal a finding that it was more likely than not that M's daughter had suffered a non-accidental injury and that the perpetrator was her partner. This finding was made even though the judge said that the medical evidence was equivocal. The application was granted because the judge considered not only that there was an argument with a real prospect of success but also that the seriousness of the consequences for the partner provided a compelling reason to grant permission.

  • Case No: B4/2013/2153

    Neutral Citation Number: [2013] EWCA Civ 1475




    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 22nd October 2013



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    (DAR Transcript of

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    The Applicant Father (Intervener below) appeared in person, assisted by the mother's father

    The Respondent did not appear and was not represented

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    (As Approved)

    Crown Copyright

    Lady Justice Gloster:

    1. This is an application for permission to appeal against a judgment of Miss Recorder Judd, given on 28 June 2013. Recorder Judd QC was sitting as a Deputy High Court Judge in the Telford District Registry. This is a private law case concerning two children, R and KP. R was five at the time, as he was born on 20 September 2007. K was born on 2 October 2009, so she is three-and-a-half. Their mother is TP and their father is RP. The mother and father are separated.

    2. The application for permission to appeal is made by JM, the intervener ("Mr M"). In the judgment the judge set out the relevant facts. These included the fact that in February 2011, by which time the mother and father had separated, the mother met Mr M on an internet dating site. On 30 April K was taken to hospital by ambulance after apparently suffering a fit in her cot at home just before 7.00 in the evening. Mr M was at the house at the time. Mr M discovered K having a fit. By the time the ambulance arrived K seemed much improved, and at the hospital it was decided that she had probably suffered from a seizure. She was discharged the same day, and the mother was told to take her back home. The same thing happened again. Over the following days K had repeated bouts of vomiting and seemed unwell. She was in hospital on various days in May. On 17 May an MRI scan was performed, which revealed that she had bilateral subdural collections. On 18 May an ophthalmological examination was conducted by a trainee, who concluded that he detected some small retinal haemorrhage in the left eye. On 20 May the examination was repeated by Miss Williams, a consultant, and she saw one small retinal haemorrhage at the posterior pole above the left optic disc. As a result of these findings, non-accidental injury was suspected. The police and social services were informed. Mr M and Mrs P were arrested and interviewed under caution, and on 20 May 2011 both children went to live with their father. The father then issued the proceedings in July 2011. Subsequently the mother gave birth to her third child, Ka, in April 2012. Mr M is the father of Ka.

    3. At the hearing, Mr M was joined as an intervener, and the children were made parties and separately represented. Mr M challenges, and seeks permission to appeal against, the judge's conclusion, which is basically summarised in paragraphs 62 to 69 of her judgment. In particular, she concludes that

    "Taking all the evidence in the case together, the medical and the non-medical, I have come to the conclusion that it is more likely than not that K suffered a non-accidental injury at some point in the later part of the day on 30 April and that the perpetrator was Mr M. I do not find that there was an earlier non-accidental injury."

    The judge went on to say in paragraph 63:

    "The medical evidence is equivocal, and it seems to me could point to either a natural or a traumatic cause for the retinal haemorrhage and the fit. The medical evidence does not provide a neat fit or solution for this case, but is clear that the findings are consistent with a traumatic cause and indeed there are several issues that support this as being likely."

    The judge went on to base her conclusion, notwithstanding that the medical evidence was equivocal, on the fact that Mr M lied. She appears from that fact to have concluded that he was responsible for what she concluded was a non-accidental injury. She concluded that it was unlikely that Mr M intended to cause K any harm, but said in paragraph 67:

    "The injury most probably occurred in a moment of panic or momentary anger when he had been left alone with her and with R. Unless he chooses to reveal it, the precise circumstances will remain unknown."

    4. On the basis of the judgment, and some of the medical evidence to which I have been referred by Mr M and by Mr B (Mrs P's father, who is here in court today to her knowledge) I conclude that it is realistically arguable that the judge did not have sufficient evidence to come to the conclusion that Mr M was responsible for a non-accidental injury to K at some point in the later part of the day. I am not saying that that is my conclusion. I am simply saying that there is a real, and not fanciful, argument that she did not have enough material to come to what was a very serious conclusion so far as Mr M was concerned. In particular, apart from the fact that the medical evidence was, in the judge's words "equivocal", it is clear that K suffers from a condition known as widened, or large, sub-arachnoid spaces, which arguably may have been a reason for the retinal haemorrhages, which were noticed on 18 and 20 May. It is also clear from the evidence before the judge that the doctors were saying that the bilateral subdural collections that were revealed by the MRI scan were of some considerable age and could not have been caused by anything that occurred on 30 April 2011.

    5. Whilst, therefore, retinal haemorrhages could in certain circumstances be consistent with an inflicted injury, ie a non-accidental injury having occurred, it was clearly, as the judge herself said, equivocal evidence at its highest. It was at least arguably an unsatisfactory platform upon which to base a conclusion dependent upon the mere fact that the applicant, Mr M, had in one case told lies about what had occurred on 30 April and had elaborated or exaggerated an incident between K and the dog that had also occurred on that date. That was particularly so in circumstances where it was clear from the medical evidence before the judge that Mr M had serious mental health problems at the time, and the judge had before her a copy of a psychological report relating to Mr M, who was clearly suffering from depression at the time of the hearing.

    6. For these reasons I have a concern about the conclusions reached by the Recorder on the basis of the evidence before her. Accordingly I take the view that it is appropriate that I should grant permission to appeal. I consider not only that there is an argument with a real prospect of success but also that the seriousness of the consequences for Mr M provide a compelling reason to grant permission. He has explained to me that for practical reasons the judgment is preventing him from having access to his three older children and to Ka. For all those reasons it is appropriate that he should have an opportunity to argue his case before the full court.

    7. However, I am extremely concerned as to Mr M's ability, even with the assistance of Mr B, properly to present his case to the Court of Appeal. I urge him to go and visit the Bar Pro Bono Unit, which may be situated in Chancery Lane here. If it is not, he may be able to find it on the Internet. I suggest that Mr M sees if he can obtain some sort of legal representation. For the purposes of the appeal he will need to identify with clarity those passages in the medical reports which were before the judge, which demonstrated, or which he can argue demonstrated, that the injuries, the retinal haemorrhages, were not necessarily consistent with any non-accidental injury. It is also important for there to be an analysis for the purpose of any appeal as to the strength or weakness of the other evidence that was before the judge upon which she appears to have reached her conclusion that, because effectively you lied and exaggerated, he was responsible for the non-accidental injury. So, in those circumstances, he will have a difficult task if he does not get some kind of legal assistance.

    8. The constitution should be two Lords Justices, one at least with family law experience. A time estimate of two-and-a-half to three hours. It should only take a morning or an afternoon, but that will depend on the ability of your legal representatives to present the case.

    Order: Application granted

Judgment, published: 19/11/2013


Published: 19/11/2013


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